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With Independence came the need of a Constitution. As suggested by M N Roy (a pioneer of communist movement in India and
an advocate of Radical Democratism) in 1934, a Constituent Assembly was formed for this purpose in 1946 and on January 26,
1950, the Constitution came into being. However, various features of the Indian Constitution and polity have their roots in the
British rule. There are certain events in the British rule that laid down the legal framework for the organisation and functioning
of government and administration in British India.
Broadly speaking, it is a set of rules, written and unwritten, that seeks to establish the duties, powers and
functions of the various institutions of government, regulate the relationships between them and define
the relationships between the state and the individual.
In Indian administration, these terms were used for the first time in the Government of India Act, 1919
(Montague-Chelmsford Reforms)
Diarchy: It meant Dual Government The Provincial subjects of administration were to be divided into two
categories Transferred and Reserved. The transferred subjects were to be administrated by the
Governor with the aid of Ministers responsible to the Legislative
Council. The reserved subjects were to be administered by the Governor and his Executive Council without
any responsibility towards the Legislature.
Devolution Rules: Through these Rules, subjects of administration were divided into two categories
Central and Provincial. Subjects of all-India importance (like Railways, Finance) were brought under
the category of Central, while matters relating to the administration of the provinces were classifiedas
provincial.
Indian Councils Act, 1861
(i) Policy of Association of Indians in legislation
started;
(ii) Portfolio system was introduced;
(iii) For legislation; Executive Council of Viceroy
was enlarged by 6 to 12 members composed of half non-official members. Thus foundation of Indian
Legislature was laid down;
(iv) Legislative powers of the Presidency Governments, abolished in 1833, were restored; and
(v) Viceroy could issue ordinances in case of emergency.
(v) Secretary of State for India was now to be paid from British revenue; and
(vi) Diarchy was introduced in provinces by dividing subjects of administration between official members
and elected members.
Simon Commission In November 1927 itself (i.e., 2 years before the schedule), the British Government announced the
appointment a seven-member statutory commission under the chairmanship of Sir John Simon to report on the condition of
India under its new Constitution. All the
members of the commission were British and hence, all the parties boycotted the commission.
The commission submitted its report in 1930 and recommended the abolition of dyarchy, extension of responsible government
in the provinces, establishment of a federation of British India and princely
states, continuation of communal electorate and so on.
To consider the proposals of the commission, the British Government convened three round table conferences of the
representatives of the British Government, British India and Indian princely states.
On the basis of these discussions, a White Paper on Consitutional Reforms was prepared and submitted for the consideration of
the Joint Select Committee of the British Parliament. The recommendations of this committee were incorporated (with certain
changes) in the next Government of Inida Act of 1935.
Communal Award In August 1932, Ramsay MacDonald, the British Prime Minister, announced a scheme of representation of
the minorities, which came to be known as the Communal Award.
The award not only continued separate electorates for the Muslims, Sikhs, Indian Christians, Anglo-Indians and Europeans but
also extended it to the depressed classes (scheduled castes).
Gandhiji was distressed over this extension of the principle of communal representation to the depressed classes and undertook
fast unto death in Yeravada Jail (Poona) to get the award modified.
At last, there was an agreement between the leaders of the Congress and the depressed classes. The agreement, known as Poona
Pact, retained the Hindu joint electorate and gave reserved seats to the depressed classes.
Governor-General;
(v) The India Council of Secretary of State for India was abolished;
(vi) Principle of separate electorate was extended further to include Anglo-Indians, Indian Christians and
Europeans also; and
(vii) A Federal Court was to be constituted with a Chief Justice and 10 other Judges. This was set up in
1937.
Indian Independence Act, 1947: This Act did not lay down any provision for the administration of India
but merely stated that from the appointed date (Aug. 15, 1947), in place of India as defined in the
Government of India Act, 1935, there would be two independent Dominions to be known as India and
Pakistan, and the Constituent Assembly of each Dominion would have unlimited powers to frame
and adopt any Constitution, and to repeal any Act of the British Parliament.
Points to be noted
constitution of india
Laws made before Charter Act of 1833 were called Regulations and those made after are called Acts.
Lord Warren Hastings created the office of District Collector in 1772, but judicial powers were separated from District collector
later by Cornwalis.
From the powerful authorities of unchecked executives, the Indian administration developed into a responsible government
answerable to the legislature and people.
The development of portfolio system and budget points to the separation of power.
Lord Mayos resolution on financial decentralization visualized the development of local self-government institutions in India
(1870).
1882: Lord Ripons resolution was hailed as the Magna Carta of local self government. He is regarded as the Father of local
self-government in India.
1921: Railway Budget was separated from the General Budget.
From 1773 to 1858, the British tried for the centralization of power. It was from the 1861 Councils act they shifted towards
devolution of power with provinces.
1833 Charter act was the most important act before the act of 1909.
Till 1947, the Government of India functioned under the provisions of the 1919 Act only. The provisions of 1935 Act relating to
Federation and Dyarchy were never implemented.
The Executive Council provided by the 1919 Act continued to advice the Viceroy till 1947. The modern executive (Council of
Ministers) owes its legacy to the executive council.
The Legislative Council and Assembly developed into Rajyasabha and Loksabha after independence.
Ans. This Art gives the state of Jammu & Kashmir a separate constitutional status. Laws passed by the
Indian Parliament apply to Jammu & Kashmir if they are accepted by the J. K. legislature.
Q.15 Is the preamble to the Constitution justiciable in character?
Ans. No. The preamble is not justiciable.
Q.16 What is the necessity of the Preamble?
Ans. The preamble is like an introduction to the constitution. The courts use the preamble to clarify: the
meaning of the Law whenever there is an ambiguity.
Q.17 Does the Indian Constitution recognize the principle of dual citizenship?
Ans. Though India is a federation, the principle of dual citizenship has not been accepted in the
constitution. All Indians are accepted as the citizens of India. There is no citizenship of the states.
Q.18 When was the Indian Citizenship Act passed?
Ans. Indian Citizenship Act was passed in 1955.
Q.19 Into how many categories are the Indian citizens divided?
Ans. Indian citizens are divided into two categoriescitizens by birth and citizens by adoption.
Q.20 What are the provisions of the Indian Constitution regarding integration or creation of new states?
Ans. The Indian Parliament by Acts passed that it can integrate new states into India or can create new
states out of the territory of an existing state or states.
Q.21 How many categories of fundamental rights of citizens has been recognized by the Indian
Constitution?
Ans. Originally the constitution conferred on the Indian citizens seven fundamental rights. They are (a)
right to equality (b) right to freedom (c) right against exploitation (d) right to religious freedom. (e) right to
education and culture (f) right to property and (g) right to constitutional remedies:. At present there are six
fundamental rights. Right to private property has been removed from the list of fundamental rights by the
44th amendment of the constitution.
Q.22 What is meant by equality in the eye of law?
Ans. Equality in the eye of law as provided by Art. 14 of the constitution mean that nobody is above the
law. Law applies to all persons equally.
Q.23 What are the freedoms granted to citizens by Art 19 of the Constitution?
Ans. Art 19 of the constitution grants six freedoms to the citizens They are right to freedom of
(I) expression, (2) to assemble peaceably and without arms (3) to form association, (4) to move freely in
India, (5) to five anywhere in India and (6) to adopt any profession or business.
Q.24 What Art of the Constitution forbids use of titles or honor conferred by foreign states?
Ans. Art 18.
Q.25 Is the right to work and employment recognized by Constitution?
Ans. No. The directive principle of the constitution declares right to work and employment as desirable.
But the directives are non- justiciable in character.
Q.26 Are the conferment of honour like Bharat Ratna or Padma Bibhusun violative of right to equality
under Art. 114?
Ans. No, because Bharat Ratna, Padma Bibhusun etc. are not considered as titles. They cannot be used
before or after the names of the persons on whom they are conferred.
Q.27 How the Indian Constitution seeks to protect children against exploitation?
Ans. Arts 24 of the constitution forbids employment of children in factories, mines, or in hazardous works.
Q.28 What categories of people can be imprisoned without trial?
Ans. Under Arts 22 (3) of the constitution enemy aliens and persons arrested under preventive detention
Acts can be imprisoned without trial.
Q.29 India is a Secular State. What does it mean?
Ans. Indian secularism means that the state does not have any established religion, that people are free to
practice and profess any religion and that the state does not show any preference to any religion.
Q.30 -What Arts of the Constitutions confer right to freedom of religion?
Ans. Arts 25 to 28 confer right to freedom of religion on the citizens.
Q.31 Is possession of private property a Fundamental Right?
Ans. Private property was a fundamental right before the passing of 44th amendment of the constitution.
Now the possession of private property is an ordinary legal right and not a fundamental right.
Q.32 -What Art of the Constitution confers right to constitutional remedies?
Ans. Art 32 of the constitution confer the right to constitutional remedies on the citizens.
Q.33 How many kinds of writs the Supreme Court or the High Court may issue in case of transgression of
Fundamental Rights?
Ans. The Supreme Court or the High Courts may issue five kinds of writs.
These are writs of (1) Habeas Corpus (2) Mandamus (3) Prohibition (4) Certiorari and (5) Quowarranto.
Q.34 What is Habeas Corpus? What Art of the Constitution provides for it?
Ans. Habeas Corpus: literally means that human person is sacred. Hence no man can be detained illegally.
Whenever a man is detained he must be produced before a court. This writ is a powerful safeguard against
arbitrary arrest and detention Art. 32 of the constitution provides for Habeas Corpus.
Q.35 -Do the members of the armed forces enjoy the Fundamental Rights given by the Constitution?
Ans. The parliament may restrict the fundamental rights by passing laws. Beyond such restrictions the
members of the Armed Forces enjoy their fundamental rights.
Q.36 -What are principal duties of the Indian Citizens?
Ans. Obeying the constitution, showing respect to the national flag and the national anthem, defending
Indias sovereignty, integrity, and unity protecting national properties and upholding Indias glorious mixed
culture and also showing respect to woman are the principal duties of the Indian citizens.
Q.37 -When were the duties of the citizens added to the Constitution?
Ans. Ten duties of the Indian citizens have been added to the constitution by the 42nd amendment to the
constitution.
Q.38 In what chapter of the Constitution and in what Arts are the Directive principles of the Constitution
given?
Ans. In chapter IV Arts 35-51 the directive principle of the constitution are given.
Q.39 -What is the principal difference between the directive principles and the fundamental rights?
Ans. The fundamental rights are justiciable while the directive principals are non-justiciable i.e. the
fundamental rights are enforced by the courts while the directives are not enforced by the courts.
Q.40 -Name four important directives given in the Indian Constitution?
Ans. (1) The states should provide help in cases of old age, unemployment and disability. (2) State should
strive to reduce inequality between individuals, groups and professions (3) State should promote and foster
rural cottage industries. (4) The state should provide compulsory free primary education to children below
14 years if age.
