The Constitution aims to establish a secular State. The concept of secular State, envisaged by the Constitution, is that the State will not make any discrimination whatsoever on the grounds of religion, caste or community against any person professing any particular form of religious faith. No particular religion will be identified as State religion nor will it receive any State patronage or preferential status. The State will not establish any State religion; nor will the State accord any preferential treatment to any citizen or discriminate against him simply on the ground that he professes a particular form of religion. The fact that a person professes a particular religion will not be taken into consideration in his relationship with the State or its agencies.
Although the term secular was not included anywhere in the Constitution, as it was originally adopted on November 26, 1949, the founding fathers of the Constitution were clear in their mind as to what they meant by secularism. Dr. B. R. Ambedkar, Chairman of the Drafting Committee, while participating in the debate in Parliament on the Hindu Code Bill in 1951, explained the concept of secular State as follows:
“It (secular State) does not mean that we shall not take into consideration the religious sentiments of the people. All that a secular State means is that this Parliament shall not be competent to impose any particular religion upon the rest of the people. This is the only limitation that the Constitution recognises.”
In the Constituent Assembly itself several members had expressed similar views in more elaborate terms.
The Forty-second Amendment to the Constitution, 1976 sought to make the position explicitly clear by introducing the term ‘secular’ as part of the Preamble to the Constitution. As a result, the Preamble now reads : “We, the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic…”.
Secularism is a Western concept. In its evolution over the centuries, it took an anti-religious character. Later, the secular movement somewhat modified its totally hostile stand towards religion due to the influence of democratic ideas of tolerance and freedom of conscience. Yet it continued to oppose the use of religious institutions and religious motivations in the legal, political and educational processes. So long as religion does keep to its own sphere, secularism is religiously neutral; it neither endorses nor disapproves of religiousness.
The concept of secularism as embodied in the Constitution of India cannot be viewed in the sense in which it is viewed in the West as described above but only in the context of the following provisions of the Constitution. The Constitution guarantees freedom of conscience, freedom to profess, practise and propagate religion and also freedom to establish religious institutions and manage or administer their affairs. It prohibits discrimination on grounds of religion and guarantees legal and social equality to all by providing for equality before the law and equal protection of laws, prohibiting discrimination with regard to places of public importance and providing for equal opportunity in matters of public employment. The Constitution also guarantees to the religious minorities the right to establish and administer educational institutions of their choice and to conserve their script, language and culture.
These provisions would naturally indicate that our Constitution endeavours to build up in India the philosophy of secularism on freedom, equality and tolerance in the field of religion. And viewed in this context, it is clear that the Constitution of India does not build a wall of separation between the State and religion. The essence of secularism is that the State is non-partisan in its relations to citizens, no matter to whatever religion they belong to.
Thus, the distinguishing features of a secular democracy as contemplated by the Constitution of India are : (1) that the State will not identify itself with or be controlled by any religion; (2) that while the State guarantees to everyone the right to profess whichever religion he chooses to follow (which also includes the right to be an agnostic or an atheist), it would not accord any preferential treatment to any of them; (3) that no discrimination will be shown by the State against any person on account of his religion and faith; (4) that the right of every citizen, subject to any general condition, to enter any office under the State will be equal to that of his fellow citizens. Political equality which entitles any Indian citizen to seek the highest office under the State as opposed to what obtains in a theocratic State is the heart and soul of secularism, as envisaged by the Constitution.
The judicial function is, indeed, a delicate and difficult one. It involves the process of deciding what is just in a controversy between two or more contending parties. If the parties have no confidence in the impartiality of the judiciary, justice becomes merely a word. Man’s long struggle has been to live under a government of laws, not of men. Equal justice under law has for long been his cherished ideal, a system under which the same law is applicable to all alike. Man has in all ages been striving to escape the regime that dispenses justice according to the political or religious ideology of the litigant or the whim or caprice of those who run the government. As a consequence of this struggle, there was established a principle of abiding value that no judiciary can be impartial unless it is independent. In fact, the judicial process ceases to be judicial the moment those who seek to judge cease to be independent of every form of external influence. Hence, the importance of judicial independence.
The framers of the Constitution were aware that democratic freedoms were meaningless in the absence of an independent machinery to safeguard them. No subordinate or agent of the government could be trusted to be just and impartial in judging the merits of a conflict to which the government itself was a party. Similarly, a judiciary subordinate either to the Centre or to the States could not be trusted as an impartial arbiter of conflicts and controversies between the Centre and the States. These were the compelling reasons for the creation of an independent judiciary as an integral part of the Constitution and for the adoption of judicial independence as basic principle of the Constitution.
