Indian Constitution - 1 PDF

MAPOL 1.4 M.A. POLITICS SEMESTER - I REVISED SYLLABUS AS PER NEP 2020 INDIAN CONSTITUTION-I  © UNIVERSITY OF MUMBAI Prof. Ravindra Kulkarni Vice Chancellor...

MAPOL 1.4 M.A. POLITICS SEMESTER - I REVISED SYLLABUS AS PER NEP 2020 INDIAN CONSTITUTION-I  © UNIVERSITY OF MUMBAI Prof. Ravindra Kulkarni Vice Chancellor University of Mumbai, Mumbai Prin. (Dr.) Ajay Bhamare Professor Shivaji Sargar Pro Vice-Chancellor, Director, University of Mumbai CDOE, University of Mumbai Programme Co-ordinator : Mr. Anil R. Bankar Associate Professor, Head, Faculty Head, Arts and Humanities, CDOE, University of Mumbai Course Co-ordinator : Dr. Kshipra Vasudeo Assistant Professor, CDOE, University of Mumbai : Dr. Dattatray M. Tonde Assistant Professor, CDOE, University of Mumbai Editor : Dr. Kshipra Vasudeo Assistant Professor, CDOE, University of Mumbai Course Writers : Dr. Shrikant Devidas Mahadane Assistant Professor, Department of Political Science, Dr Patangrao Kadam Arts and Commerce College, Pen, Raigad : Dr. Ravi Rameshchandra Shukla Assistant Professor, R.D. & S.H. National & SWA Science College : Dr. Kshipra Vasudeo Assistant Professor, CDOE, University of Mumbai : Deepshikha Ph.D. Research Scholar, Indo-Pacific Studies, School of International Relations, Jawaharlal Nehru University (JNU) New Delhi, 110005 September 2024, Print - 1 ISBN 978-93-6728-908-2 Published by : Director, Centre for Distance and Online Education, University of Mumbai, Vidyanagari,Mumbai - 400 098. DTP composed and Printed by: Mumbai University Press Vidyanagari, Santacruz (E), Mumbai- 400098  CONTENTS Unit No. Title Page No. Module I 1. Evolution of Indian Constitution.................................................................................1 2. Fundamental Rights, Directive Principles of State Policy.........................................14 Module 2: 3. Changing Nature of Federalism..................................................................................27 4. Contemporary Debates on Federalism.............................................................................48  M.A. POLITICS SEMESTER - I REVISED SYLLABUS AS PER NEP 2020 INDIAN CONSTITUTION I SYLLABUS Subject code: C50411 Indian Constitution I (2 Credits, 30 Hours) Course Objectives: 1. Acquainting students with historical background and basic features of Indian Constitution 2. Discussing the nature and evolution of Indian federalism Module 1: Evolution of Indian Constitution a) Constituent Assembly Debates b) Preamble, Fundamental Rights, Directive Principles of State Policy c) Select Constitutional Amendments Module 2: Changing Nature of Federalism a) Features, constitutional provisions b) Reorganization of States c) Contemporary debates on federalism Course Outcomes: 1. This paper will give basic understanding of Indian Constitution, which will help the students to understand Indian society and polity in a thorough manner. 2. By the end of the course, students will be acquainted with the basic tenets of Indian Constitution and federalism Reading List: 1. Basu, D.D., Introduction to the Constitution of India, Prentice Hall, New Delhi, 2008. 2. Bhargava, Rajeev (Ed.), Politijcs and Ethics of the Indian Constitution, Oxford University Press, New Delhi, 2008. 3. Chakrabarty, Bidyut, and Pandey, Rajendra Kumar, Indian Government and Politics, Sage, New Delhi, 2008. 4. Granville, Austin, The Indian Constitution: Cornerstone of a Nation, Second Edition, Oxford University Press, Delhi, 1999. 5. Kashyap, Subash (Ed.), Constitutional Reforms: Problems, Prospects and Perspectives, Radha, New Delhi, 2004. 6. Mohanty, Biswaranjan, Constitution, Government and Politics in India, New Century, New Delhi, 2009. 7. Noorani, A.G., Constitutional Questions in India: The President, Parliament and the States, Oxford University Press, Delhi, 2000. Course Outcomes: 1. This paper will give basic understanding of Indian Constitution, which will help the students to understand Indian society and polity in a thorough manner. 2. By the end of the course, students will be acquainted with the basic tenets of Indian Constitution and federalism Reading List: 1. Basu, D.D., Introduction to the Constitution of India, Prentice Hall, New Delhi, 2008. 2. Bhargava, Rajeev (Ed.), Politijcs and Ethics of the Indian Constitution, Oxford University Press, New Delhi, 2008. 3. Chakrabarty, Bidyut, and Pandey, Rajendra Kumar, Indian Government and Politics, Sage, New Delhi, 2008. 4. Granville, Austin, The Indian Constitution: Cornerstone of a Nation, Second Edition, Oxford University Press, Delhi, 1999. 5. Kashyap, Subash (Ed.), Constitutional Reforms: Problems, Prospects and Perspectives, Radha, New Delhi, 2004. 6. Mohanty, Biswaranjan, Constitution, Government and Politics in India, New Century, New Delhi, 2009. 7. Noorani, A.G., Constitutional Questions in India: The President, Parliament and the States, Oxford University Press, Delhi, 2000. 8. Pylee, M.V., An Introduction to the Constitution of India, Vikas, New Delhi, 2008. 9. Saez, Lawrence, Federalism Without a Centre: The Impact of Political and Economic Reforms on India’s Federal System, Sage, New Delhi, 2002. 10. Sharma, Brij Kishore, An Introduction to the Constitution of India, Vikas, New Delhi, 2008. 11. Singh, M.P., and Roy, Himanshu (Eds.), Indian Political System, Manak, New Delhi, 2005. 11. वराडकर र.घ., 'भारतीय राज्यघटना मानवी हक्क व मासहती असधकार कायदा', सनराली प्रकाशन, पुणे ,2014. 12. लोखंडे भगवान , 'भारतीय संसवधान स्वरूप व तत्वज्ञान ' दु वाा एजन्सी, पुणे, 2021.  1 EVOLUTION OF INDIAN CONSTITUTION Unit Structure: 1.0 Objectives 1.1 Introduction 1.2 Making of Indian Constitution 1.3 Constituent Assembly Debates 1.4 Salient Feature of The Constitution 1.5 The Philosophy of The Constitution 1.6 Fundamental Rights 1.7 Directive Principles of State Policy (DPSP) 1. 8 Select Constitutional Amendments 1.9 Unit End Questions 1.10 References 1.0 OBJECTIVE This Unit is design to introduce students with basic aspects of Constitution of India. To understand Basic and salient features of Constitution. 1.1 INTRODUCTION The Constitution is generally described as the fundamental law of the state. It represents the vision and values of the nation and serves as a living framework of functioning institutions. Although the Constitution of India is the outcome of rigorous research and deliberation by representatives of the people, its evolution can be traced back to 1858, when the British Crown assumed sovereignty over India from the East India Company. Many commentators consider the Government of India Act of 1858 as the starting point for any study of the constitutional development of the Indian Constitution. This Act marked the beginning of absolute imperial control over Indian territory. Subsequent developments leading to the Constitution of India include: The Indian Councils Act of 1861 further expanded the Governor- General's Executive Council, while the Indian Councils Act of 1892 introduced Provincial Legislative Councils. 1 Indian Constitution - I The Indian Councils Act of 1909 (also known as the Morley-Minto Reforms) introduced the concept of representation and popular government. This Act also recognized the principle of indirect elections and introduced communal representation by granting separate electorates for Muslims. The Government of India Act of 1919 emerged as a major landmark in India's constitutional development. Based on the Montagu-Chelmsford Reforms, it replaced the Legislative Council with a bicameral legislature and introduced the Dyarchy system in eight major provinces. However, the Government of India Act of 1919 failed to meet the aspirations of the Indian people, leading to agitation by the Congress. In response, the British Parliament appointed a commission chaired by John Simon to review the reforms. The commission held three Round Table Conferences to discuss and examine the demands of Indian leaders, and a joint committee was appointed for this purpose. The Government of India Act of 1935 was based on this report and is considered a key milestone in India’s constitutional history. The Act established a federal structure for India and Dyarchy at the central level. The central legislature was made bicameral, and legislative powers were divided between the center and the provinces. Many provisions from the Government of India Act of 1935 were later incorporated into the Indian Constitution. The Indian Independence Act of 1947 established two independent dominions, India and Pakistan, and granted each Dominion's Constituent Assembly complete freedom to draft and adopt a constitution for their respective nations. 