Indian Constitution - A Comprehensive Study PDF

## 1.1 Constituent Assembly The Constituent Assembly of India was constituted in November 1946 under the cabinet mission plan. In India, the demand for the Constituent assembly implied the demand for national freedom through India’s struggle for independence. One of the earliest demands for a cons...

## 1.1 Constituent Assembly The Constituent Assembly of India was constituted in November 1946 under the cabinet mission plan. In India, the demand for the Constituent assembly implied the demand for national freedom through India’s struggle for independence. One of the earliest demands for a constituent assembly was made in the Nehru Report of 1928. Its task was mainly to end the British rule in India and to establish an independent Republic of India. It was in 1934 that M.N. Roy officially demanded for a Constituent Assembly. The demand was finally accepted by the British Government; it is known as the ‘August offer’ of 1940. Even after the 2nd world war, the constituent assembly continued to work as provisional parliament from June 1950 to April 1952. The total strength of the constituent assembly was supposed to be 389. Of these 296 seats were to be allotted to British India and 93 seats to the princely states. It is thus clear that the constituent assembly was a partly elected and partly nominated body, moreover the members were to be elected indirectly by the members of the provincial assemblies. The assembly consisted of representatives of all sections of Indian society and important personalities of India. The Constituent assembly held its first meeting on December 9th, 1946 Dr. Sachidananda Sinha was nominated as acting president of the assembly, on December 11th, 1946. Dr. Rajendra Prasad and H.C. Mukherjee were elected as the president and vice president respectively. The constituent assembly took 2 years, 11 months and 18 days with 11 sessions to draft the constitution. The last session was held on Jan 24th, 1950. ## 1.2 Drafting Committee Among all the committees of the constituent Assembly the most important was the Drafting Committee. This committee submitted its report between April and August 1947 which was considered by the constituent assembly. The final shape was given by "Dr. B.R. Ambedkar and members of the Drafting Committee. Dr. Babu Rajendraprasad gave credit to Pt. Nehru and Sardar Patel for their guidance and inserting the main points from the debates of the constituent assembly, provisions of previous enactments, opinions of the constitutional jurists and the decisions of the judiciary were also included. ## Objectives 1. India is a sovereign, independent republic. 2. India should be a union comprising former British Indian territory, Indian states, and additional areas outside of British India and the Indian states that choose to join the union 3. All sovereign and independent India's powers and authority, as well as its constitution, should derive from the people. 4. All Indians must be guaranteed social, economic, and political fairness; equality of position and opportunity; equality before the law, and basic freedoms of expression, belief, faith, worship, vocation, association and action - subject to the law and public morality. 5. Minorities, backward and tribal communities, the poor and other disadvantaged groups must be well protected. 6. The country would contribute fully and willingly to the advancement of world peace and the well-being of humanity. 7. The territorial integrity of the Republic, as well as its sovereign rights on land, sea and air should be preserved in accordance with civilized country justice and law. ## Preamble of the Indian constitution The term preamble refers to the introduction to the constitution. It contains the essence of the constitution which is key to its spirit and meaning. K.M. Munshi described it as the political horoscope of the constitution. Preamble lists the basic features and philosophy for which it is considered as the soul of the constitution. American constitution was the first to introduce the preamble. Many countries including India followed this practice. The preamble to the Indian constitution is based on the "Objectives of Resolution" drafted and moved by Pt. Nehru and adopted by the constituent assembly. It has been amended by the 42nd Constitutional Amendment Act of 1976 which added three new words Socialist, Secular and integrity. ### Text of the preamble WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, 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. The preamble expresses the political moral, economic and religious values which our constitution is committed to promote. It specifies the source of authority the system of government and objectives to be affirmed by the political system. It constitutes the philosophy embodying the ideals and aspirations to which the national movement committed itself. ## We the people of India: The term has been borrowed from the UN charter. It implies that ultimate authority in India rests with the people. It also implies that betterment of masses, raising their social and economic standard is the aim of the constitution. ## Sovereign The word sovereign implies that India has the sole authority within its territory over all its individuals and associations. Externally it is free from all outside control. ## Socialist The term socialist has been added as per the 42nd amendment in 1976. It means the government is constitutionally bound to bring about socio-economic changes to ensure decent life to Indian citizens. ## Secular This term is also added by the 42nd Constitutional Amendment Act of 1976, secularism implies; * The State would have no official religion of its own. * It would not extend special favour to any particular religion. * The people of India are free to accept, practice and propagate any religion of their choice. ## Democratic Democracy implies that all governmental authority is derived from the people and is exercised by the government consisting of their representatives elected on the basis of universal adult franchise. Democracy in its broad sense embraces not