Q.41 Name two directives based on the ideal of socialism?
Ans. (A) The state should prevent concentration of the ownership of the means of production in the hands
of the few (Art. 39c).
(B) The state should provide help and assistance in case of unemployment and disability.
Q.51 What is the procedure through which powers have been distributed between the Union and the States
in India?
Ans. The Indian Constitution has not followed either the U. S. or the Canadian system of distribution of
powers between the federal government and the governments of the federating units. In the U. S. A. there is
only one list of powers of the national government. The residues belong to the states. In Canada there is only
one list of powers of the governments of the provinces and the residues belong to the central government. In
India there are three liststhe Union list, the State list and the Concurrent list. The residues belong to the
centre.
52 Under what circumstances the union government can legislate on subjects in the state list?
Ans. On three occasions the Union government may legislate on state subjects.(i) to give effect to an
international treaty, (ii) when the Rajyasabha by 2/3 majority authorized the Parliament under Art 249 to
legislate on any state subject, (iii) when one or more states request the union government to legislate on any
state subject.
53 Under what Art the President may constitute Inter State Councils and for what purpose?
Ans. Under Arts 263 of the Indian constitution the President may constitute Inter State Councils to regulate
the relations between the centre and the states or between the states.
54 Name four important subjects in the Union list?
Ans. Defence, Foreign relations, Citizenship and Banking are four important subjects in the Union list.
55 Name four important subjects in State list?
Ans. (i) Land Revenue, (ii) Law and order, (iii) Local government, (iv) Education up to the secondary
level.
56 What do you mean by Concurrent list? Name four important subjects in Concurrent list.
Ans. The concurrent list mentions the subjects on which the union and the state governments, both can
legislate but in case of conflict between a union and state law the union law prevails. Administrative and
criminal law, vagrancy, forests, protection of wild animals and birds are four important subjects in the
concurrent list.
57 Mention two circumstances when the Union Government can issue directives to the State Governments.
Ans. The union government may issue directive to the state government for the protection of the Railways
and Ports and also on subjects considered important in the national interest.
58 What is meant by residual powers?
Ans. In a federal constitution powers not mentioned in any list of powers given to the centre or the states is
known as the residual power. In India the residuary belongs to the union government.
59 Mention two taxes the proceeds of which are divided between the union and the state governments.
Ans. Non-agricultural income tax and excise duties except on cosmetics and medicines.
60 Mention four subjects on which the state government may impose taxes.
Ans. The state government may realize (i) sales tax, (ii) land revenue, (iii) amusement tax and taxes on (iv)
transportations.
SOME MCQS
Constitution of India was adopted by constituent assembly on ?
25 October, 1948
25 October, 1949
26 November, 1948
26 November, 1949
Answer: Option D
Note: Question is not about from when it came into effect.
Constitution of India came into effect from ?
15 January, 1950
26 January, 1950
15 August, 1950
15 January, 1950
Answer: Option A
Explanation:
Regulating Act of 1773 :
Governance of East India Company was put under British parliamentary control.Setting a supreme court in
Calcutta.
The Governor of Bengal was nominated as Governor General for Calcutta, Bombay and Madras.
Which Act is associated with Courts can interpret the rules and regulations. ?
Regulating Act of 1773
Pitts India Act of 1784
Answer: Option C
The Christian Missionaries were allowed to spread their religion in India, under the Act ?
Pitts India Act of 1784
Charter Act of 1813
Charter Act of 1833
Charter Act of 1853
Answer: Option B
Answer: Option D
The first statute for the governance of India, under the direct rule of the British Government, was the
Government of India Act, 1858
Government of India Act, 1861
Government of India Act, 1892
Government of India Act, 1915
Answer: Option A
LECTURE #2
FRAMING OF INDIAN CONSTITUTION
It was under the Cabinet Mission Plan of 1946 that the Constituent Assembly was constituted to frame a
Constitution for India.
The Constituent Assembly, which had been elected for undivided India and held its first sitting on Dec. 9,
1946, reassembled on Aug. 14, 1947, as the sovereign Constituent Assembly for the Dominion of India.
As a result of the partition under the Plan of June 3, 1947, a separate Constituent Assembly was set up for
Pakistan. The representatives of Bengal, Punjab, Sind,North-Western Frontier Province, Baluchistan and the
Sylhet district of Assam (which had joined Pakistan by a referendum) ceased to be members of the
Constituent Assembly of India, and there was a fresh election in the new Provinces of West Bengal and East
Punjab. (Hence, when the Constituent Assembly reassembled on Oct. 31,1947) the membership of the House
was reduced to 299. Of these 284 were actually present on Nov. 26, 1949, and appended their signatures to
the Constitution that was finally passed.
President of the Constitution Assembly was Dr. Rajandra Prasad.
Acceptance of the Constitution: On Aug. 29, 1947, the Constituent Assembly appointed a Drafting
Committee under the chairmanship of Dr. Ambedkar. This committee came out with a draft Constitution of
India in Feb. 1948
MEMBERS OF THE DRAFTING COMMITTEE
Dr. B.R.Ambedkar (Chairman)
N. Gopalaswamy Ayyanagar
Alladi Krishnaswamy Ayyar
K.M. Munshi
Mohd. Saadullah,
B.L. Mitter (later replaced by N. Madhava Rao)
Dr. D.P.Khaitan (replaced on death by T.T. Krishnamachari)
India
Salient Features of the Constitution of India
(i) A written and lengthy constitution
The Constitution of India is a single, written document (unlike the British constitution which is not a single,
written document, but is drawn from legislation, treaties, judicial precedents, convention, and numerous
other sources).
It was framed by a Constituent Assembly which was established for the purpose in 1946. As originally
adopted, it had 22 Parts, 395 Articles and 8 Schedules. A number of amendments, passed since its
enforcement in 1950, have also become a part of the Constitution.
The Constitution of India is the lengthiest constitution in the world as no other constitution contains as many
articles. The constitution of USA has 7 Articles, of China 138, Japan 103, and Canada 107 Articles.
(ii) Single Constitution
Unlike the US which is considered as role model of federalism, India has a single Constitution, that is, the
Indian states do not have separate Constitutions.
(iii) Sovereign, socialist, secular, democratic, republic The Constitution declares India to be a Sovereign,
Socialist, Secular, Democratic, Republic. The words, Socialist and secular were added in the Preamble of
the Constitution by 42nd amendment which was passed in 1976.
Sovereign means absolutely independent; it is not under the control of any other state.
Socialist Word Socialist was added in the Preamble by 42nd Amendment of the Constitution which was
passed in 1976. This implies a system which will endeavour to avoid concentration of wealth in a few
hands and will assure its equitable distribution.
Secular The word Secular, like Socialist, was also added in the Preamble by 42nd Amendment of the
Constitution. There is no state religion in India. Every citizen is free to follow and practise the religion of
his/her own choice. The state cannot discriminate among its citizens on the basis of religion.
Democratic It means that the power of the government is vested in the hands of the people. People
exercise this power through their elected representatives who, in turn, are responsible to them. All the
citizens enjoy equal political rights.
Republic It means that the head of the State is not a hereditary monarch but a President who is indirectly
elected by the people for a definite period.
(iv) Unique blend of rigidity and flexibility
Whether a constitution is rigid or flexible depends on the process of amendment. If the constitutional laws
and ordinary laws are amended separate ways, it is a rigid constitution.
On the contrary, in a flexible constitution, constitutional laws and ordinary laws are amended in the same
way. Some provisions of the Constitution of India can be amended by the Indian Parliament with simple
majority.
The amendment of most provisions of the constitution requires a special majority in both houses of the
parliament. There are some other provisions of constitution which cannot be amended by the parliament
alone.
In case of such provision the amending bill has first to be approved by both houses of parliament by a
special majority (with the support of two-thirds of the members of each house present and voting).
Then it has to be ratified by the legislatures of at least half of the states of India.
So, there is a balance between rigidity and flexibility in our constitution. Some amount of flexibility was
introduced into our constitution in order to encourage its growth.
(v) Patchwork, but a beautiful patchwork
The Indian Constitution is often referred to as a patchwork. It has been inspired and derived from various
sources. The best features of various constitutions have been incorporated in our constitution.
(vi) Parliamentary form of democracy
Indian Constitution provides for a parliamentary form of government. President is the nominal head of the
state. In actual practice, the government is run by the Prime Minister and other members of the Council of
Minister. The Council of Ministers is collectively responsible to the Parliament.
(vii) Fundamental rights and duties
The Constitution of India guarantees six fundamental rights to every citizen.These are:
Right to Equality.
Right to Freedom.
iii. Right against Exploitation.
Right to Freedom of Religion.
Cultural and Educational Rights.
Right to Constitutional Remedies.
The Constitution initially did not provide for Fundamental Duties. By 42nd Amendment of the Constitution,
ten Fundamental Duties of citizens have also been added. Currently there are 11 Fundamental Duties.
(viii) Directive principles of state policy
The Directive Principles of State Policy are listed in Part Four of the Constitution. The framers of our
constitution took the idea of having such principles from the Irish Constitution. These principles are
instructions given by the Constitution to government.
All the governments-Central, State and Local-are expected to frame their policies in accordance with these
principles. The aim of these principles is to establish a welfare state in India. They, however, are not binding
on the government-they are mere guidelines.
(ix) Single citizenship
In federation, normally we have double citizenship. In U.S.A. every citizen besides being a citizen of United
States of America is the citizen of the state in which he or she resides. But the Constitution of India provides
for single citizenship every Indian, irrespective of his place of birth or residence, is a citizen of India.
(x) Universal adult franchise
The constitution provides for Universal Adult Franchise (article 326). It means that every citizen who is 18
years of age or more is entitled to cast his/her vote irrespective of his caste, creed, sex, religion or place of
birth.
(xi) Affirmative action
The Constitution provides for affirmative action by the State to improve the conditions of the weaker
sections of society by providing reservations in the legislatures and government jobs (articles 15 & 16).
(xii) Independent judiciary
The Indian Constitution provides for an independent judiciary. The judiciary has been made independent of
the Executive as well as the Legislature. The judges give impartial justice.
(xiii) Independent agencies
The Constitution provides for some Independent Agencies to perform functions allotted to them. The
important agencies are Election Commission (article 324) Comptroller and Auditor General (article 148)
iii. Union and State Public Service Commissions (article 315) (iv) Finance Commission (article 280)
(xiv) Emergency provisions
The framers of our constitution had realised that there could be certain dangerous situations when
government could not be run as in ordinary time. Hence our constitution contains certain emergency
provisions. During emergency the fundamental rights of the citizens can be suspended and our government
becomes a unitary one.