1.2 MAKING OF INDIAN CONSTITUTION The task of framing the Constitution for a sovereign, democratic nation is undertaken by a representative body of its people. The concept of a Constituent Assembly is closely linked to the growth of the national movement in India. The first definite reference to a Constituent Assembly was made by Mahatma Gandhi in 1922. On April 24, 1924, a National Convention drafted the Commonwealth of India Bill. In January 1925, the draft was submitted to the All Parties Conference in Delhi, where it was presented to leading political parties. The Bill was also introduced in the House of Commons but was defeated. However, it represented a significant effort by Indians to outline a constitutional system for India. Later, the Motilal Nehru Report became a historic event in the constitutional history of India. The report comprised 22 chapters and 87 articles and was labeled the "Magna Carta of our liberty." As the Simon Commission and the Round Table Conferences failed to meet 2 Indian aspirations, the British Parliament enacted the Government of India Act, 1935, which intensified the demand for a Constituent Assembly for the Evolution of Indian Constitution people of India. This demand was reiterated by the All-India National Convention of Congress Legislators in March 1937. The ongoing World War II compelled the British government to reconsider the demand for a Constituent Assembly. Sir Stafford Cripps was sent to India, and he presented a draft declaration, which became known as the Cripps Mission Plan. However, due to the separatist movement led by the Muslim League and other political movements, the Cripps Mission Plan was rejected. Following the rejection of the Cripps Proposal, and in the wake of the Quit India movement, various reconciliation efforts to unite the Congress and the Muslim League also failed. The British government then sent a delegation of three Cabinet members and proposed that a Constituent Assembly should be elected to draft the Constitution, suggesting a basic framework for the Indian Constitution. 1.3 CONSTITUENT ASSEMBLY DEBATES The Constituent Assembly of India was established to draft India's Constitution after independence from British rule. The demand for a Constituent Assembly was first raised at the Delhi Session of the Indian National Congress in December 1918 and was later reiterated by Mahatma Gandhi in Young India. However, the British government officially conceded to the demand for a Constituent Assembly through the August Offer of 1940. In February 1946, the Attlee government sent a mission of three cabinet ministers (including Pethick-Lawrence, Sir Stafford Cripps, and A.V. Alexander). The Cabinet Mission aimed to discuss the transfer of power from British to Indian leadership, to establish the Constituent Assembly as a constitution-making body, and to form an Executive Council with the support of major Indian political parties. Based on the Cabinet Mission’s recommendations, the Constituent Assembly was to have 389 members from various sections of society. These included 292 indirectly elected members, 93 members representing princely states, and 4 members representing Chief Commissioners' provinces. In July-August 1946, elections were held for 296 seats in the Constituent Assembly, where the Congress won 208 seats and the Muslim League won 73 seats. The Constituent Assembly was originally elected for undivided India, and its first session was held on December 9, 1946. On December 13, 1946, Pandit Jawaharlal Nehru moved a draft Resolution of Objectives, which was finally adopted on January 22, 1947. However, with the partition of India and the subsequent independence of India and Pakistan, the Constituent Assembly of India became a fully sovereign body. The composition of the Constituent Assembly reflected broad representation of the country’s political, social, and regional diversity, including representatives from British Indian provinces and princely states, as well as communal representation for various communities and religions. 3 Indian Constitution - I The Constituent Assembly convened its first session on December 9, 1946, and held its last session on January 24, 1950. The Constitution of India was formally adopted on November 26, 1949. Altogether, the Assembly met for 167 days over the course of 2 years and 11 months to draft the Constitution of India. Dr. Rajendra Prasad served as the President of the Constituent Assembly, while Dr. B.R. Ambedkar held the position of Chairman of the Drafting Committee. The Constituent Assembly formed twelve additional important committees. Other notable members included Jawaharlal Nehru, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad, H.C. Mookerjee, and Sarojini Naidu. The Important Constituent Assembly Committees Committee on the Rules of Rajendra Prasad Procedure Steering Committee Rajendra Prasad House Committee B. Pattabhi Sitaramayya Committee on the Functions of the G. V. Mavalankar Constituent Assembly States Committee Jawaharlal Nehru Advisory Committee on Vallabhbhai Patel Fundamental Rights, Minorities and Tribal and Excluded Areas Minorities Sub- Committee H. C. Mookherjee Fundamental Rights Sub- J. B. Kripalani Committee North- East Frontier Tribal Areas Gopinath Bordoloi and Assam Excluded and Partially Excluded Areas Sub- Committee Union Powers Committee Jawaharlal Nehru Union Constitution Committee Jawaharlal Nehru Drafting Committee B. R. Ambedkar (Source: Subramanian S. G., Indian Constitution and Indian Polity Pearson Publication, 2019). The discussions and deliberations that took place during the framing of the Constitution are referred to as the Constituent Assembly Debates (CAD). Broadly, these debates can be divided into the following four major sections: 4  Preliminary Stage (December 9, 1946 - January 27, 1948): On Evolution of Indian Constitution December 13, 1946, Pandit Jawaharlal Nehru moved the Objectives Resolution, which served as a blueprint for the Indian Constitution, outlining the fundamental principles and objectives that would guide its drafting. This resolution was adopted on January 22, 1947. During this stage, the Drafting Committee was formed, and other committees, such as the Fundamental Rights and Minorities Committee and the Union Powers Committee, began submitting their reports. First Reading (November 4, 1948 - November 9, 1948): The Drafting Committee introduced the first Draft Constitution in the Assembly for the First Reading. Second Reading (November 15, 1948 - October 17, 1949): During this period, the Assembly members discussed the draft clause by clause in the Second Reading. Third Reading (November 14, 1949 - November 26, 1949): In the final stage, the Third Reading of the draft was completed, and the Constitution was enacted on November 26, 1949. The Draft Constitution, prepared by various constituent committees, was submitted to the President of the Assembly. On November 16, 1949, the Constituent Assembly began the third reading of the Constitution. Dr. B.R. Ambedkar, Chairman of the Drafting Committee, proposed that the Assembly approve the Constitution as sanctioned. On November 26, 1949, the people of India adopted and enacted the Constitution of the Sovereign, Democratic Republic of India. Finally, on January 24, 1950, Dr. Rajendra Prasad, President of the Constituent Assembly, signed the Constitution. Dr. B.R. Ambedkar, Chairman of the Drafting Committee, remarked: "The journey is not an end. A good or bad Constitution does not depend on the nature of the Constitution; it depends on the people and political parties and on how they conduct their politics." The Constituent Assembly Debates covered key issues, including Fundamental Rights, Secularism, Federalism, Official Language, and Reservation and Social Justice. After extensive debates, amendments, and revisions, the Constitution of India was adopted on November 26, 1949. The written records of the Indian Constituent Assembly Debates are frequently used by courts for constitutional interpretation. Over time, the Constitution has evolved through various amendments. Review Questions: 1) How was the Constituent Assembly set up? 2) Provide a brief review of the working of the Constituent Assembly. 3) Discuss the role of Dr. B.R. Ambedkar in drafting the Constitution. 5 Indian Constitution - I 1.4 SALIENT FEATURE OF THE CONSTITUTION The Constitution of India is characterized by its distinctive attributes that set it apart from other Constitutions worldwide. Although, it was criticised for its borrowed nature and Dr B. R. Ambedkar admitted that it has been prepared after ransacking of all the known Constitutions of the world and most of the provisions are substantially borrowed from others, it was accommodated to the needs of the country. According to Granville Austin, the success of Indian Constitution lies principally in its having framed by Indians, and in the excellence of the framing process itself. Constitution got evolved and modified through various amendments. From time-to-time, some of the important features of the Constitution can be noted down as per the following 1) Size of the Constitution: Indian Constitution is a comprehensive document that covers subject matters of ordinary legislation. Notably, it is the longest Constitution. The original Constitutional contained 395 Articles and 8 schedules. After the various amendments and repealing of several provisions, it consists 448 Articles and 12 schedules. 2) Written Constitution Constitution may be written or unwritten like USA and UK respectively. Indian Constitution is a written document which was prepared by the Constituent Assembly. Indian Constitution also embodies legislation, rules and judicial decisions made elsewhere that were modified and interpreted to reduce uncertainty and litigation. 3) Rigid and Flexible: Federal Constitutions are usually classified as rigid Constitution because of their difficult amending process. Indian Constitution may be said to be a combination of rigid and flexible e.g. few of the provisions of the Constitution can be modified by the Parliament by simple majority; some provisions require ratification by the state legislature. In some cases, the Constitution has assigned powers to Parliament to supplement the provisions by legislation. The Constitution thus ensures adaptability by prescribing variety of modes. As of 25th Jan 2020, Indian Constitution has undergone through 104 amendments which describes its flexibility. 