only political democracy also social and economic democracy. ## Unit 5 - Constitution of India ## 5. *Republic:* The head of the state is elected by the people directly or indirectly for a fixed period. And the system is quite opposite to hereditary principle. ## 5. *Justice:* The term implies social, economic and political justice. It ensures that people of India get justice through various provisions of the constitution. ## 5. *Liberty:* Liberty is an essential pre-requisite for the existence of democracy. The preamble assures all the citizens of India, Liberty of thought, expression, belief, faith and worship. ## 5. *Equality* The term equality means absence of special privileges to any sections of society and the provisions of adequate opportunities for all the individuals without any discrimination. ## 5. *Fraternity:* Fraternity means sense of brotherhood. The constitution promotes this feeling of fraternity by the system of single citizenship. Fraternity assures dignity of the individual unity and integrity of the nation. The preamble embodies the basic philosophy and fundamental values of political, moral and religious on which constitution is based. It contains the grand and noble vision of the constituent assembly. It reflects the dreams and aspirations of the founding fathers of the constitution. The draft the constitution after several discussions was amended and adopted by the constituent assembly. In doing so it worked through settled parliamentary procedures and carried out its assigned task most systematically. ## 1.4 SALIENT FEATURES OF INDIAN CONSTITUTION. ### 1) Lengthiest written constitution. The constitution of India is the lengthiest of all the written constitutions of the world. It is a very comprehensive, elaborate and detailed document. Originally the constitution contained the preamble, 395 Articles and 8 Schedules divided into 22 parts. Presently, it consists of the Preamble, 463 Articles and 12 Schedules. No other constitution in the world has so many articles and schedules. This is much bigger than the American constitution with its 7 Articles and 26 amendments, the Japanese constitution with 103 Articles and the French constitution with 92 Articles. ### 2) The Preamble: The Indian constitution has a well drafted preamble. The preamble is an introduction which reflects the spirit or philosophy of the constitution. It defines the aims and objectives of the framers of the constitution and is also an expression of the aspirations of the people of India. According to the preamble, India is "A Sovereign, Socialist, Secular, Democratic, Republic". It secures to its citizens Justice, Liberty, Equality, Fraternity, Unity and Integrity of the nation. ### 3) Fundamental rights: Part III of the Indian constitution embodies six fundamental rights from Article 12 to 35. They are termed as Magna carta of the Indian people. However fundamental rights are not absolute but are subject to the reasonable restrictions. Fundamental rights guaranteed under the Indian Constitution deals with Right to equality, Right to freedom, Right against exploitation, Right to freedom of Religion, cultured and educational rights, Rights to constitutional remedies. ### 4) Fundamental Duties: Originally the constitution did not contain fundamental duties. These were incorporated by the 42nd amendment in 1976. The newly inserted part IV A of the constitution consists of only one article 51A which specifies the eleven fundamental duties. ## 5) Parliamentary form of Government. Indian constitution provides for a parliamentary form of government both at the centre and the state. President and Governors are constitutional Heads. The real executive is the Prime Minister and the Council of Ministers. They are responsible to legislature both at the centre and state. ## 6) Federal structure with unitary spirit. The constitution of India establishes a federal system of government with features like dual government, written constitution, division of powers etc. But Indian constitution also contains unitary features like strong central Government, single citizenship, common national anthem, flag and emblem. ## 7) Directive principles of state policy: They are enumerated in the part IV of the constitution. They can be classified into three broad categories Socialistic, Gandhian and Liberal. They promote the ideals of Social and Economic democracy. ## 8) Independence of judiciary: The framers of the constitution were aware of the fact that democracy is meaningless in the absence of an independent judiciary. Thus independent and impartial judiciary with the power of judicial review was established. The Indian constitution has established single integrated judicial system with the Supreme Court at the apex and High court at the state level. ## 9) Single citizenship: India is a union of states and there is single citizenship for everyone. All Indian citizens owe allegiance to the state. Citizenship entitles them to equal rights and freedom and equal protection. ## 10) Emergency powers: The Indian constitution contains an emergency provision which empowers the president to meet any extraordinary situations effectively. Emergency powers of the president are enumerated in * Article 352 - National emergency * Article 356 - State emergency * Article 360 - Financial emergency ## 11) Universal adult suffrage: The Indian constitution has made provision for universal adult suffrage. Citizens who have attained the age of 18 years are provided with the right to vote without any discrimination of caste, colour, creed, sex or place of birth. ## 12) Panchayath Raj System: The 73rd and 74th Constitutional Amendment Act of 1993 have added three tier local self government which is not found in any other constitution of the world. The 73rd amendment provides for rural local self government and the 74th for urban local self government. ## 13) Method of Amendment: The constitution of India provides for the rigid and flexible method of amendment. The three methods of amendment enumerated in article 368 of the constitution are 1. Certain provisions can be amended by the union parliament by simple majority. 