In its bid to establish complete independence of the judiciary, the Constitution has first erected a wall of separation between the executive and the judiciary. After effecting such separation, it has created conditions that are conducive to making the judiciary independent. Thus, rigid qualifications are laid down for the appointment of judges and provision has been made for compulsory consultation of the Chief Justice of India in the appointment of every judge of the Supreme Court and the High Courts. The judges are appointed for a fixed period and their conditions of service cannot be altered to their disadvantage, once they are appointed. They are given high salaries and their conduct is made a subject beyond the scope of discussion in the legislature. They can be removed from office only for proved misbehaviour. For this purpose, both the Houses of Parliament will have to pass resolutions against a judge, supported by a two-thirds majority of those who sit and vote and at least an absolute majority of the total membership of the House.
The judiciary in India, even under the British rule, was noted for its integrity and independence. Under the Constitution, its position has been made doubly secure so that it can become in reality the most impartial arbiter of the conflicts and controversies which fall within its jurisdiction. Anyone can approach it to secure the restoration of any Fundamental Right whenever it is violated.
Federalism stands for a union or association of States resulting in the formation of a composite State with a separate and distinct Government at the Centre. The Government at the Centre and the governments in the States share on an agreed basis the totality of government power. There is, however, no rigid formula for such sharing of power. Hence, the federal form of government is an elastic form of government depending on the manner in which power is shared between the Centre and the States. The United States of America, Switzerland, Canada, Australia and Germany, to cite some of the leading examples of federations; each have a varying pattern of relations with their respective Central Governments and those of the States. However, the basic objectives of federalism such as unity in diversity, devolution of authority and decentralisation in administration are clearly evident in everyone of them.
India is a land of immense diversity with an essential basic unity. The diversity of India is tremendous; it lies on the surface and anybody can see it. And yet, beneath the diversity of physical and social features, language and custom, race and religion, there exists an underlying unity and uniformity of life and living habits from Kashmir to Kanyakumari and from Gujarat to Nagaland. The framers of the Constitution could not ignore these basic characteristics and they turned to federalism as a solution to a number of problems they confronted in their attempt at framing a Constitution of a new united India. Particularly, they wanted to preserve both the “infinite variety and the innate unity” that animated the length and breadth of India.
The choice of federalism as the constitutional form and as the basis of a national government in India was not a sudden development upon the transfer of power on August 15, 1947. It was there for many years albeit in a limited form; it was already in operation in British India. For the solution to the constitutional problem of a multiracial, multilingual and multicommunal country like India, with a vast area and a huge population, federalism was only a natural choice. Nevertheless, the framers were cautious to ensure that the unity they sought to establish through federalism was of an abiding nature and in case of a future conflict between unity and that diversity preserved under the Constitution, the former should prevail over the latter.
Cabinet System Of Government
The most distinctive characteristic of a Cabinet System of government is the complete and continuous responsibility of the executive to the legislature. The Cabinet is composed of the Prime Minister, who is the chief of the executive and his senior colleagues who share the responsibility with him for the formulation and execution of the policies of the government. In contrast to a system of checks and balances under the Presidential System of the United States of America, the Cabinet System embodies the principle of concentrated authority under strict control. The Cabinet is the central shaft to which all the other agencies of the government are geared. Individual members of the Cabinet are heads of the different departments of the administration. Collectively, the Cabinet shapes the programme of legislation which is submitted to Parliament and from it emanate the broad and general policies. Parliament also checks and controls the performance of the administration. Thus, the Cabinet System facilitates, on the one hand, the intimate cooperation between the executive and the legislature and on the other, ensures the responsibility of the executive to the legislature, the representative of the people.
Under the Cabinet System, the Head of the State occupies a position of great dignity but practically all authority, nominally vested in him, is exercised by the Cabinet or the ministry which assumes full responsibility for acts performed in his name. The unity and collective responsibility of the Cabinet are achieved through the Prime Minister, who is the Keystone of the Cabinet Arch. His colleagues in the Cabinet are appointed on his recommendation and they always go out of office along with him. He is, thus, central both to the formation and the dissolution of the Cabinet.
The real merit of a Cabinet System is that the executive being responsible to the legislature is always being watched. The moment it proves unequal to the task or it goes off the track or flouts the will of the legislature, it can be removed from office by a successful vote of no-confidence. Under the modern party system, if the party in office has a stable majority in the legislature, the Cabinet may wield overwhelming power, so long as the members of the party are solidly behind it. Under such conditions, as Herman Finer puts it, the Cabinet although creature of Parliament becomes a creature which leads its creator. But under different conditions, Parliament will assert and no Cabinet will be able to dominate. The Constitution of India has adopted as a basic principle the British Cabinet System almost in its entirety. The only special feature of the Indian Constitution which deserves special mention in this context is the position of the Prime Minister. The Constitution expressly gives him a distinctly superior position by making him the Head of the Council of Ministers. In Britain, although in practice, the Prime Minister holds a superior position, he is, at least in theory, described as the First Among Equals.