4) Federal or unitary: The US Constitution embodies a Federal character, whilst the UK Constitution exemplifies a Unitary nature. The Federal Constitution is usually written and rigid nature. Here, powers are divided between Federal government and Federating units. On the other hand, in Unitary Constitution all powers are vested in the central government. Prof. K. C. Wheare has described the Indian Constitution as Quasi- Federal as it 6 demonstrates Federal in structure but unitary in sprit feature. Indian Evolution of Indian Constitution Constitution is unique since it has unitary as well as federal combination. Although, the Constitution of India does not use the term federal or federation, the Supreme Court has spoken sometimes as Quasi-federal and sometimes Unitary. 5) Parliamentary System: Indian Constitution has introduced unique form of government based British model. Here, Union as well as states have Government. India is a Republic with an elected President as the Head of the Union. All governmental operations are executed on behalf of the President. The President is obligated to act in compliance with the advice and advice of the Council of Ministers. Another feature of Parliamentary System i.e. Principle of Collective Responsibility/ Ministerial Responsibility to the legislature which is a part of British System, embodied in the provisions of our Constitution. 6) Parliamentary Sovereignty – Vs Judicial Supremacy: Indian Constitution harmonizes Parliamentary Sovereignty and Judicial Supremacy. Here, various organs of Government (like; Legislature, Executive and Judiciary) are balanced through Check and Balance. Pandit Jawaharlal Nehru appropriately said that, “No judiciary can stand over the sovereign will of the Parliament, it can pull up that sovereign will if it goes wrong. “Our Constitution thus places Parliamentary Supremacy as much as that is possible within the bonus of the written Constitution”. 7) Independent Judiciary: The Constitution establishes an independent judiciary with powers of judicial review. Various High Courts and Supreme Court form a single integrated judicial structure with jurisdiction over all laws. Judiciary is a custodian of individual’s rights and freedom and the Constitution. Therefore, it reviews various legislation to determine constitutionality. The Supreme Court also acts as the arbitrator of any disputes regarding jurisdiction and distribution of powers between the States and Union. 8) Adult Franchise: The Article 326 ensures Universal Adult Suffrage without any qualification. This provision is a bold experiment in India where large population has background of illiteracy and poverty. The Preamble underscores the idea of popular sovereignty which can be realized through Universal Adult Suffrage only. It is the only effective medium of people’s sovereignty in modern democracy with an independent electoral machinery. Universal Adult Franchise has succeeded since 1st General Election in 1952 and several state legislature elections. 7 Indian Constitution - I 9) Single Citizenship: The Constituent Assembly was fully aware about the spirit and objectives of National freedom movement. Therefore, framers of Indian Constitution strongly recommended the concept of single citizenship. The Single citizenship helps to solidify India’s unity and integrity as a nation despite the federal character of our Constitution. There is only Indian citizenship and no states have right to issue separate identify to the people. All citizens have equal rights without discrimination. 10) Fundamental Rights: Inclusion of Fundamental Rights is a distinguished feature of Indian Constitution. Fundamental Rights are incorporated in Part III (Art. 12 to 35) of the Constitution. Fundamental Rights offer a safeguard to an individual against any coercive and illegitimate state actions. Art. 32 prescribes remedies to enforce and safeguard Fundamental Rights in case of any deprivation of individual’s rights through any executive action. Judiciary protects Fundamental Rights and any law or executive order which offends Fundamental Rights is liable to be declared void by the Supreme Court or high courts. Such action will be held unconstitutional and invalid unless it is covered by the restrictions spelled out by law. However, Fundamental Rights are not absolute and a balance between rights of an individual and interests of society has been maintained. 11) Directive Principle of State Policy: Framers of Indian Constitution have borrowed the concept Directive Principle of State Policy (DPSP) from Irish precedent. It has emerged as a unique feature of our Constitution. The incorporation of DPSP in the Constitution has enabled State with prescribed directives for formulating its socio-economic policies and welfare schemes. DPSP aim to establish socio- economic democracy pledged in the Preamble. Although, these directives are non- enforceable in the courts and do not create any justiciable rights in favour of the individuals, these directives assume great significance for legislatures as well as judiciary. 12) Fundamental Duties: Initially, Fundamental Duties were not the part of Indian Constitution. However, with acceptance to Swaran Singh Committee’s recommendation, Fundamental Duties were inserted to Indian Constitution. The 42nd Amendment added Part IV i.e. Fundamental Duties (Art 51-A) that covered 10 fundamental duties. Presently, The constitution prescribes 11 fundamental rights. Although, Fundamental Duties are non-justiciable, they carry equal weightage that of Fundamental Rights. Thus without corresponding duties are Fundamental Rights are meaningless. There is no provision in the Constitution for direct enforcement of any of these duties not for any sanction to present their violation. 8 13) Preamble: Evolution of Indian Constitution The Preamble of the Indian Constitution is a unique feature. It reflects the philosophy and values on which Indian democracy is based. The Preamble serves two purposes. Firstly, it indicates the source from which the Constitution derives its authority. Secondly, it states the objectives that the Constitution seeks to establish and promote. It combines the ideals of political, social, and economic democracy with equality and fraternity. REVIEW QUESTIONS: 1) Discuss the salient features of the Constitution of India. 2) Comment on Parliamentary Sovereignty and the Basic Structure of the Constitution. 3) Write a short note on: i) Federal and Unitary Constitution. 1.5 THE PHILOSOPHY OF THE CONSTITUTION The Constitution of India embodies the fundamental values, aims, and objectives for the polity to strive towards and achieve. This reflects the philosophy of the Indian Constitution, largely expressed in the Preamble. The Preamble embodies the ideals to be attained. An Objectives Resolution was proposed by Pandit Jawaharlal Nehru and subsequently approved by the Constituent Assembly on January 22, 1947. The Objectives Resolution inspired the shaping of the Constitution through all its subsequent stages. Nehru said that the Resolution was something more than a resolution; it was a declaration, a firm resolve, a pledge, and an undertaking, and for all of us, a dedication. In its various decisions, the Hon'ble Supreme Court has reiterated the importance and utility of the Preamble. Initially, in the Berubari Union Case (1960), the Supreme Court held the view that the Preamble was not an integral part of the Constitution and, hence, was not enforceable in a court of law. However, in Keshavanand Bharti v. State of Kerala (1973), the Court held that the Preamble is a part of the Constitution and can be amended, subject to the basic structure of the Constitution. Although the Preamble itself is not enforceable in a court of law, it establishes, promotes, and aids the legal interpretation of the Constitution where the language is found ambiguous. In Bharti Bhavan v. State of Mysore, the Supreme Court held the view that the scope of the Directive Principles and Fundamental Rights could be better understood in the light of the objectives enshrined in the Preamble. Let us briefly discuss the meaning of the words used in the text of the Preamble. 9 Indian Constitution - I IMAGE 01. PREAMBLE OF THE INDIAN CONSTITUTION Source: https://www.loc.gov/exhibits/world/images/wt0070_1s.jpg 1. We the people: The Constitution of India, unlike the preceding Government of India Acts, is not a gift from the British Parliament. As stated in the Preamble, the Constitution of India is ordained by the people of India through their representatives assembled in a Sovereign Constituent Assembly. The words "We, the people of India" thus declare the ultimate sovereignty of the people of India and affirm that the Constitution derives its authority from them. 2. Sovereignty: In a sovereign state, power resides with a supreme and absolute authority without any superior power. The words "We, the people" express the source of sovereign power as the people of India. On January 26, 1950, India 10 ceased to be a dominion of Britain and became a sovereign state. Thus, Evolution of Indian Constitution sovereignty belongs to the people of India as a whole, not to the individual states. India's membership in the Commonwealth of Nations was initially criticized; however, it later became clear that such membership did not pose a threat to our sovereignty. 3. Democratic: The Preamble envisions the depiction of India as a democratic republic, both politically and socio-economically. A democratic government and society infuse values like justice, liberty, equality, and fraternity. India has adopted a representative democracy with universal adult franchise and a parliamentary form of government. The Constitution offers equality to all citizens in electing representatives and in choosing who can run the government. As a democratic republic, India stands for the welfare of all its people, embodied in the concept of a welfare state. In his concluding speech at the Constituent Assembly, Dr. Babasaheb Ambedkar pointed out that political democracy can last only if it is based on social democracy. 