2. Certain other provisions can be amended by a difficult method. The bill must be passed by 2/3 majority in each house of parliament. 3. Remaining provisions can be amended by a difficult method. The bill must be passed by a 2/3 majority in each house of parliament and ratified by more than ½ of state legislatures. ## 14) All India Services: This is another feature which is a pointer to the unitary character of the Indian constitution. There is provision for common All India Services like IAS, IPS, and IFS. The recruitment and control of these services are vested in the central government. ## 15) Division of powers: The legislative powers of union and states are divided in three lists. They are * **Union list:** contains 97 subjects like external affairs, defence, currency, income tax etc., the union parliament alone is authorized to legislate. * **State list:** contains 66 subjects like police, jails, P.W.D, land revenue etc., on which state legislatures can legislate. * **Concurrent list:** has 47 subjects. They include labour, welfare, printing press education, news paper etc., on which both union and state legislatures can legislate. These are some of the important salient features of Indian constitution. ## 1.5 Fundamental Rights The fundamental rights are enshrined in part III of the constitution from Articles 12 to 35. In this regard the framers of the constitution derived inspiration from the Bill of Rights of the constitution of USA. Fundamental Rights contain a comprehensive list of ‘Justifiable’ rights. They are guaranteed by the constitution to all the citizens. They uphold the equality and dignity of the individual, which are most essential for their all round development. 1. **Right to equality** (Art. 14-18) 2. **Right to freedom** (Art. 19-22) 3. **Right against exploitation** (Art. 23-24) 4. **Right to freedom of Religion** (Art. 25-28) 5. **Cultural and Educational rights** (Art. 29-30) 6. **Right to constitutional remedies** (Art. 32) Originally the constitution provided for seven fundamental rights. Of these 44th Amendment Act of 1978 eliminated the right to property from the list of fundamental rights. It is made a legal right under article 300-A in part XII of the constitution. At present there are six fundamental rights. Fundamental Rights can be suspended during the National Emergency and external aggression except the rights guaranteed by Art.20 and 21. ### I. Right to Equality: Art. 14 to 18 of the Indian constitution have been devoted to Right to Equality. They ensure equality to the citizens. The right to equality reads as follows * **a)** Art. 14 guarantee that all are equal before the law and equal protection of laws within the territory of India. * **b)** Art. 15 prohibits discrimination against any citizen on the grounds of religion race caste, gender or place of birth. * **c)** Art. 16 guarantees equality of opportunity in matters of public employment. * **d)** Art. 17 state that, practice of untouchability in any form is a punishable offence. * **e)** Art. 18 states that no title, not being a military or academic distinction shall be conferred upon by the state. Citizens of India are prohibited from accepting titles from foreign states without prior permission of the union government. ### II. Right to freedom Art. 19 guarantees six fundamental freedoms. They are: * **i)** Freedom of speech and expression. * **ii)** Freedom to assemble peacefully and without arms. * **iii)** Freedom to form associations or unions. * **iv)** Freedom to move freely throughout the territory of India. * **v)** Freedom to reside and settle in any part of the territory of India. * **vi)** Freedom to practice any profession or to carry on any occupation, trade or business. Art. 20 states protection in respect of conviction for offences which covers * **a)** No person shall be prosecuted and punished for the same offence more than once. * **b)** No person who is accused of any offence shall be compelled to a witness against himself. Art. 21 states, that no person shall be deprived of his life or personal liberty except according to law. Art. 21.A States free and compulsory education to all children of the age of 6 to 14 years. Art. 22 state about protection against arbitrary arrest and detention. ### III Right against exploitation Art. 23 states the prohibition of forced labour and traffic in human beings. Art. 24 states the prohibition of employment of children in factories, mines etc. ### IV. Right to freedom of Religion Art. 25 provides for freedom of conscience, free profession, practice and propagation of religion. Art. 26 provide every religious section thereof shall have the right - 1. To establish and maintain institutions for religious and charitable purposes; 2. To manage its own affairs in religion; 3. To own and acquire movable and immovable property; 4. To administer such laws in accordance with law. Art. 27 states that 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. Art. 28 states that: 1. No religious instruction shall be imparted in any educational institution wholly maintained out of state funds. 2. No person attending any educational institutions recognized by the state or receiving aid out of the state funds can be forced to take part in any religious instructions or that may be imparted in such institutions or to attend any religious worship that may be conducted in such institution unless consented by the guardian. ### V. Cultural and Educational rights Art. 29 states that any citizen residing in the territory of India having distinct language, script or culture of its own has the right to conserve it. No citizen 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. Art. 30 states that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. The state shall not discriminate in granting aid to educational institution on the ground that it is under the management of a minority, whether based on religion or language. ### VI. Right to constitutional remedies. Art. 32 states that the citizen has the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by the constitution. Dr. B.R.Ambedkar said this Art. 32 is the heart