The Constitution makes provisions for the proclamation of National Emergency under Article 352, State
Emergency under Article 356 and Financial Emergency under Article 360.
Lecture# 3
Preamble of Constitution , Union and its territories & citizenship
The American Constitution was the first to begin with a Preamble.
The term preamble refers to the introduction or preface to the CONSTITUTION.
It contains the summary or essence of the Constitution.
N A Palkhivala, an eminent jurist and constitutional expert, called the Preamble as the identity card of the
Constitution.
The Preamble to the Indian Constitution is based on the Objectives Resolution, drafted and moved by
Pandit Nehru, and adopted by the Constituent Assembly.
It has been amended by the 42nd Constitutional Amendment Act (1976), which added three new words
socialist, secular and integrity.
We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into
aSOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its
citizens: JUSTICE, Social, Economic and
Political; LIBERTY of thought, expression, belief,faith and worship; EQUALITY of status and of
opportunity; and to promote among them all; FRATERNITY assuring the dignity of the individual and the
unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of
November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Sovereign Republic
The Preamble begins with the words, We, the people of India., thus clearly indicating the source of all
authority under the Constitution. The Preamble establishes the ultimate sovereignty of the people of India
on whose authority the Constitution rests.
It points out the Constitution of India has been ordained by the people of India through their representatives
in Constituent Assembly.
In the present times, the term sovereignty may be losing rigid connotations of supreme and absolute
power acknowledging no superior -no modern state can be considered sovereign in that sense. However,
through the words of the Preamble, what is sought to be established is the oneness of the people of India (not
the people of different states but of one nation), that the sovereignty vests in the collectivity, and that the
people of India are not subordinate to any external authority.
With the enactment of the Constitution, India was no longer a dominion it was a republic.
IS PREAMBLE A PART OF THE CONSTITUTION?
The preamble of an Act is not recognised as part of the Act because it is not enacted and adopted by the
enacting body in the same manner as the acting provisions. The preamble of Indian Constitution was,
however, enacted and adopted by the same procedure as the rest of the Constitution. This difference was not
brought to the notice of the Supreme Court in Berubari Union and Exchange of Enclaves case where it
observed that the preamble is not part of the constitution.
Later when the constituent history of the preamble was brought to the notice of the Court in Keshavananda
Bharti v. State of Kerala it held that the preamble of the Constitution was part of the Constitution and the
observations to the contrary in Berubari Union case were not correct.
The recognition of the preamble as an integral part of the Constitution makes the preamble a valuable
aid in the construction of the provisions of the Constitution because unlike the preamble to an Act, the
preamble of the Constitution occupies the same position as other enacting words or provisions of the
Constitution.
A republic derives its powers directly or indirectly from the people and is administered by persons holding
their offices during pleasure,for a limited period, or during good behaviour (Madison).
India is a republic in that sense. From January 26, 1950 when the Constitution commenced, India ceased to
owe allegiance to the British crown. India has a President as head of the Union, elected indirectly for a fixed
term by the peoples representatives.
All citizens are equal in law, there is no privileged class, every citizen has the right to try for any public
office irrespective of caste, race, sex or religion.
Despite declaring itself a republic India remained a member of the Commonwealth of Nations.
Indeed the group of nations accommodated Indias status as a sovereign independent republic owing no
allegiance to th British Crown: the British Commonwealth of Nations became simply Commonwealth of
Nations. The King or Queen would be the symbolic head of he Commonwealth as far as India was
concerned, and the decisions at the conferences of the Commonwealth will not be binding on Indians.
Indias conduct would be based on free will. The decision to remain in the Commonwealth was in keeping
with the ideal of promoting international cooperation and peace a concept expressed in our Constitution.
Democracy
The term democracy has assumed different connotations for different people. But common to all forms of
democracies in the participation of the people directly or indirectly.
India has adopted the representative parliamentary democracy. The Constitution makes no provision for
direct control by the people through such devices as referendum and initiative. However, the people of
India exercise their sovereignty through a Parliament at the Centre and a legislature in each State elected on
the basis of universal adult franchise.
The Executive is responsible to the popular house of the Legislature.
Beyond political democracy, the Preamble also envisages social and economic democracy.
Equality in the political sphere gives each adult citizen the power to vote freely. Equality must also pervade
society and economic conditions, as far as possible.
Ambedkar considered social and economic democracy to be the real goals to strive for.
Jawharlal Lal Nehru too felt that political structure would weaken and disintegrate if socio-economic
problems like poverty and gross inequalities are not tackled and removed.
A vote, after all, does not mean much to a starving person. It is in this context that the Preamble speaks of
justice, equality, liberty and fraternity.
Socialism
While the original Constitution did not mention any particular ideology, it did give expression to the resolve
of securing to the citizens economic justice and equality of opportunity.
This is the essence of socialism. The word socialist was introduced in the Preamble by the 42nd The term,
however, is not defined in the Constitution. It may be pointed out that the socialism envisaged in India does
not mean abolition of private property or nationalisation of all means of production.
Thus a mixed economy was envisaged, along with provision of equal opportunity, abolition of vested
interests, and elimination of inequality in income and status and standards of living. In the present context of
economic liberalisation, however, the socialist credentials of our State may well be questioned.
Secularism
The term secular was inserted in the Preamble only in 1976, but the state envisaged by the Constitution
was always a secular state- it could not have been otherwise in a country of such a vast size and diversity of
culture and religions. Indeed, the fraternity and unity of the country could be built only on a secular basis.
The term secular, has not been defined in the Constitution but its operative meaning may be drawn from
the different provisions of the Constitution.
Discrimination on the basis of religion is forbidden to the State. Equality is assured to all irrespective of
religion. Freedom of faith, belief and worship is allowed to all.
The State is to be impartial towards all religions. Furthermore, the state does not uphold any particular
religion as the state religion, but protects all religions equally.
Justice
The Preamble speaks of social, economic and political justice. The concept of justice goes beyond its narrow
legal connotation. Significantly the words social and economic occur before the word political. Social
justice implies that discrimination on the basis of birth, caste, race, sex or religion should cease.
To that end all citizens should enjoy equal opportunities in the matter of public appointment.
It is the good of all people that the Government must strive to achieve. The concept of a welfare state as
envisaged in the Directive Principles is an embodiment of guidelines for ensuring the social justice expected
in the Preamble.
Economic justice implies that the gap between the rich and the poor is bridged, and the exploitation ceases.
Removal of poverty is to be achieved not by taking away assets from those who have but by ensuring a more
equitable distribution of national wealth and resources among those who contribute to its creation.
Thus the Directive Principles call upon the state to try and secure ownership and control over resources to
subserve common good, reduce concentration of wealth, ensure equal pay for equal work, and see that
people, especially women and children, are not abused or forced by economic want into work unsuitable for
their age or strength.
Political justice implies that all citizens should have equal opportunity to participate in the political system.
One person-one vote is ensured irrespective not only of caste, sex or religion, but also of proprietary or
educational qualifications. It is the basis of the political democracy envisaged in the Constitution.
Liberty
Democracy is closely connected with the idea of liberty; certain minimal rights must be enjoyed by every
person in a community for a free and civilized existence.
These basic rights are spelt out by the Preamble as freedom of thought, expression, belief, faith and worship.
The chapter on Fundamental Rights guarantees these freedoms explicitly, subject to certain regulations; after
all, liberty is not to degenerate into license if democracy is to survive.
Equality
Rights have no meaning if they cannot be enjoyed equally by all members of the community. To ensure that
it is possible for all to enjoy these rights, social and economic equality is sought to be achieved.
The Fundamental Rights enjoin the State not to discriminate between citizen and citizen simply on the basis
of caste, race, sex or religion. Public places are open to all citizens, titles of honour stand abolished,
untouchability is abolished, among other things.
The rule of law is to prevail:
All citizens are equal before law and enjoy equal protection of the laws of the land.
Political equality is provided by the principle of universal adult franchise and by allowing, at least in
principle, any citizen the opportunity to participate in the process of governance.
Economically, the same ability and work entitles persons to the same salary. Exploitation of individual or
group is to be removed.
Fraternity
A democratic system would function in a healthy manner only if there is a spirit of brotherhood of
oneness, among the people of the land.
India being a land of immense diversity is all the more in need of this spirit of unity the sense of belonging
to one nation.
The principle of common citizenship is directed towards strengthening this sense ofunity and integrity of
the nation.
Fraternity is also sought to be promoted by ensuring equal rights to all.
Fraternity, said Ambedkar, is the principle which gives unity and solidarity to social life.
It is the feeling that will protect the unity of India against external attack or disintegration through internal
unrest born of social, political and economic causes.
Fraternity, how ever is not possible unless the dignity of each individual is preserved and respected.
Maintaining this dignity requires the guarantee of certain minimal justiciable rightsto each individual. The
ensure that an individual is free from want and misery without which freedom, ideas of self-respect and
dignity are meaningless- the Directive Principles have been framed calling upon the State to form its
policies to benefit all citizens equally in the matter of providing adequate means of livelihood.
The State is also asked to provide just and humane conditions of work and create conditions in which a
decent standard of life and full enjoyment of leisure and social and cultural opportunities become possible
for all the people of this land.
It is in keeping with the principle of individual dignity that the practice ofuntouchability has been abolished
by the Constitution.
In the context of fraternity, it may also be mentioned that Indias Constitution goes beyond national
boundaries, and speaks of the ideal of universal brotherhood, an international fraternity with all nations and
peoples coexisting in peace and amity.
THE UNION AND ITS TERRITORY
Q.INDIAN TERRITORY IS OF HOW MANY TYPES?
The territory of India falls under three categories :
(i)State territories, (ii) the Union territories and (iii) territories which may be acquired by the
Government of India.
No Parliamentary legislation is required to acquire a foreign territory. It is the inherent attribute of a
sovereign State to acquire new territories. Article 1(3) (c), in including the acquired territory as part of the
Indian territory, merely states a factual situation and does not confer a power on Parliament to acquire
foreign territory.
The Union Territories are centrally administered according to provisions contained in Part VII of the
Constitution. They are governed by the President through an Administrator appointed by him.
At present there are 29 states in India.
Since 1987, there are seven Union Territories : Delhi, Andaman and Nicobar Islands, Lakshadweep, Dadra
and Nagar Haveli, Daman and Diu, Pondicherry and Chandigarh.
WHAT IS AN ACQUIRED TERRITORY?
A territory can be said to have been acquired when the Indian Union acquires sovereignty over such
territory.
The expression acquired should be taken to be a reference to acquisition as understood in public
international law. If there was any public notification, assertion or declaration by which the Government of
India had declared or treated a territory as part and parcel of India, the courts would be bound to recognise
an acquisition as having taken place, with the consequence that the territory would be part of the
territory of the Union within Articles 1(3) (c).
A statement by the Government of India that it did not consider a particular area to have been acquired by it
is binding on the Court.