4. Republic: A republic stands for a government where the people are supreme, there is no privileged class, and all public offices are open to every citizen without any discrimination. There are no hereditary rulers, and the head of state is elected by the people for a fixed term. We have an elected President as the head of the union. The words socialist, secular, and integrity were inserted into the Constitution by the 42nd Amendment Act of 1976 in the text of the Preamble. Although the Preamble is not enforceable in a court of law, it was amended with the intention of providing more clarity regarding our social and economic objectives. 5. Socialist: The 42nd Constitutional Amendment Act (1976) inserted the word socialist into the Preamble. The term socialism is vague. The Supreme Court has observed that the principal aim of socialism is to eliminate inequality in income, status, and standard of living. The 45th Constitutional Amendment Bill attempted to define socialist as a means to be free from all forms of exploitation. 6. Secularism: The Constitution strongly expresses its secular objective by inserting the word "secular" in the Preamble. The Constitution ensures and promotes (Articles 25 and 29) the liberty of belief, faith, and worship, but there is no provision in the Constitution making any religion official. The state does not owe loyalty to any religion, but it is not anti-religious. The framers of the Constitution envisioned a nation that transcends diverse religions, castes, and creeds. 11 Indian Constitution - I 7. Justice: The Preamble promises justice to all citizens. Justice, here, ensures the harmony of individual interests and the interests of the community. Thus, the scope of justice is very broad. Social justice implies that all citizens are treated equally, irrespective of their status in society. Economic justice requires that the rich and poor are treated alike, and efforts must be made to bridge the gap between them. Political justice means an equal share for all citizens in the right to participate in the political process, without any distinction based on race, caste, etc. 8. Liberty: Liberty was conceived as the absence of interference in individual freedom, with the right to liberty of thought, expression, belief, etc. (Article 19). The framers of the Constitution were determined that democracy could only be established if it was clearly written and well-defined. However, liberty should be coupled with social restraint and subordinated to the liberty of the greatest number for the common happiness. 9. Equality: The guarantee of certain rights is meaningless unless all inequality is banished from the social structure, and every individual is assured of equality of status and opportunity for the development of their potential. Equality has legal, political, social, and economic aspects, all of which are secured by the Constitution. Political equality is guaranteed through the provision of universal adult franchise (Article 326). 10. Fraternity: The ideals of justice, liberty, and equality are relevant and meaningful only insofar as they promote a common feeling of brotherhood. The Fundamental Rights and Directive Principles play a vital role by making various socio-economic provisions to establish human dignity. The removal of social and economic disparity is the only way to maintain the dignity of the individual. 12. Unity and the integrity of the Nation: India hosts diversity in terms of language, culture, religions, race, etc. Therefore, unity among the inhabitants of this vast subcontinent, amidst separatist forces, has continued to remain an essential requisite. Such unity is crucial to maintaining the independence of the country as well as ensuring the success of the democratic experiment. The 42nd Amendment Act (1976) reinforced the ideal of unity by adding the words "and integrity of the Nation." However, neither the integration of the people nor a democratic political system could be ensured without infusing a spirit of brotherhood among the heterogeneous population of this country. 12 13. Conclusion: Evolution of Indian Constitution Thus, an analysis of the various concepts and terms in the Preamble shows that the noble words of the Preamble represent the essence, philosophy, and soul of the Constitution of India. The Preamble encapsulates the basic features of the Constitution. 1.6 UNIT END QUESTIONS 1. Describe the significance of the Preamble of the Constitution? 2. Discuss the following terms in Preamble 1) Socialist 2) Secular 3) Fraternity 1.7 REFERENCES The Oxford Handbook of the Indian Constitution. (2016). United Kingdom: Oxford University Press. Austin, G. (2002). The Indian Constitution: Cornerstone of a Nation. India: Oxford University Press. Basu, D. D. (1966). Introduction to the Constitution of India. India: S.C. Sarkar.  13  2 FUNDAMENTAL RIGHTS DIRECTIVE PRINCIPLES OF STATE POLICY (DPSP) Unit Structure: 2.0 Objective 2.1 Introduction 2.2 Fundamental Rights in The Constitution 2.3 Directive Principles of State Policy (Dpsp) 2.4 Select Constitutional Amendments 2.5 Conclusion and Questions 2.5 Unit End Questions 2.6 References 2.0 OBJECTIVE: ▪ In this Unit you will to understand Fundamental Rights, Directive Principles of State Policy (DPSP), and select Constitutional Amendments. 2.1 INTRODUCTION: Fundamental Rights in India are inspired from the US Constitution. In USA, the Bill of Rights is equally binding upon the Legislature and Executive. In India, both the Simon Commission and Joint Parliamentary Committee rejected the idea of enacting similar Declaration of Fundamental Rights as “abstract declarations are useless as there exist the will and the means to make them effective”. However, Nationalist sentiments, since Nehru Report were in favour of Bill of Rights. Therefore, despite British opinion the makers of Indian Constitution adopted Fundamental Rights to safeguard liberty of Indian people and to strengthen our democratic system. According to Justice Bhagvati, ‟our Fundamental Rights represent the basic values cherished by the times and are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent”. Features of Fundamental Rights: Features of Fundamental Rights can be summarized as: a) Fundamental Rights have their roots in freedom struggle: Roots of these rights are found in our freedom struggle movement. Nehru Report was the documentary evident for the demand of basic rights. 14 b) Fundamental Rights are justifiable: Fundamental Rights Directive Principles Of State Policy The Rights incorporated in the Constitution of India are justifiable in (DPSP) the Court of Law. The Judiciary is the protector of Rights and Liberty of the people. Article 32 provides Means to safeguard Fundamental Rights. c) Fundamental Rights reflects social reality: Fundamental Rights are not mere a code of rights and liberty. Besides a political form, democracy is a way of life. Fundamental Rights in the Part III of the Constitution reflects the social reality. d) Positive and Negative: Freedom or Rights have two sides which tell us what to do and what not to do, these are positive and negative aspects of rights. The restrictions or limitations on the rights are visible sides of it. The rights and freedom have to be enjoyed with social concern. 2.2 FUNDAMENTAL RIGHTS IN THE CONSTITUTION: The Constitution of India has embodied number of Fundamental Rights in part III of the Constitution. The Constitution itself classifies the Fundamental Rights under seven groups as follows. RIGHT TO EQUALITY (ART 14-18) RIGHT TO FREEDOM (ART 19-22) RIGHT AGAINST EXPLOITATION (ACT 23, 24) FREEDOM OF RELIGION FUNDAMENTAL RIGHTS (ART 25-28) CULTURAL AND EDUCATIONAL RIGHTS (ART 29-30) RIGHT TO PROPERTY (ART 31) eliminated by the 44th Amendment Act so that only six freedoms are remained. RIGHTS TO CONSTITUTIONAL REMEDIES (ART 32-35) 15 Indian Constitution - I Part III of the Constitution contains Fundamental Rights. According to Justice Gajendra Gadkari, “Fundamental Rights are the very foundation and cornerstone of democratic way of life ushered in this country by the Constitution”. Article 12, defines State which includes the Government and Parliament of India, Government and Legislatures of the State, all Local Authorities and other Authorities under the control of Government of India. Article 13 declares all laws and Executive orders enforce immediately before the commencement of the Constitution in consistent with the Fundamental Rights to be ultra vires and void to the extent of such inconsistency. Fundamental Rights are subject to reasonable restrictions and limitations imposed by law or by Court decision from time to time. The Supreme Court has been entrusted to determine the reasonableness of the restrictions imposed by the Parliament by law. I. Right to Equality. (Article 14-18): Article 14 – Equality before Law and Equal protection of the laws Art 15 – No discrimination against any citizens on grounds of Religion, Race, Caste, Sex of Place of Birth Article 17 – Untouchability and its practices in any form is punishable offence Article 16 – Equality of opportunity in matters of public employment Article 18 – Abolition of Titles The Principle of Equality does not mean that every law must have universal application for all persons who are not by nature attainment or circumstance in the same position as the varying needs of different classes of persons often require separate treatment. The principle does not take away from the state the power of classifying persons for legitimate purposes. Some reasonable restrictions on Right to Equality 1) In offences relating to women, they may be placed in more favourable position. 