Indian Constitutional Law Study Material PDF

UNIT IV CONSTITUTIONAL LAW Constitutional Law covering the Preamble; Fundamental Rights, Judicial Activism including Equality and Social Justice, Life and Personal Liberty and Secularism and Religious freedoms, Fundamental Duties; Emergency provisions. 1. India...

UNIT IV CONSTITUTIONAL LAW Constitutional Law covering the Preamble; Fundamental Rights, Judicial Activism including Equality and Social Justice, Life and Personal Liberty and Secularism and Religious freedoms, Fundamental Duties; Emergency provisions. 1. Indian Constitution The Constitution of India is the supreme law of the country and serves as the foundation of its political system, governing principles, and fundamental rights. Here's an overview: 1. Background and Adoption Drafting: The Constitution was drafted by the Constituent Assembly, which was formed in 1946. The drafting committee was headed by Dr. B.R. Ambedkar, who is often referred to as the "Father of the Indian Constitution." Adoption: The Constitution was adopted on November 26, 1949, and it came into effect on January 26, 1950, which is celebrated as Republic Day in India. 2. Structure Preamble: The Preamble outlines the objectives of the Constitution, such as Justice, Liberty, Equality, and Fraternity. Parts and Articles: The Constitution originally had 22 parts with 395 articles and 8 schedules. Over time, amendments have been made, and it now has 25 parts with over 470 articles and 12 schedules. Schedules: These provide additional details on various aspects such as allocation of powers, administration, and governance. 3. Key Features Federal Structure with Unitary Bias: India has a federal system where powers are divided between the central government and state governments. However, in practice, it leans towards a unitary system, especially in times of emergency. Parliamentary System: India follows a parliamentary system of government with a bicameral legislature consisting of the Lok Sabha (House of the People) and the Rajya Sabha (Council of States). Fundamental Rights: The Constitution guarantees six fundamental rights to all citizens: 1. Right to Equality  2. Right to Freedom 3. Right against Exploitation 4. Right to Freedom of Religion 5. Cultural and Educational Rights 6. Right to Constitutional Remedies Directive Principles of State Policy: These are guidelines for the state to ensure social and economic welfare, though they are non-justiciable, meaning they are not enforceable by the courts. Fundamental Duties: Added by the 42nd Amendment in 1976, these duties are moral obligations for citizens to promote a spirit of patriotism and uphold the unity of India. 4. Amendments Flexibility and Rigidity: The Constitution provides a mechanism for amendments. It can be amended by a simple majority, a special majority, or a special majority with the consent of half of the states, depending on the nature of the amendment. Notable Amendments: Some important amendments include: o First Amendment (1951): Addressed land reform and restrictions on freedom of speech. o 42nd Amendment (1976): Known as the "Mini-Constitution," it made significant changes, including the addition of Fundamental Duties and the words "Socialist" and "Secular" in the Preamble. o 44th Amendment (1978): Restored certain checks and balances weakened by the 42nd Amendment. o 73rd and 74th Amendments (1992): Strengthened local self-government by empowering Panchayats and Municipalities. 5. Judiciary and Judicial Review Supreme Court: The apex court of India has the power of judicial review, ensuring that laws passed by the legislature conform to the Constitution. Independence of Judiciary: The Constitution ensures the independence of the judiciary, making it free from interference by the executive and legislature. 6. Significance The Indian Constitution is the longest written constitution of any sovereign country in the world. It plays a critical role in maintaining democracy, upholding human rights, and ensuring justice and equality in India.  2. Fundamental Rights Fundamental Rights in the Indian Constitution are a set of rights that are guaranteed to all citizens. These rights are enshrined in Part III of the Constitution (Articles 12 to 35) and are essential for the overall development of individuals and the protection of their dignity. These rights are justiciable, meaning individuals can approach the courts if they believe their rights have been violated. 1. Right to Equality (Articles 14-18) Article 14: Equality Before Law o Ensures that every individual is treated equally before the law and prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. Article 15: Prohibition of Discrimination o Prohibits discrimination by the state against any citizen on the grounds of religion, race, caste, sex, or place of birth. It also allows for special provisions for women, children, socially and educationally backward classes, and Scheduled Castes and Scheduled Tribes (SC/ST). Article 16: Equality of Opportunity in Public Employment o Guarantees equal opportunity for all citizens in matters related to public employment and prohibits discrimination based on religion, race, caste, sex, descent, place of birth, or residence. Article 17: Abolition of Untouchability o Abolishes the practice of untouchability in any form and makes it an offense punishable by law. Article 18: Abolition of Titles o Abolishes titles that create social distinctions, except for academic or military honors. The state cannot confer titles that imply social superiority. 