Articles 1 to 4 under Part-I of the Constitution deal with the Union and its territory.
UNION OF STATES
Article 1 describes India, that is, Bharat as a Union of States rather than a Federation of States.
This provision deals with two things: one, name of the country, and two, type of polity.
There was no unanimity in the Constituent Assembly with regard to the name of the country.
Some members suggested the traditional name (Bharat) while other advocated the modern name (India).
Hence, the Constituent Assembly had to adopt a mix of both (India, that is, Bharat) Secondly, the country is described as
Union although its Constitution is federal in structure.
According to Dr B R Ambedkar, the phrase Union of States has been preferred to Federation of States for two reasons:
one, the Indian Federation is not the result of an agreement among the states like the American Federation; and two, the
states have no right to secede from the federation.
The federation is an Union because it is indestructible. The country is an integral whole and divided into different states
only for the convenience of administration.
Ques. 1: Bring out the significance of the expression Union instead of the expression Federation
in the Indian Constitution?
Ans. Moving the Draft Constitution for the consideration of the Constituent Assembly in 1948, Dr.
Ambedkar explained the significance of the use of the expression Union instead of the expression
Federation.
Two reasons are given Though the country and the people may be divided into different States for
convenience of administration, the country is one integral whole, its people a single people living under a
single imperium derived from a single source.
The expression- India is a Union of States was chosen as India was already a Union at the time of the
Constituent Assembly debates.
There are two expressions used in the context of governance in India- Union of India and Territory of
India the former includes States that share federal powers with the Union Government, the latter includes
not only States but all other units like UTs and soon. In other words, territory of India encompasses a larger
area than Union of India. That is, Territory of India encompasses the entire territory over which Indian
sovereignty is exercised while Union of India covers only the federal system.
Government of India can acquire any territory by purchase, treaty, cession, conquest or any other method,
administer it on the basis of Parliamentary Act.
The States and the territories, thereof are specified in the First Schedule. The territory of India comprises
of the territories of the States; the Union territories specified in the First Schedule; and such other territories
as may be acquired.
Ques. 2 : The amendment of the Article 2 and Article 3 are not to be deemed to be an amendment
under Article 368. Discuss?
Ans. Art.2 says that the Parliament may by law admit into the Union, or establish, new States on such terms
and conditions as it thinks fit.
Art 3. Formation of the States and alteration of areas, boundaries or names of existing States: Parliament
may by law:(a) form a new State by separation of territory from any State or by uniting two or more States or parts of
States or by uniting any territory to a Part of any State;
(b) increase the area of any State;
(c) diminish the area of any State; (d) alter the boundaries of any State;
(e) alter the name of any State;
The relevant Bill may be introduced in either House of Parliament only on the recommendation of the
President.
The Bill should be referred by the President to the Legislature/Legislatures of the State/States for expressing
views within such period as may be specified in the reference. Such period may be extended by the
President. The opinion of the State Legislatures is not binding on the President. The Bill can be introduced
in the Parliament- either House- only on the recommendation of the President. The Bill needs to be passed
by the Parliament by a simple majority.
Art. 4 says that laws made under Articles 2 and 3 to provide for the amendment of the First and the Fourth
Schedules and incidental and consequential matters are not to be deemed to be an amendment of this
Constitution for the purposes of Article 368.
Ques. 3 : The use of the provisions under Article 2 and Article 3 since independence has been truly
federal rather than unitary in nature. Examine the statement with examples?
Ans. A federation is one consisting of an. indestructible Union of indestructible States as in the USA. India,
though a federation, has Constitutional mandate for the abolition of a state. That is, in India, states are not
indestructible. A state can he abolished or merged with another state. Its boundaries, area and name can be
changed. The process is initiated by the Union Government and the role of the affected state is only to
express its opinion which is not binding on the Union Government. Parliament needs to pass the Bill only by
a simple majority. The Council of States (Rajya Sabha) which is the representative of states does not have
any special powers in this matter. Thus, the process is Unitary. However, there are certain aspects that
require consideration
President is given the power to refer the Bill to the state concerned. The Bill can not be introduced in the
Parliament without the Presidential recommendation. The President is unlikely to allow abuse of the power
by the union government.
The need for political integration after Independence even in the face of any provincial resistance was the
overriding factor.
The Constitution was drafted at a time when the country was partitioned and the danger from centrifugal
tendencies made the Constituent Assembly members feel the need for a strong centre.
It is true that the provisions in Art. 2 and 3 are unitary in content. But, as shown the use of the provisions is
truly federal.
The case of Pondicherry (Puducherry)
It is a former French colony. A treaty of cession was signed by India and France in 1956. It was ratified by
the French parliament in May 1962.
Till 1962, therefore, it could not be given the status of a Union Territory and was given the status of
acquired territory.
In 1962 India and France exchanged the instruments of ratification under which France ceded to India full
sovereignty over the territories it held.
It came to be administered as the Union Territory of Pondicherry from 1963. Its new name is Puducherry.
Parliament in 2006 passed a Bill to rename the Union Territory (UT) of Pondicherry as Puducherry in
response to the wishes of the people of the Union Territory expressed through a unanimous resolution by the
legislative Assembly in 1980.The Bill amends Part VIII, the First and Fourth Schedules of the Constitution
and the Government of Union Territories Act 1963.
Puducherry encompasses four regions Puducherry, Karaikal (near Nagapattinam in Tamil Nadu), Mahe
(near Thalassery, Kerala) and Yanam (near Kakinada, Andhra Pradesh).
The Case of Sikkim
Sikkim was originally a protectorate* of India. Reflecting the wishes of the people of Sikkim, the
Constitution (Thirty-fifth amendment) was passed in Parliament in 1974 to up-grade the status of Sikkim
from a protectorate to an associate state of the Indian Union.
Sikkim Assembly unanimously adopted a resolution in April, 1975, abolishing the institution of the Chogyal
(royalty) and declaring Sikkim as a constituent unit of India.
The Assembly also resolved to submit its resolution to the people of Sikkim by way of a general referendum.
Consequently, Parliament made the Thirty- sixth Constitution Amendment Act in 1975 and Sikkim became
the 22nd state of the Indian Union.
*In international law, a protectorate is a political entity that formally agrees by treaty to enter into a
relationship with another, stronger state, called the protector, which agrees to protect it (diplomatically or
militarily) against third parties, in exchange for which the protectorate usually accepts specified obligations.
Union Territories
The reasons for having UTs differ with the Union Territory in question. General reasons are: unique history;
geographical size/location; cultural heritage; Inter- State disputes; need for territories administered by the
Union Government.
Specific reasons are
Delhi capital of India.
Formation of States in India on the basis of languages in 1956 was because language represented relatively acceptable base
in comparison to other contending criteria like geography, ethnicity, ecology, economic development and so on.
States Reorganization Act 1956 and Constitution (Seventh) Amendment Act 1956
In order to understand the significance of the SR Act 1956 and the Constitution (Seventh) Amendment Act
1956, the nature of political and administrative organization under the British needs to be followed. British
India had two types of territories provinces, governed directly by British officials who were responsible to
the Governor-General of India and princely states under the control of local hereditary rulers having British
government as the sovereign but enjoying autonomy based on a treaty When India became Independent on
August 15, 1947, British dissolved their treaty relations with over 600 princely states, who had the option of
acceding to either India or Pakistan.
Most of the princely states joined India. Hyderabad was incorporated into India after armed intervention.
In the three year period during 1947-1950, the princely states were politically integrated into the Indian
Union- either merged with the existing provinces or organised into new provinces.
The Constitution of India, when it came into existence on January 26, 1950 had three class of states.
The nine Part A states, which were the former governors provinces of British India, were ruled by an elected
governor and state legislature:
The eight Part B states were former princely states or groups of princely states, governed by a Rajpramukhs,
who was often a former prince, along with an elected legislature. The Rajpramukh was appointed by the
President of India.
The ten Part C states included both the former chief commissioners provinces and other centrally
administered areas except Andarnan and Nicobar islands. The chief commissioner was appointed by the
President of India.
The States Reorganization Act 1956 brought about linguistic reorganization of the states under which
absorbed the former British provinces and princely states on the basis of language. The Seventh Amendment
to the Constitution (1956) abolished the difference between Part A and Part B states- both became states
constituting a single category. Part C states were renamed union territories.
The personal privileges of the princes the Privy Purse, the exemption from customs duty etc continued till
they were abolished in 1971.
CITIZENSHIP
The provisions of citizenship are covered by Articles 5 to 11 of Indian Constitution and are embodied in Part
II of the Constitution.
Article 5 refers to citizenship not in any general sense but to citizenship on the date of the commencement of
the Constitution.
Article to lay down a permanent law of citizenship for the country. That business was left to the Parliament
of India.
Accordingly, at the commencement of the Constitution, every person who had his domicile in the territory of
India and who was born in India, or either of whose parents was born in India, or
who had been ordinarily resident in India for not less than five years immediately preceding the
commencement of the Constitution, was to be considered a citizen of India.
Persons of Indian origin who had been residing outside India at the commencement of the Constitution were
given the free choice of becoming Indian citizens under the above provisions if they so desired. The only
condition that they had to fulfill in his connection was to get themselves registered as Indian citizens by the
diplomatic or consular representatives of India in the country where they were residing (Art. 8).
Articles 6 and 7 deal with two categories of persons, namely, those who were residents in India but had
migrated to Pakistan and those who were residents in Pakistan but had migrated to India. Those who
migrated from Pakistan to India were divided into two categories:
those who came before July 19, 1948 and those who came after that date.
According to article 6 those who came before July 19, would automatically become citizens on the
commencement of the Constitution, and those who came after July 19 would become such provided they
had been registered in the form and manner prescribed for this purpose by the Government of India.
These two articles thus provided for all cases of mass migration from Pakistan to India without making any
distinction between one community and another, although the partition of the country itself was based upon
such as a distinction Article 7 provides for those who had migrated to Pakistan but who had returned to India
from Pakistan with the intention of permanently residing in India. Such a provisionhad to be made because
the Government of India, in dealing with persons who left India for Pakistan and who subsequently returned
from Pakistan to India, allowed them to come and settle permanently under what is called a permit
system'.
This permit system was introduced from July 19, 1948.
The Citizenship Act, 1955
A comprehensive law dealing with citizens was passed by Parliament in 1955 in accordance with the powers vested in it by
Article 11 of the Constitution.
The provisions of the Act may be broadly divided into three parts, acquisition of citizenship, termination of citizenship and
supplemental provisions.
WHY THE ISSUE OF INDIAN CITIZENSHIP WAS NOT PERMANENTLY SETTLED BY THE
CONSTITUTION?