2) To differentiate between Civil and Military, Personnel in some cases. 3) Making special provisions for women and children. 4) To prescribe certain condition for employment 5) Making adequate reservations for socially and economically disadvantaged groups. 16 II. Right to Freedom (Art 19-22): Fundamental Rights Directive Principles Of State Policy (DPSP) Article 19 embodies seven freedoms as under. a) Freedom of Speech and Expression. b) Freedom to Assemble c) Freedom of forming Associations d) Freedom of Movement e) Freedom of Residence/Settlement f) Right to Property (deleted by 44th amendment act 1978) g) Freedom of Profession/Occupation Article 20 – Protection in respect of conviction for offences Article 21 – Protection of life & personal liberty Article 22 – Protection against assets and detention The state may impose reasonable restrictions on the right to freedom to prevent defamation, contempt of court, decency or morality, public order, and the preservation of India's sovereignty and integrity. The term "reasonable restrictions" refers to a balance between an individual's freedom and that of society. The reasonableness should be considered from both a substantive and procedural standpoint. There is no specific provision in our Constitution that guarantees press freedom because it is part of the broader freedom of expression. Which is guaranteed by Article 19 (I). (a) The right to life is not limited to bodily existence; it also includes the right to live in dignity. Similarly, the other rights to personal liberty are subject to reasonable constraints. III Right against Exploitation: Article 23 – Prohibition on traffic in human beings and forced labour. Article 24 – No child below the age of 14 yrs. shall be employed to work in any factory or any hazardous employment. The whole idea is not to allow the state or anyone to compel a person to work against his/her will or to misuse the human in any way. The only exception is compulsory service for public purposes. These rights are included in keeping with the human rights concepts and United Nations norms. IV. Right to freedom of Religion (Art 25-28): Article 25 – All individuals are equally entitled to freedom, of conscience and Right to freely profess, practice and propagate religion of his/her choice. Article 26 – Every religious groups have right to manage their religious Affairs. 17 Indian Constitution - I Article 27 – No person shall be compelled to pay any taxes/ expenses of any religion. Article 28 – Forbids totally any religious instruction being imparted in educational institutions maintained by state funds. According to the Indian Constitution, the country is a "secular state," meaning it is neutral and impartial towards all religions. There is no state religion in India. The state will not establish its own religion or grant special privileges to any specific religion. The judicial interpretation has broadened the scope of religious freedom. The court has the right to evaluate if a religious practice is important or if it violates public health or morality. In this context, the term secular is ambiguous and can refer to a variety of concepts. The Supreme Court clarified that secularism does not imply that the state should be hostile to religion, but rather antagonistic to all religions. The state's neutrality would be compromised if religion were utilized for political goals. In this sense, secularism is a fundamental characteristic of the Constitution. V. Cultural and Educational Rights: Article 29 – Guarantees to every citizen residing anywhere in India, having distinct language script or culture the right to conserve the same. Article 30 – All minorities whether religious or linguist shall have the right to establish and administer educational institutions of their choice. However, the Right to administer such educational institutions does not mean right to mal-administration. The right is subject to regulatory power of the state. Article 30 (2) provides that, in the matter of giving aid, the state shall not discriminate against minority managed institutions. VI. Right to Property (Article 31): Article 31 – The original article includes the Right to Acquire Property (legally) to hold and to dispose it freely with a reasonable restriction. The 4th, 17th, 25th, and 44th amendments to the Constitution have all resulted in significant revisions to the topic of compensation for the acquisition of private property for public use by the state. With effect from June 20, 1979, the 44th Amendment Act of 1978 fully repealed Articles 19(1) (f) and Article 31 from the list of Fundamental Rights. Rather, a new Chapter, Chapter IV, and Article 300 (A) were inserted to section XII of the Constitution to state that no one may be stripped of their property unless they are authorized by law. VII. Right to Constitutional Remedies: Framers of the Indian Constitution agreed that declaration of Fundamental Rights in the Constitution is not useful unless the means to take them effective. As Dr Babasaheb Ambedkar quoted, Fundamental Rights without Constitution Remedies are glittering generalities, without any binding effect on the state. 18 Therefore, Indian Constitution establishes provisions for the enforcement Fundamental Rights Directive Principles Of State Policy of Fundamental Rights. Being the cornerstone of the entire edifice, through (DPSP) Article 32 Supreme Court can issue directions/ writs to safeguard Fundamental Rights. The Writs include; Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. 1. Habeas Corpus: The term Habeas Corpus originated from Latin phrase which literally means to have a body. Habeas Corpus is an order calling upon the individual who has detained another to produce the later before the court. It enables the individual to know on what ground he has been confined and to set him free if there is no legal justification for the imprisonment. 2. Mandamus: Mandamus stands for we command. Through Mandamus, the Supreme Court commands the individual (to whom it is addressed) to perform some public or quasi- public legal duty which he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy. Usually, Mandamus is an order directing the performance of ministerial acts. A ministerial act is one which a person or body is obliged by law to perform under given circumstances. 3. Prohibitions: Supreme Court or a High court issues the writ of Prohibition to an inferior court. Prohibition forbids later to continue proceedings therein more than its jurisdiction. Prohibition is applicable to juridical authorities as well as other administrative authorities. Hence, Prohibition is not available against public officers who are not vested with judicial functions. 4. Certiorari: While, Prohibition is available at an earlier stage, Certiorari is available at a later stage on similar grounds. Both writs aim to secure that, the jurisdiction of a subordinate court or tribunal is properly exercised and that it does not usurp the jurisdictions which it does not possess. High Court can issue Certiorari to quash the decision of the subordinate tribunal and the Supreme Court can also issue the writ in such cases, provided some fundamental right has also been infringed by the order complained against. 5. Quo-Warranto: The Supreme Court has the authority to use Quo-Warranto to investigate the validity of a claim made by a party to a public office and, if the claim is unfounded, to remove the party from their position. Quo-warranto is a very powerful instrument for safeguarding against the usurpation of public officers. 19 Indian Constitution - I Review Questions: 1. Justify the Indian demand for guaranteed Fundamental Rights can Parliament amend them? 2. Critically examine the concept of equality before law. 3. Discuss the various writs guaranteed under Art 32 4. What is the position of Right to poverty today? 5. What are Reasonable Restrictions? Who decides it and to what extent? 6. Define and discuss the meaning of secular state? 2.3 DIRECTIVE PRINCIPLES OF STATE POLICY (DPSP): The Constitution of India strives to establish the welfare state. To achieve the goal of welfare state and to establish a socio-economic democracy the framers of Indian Constitution introduced the notion of Directive Principles of State Policy (DPSP) in our constitution. these DPSP are enshrined in Part IV (Articles 36–51) of the Indian Constitution which forms as an integral part. The idea of DPSP was borrowed from the Irish Constitution. As enumerated in Article 37, DPSP are not legally enforceable by any court however they serve as a beacon for the government to achieve a just and equitable society. According to L. M Singhvi, “the Directives are the life-giving provisions of the Constitution. The constitute the stuff of the Constitution and its philosophy of social justice” The Directive Principles can be broadly classified into three categories: 1. Social and Economic Principles 2. Gandhian Principles 3. Liberal Principles 1. Social and Economic Principles As stated above, DPSP are aimed at creating social equity and ensuring economic welfare. Some key articles under this category are: Article 38: The state shall strive to promote the welfare of the people by securing a social order where justice – social, economic, and political – prevails. Article 39: The state shall direct its policies to ensure adequate means of livelihood for all, equitable distribution of resources, prevention of concentration of wealth, and equality in wages. 