2. Right to Freedom (Articles 19-22) Article 19: Protection of Certain Rights Regarding Freedom of Speech, etc. o Guarantees six fundamental freedoms: 1. Freedom of speech and expression. 2. Freedom to assemble peacefully without arms. 3. Freedom to form associations or unions. 4. Freedom to move freely throughout the territory of India.  5. Freedom to reside and settle in any part of the country. 6. Freedom to practice any profession, or to carry on any occupation, trade, or business. o These freedoms are subject to reasonable restrictions for the sake of sovereignty, integrity, security, public order, decency, morality, or in relation to contempt of court, defamation, or incitement to an offense. Article 20: Protection in Respect of Conviction for Offenses o Provides protection against arbitrary and excessive punishment to any person accused of committing an offense. It includes protection against: 1. Ex post facto laws (being punished under a law that was not in force at the time the act was committed). 2. Double jeopardy (being tried twice for the same offense). 3. Self-incrimination (being compelled to be a witness against oneself). Article 21: Protection of Life and Personal Liberty o Ensures that no person shall be deprived of their life or personal liberty except according to the procedure established by law. This article has been widely interpreted to include various rights like the right to privacy, right to a dignified life, right to health, right to education, etc. Article 21A: Right to Education o Ensures free and compulsory education for all children aged 6 to 14 years. Article 22: Protection Against Arrest and Detention in Certain Cases o Provides safeguards against arbitrary arrest and detention. It includes rights like: 1. The right to be informed of the grounds of arrest. 2. The right to consult and be defended by a legal practitioner. 3. The right to be produced before a magistrate within 24 hours of arrest. 4. Protection against detention beyond the said period without the authority of a magistrate. 3. Right Against Exploitation (Articles 23-24) Article 23: Prohibition of Traffic in Human Beings and Forced Labor o Prohibits human trafficking, forced labor, and other forms of exploitation. It also makes these offenses punishable by law.  Article 24: Prohibition of Employment of Children in Factories, etc. o Prohibits the employment of children below the age of 14 years in factories, mines, and other hazardous occupations. 4. Right to Freedom of Religion (Articles 25-28) Article 25: Freedom of Conscience and Free Profession, Practice, and Propagation of Religion o Guarantees all individuals the freedom of conscience and the right to profess, practice, and propagate any religion, subject to public order, morality, and health. Article 26: Freedom to Manage Religious Affairs o Grants every religious denomination or any section thereof the right to establish and maintain institutions for religious and charitable purposes, manage its own affairs in matters of religion, and own and acquire property. Article 27: Freedom as to Payment of Taxes for Promotion of Any Particular Religion o Prohibits the state from compelling any person to pay taxes for the promotion or maintenance of any particular religion or religious denomination. Article 28: Freedom as to Attendance at Religious Instruction or Religious Worship in Certain Educational Institutions o Ensures that no religious instruction shall be provided in any educational institution wholly maintained out of state funds. However, religious instruction can be provided in institutions administered by the state but established under an endowment or trust that requires religious instruction. 5. Cultural and Educational Rights (Articles 29-30) Article 29: Protection of Interests of Minorities o Protects the interests of minorities by allowing them to conserve their language, script, and culture. It also prohibits discrimination in admission to educational institutions maintained by the state or receiving state aid. Article 30: Right of Minorities to Establish and Administer Educational Institutions o Grants minorities the right to establish and administer their own educational institutions. It also ensures that the state does not discriminate against these institutions in granting aid. 6. Right to Constitutional Remedies (Article 32) Article 32: Right to Move to the Supreme Court for the Enforcement of Fundamental Rights  o Often called the "heart and soul of the Constitution" by Dr. B.R. Ambedkar, this article grants individuals the right to approach the Supreme Court directly for the enforcement of their Fundamental Rights. The court can issue various writs (Habeas Corpus, Mandamus, Prohibition, Quo-Warranto, and Certiorari) to protect these rights. 7. Suspension of Fundamental Rights Article 358: During a national emergency, Article 19 (Right to Freedom) can be suspended. Article 359: The President of India can suspend the right to move any court for the enforcement of Fundamental Rights (except Articles 20 and 21) during an emergency. 