There is hardly any constitution in which an attempt has been made to embody a detailed nationality law.But since Indias
Constitution is of a republican character and provision is made throughout the Constitution for election to various offices
under the State by and from among the citizens, it was thought essential to have some provisions which precisely
determined who was an Indian citizen at the commencement of the Constitution.
Otherwise, there could have arisen difficulties in connection with the holding of particular offices and even with the starting
of representative institutions in the country under the republican Constitution. This is why Parliament has been given
plenary power to deal with the question of nationality and enact any law in this connection that it deems suited to the
conditions of the country.
Such Parliamentary power embraces not only the question of acquisition of citizenship but also its termination as well as
any other matter relating to citizenship (Art. 11) Also under Article 9 of the Constitution, and person who voluntarily
acquiresthe citizenship of any foreign State, even if qualified for Indian citizenship under any provision of the Constitution,
may not be a citizen of India.
Acquisition of Citizenship
The Act provides five modes of acquiring the citizenship of India. These are:
Accordingly, at the commencement of the Constitution, every person who had his domicile in the territory of
India and
who was born in India, or either of whose parents was born in India,or who had been ordinarily resident in
India for not less than five years immediately preceding the commencement of the Constitution, was to be
considered a citizen of India.
Persons of Indian origin who had been residing outside India at the commencement of the Constitution were given the free
choice of becoming Indian citizens under the above provisions if they so desired. The only condition that they had to fulfill
in his connection was to get themselves registered as Indian citizens by the diplomatic or consular representatives of India in
the country where they were residing (Art. 8).
Articles 6 and 7 deal with two categories of persons, namely, those who were residents in India but had migrated to Pakistan
and those who were residents in Pakistan but had migrated to India.
Those who migrated from Pakistan to India were divided into two categories:
those who came before July 19, 1948 and those who came after that date.
According to article 6 those who came before July 19, would automatically become citizens on the commencement of the
Constitution, and those who came after July 19 would become such provided they had been registered in the form and
manner prescribed for this purpose by the Government of India.
These two articles thus provided for all cases of mass migration from Pakistan to India without making any distinction
between one community and another, although the partition of the country itself was based upon such as a distinction.
By Birth:
Every person born in India on or after January 26, 1950, shall be a citizen of India by birth.
There are two exceptions, to this rule, namely, children born to foreign diplomatic personnel in India and those of enemy
aliens whose birth occurs in a place then under occupation by the enemy.
(2)By Descent : A person born outside India on or after January 26, 1950, shall be citizen of India by
descent if his father or mother is a citizen of India at the time of his birth.
(3)Children of those who are citizens of India by descent, as also children of non-citizens who are in service
under a government in India, may also take advantage of this provision and become Indian citizens by
descent,if they so desire, through registration.
(3) By Registration : Any person who is not already an Indian citizen by virtue of the provisions of the
Constitution or those of this Act can acquire citizenship by registration if that person belongs to any one of
the following five categories :
(a) Persons of Indian origin who are ordinarily resident in India and who have been so resident for at least
six months immediately before making an application for registration.
(b) Persons of Indian origin who are ordinarily resident in any country or place outside undivided India;
(c) Women who are, or have been, married to citizens of India;
(d) Minor children of persons who are citizens of India; and
(e) Persons of full age and capacity who are citizen of the Common wealth countries or the Republic of
Ireland.
(4) By Naturalisation : Any person who does not come under any of the categories mentioned above can
acquire Indian citizenship by naturalisation if his application for the same has been accepted by the
Government of India and certificate is granted to him to that effect.
An applicant for a naturalisation certificate has to satisfy the following conditions:
(a) He is not a citizen of a country which prohibits Indians becoming citizens of that country by
naturalisation;
(b) He has renounced the citizenship of the country to which he belonged;
(c) He has either resided in India or has been in the service of a government in India, normally, for one year
immediately prior to the
date of application;
(d) During the seven years proceeding the above mentioned one year, he has resided in India or been in the
service of a government in India for a period amounting in the aggregate to not less than four years;
(e) He is of good character;
(f) He has an adequate knowledge of a language specified in the Constitution;
(g) If granted a certificate, he intends to reside in India or enter into, or continue in service under a
government in India. The Act provides, however, for a conspicuous exemption under which any or all of the
above conditions may be waived in favour of a person who has rendered distinguished service to the cause
of science, philosophy, art, literature, world peace or human progress generally.
Every person to whom a certificate of naturalisation is granted has to take an oath of allegiance solemnly
affirming that he will bear true faith and allegiance to the Constitution of India as by law established, and
that he will faithfully observe the laws of India and fulfill his duties as a citizen of India.
(5) By Incorporation of Territory : If any territory becomes part of India, the Government of India, by
order, may specify the persons who shall be citizen of India by reason of their connection with that territory.
Termination of Citizenship
The Act envisages three situations under which a citizen of India may lose his Indian nationality. These are:
(1) By Renunciation: If any citizen of India who is also a national of another country renounces his Indian
citizenship through a declaration in the prescribed manner, he ceases to be an Indian citizen of registration of
such declaration. When a male person ceases to be a citizen of India, every minor child of his also ceases to
be a citizen of India. However, such a child may within one year after attaining full age, becomes Indian
citizen by making a declaration of his intention to resume Indian citizenship.
(2) By Termination: Any person who acquired Indian citizenship by naturalisation, registration or
otherwise,, of he or she voluntarily acquired the citizenship of another country at any time between January
26, 1950, the date of commencement of the Constitution, and December 30, 1955, the date of
commencement of this Act, shall have ceased to be a citizen of India from the date of such acquisition.
By Deprivation: The Central Government is empowered to deprive a citizen of his citizenship by issuing an
order under 10 of the Act. But, this power of the Government may not be used in case of every citizen; it
applies only to those who acquired Indian citizenship by naturalisation or by virtue only of clause (c) of
Article 5 of the Constitution or by registration.
The possible grounds of such deprivation are : obtaining of a citizenship certificate by means of fraud, false
representation, concealment of any material fact; disloyalty of disaffection towards the Constitution shown
by act or speech; assisting an enemy with whom India is at war; sentence to imprisonment in any country for
a term of not less than two years within the first five years after the acquisition of Indian citizenship and
continuous residence outside Indian for a period of seven years without expressing in a prescribed manner
his intention to retain his Indian citizenship.
The Act also provides for reasonable safeguards in order to see that a proper procedure is followed in every
case of deprivation of citizenship.
Single Citizenship
The most important aspect of the constitutional provisions dealing with citizenship is that it has established a
unified or single system of citizenship law for the whole country.
A citizen of India is accepted legally as a citizen in every part of the territory of India with almost all the
benefits and privileges that attend such a status.
This is in striking contrast to the system of double citizenship that prevails in some federal states.
Before the inauguration of the Constitution, there were two broad divisions among Indian citizens, British
Indian subjects and state subjects.
Since there were over 500 Indian States, the State subjects themselves were further subdivided into as many
groups of citizens as there were states.
Thus, the term Indian citizenship had little precise legal significance except that the Indian people as a whole
came under the overall jurisdictions of the British Government that ruled India.
The abolition of such distinctions makes the essential unity of the nation a reality.
A single citizenship for the entire country removes much of the artificial State barriers that prevailed in pre
Independence days and facilities the freedom of trade and commerce throughout the territory of India.
There is, however one barrier still that hinders that full realisation of the ideal of a single citizenship
established under the Constitution.
This is the existence of what are known as domiciliary rule in the different states in India.
The term domicile is difficult to define. According to the rules prevailing today, in the different States in
India, domicile requirements vary from three to fifteen years continuous residence within the State in
addition to other conditions.
Thus, the status of domicile is given only to a permanent resident of the State. On the basis of such a
distinction, there exist practices in different States which amount to gross discrimination as between citizen
and citizen.
The also engender provincialism and parochialism which tend to disrupt the unity to the nation. Domiciliary
rules which govern eligibility to public services in most of the State illustrate this point. Such rules are
applied in some State not only to determine eligibility for appointment to public services but also to regulate
admission to higher educational institutions, the awards of contracts and rights in respect of fisheries, ferries,
toll-bridges, forests and excise shops.
The conditions to be satisfied for acquiring a domicile in some of the states are of such an extremely
rigorous nature that it is almost impossible for any person to satisfy them.
Lecture#4
Fundamental Rights
What are Fundamental Rights?
Fundamental Rights are those Rights which are mentioned under Part III of the Indian Constitution.
There are certain Rights which are mentioned in the Constitution, but not under Fundamental Such Rights are called
Constitutional Rights. (E.g. Right to Vote)
There are certain Rights which are available to citizens through laws passed by Legislatures (Centre or State). Such Rights are
called Statutory Rights. (E.g. Right to Information)
These rights ensure the fullest physical, mental and moral development of every citizen.
They include those basic freedoms and conditions which alone can make life worth living.
Fundamental Rights generate a feeling of security amongst the minorities in the country.
They establish the framework of democratic legitimacy for the rule of the majority.
No democracy can function in the absence of basic rights such as freedom of speech and expression.
The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35.
Inthis regard, the framers of the Constitution derived inspiration from the Constitution of USA (i.e., Bill of Rights).
Part III of the Constitution is rightly described as the Magna Carta of India. It contains a very long and comprehensive list
of justiciable Fundamental Rights.
In fact, the Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country
in the world, including the USA.
The Fundamental Rights are named so because they are guaranteed and protected by the Constitution,
which is the fundamental law of the land. They are fundamental also in the sense that they are most
essential for the all-round development (material, intellectual, moral and spiritual) of the individuals.
Originally, the Constitution provided for seven Fundamental Rights viz,
Right to equality (Articles 1418)
Right to freedom (Articles 1922)
Right against exploitation (Articles 2324)
Right to freedom of religion (Articles 2528)
Cultural and educational rights (Articles 2930)
Right to property (Article 31)
Right to constitutional remedies (Article 32)
However, the right to property was deleted from the list of Fundamental Rights by the 44th
Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution.
So at present, there are only six Fundamental Rights.
Recently by the 86th Amendment Act, the Right to Education has been included in the list
Justiciable: Justiciable means that if these rights are violated by the government or
anyone else, the individual has the right to approach the Supreme Court or High
Courts for the protection of his/her Fundamental Rights.
Right to Equality (Arts. 14,15,16,17 & 18) Article 14 declares that the State shall not deny to any person
equality before the law or equal protection of the laws within the territory of India.
Thus, Article 14 stands for the establishment of a situation under which there is complete absence of any arbitrary discrimination
by the laws themselves or in their administration.
The Right to Equality affords protection not only against discriminatory laws passed by legislatures but also prevents arbitrary
discretion being vested in the executive. In the modern State, the executive is armed with vast powers, in the matter of enforcing
bylaws, rules and regulations as well as in the performance of a number of other functions.