20  Article 41: The state shall make effective provision for securing Fundamental Rights Directive Principles Of State Policy the right to work, education, and public assistance in cases of (DPSP) unemployment, old age, sickness, and disablement. Article 43: The state shall endeavour to secure a living wage and ensure a decent standard of life for all workers. 2. Gandhian Principles These principles reflect the ideas of Mahatma Gandhi and emphasize rural development, self-sufficiency, and social harmony. Key Gandhian Directive Principles include: Article 40: The state shall take steps to organize village panchayats and empower them with the authority to function as units of self-government. Article 43: Promotion of cottage industries on an individual or cooperative basis in rural areas. Article 46: The state shall promote the educational and economic interests of the Scheduled Castes, Scheduled Tribes, and other weaker sections of society. Article 47: The state shall work towards raising the level of nutrition and standard of living, and improving public health. Article 48: The state shall endeavour to prohibit the slaughter of cows, calves, and other milch and draught cattle. 3. Liberal-Intellectual Principles These principles represent the liberal and intellectual ideals of the time, focusing on legal and administrative reforms: Article 44: The state shall strive to secure for all citizens a uniform civil code (UCC) throughout India. Article 45: The state shall provide free and compulsory education for all children below the age of 14 years (now a Fundamental Right under Article 21A). Article 48: The state shall promote the improvement of agriculture and animal husbandry on modern and scientific lines. Article 50: The state shall take steps to separate the judiciary from the executive in the public services of the state. Article 51: The state shall endeavour to promote international peace and security and maintain just and honourable relations between nations. 21 Indian Constitution - I Key Amendments Related to DPSPs 42nd Amendment (1976): This was a significant development in strengthening the role of DPSPs, as it added new principles such as protection of the environment (Article 48A) and participation of workers in industrial management (Article 43A). 86th Amendment (2002): Made education a Fundamental Right for children between the ages of 6 and 14 under Article 21A, derived from the earlier DPSP under Article 45. Role of DPSP 1. DPSP are Compass for Lawmaking: Although not enforceable, DPSPs provide a compass for governance i.e. DPSP guides the government in policy formulation so that a fair and equitable society may get established. 2. DPSP Promotes Social Justice: The DPSPs help governments to take steps toward reducing social inequalities, ensuring fair distribution of resources, protecting vulnerable sections of society, and ensuring that economic growth benefits everyone. 3. DPSP and Fundamental Rights complement each other: Over time, the Supreme Court and High Courts in their various judgements have interpreted that DPSPs and Fundamental Rights complement each other. The Supreme Court of India has upheld the necessity of enforcing policies that reflect the essence of the DPSPs. Relationship Between Fundamental Rights and DPSPs: Over the period of time, the debate over supremacy between Fundamental Rights and Directive Principles of State Policy has prevailed. The relationship between Fundamental Rights and DPSPs has therefore often been the subject of judicial review and interpretation. Following notable developments sheds light on above debate: In Champakam Dorairajan Case (1951), the Supreme Court ruled that Fundamental Rights are superior to the Directive Principles, as the latter are non-enforceable by the courts. Similarly in the Golak Nath vs the State of Punjab Case (1967), Supreme Court reinforced the view that Fundamental Rights cannot be abridged to implement the DPSPs. Keshavanand Bharati Case (1973): The Supreme Court held that the Basic Structure of the Constitution cannot be altered, ensuring that certain rights remain inviolable, while allowing some DPSPs to be implemented through constitutional amendments. 22  Minerva Mills Case (1980): The Court emphasized the balance Fundamental Rights Directive Principles Of State Policy between Fundamental Rights and Directive Principles, stating that (DPSP) neither part is superior to the other, and both should be interpreted harmoniously to achieve the Constitution's goals. 2.4 SELECT CONSTITUTIONAL AMENDMENTS The constitution is a dynamic document that grows and changes according to needs and circumstances. The constitution cannot remain permanent. According to W. Munro, “it is impossible to conceive of an unamendable constitution as any thing but a contradiction in terms”. Article 368 of the Indian Constitution enumerates the Constitutional Amendment Process. It 368 enables Parliament to amend the Constitution to adapt to changing needs and circumstances. The Constitution of India can be amended through three ways: (a) Simple Majority Amendments Certain provisions of the Constitution can be amended by a simple majority of members present and voting in both Houses of Parliament. These amendments do not require any special procedure or the ratification of states. (b) Special Majority Amendments Most provisions of the Constitution require a special majority for amendment. Special Majority involves a majority of the total membership of each House, and at least ⅔ of the members present and voting. (c) Special Majority + State Ratification Some provisions require not only a special majority in Parliament but also the ratification by at least ½ of the state legislatures. This applies to provisions that affect the federal structure of the Constitution. Provisions that require ratification include: o Election of the President (Articles 54 and 55) o Executive powers of the Union and states o Distribution of legislative powers between the Union and states (7th Schedule) o Representation of states in Parliament o Powers of the Supreme Court and High Courts o Articles concerning amendment of the Constitution (Article 368) 23 Indian Constitution - I The Indian Constitution has undergone several amendments since its adoption in 1950. Some of the key amendments that have significantly impacted the country's governance and social fabric include: 1. 24th Amendment (1971): In 1971, the Indira Gandhi Government enacted 24th Constitutional. The Amendment aimed to abrogate the Supreme Court ruling in Golak Nath Vs State of Punjab. The Amendment Act amended the Article 368. It affirmed the power of Parliament to amend any part of the Constitution including Fundamental Rights. Also, it made compulsory for the President to give his assent to any Constitutional Amendment Bill. 2. 42nd Amendment (1976): In 1976, the then Prime Minister Mrs Indira Gandhi enacted the 42nd Constitutional Amendment. Since it was the one of the most extensive amendments to the Constitution it was also referred as ‘Mini Constitution’. The Amendment described India as Sovereign, Socialist, Democratic, Republic, where the words Socialist and Secular were inserted. Similarly, it also changed the words unity of the nation with unity and integrity of the nation. Fundamental Duties: Added Fundamental Duties to the Constitution, making it mandatory for citizens to perform certain duties towards the nation. National Emergency: Expanded the powers of the President during a National Emergency. Fundamental Rights: Curtailed some Fundamental Rights, including the right to property. 2. 44th Amendment (1978): In 1978, the Janata Party Government enacted the 44th Amendment to reinstate the Constitution to its pre-Emergency state. The objective of the 44th Amendment was to reverse multiple changes implemented by the Indira Gandhi administration. Abolition of Property Rights: Completely abolished the right to property as a Fundamental Right. Election Reforms: Introduced several electoral reforms, including the provision for a Chief Election Commissioner and the setting up of the Election Commission. 3. 73rd and 74th Amendments (1992): The 73rd Amendment Act came into effect on 24 April 1993. It was aimed to strengthen the Government of Local Self level. It empowered state governments to take the necessary steps towards the 24  formalisation of the gram panchayats. The Amendment added Part IX Fundamental Rights Directive Principles Of State Policy (The Panchayats) and 11th Schedule to the Constitution. This (DPSP) Amendment made the Panchayat Raj Institution as Constitutional bodies. Similarly, with 74th Amendment, offered basic framework and decentralization of powers in municipal bodies. It also added Part IX- A (The Municipalities) and 12th Schedule to the Constitution. Panchayati Raj and Urban Local Bodies: Strengthened local self-governance by establishing Panchayati Raj institutions in rural areas and Urban Local Bodies in urban areas. Reservation: Mandated reservations for Scheduled Castes, Scheduled Tribes, and Other Backward Classes in the Panchayati Raj and Urban Local Bodies. 4. 