of the Indian constitution. The Supreme Court shall have the power to issue directions order or writs including writs in the nature of Habeas corpus, Mandamus, Prohibition, Quo warranto and Certiorari may appropriate for the enforcement of any of the rights conferred by the constitution. #### Habeas Corpus It means ‘to produce the body’ and it is a writ issued by the court to prevent illegal usurping of public office by a person. ## FUNDAMENTAL DUTIES The fundamental duties of the Indian constitution are inspired by the constitution of erstwhile USSR. In 1976 the union government formed Sardar Swaran Singh Committee to go into the details of fundamental duties. It suggested the incorporation of eight duties, the 42nd Constitutional Amendment Act of 1976 included Ten Fundamental Duties. In 2002 one more fundamental duty was added to the list. ### **List of FUNDAMENTAL DUTIES** Art. 51A of Part IV-A reveal the following fundamental duties of Indian citizen 1. To abide by the constitution and respect its ideals and institutions, the National Flag and National Anthem. 2. To cherish and follow the noble ideals that inspired the national struggle for freedom. 3. To uphold and protect the sovereignty, unity and integrity of India. 4. To defend the country and render national service when called upon to do so. 5. To promote harmony and the spirit of common brotherhood amongst all the people of India - transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women. 6. To value and preserve the rich heritage of our composite culture. 7. To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. 8. To develop scientific temper, humanism and the spirit of inquiry and reform. 9. To safeguard public property and to abjure violence. 10. To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement. 11. To provide opportunities for education to his child or ward between the age of six and fourteen years. This duty was added by the 86th constitutional Amendment Act 2002. *** ## 5.5 RIGHT TO EDUCATION : (RTE) ## Directive Principles **Introduction** - **Background:** The source of the concept of Directive Principles of State Policy (DPSP) is the Spanish Constitution from which it came in the Irish Constitution. - **The concept of DPSP:** emerged from Article 45 of the Irish Constitution. - **Constitutional Provisions:** Part IV of the Constitution of India (Article 36-51) contains the Directive Principles of State Policy (DPSP). - **Article 37 of the Indian Constitution:** States about the application of the Directive Principles. - **These principles aim at:** ensuring socioeconomic justice to the people and establishing India as a Welfare State. - **Classification of Principles:** The Directive Principles are classified on the basis of their ideological source and objectives. These are Directives based on: - **Socialist Principles** - **Gandhian Principles** - **Liberal and Intellectual Principles** **Directives Based on Socialist Principles** - **Article 38:** The State shall strive to promote the welfare of the people by securing and protecting a social order by ensuring social, economic and political justice and by minimizing inequalities in income, status, facilities and opportunities. - **Articles 39:** The State shall in particular, direct its policies towards securing: - *Right to an adequate means of livelihood to all the citizens.* - *The ownership and control of material resources shall be organized in a manner to serve the common good.* - *The State shall avoid concentration of wealth in a few hands.* - *Equal pay for equal work for both men and women.* - *The protection of the strength and health of the workers.* - *Childhood and youth shall not be exploited.* - *Article 41: To secure the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disability.* - *Article 42: The State shall make provisions for securing just and humane conditions of work and for maternity relief.* - *Article 43: The State shall endeavour to secure to all workers a living wage and a decent standard of life.* - *Article 43A: The State shall take steps to secure the participation of workers in the management of industries.* - *Article 47: To raise the level of nutrition and the standard of living of people and to improve public health.* **Directives Based on Gandhian Principles** - **Article 40:** The State shall take steps to organize village panchayats as units of Self Government - **Article 43:** The State shall endeavour to promote cottage industries on an individual or cooperative basis in rural areas. - *Article 43B: To promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies.* - **Article 46:** The State shall promote educational and economic interests of the weaker sections of the people particularly that of the Scheduled Castes (SCs), Scheduled Tribes (STs) and other weaker sections - **Article 47:** The State shall take steps to improve public health and prohibit consumption of intoxicating drinks and drugs that are injurious to health. - **Article 48:** To prohibit the slaughter of cows, calves and other milch and draught cattle and to improve their breeds. **Directives Based on Liberal-Intellectual Principles** - **Article 44:** The State shall endeavour to secure for the citizen a Uniform Civil Code through the territory of India. - **Article 45:** To provide early childhood care and education for all children until they complete the age of six years. - **Article 48: To organise agriculture and animal husbandry on modern and scientific lines.** - *Article 48A: To protect and improve the environment and to safeguard the forests and wildlife of the country.* - **Article 49:** The State shall protect every monument or place of artistic or historic interest. - **Article 50:** The State shall take steps to separate judiciary from the executive in the public services of the State. - **Article 51:** It declares that to establish international peace and security the State shall endeavour to: - *Maintain just and honourable relations with the nations.* - *Foster respect for international law and treaty obligations.* - *Encourage settlement of international disputes by arbitration.*