The equality clause prevents such powers being exercised in a discriminatory manner. Article 14 prevents discriminatory
practices only by the State and not by individuals. For instance, if a private employer like the owner of a private business
concern discriminates in choosing his employees or treats his employees, unequally, the person discriminated against will have
no judicial remedy.
Q.What is the difference between equality before the law & equal protection of laws?
The phrase equality before the law occur in almost all written constitutions that guarantee fundamental rights. Equality
before the law is an expression of English Common Law while equal protection of laws: owes its origin to the American
Constitution.
Both the phrases aim to establish what is called the equality to status and of opportunity as embodied in the Preamble of
the Constitution.
While equality before the law is a somewhat negative concept implying the absence of any special privilege in favour of any
individual and the equal subjection of all classes to the ordinary law, equal protection of laws is a more positive concept
employing equality of treatment under equal circumstances.
Article 13 (2) states that the state shall not make any laws which take away Fundamental Rights of a citizen. A question arises
as to whether the term law inArticle 13 (2) includes just ordinary laws or Constitutional Amendment Acts also.
If Constitutional Amendment Act is not covered under law then the Parliament can amend the Fundamental rights by Amending
the Constitution itself.
The Supreme Court Shankari Prasad vs. Union of India (1951) case held that Constitutional Amendment Act is not a law and
thus Parliament can amend any Fundamental Right by using Constitutional Legislative Power. It gave a similar verdict in Sajjan
Singh vs. State of Rajasthan Case (1965) case.
However in Golaknath vs. State of Punjab (1967) case the Supreme Court held that Fundamental Rights had been given
transcendental position by the Constitution and even Parliament cannot amend Fundamental Rights.
The 24th Constitutional Amendment Act amended Article 13 and 368 which made it clear that Parliament has the power to
amend Fundamental Rights through Constitutional Amendment. This was challenged in the Supreme Court in Keshavananda
Bharati vs. State of Kerala (1979) case. The Supreme Court upheld the validity of 24th Amendment Act. However, the Supreme
Court held that the Parliaments amendment power is limited and is subject to Basic Structure of the Constitution. The
Supreme Court has not explicitly defined the term Basic Structure. However, in various judgments, the Supreme Court has
held that the following concepts form a part of Basic Structure
RIGHT TO EQUALITY
Classification of Fundamental Rights
Right to Equality (Article 14 to 18)
Right to Freedom (Article 19 to 22)
Right against Exploitation (Article 23 to 24)
Right to Freedom of Religion (Article 25 to 28)
Cultural and Educational Right (Article 29 to 30)
Right to Constitutional Remedies
NOTE: This right is available only to citizens and not aliens. The state cannot discriminate only on the
above mentioned grounds but can discriminate on grounds other than these. (E.g. Marks in Entrance Exams)
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public
entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of
State funds or dedicated to the use of the general public.
NOTE: The rights under 15 (2) are not only available against a state but also against other citizens as shops,
restaurants etc. can be owned by state or can be a private property.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the
advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled
Tribes.
NOTE: Article 15 (1) states that no citizen shall be discriminated on the grounds of caste, sex, religion. But
there are special considerations for SC/ST, OBC, Women and Children. Exceptions for these categories are
mentioned in Clause 2 and 3 of Article 15.
15.(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from
making any special provision, by law, for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions
relate to their admission to educational institutions including private educational institutions, whether aided
or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
NOTE: In order to serve the educationally and socially backward classes, the state asked the private
education institutions also to reserve seats for the backward classes. Private institutions objected to it, stating
it would amount to violation of right under Article 19 (1) g. The Parliament, by amending the constitution in
2005, added Clause 15 (5). According to this, it is mandatory to reserve seats for backward classes also even
in private institutions whether aided or unaided, by law. The only exception is educational institutions run by
minority communities. A law was enacted in this effect called Central Educational Institutions Reservation
in Admission Act 2006. This Act was challenged in the Supreme Court, but the Supreme Court upheld the
validity of this law.
Vishaka Case
A was a PIL filed in Supreme Court by Vishaka and four other womens organizations in Rajasthan against
the State of Rajasthan and the Union of India. This case in reference to the Bhanwari Devis alleged Gang
Rape in 1992 in Rajasthan. Bhanwari Devis legal battle culminated when the Supreme Court of India in a
PIL, defined sexual harassment at workplace, preventive measures and redress mechanism. Vishaka
Guidelines against Sexual Harassment at Workplace Guidelines and norms were laid down by the Honble
Supreme Court in Vishaka and Others vs. State of Rajasthan and Others.
Article 16 Our Constitution guarantees equality of opportunity in matters relating to employment or
appointment to public services to all citizens. There shall be no discrimination on the basis of religion, race,
caste, sex, place of birth or residence in matters relating to employment in public services. Merit will be the
basis of employment. However, certain limitations have been provided to the enjoyment of these rights.
Article 17 Abolition of Untouchability
It states that Untouchability is abolished and its practice in any form is forbidden. The enforcement of
any disability arising out of Untouchability shall be an offence punishable in accordance with law.
The Constitution abolishes untouchability and its practice in any form is forbidden. The following actions
are considered as offences when committed on the grounds of untouchability
Refusing admission to any person to the public institutions;
Preventing any person from worshipping in place of public worship;
Insulting a member of Scheduled Caste on the grounds of untouchability;
Preaching untouchability directly or indirectly.
Punishments for violations include minimum jail sentence of 6 months and/or fine, or the person can be
permanently debarred from contesting any elections in the country. According to the article, punishment has
to be in accordance with law. Parliament, for this purpose, enacted The Untouchability offenses Act, 1955.
This was renamed as The Civil Rights Protection Act in 1976. If a case of untouchability is brought
before the court, the court will act on the assumption of guilt (unlike other cases where assumption is
innocent until proven guilty).
Article 18 Abolition of titles
18 (1) No title, not being a military or academic distinction, shall be conferred by the State.
18 (2) No citizen of India shall accept any title from any foreign State
18 (3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the
State, accept without the consent of the President any title from any foreign State.
18 (4) No person holding any office of profit or trust under the State shall, without the consent of the
President, accept any present, emolument, or office of any kind from or under any foreign State.
All titles national or foreign which create artificial distinctions in social status amongst the people have been
abolished.
This provision has been included in the Constitution to do away with the titles like Rai Sahib, Rai
Bahadur have been conferred by the British on a few Indians as a reward for their effective co-operation to
the colonial regime. The practice of conferring titles like this is against the doctrine of equality before law.
To recognise the meritorious service rendered by individual citizens to the country or mankind, the President
of India can confer civil and military awards on those individuals for their services and achievements such
as; Bharat Ratna, Padma Vibhushan, Padma Sri, Param Veer Chakra, Veer Chakra etc., but these cannot be
used on titles.
Right to Freedom (Article 19 22)
Article 19
The Constitution guarantees the following six Fundamental Freedoms at present:
Freedom of speech and expression
Freedom to assemble peacefully without arms
Freedom to form associations or unions
Freedom to move freely throughout the territory of India
Freedom to reside and settle in any part of the territory of India
Freedom to practise any profession or to carry on any occupation, trade or business
Concept of Inferred Rights: Article 19 (1) (a) gives the right to Freedom of speech and expression. This also
means that a person can stay silent if he wishes to. This can be inferred from Article 19 (1) (a). Hence, there
are rights in the constitution which can be inferred from the given rights. This is Concept of Inferred Rights.
Explaining the scope of freedom of speech and expression Supreme Court has said that the words freedom
of speech and expression must be broadly constructed to include the freedom to circulate ones views by
words of mouth or in writing or through audio visual instrumentalities. It therefore includes the right to
propagate ones views through the print media or through any other communication channel e.g. the radio
and the television. Every citizen of this country therefore has the right to air his or their views through the
printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2)
of the Constitution.
Freedom of Press: The fundamental right of the freedom of press implicit in the right the freedom of speech
and expression is essential for the political liberty and proper functioning of democracy. The Indian Press
Commission says that Democracy can thrive not only under the vigilant eye of legislature, but also under
the care and guidance of public opinion and the press is par excellence, the vehicle through which opinion
can become articulate. Unlike the American Constitution, Art. 19(1) (a) of the Indian Constitution does not
expressly mention the liberty of the press but it has been held that liberty of the press is included in the
freedom of speech and expression. The editor of a press for the manager is merely exercising the right of the
expression, and therefore, no special mention is necessary of the freedom of the press. Freedom of press is
the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of
press and invalidate all laws or administrative actions, which interfere with it contrary to the constitutional
mandate.
Grounds of Restrictions: Clause (2) of Article 19 contains the grounds on which restrictions on the freedom
of speech and expression can be imposed
Security of State: Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and
expression in the interest of security of State. The term security of state refers only to serious and
aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary
breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression
on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder
are matters, which would undermine the security of State.
Freedom of speech and expression is an important freedom. This freedom ensures free and frank speech,
discussion and exchange of opinions. It includes the freedom of the press. However these freedoms like
freedom of speech and expression are not absolute. The state is empowered to impose reasonable restrictions
on the exercise of this right in the interest of security of the state, public order, morality etc.
Friendly relations with foreign states: This ground was added by the constitution (First Amendment) Act,
1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign
friendly state, which may jeopardise the maintenance of good relations between India, and that state. No
similar provision is present in any other Constitution of the world. In India, the Foreign Relations Act, (XII
of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly
relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the
Government.
Public Order: This ground was added by the Constitution (First Amendment) Act. Public order is an
expression of wide connotation and signifies that state of tranquillity which prevails among the members of
political society as a result of internal regulations enforced by the Government which they have established.
Freedom of assembly is not absolute but restricted. The assembly must be must be non-violent and must not
cause any breach of public peace. If the assembly is riotous then it is not protected under Article 19 (1) (b)
and reasonable restrictions may be imposed.
Freedom to form Associations includes association of political, social or cultural. Further, it also gives the
right to join or not join associations or right to continue or not to continue with any association. It also gives
the right to form trade unions. Article 33 of the constitution empowers the to pass a law restricting the right
to form political association to members of armed forces, persons employed in any bureau or other
organizations established by the state for the purpose of intelligence or counter intelligence, persons
employed in or in connection with the telecommunications system.
Freedom of movement guarantees to the citizens the right to move freely throughout the territory of India.
But this can restricted on the grounds of Security, Public order or for protecting the interests of the
scheduled tribes.
Freedom of Residence provides the right to reside or settle down throughout the territory of India. This right
is subject to certain reasonable restriction in areas like scheduled areas or border areas.
Freedom of Trade and Occupation guarantees all citizens right to choose any profession, occupation, trade or
business. This right can be restricted by the state under Clause 6 which includes
Imposing reasonable restrictions in the interest of general public
Prescribing professional or technical qualifications necessary for carrying on any profession, trade or business to the exclusion
of private citizens, wholly or partially.