86th Amendment (2002): The 86th Constitutional Amendment is also known as Right of Children which added provisions regarding fundamental rights of a child to free and compulsory education. The Amendment inserted Article 21 (A) to the Constitution thereby it imposed the State Governments and local authorities new responsibilities. Right to Education: Added the Right to Education as a Fundamental Right, guaranteeing free and compulsory education to children aged 6 to 14. 5. 97th Amendment (2014): GST: Introduced the Goods and Services Tax (GST), a unified indirect tax system that replaced multiple taxes. 6. 103rd Amendment (2019): Reservation for Economically Weaker Sections: Provided for reservations for Economically Weaker Sections (EWS) in government jobs and educational institutions. These amendments have had a profound impact on the Indian polity, economy, and society. They have helped to address social and economic inequalities, strengthen democratic institutions, and promote development. 2.5 UNIT END QUESTIONS 1 What is the place of Fundamental Duties in Indian Constitution? 2. Discuss the relationship between Fundamental Rights and fundamental duties. 3. How the fundamental Duties are enforced? 25 Indian Constitution - I 2.6 REFERENCES The Oxford Handbook of the Indian Constitution. (2016). United Kingdom: Oxford University Press. Austin, G. (2002). The Indian Constitution: Cornerstone of a Nation. India: Oxford University Press. Basu, D. D. (1966). Introduction to the Constitution of India. India: S.C. Sarkar.  26  3 CHANGING NATURE OF FEDERALISM Unit Structure: A. FEATURES AND CONSTITUTIONAL PROVISIONS 3.0 Objectives 3. 1 Introduction 3.2 What Is Federalism? 3.3 Center - State Relations in India 3.4 Finance Commission 3.5 Conclusion 3.6 Questions for Exercise 3.7 References B. RE- ORGANIZATION OF STATE 3.8 Introduction 3.9 Process of Creation of States in India 3.10 Conclusion A. FEATURES AND CONSTITUTIONAL PROVISIONS 3.0 OBJECTIVES To understand the concept of federal structure in Indian Constitution. To understand the process of reorganization and formation of Indian states. To Understands Contemporary debates on Federalism in Centre - state relations, areas of conflict and cooperation. 3.1 INTRODUCTION The political structures of predominantly democratic nations are categorized as either 'federal' or 'unitary' for the purpose of governance. The main objectives of this arrangement are to define, distribute, and coordinate the spheres of power and functions between the central government and the federating units. In a federal system, the federating units derive their power from the centre but retain autonomy in several matters. In contrast, in a unitary system, they are entirely dependent on the central government. India is considered a ‘quasi-federal’ state, embodying characteristics of both federal and unitary systems. 27 Indian Constitution - I As outlined in Article 1 of the Indian Constitution, “India, that is Bharat, shall be a ‘Union of States’” (Law, 2017). This declaration forms the foundation of India's federal framework. In this chapter, we will explore the concept of federalism, its evolution, features, and the debate surrounding India's classification as a quasi-federal nation. 3.2 WHAT IS FEDERALISM? Federalism is a compound mode of governance involving two or more levels of government. Specifically, it consists of a federal government and state governments functioning within a single system. In India, federalism is characterized by the division of powers among the federal, state, and municipal governments, a structure that bears similarities to the Canadian system. At its core, federalism is a system in which different branches of government collaborate. Typically, it recognizes two tiers of governance: a central authority that manages the nation's primary affairs (Basu, 1998), and local governments that oversee daily operations within specific areas. For instance, the Indian Constitution designates India as a federal nation. As you may know, there are two houses of Parliament: The Union government at the federal level and the state governments at the state level. Federalism allows both the federal government and its component states or provinces to exercise distinct powers. This system is designed to support two political ideologies: national (or central) and regional (or provincial). Each authority operates independently within its own domain. Unlike a unitary system, in which sovereignty is concentrated at one level, a federal system divides sovereignty between two territorial levels, enabling each to function autonomously under certain circumstances. In a federal system of government, power is divided between the central authority and the federating units or states. This division of power is enshrined in the constitution, granting both levels independent jurisdiction. Examples of unitary governments include Norway, China, the United Kingdom, France, Japan, Italy, Belgium, Sweden, and Spain. In contrast, Brazil, Russia, Canada, Argentina, Switzerland, Australia, and the United States exemplify federal systems. India has adopted a mixed model, incorporating the most effective features from both types of governance. Thus, Article 1 of the Indian Constitution describes India as the ‘Union of States.’ According to Dr B. R. Ambedkar, the phrase “Union of States” was preferred over “Federation of States” for two primary reasons: (a) The Indian federation is not the result of an agreement among states, as is the case with the American federation, and (b) The states do not possess the right to secede from the federation. This makes the federation a Union, emphasizing its indestructibility. In the case of West Bengal vs. Union of India (1962), the Supreme Court held that the Indian Constitution is not federal. However, in 1994, a nine- judge bench of the Supreme Court concluded that federalism is part of the 28 basic structure of the Constitution. Consequently, both the court and various Changing Nature of Federalism scholars have determined that the Indian federal system is not a mere copy of that of the USA. The 7th Schedule of legislative entries (Article 246) indicates a unitary nature of the Constitution. Articles 245 to 254 outline the legislative powers of the state and the centre, providing guidelines for their distribution. The power to admit new states (Article 2) and alter state boundaries (Article 3) lies solely with the Indian Parliament. This is why the Constitution is often described as ‘quasi-federal.’ There are 98 subjects (originally 97) in the Union List, on which Parliament has exclusive power to legislate. The State List contains 59 subjects (originally 66), on which states can legislate independently. The Concurrent List includes 52 subjects (originally 47), on which both the Centre and the states can legislate; in the event of a conflict, the law made by Parliament prevails (Article 254). Federalism is a system of government in which power is divided between the national government and other governmental units. This contrasts with a unitary government, where power is concentrated in a central authority, and with a confederation, where states are clearly dominant. Consequently, unitary and federal systems are the most prevalent forms of political administration. In unitary governments, all powers are concentrated in the national government, and regional or provincial units derive their authority from it. The choice between a federal or unitary model depends on the administrative and political suitability for a given country. This is why India is regarded as a ‘quasi-federal’ nation. It exhibits federal characteristics through dual governments at the centre and state levels, as well as dual legislatures—namely, the Indian Parliament and state legislatures—while maintaining a unitary spirit through a single constitution, citizenship, judiciary, and the role of the governor. 3.2.1. Definition The Indian federal system is based on the Canadian model rather than the American model. Some leading experts on the Indian Constitution have defined the Indian federal system as follows: Dr B. R. Ambedkar observed that "the Constitution is a federal constitution inasmuch as it establishes a dual polity. The Union is not a league of states united in a loose relationship, nor are the states agencies of the Union deriving powers from it" (Ambedkar). K. C. Wheare described the Constitution of India as "quasi-federal." He further remarked that "the Indian Union is a unitary state with subsidiary federal features rather than a federal state with subsidiary unitary features" (Wheare). Granville Austin referred to Indian federalism as "cooperative federalism" (Austin). 29 Indian Constitution - I Therefore, Indian federalism represents a distinctive model of governance, striking a fine balance between federal and unitary systems. The framers of the Indian Constitution shaped and modified the best existing laws to suit Indian conditions. 3.2.2 Types of Federalism There are three main types of federations: 1. Holding Together Federation: In this type, different regions or groups within a country share power to accommodate their diversity. The central government generally holds more authority. Examples include Spain, Belgium, and India. 2. Coming Together Federation: This structure involves separate states that unite to form a larger political entity. In this case, the individual states have more autonomy compared to those in a holding together federation. Examples include Switzerland, Australia, and the United States. 