These freedoms can be suspended during the State of National Emergency. As soon as the State of
National Emergency is declared under Article 352, the above- mentioned freedoms except the right to life
and liberty, automatically remain suspended as long as the State of National Emergency continues. All these
freedoms get restored as soon as the proclamation of National Emergency is lifted.
Article 20 Protection in respect of conviction for offences
20 (1) No person shall be convicted of any offence except for violation of a law in force at the time of the
commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might
have been inflicted under the law in force at the time of the commission of the offence.
20 (2) No person shall be prosecuted and punished for the same offence more than once
This Constitutional provision assures protection against arbitrary arrest and excessive punishment to any
person who is alleged to have committed an offence. No person shall be punished except for the violation of
law which is in force when the crime was committed. An accused cannot be compelled to be a witness
against himself/herself. No person shall be punished for the same offence more than once. Also, no criminal
law can be invoked retrospectively.
Article 21 Protection of life and Personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.
21A. Right to educationThe State shall provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the State may, by law, determine.
The Constitution lays down that no person shall be deprived of his/her life or personal liberty except
according to the procedure established by law. It guarantees that life or personal liberty shall not be taken
away without the sanction of law. It ensures that no person can be punished or imprisoned merely at the
whims of some authority. He/she may be punished only for the violation of the law.
Right to Education was introduced by the 86th Amendment Act, 2002. It was earlier under Article 45 of the
Constitution as a part of Directive Principles of State Policy. Right to Education Act, a law required to
execute this right, was passed by the Parliament in 2009.According to the law, 25% of the seats have to be
reserved for economically backward section even in private institutions, only exception being minority
institutions.
Article 22 Prevention against Arbitrary Arrest and Detention
Our Constitution guarantees certain rights to the arrested person. As per the provision, no person can be
arrested and/or be detained in custody without being informed of the grounds for detention. He /she has the
right to consult and be defended by a lawyer of his/her choice. The accused has to be produced before the
nearest magistrate within a period of twenty-four hours of arrest. These safeguards however are not available
to foreigners as well as to those citizens detained under Preventive Detention Act.
Q.What is Preventive Detention?
When the State feels that a person is likely to commit crime or is a threat to the security of the State,
he/she may be detained without trial for a limited period. However, no person can be kept under
detention for more than three months until permitted by an Advisory Board consisting of persons who are
qualified to be appointed as judges of the High Courts. Such a board is presided over by a sitting judge of a
High Court.
Writ Petition
A writ petition is essentially a court petition for extraordinary review, asking a court to intervene in a lower
courts decision. Under the Indian legal system, jurisdiction to issue prerogative writs is given to the
Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are
set forth in the Constitution of India.
Right to Freedom of Religion (Article 25 28)
Secularism
In the West, the state has nothing to do with religion.
In India, the state will remain neutral in the matters of religion.
This means, if a state seeks to promote religion, it has to promote all religions equally.
Secularism is seen as a means to promote communal harmony.
Majority of communities have not been magnanimous enough to accommodate the diversity of this country.
Absence of Uniform Civil code.
There is no effective framework, legal or institutional, to check communalism and promote National Unity.
Article 25 Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to
freedom of conscience and the right freely to profess, practise and propagate religion.
(2) nothing in this article shall affect the operation of any existing law or prevent the State from making any law
a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious
practice;
b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all
classes and sections of Hindus.
This right guarantee to every person the freedom of conscience and right to profess, practise and propagate
religion. This right is however, subjected to public order, morality and health and to the other provisions of
Part III of constitution. Right to propagate does not include right to convert. This means no one has the right
to convert another person to his own religion by force, fraud or by offering incentives.
The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. In
sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons
professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be
construed accordingly.
Article 26 Freedom to manage religious affairs
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
a) To establish and maintain institutions for religious and charitable purposes;
b) To manage its own affairs in matters of religion;
c) To own and acquire movable and immovable property;
d) To administer such property in accordance with law.
This article permits every religious group, the right to manage its own affairs in matters of religion. Every
religious sect has the right to establish and maintain institutions for religious and charitable purposes. Each
religious group is also free to purchase and manage its movable and immovable property in accordance with
law, for the propagation of its religion.
Cultural and Educational Rights (Article 29 30)
Also referred to as Rights of Minorities.
Types of minorities identified under the Indian Constitution are primarily Linguistic and Religious.
Article 27 Freedom as to payment of taxes for promotion of any particular religion
No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for
the promotion or maintenance of any particular religion or religious denomination.
According to this article, the state cannot levy or collect any tax, the proceeds of which are to be used
exclusively for the promotion of a particular religion. E.g. Jizyah, tax levied during medieval times imposed
on non-Muslims and the proceeds of the tax were reserved for the promotion of Islamic religion. The
government can levy fee for maintenance of religious shrines and this does not amount to violation of
Article 27.
Article 28 Freedom as to attendance at religious instruction or religious worship in certain educational
institutions
(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established
under any endowment or trust which requires that religious instruction shall be imparted in such institution.
(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required
to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be
conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian
has given his consent thereto.
According to this article, no religious education can be imparted in any educational institution which is
wholly maintained out of the state funds. This restriction does not apply to those educational institutions
which are not wholly maintained out of State funds. But, even in those institutions, no child can be
compelled to receive religious instructions against his /her wishes.
If religious denominations are set up under religious denominations or charitable trusts, religious education
can be provided at such institutions and students can be compelled to attend.
Article 29 Protection of interests of minorities
(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of
its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State
funds on grounds only of religion, race, caste, language or any of them.
Cultural and Educational Rights provide necessary guarantees to preserve maintain and promote their
culture and language. The Constitution allows minorities to establish and maintains educational institutions
of their own. It also provides that the state shall not discriminate against any educational institution while
granting financial aid on the grounds that it is being run by a minority community. These rights ensure that
minorities will be given assistance by the state in the preservation of their language and culture. The Ideal
before the state is to preserve and propagate the composite culture of the country.
Right to Property
In the original Constitution, all citizens had a threefold right to property.
Article 19 (1) (f) repealed in 1978.
Article 31 (1) was removed from Fundamental Rights and placed under Article 300A in 1978.
Article 31 (2) repealed in 1978.
By the 4th Amendment Act, 1955, Article 31 (2) was amended. It added that if a citizen is not satisfied with the compensation
received, it cannot be challenged in the court of law.
25th Amendment Act, 1971 again amended Article 31 (2). In this amendment the word compensation from the article was
replaced with amount.
By the 1st Amendment Act, 1951, Article 31A and 31B was added. These were exceptions to Right to Property.
In 2007, SC in its verdict held that even Schedule nine cannot provide immunity to those laws which are violating that part of
Fundamental Rights, which according to apex court, are a component of basic structure.
Article 31C was introduced by 25th Amendment Act, 1971. This is also an exception to Right to property.
42nd Amendment Act, 1976 expanded the scope of Article 31C. Accordingly, if a law is made to give effect to any Directive
Principle and if it violates Article 14 and 19, it shall not be an invalid law.
In the case of Minerva mills Vs. Union of India, 1980, this expansion beyond 39 (B) and (C) was considered unconstitutional
and struck down.
Article 31D was added by the 42nd Amendment Act, 1976. According to this, if any law is made in the context of checking anti
national activities, even if it violates Article 14 and 19, it shall be a valid law.
Article 31D was removed from the constitution by the 43rd Amendment Act, 1977.
Right to property is, at present, a Constitutional Right under Article 300A.
In making any law providing for the compulsory acquisition of any property of an educational institution established and
administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground
that it is under the management of a minority, whether based on religion or language.
Lecture#5
Directive Principles of State Policy
The Directive Principles of State Policy are enumerated in Part IV of the Constitution from Articles 36 to 51.
The framers of the Constitution borrowed this idea from the Irish
Wealth and its source of production shall not be concentrated in the hands of the few but shall be distributed so as to subserve
the common good, and there shall be adequate means of livelihood for all and equal pay for equal work.
The State shall endeavour to secure the health and strength of workers, the right to his right to education is subject to the limits
of economic capacity and development of the State.
court can compel Parliament to make laws then parliamentary democracy would soon be reduced to a
oligarchy of judges.
DPSPs explained State to secure a social order for the promotion of welfare of the people: The State shall
strive to promote the welfare of the people by securing and protecting as effectively as it may a social order
in which justice, social, economic and political, shall inform all the institutions of the national life.
Certain principles of policy to be followed by the State: The State shall, in particular, direct its
policy towards securing
(a) that the citizens, men and women equally, have the right to an adequate means of livelihood.
(b) that the ownership and control of the material resources of the community are so distributed as best to
subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and means of
production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, me and women, and the tender age of children are not abused and
that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against exploitation and against moral and
material abandonment.
This article specifically requires the State to ensure for its people adequate means of livelihood, fair
distribution of wealth, equal pay for equal work and protection of children and labour. Article 39 (b) and (c)
together with other provisions of the Constitution contain the main objectives, namely, the building of a
welfare society and an equalitarian social order in the Indian Union. When the Constitution-makers
envisaged development in social , economic and political fields, they did not desire that it should be a
society where a citizen will have the dignity of the individual.
Equal justice and free legal aid: The State shall secure that the operation of the legal system promotes
justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation
or schemes or in another way, to ensure that opportunities for securing justice are not denied to any citizen
by reason of economic or other disabilities.
Organisation of village panchayats: The State shall take steps to organise village panchayats and down
them with such powers and authority as may be necessary to enable them to function as units of selfgovernment.
Under this article, the State is expected to take steps to organize village panchayats and endow them with such powers and
authority as may be necessary to enable them to function as units of self-government.
But, this directive is to be read with the directive contained in Article 50 which lays down the principle of separation of the
executive from the judiciary. The organization of village panchayats must be carried out in practice consistently with Article 50
so as to maintain the fundamental principle of the rule of law.
Power of the people, which is the soul of a republic, stands subverted if decentralization and devolution desiderated in Article 40
is ignored by the executivein action even after holding elections to the floor-level of administrative bodies.
Right to work, to education and to public assistance in certain cases: The State shall, within the limits of
its economic capacity and son that the Constitution says that the directive principles shall not be enforceable
by courts.
However, it does not mean that the directive principles are less important than the fundamental rights for the simple reason that
they are not judicially enforceable.
Article 37 of the Constitution emphatically states that directive principles are nevertheless fundamental in the governance of the
country and it shall be the duty of the State to apply these principles in making principles in interpreting the Constitution and the
laws.
The directive principles thus be interpreted in he light of the directive principles and the latter should the Constitution must be
ever present in the minds of the judges when interpreting statues which concern themselves directly or indirectly with matters
set out in the directive principles.
In Bandhaua Mukti Morcha Union of India52, the Court has also held that thought he directive principles
are unenforceable by the courts and the courts cannot direct the legislature or executive to enforce them, the State to enforce the
law, particularly when non-enforcement of law leads to denial of a fundamental right.
development, make effective provision for securing the right to work, to education and to public assistance
in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
The State is directed by this article to ensure to the people within the limits of its economic capacity and
development:
(i) employment, (ii) education, and (iii) public assistance in cases of unemployment,
old age, sickness and disablement and in other cases of undeserved want.
Provision for just and humane conditions of work and maternity relief: The State shall make provision
for securing just and humane conditions of work and for maternity relief.
These directives, like those contained in Article 38, relate to economic rights. Living wage etc. for workers The State shall
endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial
or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social
and cultural opportunities and, in particular State shall endeavor to promote cottage industries on an or co-operative basis in
rural areas.
This article requires the State to strive to secure to the worker work, a living age, conditions of work ensuring a decant standard
of life and full enjoyment leisure and social and cultural opportunities. The last portion of the article lays emphasis on the
promotion of cottage industries on an individual or co-oprative basis in rural areas.
Article 43 read with Article 38 requires the State to provide work but not necessarily a job in State civil
service or a security against the termination of such service for good cause.
Important cases related to fixation of minimum wages of labourers are Bijay Cotton Mills Ltd. v. State of
Ajmer Standard Vaccum Refining Co. of India v.
Workmen Participation of workers in management of industries: The state shall take steps, by suitable
legislation or in any other way, to secure the participation of workers in the management of undertakings,
establishment or other organisations engaged in any industry. In upholding the right of workers to be heard
in the winding up proceedings of a company, the court drew support from this article.
Uniform civil code for the citizens: The State shall endeavour to secure for the citizens a uniform civil
code throughout territory of India. This article requires on the State to take steps for establishing a uniform
civil code throughout the territory of India.
Two objections were put forward in the Constituent Assembly against the making of a uniform civil code applying throughout
India: firstly, it would infringe the fundamental right to freedom of religion mentioned in Article 25 and secondly, it would be a
tyranny to the minority. The first objection is misconceived. The directive contained in Article 44 in no way infringes the
freedom of religion guaranteed by Article 25.
Clause (2) of that article specifically saves secular activities associated with religious practices from the guarantee of religious
freedom contained in clause (1) of Article 25.
Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker
sections: The State shall promote with special care the educational and economic interests of the weaker
sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect
them from social injustice and all forms of exploitation.
In States of Madras v. Champakam Dorairajan, the Supreme Court refused to let the Fundamental Right
declared in Article 29(2) to be whittled down by this article. The Court asserted the supremacy of the
fundamental rights over the Directive Principles of State Policy.
Duty of the State to raise the level of nutrition and the standard of living and to improve public health: The
State shall regard the raising of the level of nutrition and the standard of living of its people and
improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring
about prolongation of the consumption except for medicinal purposes of intoxicating drinks and of drugs
which are injurious to health. No one has a legal right to sell liquor. From the earliest times it has been found
exdpedient to control the use and traffic in liquor, and this control embraces both regulatory and prohibitory
measures.
This doctrine has been recognised by the Directive Principles of State Policy in this article.
Organisation of agriculture and animal husbandary: The State shall endeavour to organise agriculture
and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and
improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
The protection recommended by this part of the directive is confined only to cows and calves and to those
animals which are presently or potentially capable of yielding milk or of doing work as draught cattle, but
does, not from the very nature of the purpose for which it is obviously recommended, extend to cattle, such
thought at one time were milch or draught cattle have ceased to be such.
Protection and improvement of environment and safeguarding of forests and wild life:
The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life
of the country. The Environment (Protection Act, 1986 and the Wild Life (Protection) Act, 1972 as amended
in 1986 are among the steps taken under this article.
Protection of monuments and places and objects of national importance: It shall be the obligation of the
State to protect every monument or place or object of artistic or historic interest, (declared by or under law
made by Parliament) to be of national importance, from spoliation, disfigurement, destruction, removal,
disposal or export, as the case may be.
Separation of judiciary from executive:
The State shall take steps to separate the judiciary from the executive in the public services of the State. The
Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the
functions of the different parts of the branches have been sufficiently differentiated and consequently it can
very well be said that our Constitution does not contemplate assumption, by one organ or part of the State of
functions that essentially belong to another. Broadly stated, Article 45 provides that there shall be a separate
judicial service free from executive control.
Promotion of international peace and security:
The State shall endeavour to
(a) promote international peace and security.;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treat obligations in the dealings of organized peoples with one
another; and
(d) encourage settlement of international disputes by arbitration
Fundamental Rights vs. Directive Principles of State Policy
It should be remembered that the Preamble, the Fundamental Rights and the Directive Principles are all
integral parts of the same constitutional edifice.
They are all equally important and have to be read with each other. The emphasis in the entire scheme of the
Constitution under the headings of the Preamble, the Fundamental Rights and the Directive Principles is on
building an egalitarian society and on the concept of socio-economic justice.
Inasmuch as the Directive Principles, though declared to be fundamental as guiding principles for making
and administering laws, were not made enforceable in courts of law, they represented subtle compromise
between what the framers, as the leaders of the freedom struggle, looked upon as the ideal or the goal and
what, as realists, they found to be immediately feasible.
The Fundamental Rights and the Directive Principles together constituted the soul of the Constitution.
It is now clearly understood that there is no essential dichotomy between Rights and Duties or between the
Fundamentally Rights and the Directive in Other Parts of Indian Constitution (Not in Part IV)
The following Directives are also non-justiciable:
Art. 350 A: Enjoins every State and every local authority within the State to provide adequate facilities for
instruction in the mother tongue at primary stage to children of linguistic minorities.
Art 351 A: Enjoins the Union to promote the spread of Hindi language so that if may serve as a medium of
expression of all the elements of the composite culture of India.
Art 355 A: Claims of Scheduled Castes and the Scheduled Tribes shall be taken into consideration,
consistently with the maintenance of efficiency of administration, in the making of appointments to services
and posts in connection with affairs of Union or of a State.
Directive Principles. They complement and supplement each other (Kesavananda Bharti v. State of
Kerala, AIR 1973 SC 146). If the Fundamental Rights represent the donts for the Government and the
legislature, the Directive Principles represent the dos.
There is no conflict. Again, while speaking on the constitution Fourth Amendment in the Lok Sabha, Nehru
declared that the responsibility for the economic and social welfare policies of the nation should lie with
Parliament and not with the courts. In so far as the decisions of courts had shown that there was some
inherent contradiction betwee the Fundamental Rights and the Directive Principles, it was for Parliament to
remove the contradiction and make Fundamental Rights subserve the Directive Principles of State
Policy. A distinction is sometimes sought to be made between what may be called positive rights and
negative rights.
Broadly speaking, while Part III deals with areas of individual freedom and the extent to which the State
can restrain it, Part IV deals with positive duties cast upon the State to attain the ideal of social and
economic justice. Even among the fundamental rights, however, there are some positive injunctions which
seek to protect the interests of the society and the rights of the poor citizens from encroachment by
entrenched sections.Thus, article 17 abolished untouchability and makes its practice in any form an
offence punishable by law. Article 15 inter alia provides that no citizen shall be discriminated against in the
use of public places like shops, wells, roads, eating houses etc. on account of his religion, race, caste, sex or
place of birth. Article 23 prohibits another great social evil, that of forced labour.
The whole effort has been to ensure that the fundamental rights of the citizens do not degenerate into the
liberties of the few against the interests of the many.
LECTURE#6
(Fundamental duties & Basic Structure of Constitution)
The fundamental duties which were added by the Forty-second Amendment of the Constitution in 1976, in addition to
creating and promoting a culture, also strengthen the hands of the legislature in enforcing these duties visa- vis the
fundamental rights.
Even though Part IV A, laying down certain duties of the Indian citizens, is one of the most valuable parts of the Constitution.
It is also the most neglected. While the Fundamental Rights provisions covered the rights of the individual and the Directive
Principles the duties of the State, there wereuntil 1976 no provisions in our Constitution laying down the duties of the
individual. For every right, there is a corresponding duty.
Duty is an inalienable part of right; the two represent the two sides of the same coin. What is duty for one is anothers right
and vice versa. If all men have a right to life, a duty is also cast upon all men to respect human life and not to injure another
person.
Ten Fundamental Duties were incorporated in the Constitution under Art. 51 A through the 42nd
Amendment in 1976 on the recommendation of Swaran Singh Committee.
Eleventh duty was added by 86th Amendment in 2002. These
consist of:
1. abiding by the Constitution and national flag respectively;
to cherish and follow noble ideas of our freedom struggle;
to maintain integrity;
to render national service when called upon to do so;
to promote common brotherhood and harmony;
to preserve the rich heritage of our composite culture;
to protect and improve our environment;
to develop scientific temper and humanism;
to abjure violence and;
to strive towards excellence in all spheres of life.
to provide opportunities for education to child/ward aged 6-14 years.
The fundamental duties are not justiciable like Fundamental Rights. However, a person is liable to punishment if he
deliberately violates them.
Like the duties of the State under the Directive Principles, the duties of citizens alsocannot be enforced by courts.
There is no provision in the Constitution for ensuring their compliance or for punishing their violation.
But the courts can certainly take them into consideration while construing a law amenable to more than one interpretation.
Article 51 A (g) regarding protection of environment has particularly come up before the courts. In the ultimate analysis, the
only way to bring about adherence to fundamental duties is through public opinion and education in citizenship values and
duties, and building adequate awareness and a congenial climate wherein every citizen feels proud and bound to perform his
constitutional duties to the nation and pay his debt to society.
A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of the
Fundamental Rights.
The Parliament reacted to the Supreme Courts judgement in the Golak Nath case(1967) by enacting the 24th Amendment Act
(1971). This Act amended Articles 13 and 368.
It declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and
such an act will not be a law under the meaning of Article 13.
However, in the Kesavananda Bharati case (1973), the Supreme Court overruled its judgement in the Golak Nath case
(1967).
It upheld the validity of the 24th Amendment Act (1971) and stated that Parliament is empowered to abridge or take away any
of the Fundamental Rights. At the same time, it laid down a new doctrine of the basic structure (or basic features) of the
Constitution. It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the basic
structure of the Constitution. This means that the Parliament cannot abridge or take away a Fundamental Right that forms a
part of the basic structure of the Constitution.
Again, the Parliament reacted to this judicially innovated doctrine of basic structure by enacting the 42nd Amendment Act
(1976). This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no
amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.
The Supreme Court in the Minerva Mills case (1980) invalidated this provision as it excluded judicial review which is a basic
feature of the Constitution.
Again in the Waman Rao case (1981), the Supreme Court adhered to the doctrine of the basic structure and further clarified
that it would apply to constitutional amendments enacted after April 24, 1973 (i.e., the date of the judgement in the Kesavananda
Bharati case).