3. Asymmetrical Federation: In these federations, certain regions have more power or special status than others due to historical or cultural reasons. Examples include Ethiopia (specifically Tigray), Russia (specifically Chechnya), and Canada (specifically Quebec). This classification helps to understand how different countries manage their governance and regional diversity.3.2.3 Evolution of Federalism in India Pre-Independence Era The foundation for India's federal structure can be traced back to the Simon Commission's report in 1930. Support for a federal system of governance intensified during the First Round Table Conference held in the same year. At the conclusion of the conference, the British Government formally recognized the concept of an All-India Federation that would include both British India and the Princely States. This federal framework was later solidified by the Constituent Assembly, which drafted the current Constitution of India, and was outlined in the Government of India Act of 1935 (Chanda, 1965). However, the federal provisions of this Act were never implemented, although the regulations concerning the provinces were enforced in 1937. When the Constituent Assembly convened in 1946, it adopted Pandit Nehru's resolution advocating for a strong autonomous province alongside a comparatively weaker Centre. Yet, this vision was revised following the Union Powers Committee's recommendation that more powers should be vested in the federal government rather than the states. Consequently, upon gaining independence in 1947, India emerged as a highly unitary and centralized state, with the central government retaining the majority of powers and the states having limited autonomy. 30 Post-Independence Era Changing Nature of Federalism In the years following independence, India's federal system evolved dynamically to meet changing needs. The 1960s and 1970s presented several challenges, including the emergence of language and regional identity politics, which led to the formation of new states and the rise of influential regional parties. During this period, the national government- imposed President's Rule, used financial incentives and penalties to influence state policies, and even declared a state of emergency to intervene in state affairs. By the 1980s and 1990s, the focus shifted toward devolving financial resources to states and decentralizing power, with significant efforts aimed at strengthening federalism and enhancing state authority. Key milestones in this process included the 73rd and 74th Amendments to the Constitution. However, challenges persisted, particularly regarding disputes over resource distribution and revenue sharing between federal and state governments. More recently, the COVID-19 pandemic has highlighted new challenges for India's federal system, emphasizing the need for coordination between national and state governments in managing emergencies and addressing the needs of citizens. 3.2.4 Characteristics of Indian Federal System The Indian federal system was designed to accommodate the diversity and socio-cultural distinctions of a vast nation, addressing the needs and aspirations of its people. The unique features of Indian federalism are as follows: Supremacy of Constitution: Federalism is based on a written Constitution that defines the powers and responsibilities of the central and regional governments and establishes a system of checks and balances to ensure that neither level of government becomes too powerful. Written or unwritten Constitution- A writ ten constitution may or may not be part of a unitary government. France and England, for instance, are unitary states. England lacks a written constitution, while France does. Flexible or Rigid Constitution- A unitary state, as opposed to a federation, may or may not have a strict constitution; for example, the English constitution is flexible, whereas the French constitution is quite tight. No Special Judiciary- In a unitary government, there is no need for a special judiciary with broad judicial veto powers. For example, even the UK's highest court is unable to rule on a legislation that Parliament has passed. A. Political Dualism: The federal system consists of two levels of governance and administration. The first level is the national government, which is responsible for major national areas such as defence, currency and coinage, and foreign policy and international relations. The second level is the state government, which 31 Indian Constitution - I implements national policies and works for the welfare of the people within its jurisdiction. In India, the Union government is run by a council of ministers headed by the Prime Minister (Article 74(1)), who solicits the "aid and advice" of the President of India (Articles 75 and 78). A similar arrangement exists at the state level, where the state government is led by a council of ministers headed by the Chief Minister. The governor serves as the head of the state, overseeing the administration on behalf of the President of India. Additionally, legislative powers are also divided between the central and state governments. B. Division of Power The Seventh Schedule of the Constitution contains three lists that distribute powers between the Centre and the states (Article 246). The Indian Parliament has the authority to legislate on 98 items (originally 97) in the Union List. State governments can make laws on 59 items (originally 66) in the State List. Additionally, there is a third list known as the Concurrent List, which includes 52 items (originally 47). This detailed constitutional arrangement facilitates effective administration across the vast diversity of India, as it clearly delineates legislative, administrative, and financial powers. C. Bicameralism India’s parliamentary democracy is modelled after the British parliamentary system, also known as the Westminster model. The Indian Parliament consists of two houses: the Lok Sabha (Lower House) and the Rajya Sabha (Upper House). Members of the Lok Sabha are directly elected by the people for a term of five years. In contrast, members of the Rajya Sabha are elected by the elected members of the Legislative Assemblies from all the states and Union Territories for a term of six years. India comprises 29 states and 7 Union Territories. Most states have a unicameral legislature; however, a few states—including Maharashtra, Uttar Pradesh, Karnataka, Andhra Pradesh, Telangana, and Bihar—have a bicameral legislature, consisting of both a Legislative Assembly and a Legislative Council. Thus, India follows a bicameral legislative system at the national level. D. Strong Centre The Indian federal system is characterized as a "federal state with a unitary bias." The constitutional arrangements are designed in such a way that the balance of power is tilted toward the Union government. This can be understood through the legislative, administrative, and financial relations between the Union and state governments. In terms of legislative powers, both the Centre and the states have their respective lists of legislative competencies. However, in the event of a conflict between laws enacted by the Union and those by the states, the 32 Union law prevails. Even in the Concurrent List, the Union maintains a Changing Nature of Federalism dominant position. Regarding administrative structures, the Indian Administrative Service (IAS), Indian Police Service (IPS), and other class one officers are recruited by the Union Public Service Commission (UPSC) and assigned to the states as top decision-makers. While states have the authority to allocate their duties and transfer them within the state, the services of these officers are ultimately controlled by the Central government. Financially, the Union government controls the majority of revenue sources. Through its legislative, executive, and financial powers, the Union government exerts considerable influence over the states, which is evident in the roles of the Governor, the distribution of legislative powers, the function of All India Services officers, the Finance Commission, and NITI Aayog, among others. Therefore, in the Indian federal system, the balance of power is significantly tilted toward the Centre. E. Integrated and Independent Judiciary Articles 124 to 147 of the Indian Constitution provide for a single, integrated, and independent judiciary. This framework establishes the Supreme Court of India as the apex judicial authority, overseeing all judicial institutions in the country. The judicial system operates as a unified hierarchy, encompassing district and session courts, high courts, and the Supreme Court. The apex court possesses the power to review and interpret the Constitution and to resolve disputes between the states and the Centre, as well as between the states themselves. The judiciary in India is entirely independent, with the terms and conditions of service for judges exempt from parliamentary votes. Judges are protected from any form of political or administrative interference, enjoying fixed tenures and benefits as stipulated by the Constitution. F. Unequal Representation of States In a pure federal state, the Centre and the states typically have equal political representation. For instance, in the United States, the principle of equal representation of states in the Upper House is fully recognized; the American Senate comprises 100 members, with two senators from each state. In contrast, the Indian Parliament has a different pattern of representation based on the population of the states. Highly populated states such as Uttar Pradesh, Bihar, and Maharashtra have greater representation, while smaller states like Sikkim, Nagaland, and Manipur have fewer seats in both the assembly and Parliament. For example, Uttar Pradesh sends 80 members to the Lok Sabha and 31 members to the Rajya Sabha, whereas Sikkim has on