3. Judicial Activism Judicial Activism refers to the proactive role played by the judiciary in protecting the rights of citizens, interpreting the Constitution broadly, and sometimes stepping into areas traditionally reserved for the executive or legislature. This concept has gained prominence in India as courts have increasingly used their powers to address issues of social justice, equality, and public interest, especially when other branches of government have failed to do so. 1. Judicial Activism in India Origins and Evolution: Judicial activism in India can be traced back to the 1970s, particularly after the Emergency period (1975-1977). During this time, the judiciary, especially the Supreme Court, began to adopt a more assertive role in protecting citizens' rights and ensuring that the rule of law was maintained. Public Interest Litigation (PIL): One of the most significant tools of judicial activism in India is the concept of Public Interest Litigation (PIL). It allows individuals or groups to file petitions in the court on behalf of those whose rights have been violated, even if they are not directly affected by the issue. This has made justice more accessible to marginalized and vulnerable groups. Expansion of Fundamental Rights: The courts have interpreted the Fundamental Rights enshrined in the Constitution expansively. For instance, Article 21 (Right to Life and Personal Liberty) has been interpreted to include a wide range of rights, including the right to clean air, water, a dignified life, education, and health. 2. Judicial Activism and Equality Affirmative Action: The judiciary has played a critical role in upholding and interpreting policies of affirmative action, such as reservations for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs). The Supreme Court has balanced the need for equality with the requirement for social justice by  ensuring that such measures do not violate the principle of equality guaranteed under Article 14. Gender Equality: Courts have been instrumental in advancing gender equality in India. Notable cases include the Vishaka v. State of Rajasthan (1997) judgment, which laid down guidelines for preventing sexual harassment in the workplace. 3. Judicial Activism and Social Justice Rights of Marginalized Groups: The judiciary has often intervened to protect the rights of marginalized and disadvantaged groups. For example, in the Olga Tellis v. Bombay Municipal Corporation (1985) case, the Supreme Court recognized the right to livelihood as part of the right to life, protecting slum dwellers from eviction without due process. Environmental Justice: The courts have also played a significant role in environmental protection through PILs. In the MC Mehta cases, the Supreme Court issued several landmark judgments related to environmental protection, including orders to reduce pollution in the Ganga River and regulate industries to prevent environmental degradation. 4. Criticisms of Judicial Activism Overreach: Critics argue that judicial activism can lead to "judicial overreach," where the judiciary encroaches upon the functions of the executive and legislature, disrupting the balance of power among the three branches of government. Accountability: Unlike the executive and legislature, the judiciary is not directly accountable to the public, which raises concerns when courts make policy decisions or pass orders that have far-reaching implications. Delay in Justice: Some argue that excessive judicial activism can lead to a backlog of cases, as courts take on a wide range of issues, often involving complex policy matters that might be better handled by specialized bodies or agencies. 5. Landmark Cases Illustrating Judicial Activism Kesavananda Bharati v. State of Kerala (1973): This case established the Basic Structure Doctrine, where the Supreme Court held that the Parliament could not alter the basic structure of the Constitution, even through amendments. Vishaka v. State of Rajasthan (1997): The Supreme Court laid down guidelines for the protection of women from sexual harassment at the workplace, filling a legislative vacuum. Maneka Gandhi v. Union of India (1978): The Supreme Court expanded the interpretation of Article 21, ruling that the right to life and personal liberty could not be deprived except through a fair, just, and reasonable procedure.  MC Mehta v. Union of India (1987): Known for its environmental activism, the Supreme Court issued a series of rulings to control pollution and protect the environment, leading to the closure of polluting industries and other significant reforms. 6. Judicial Activism in Contemporary India Social Reforms: In recent years, the judiciary has continued to play a vital role in social reform, including judgments related to the decriminalization of homosexuality, the recognition of transgender rights, and the Sabarimala case, where the Supreme Court ruled that women of all ages should be allowed to enter the Sabarimala temple, challenging age-old customs. COVID-19 Pandemic: During the COVID-19 pandemic, the judiciary intervened in various matters, including ensuring the availability of oxygen, directing the government to provide free testing and treatment, and addressing the plight of migrant workers. 4. Fundamental Duties The Fundamental Duties in the Indian Constitution are outlined in Part IV-A under Article 51A. These duties were added by the 42nd Amendment in 1976, during the Emergency period, on the recommendation of the Swaran Singh Committee. Initially, there were ten Fundamental Duties, but the 86th Amendment in 2002 added an eleventh duty. The Fundamental Duties are moral obligations for every citizen of India, intended to promote a spirit of patriotism and uphold the unity of India. Though they are non-justiciable, meaning they cannot be enforced by law, they serve as a constant reminder to citizens about their responsibilities toward the nation. List of Fundamental Duties: 1. To abide by the Constitution and respect its ideals and institutions, the National Flag, and the 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 among all the people of India, transcending religious, linguistic, and regional or sectional diversities; to renounce practices derogatory to the dignity of women. 6. To value and preserve the rich heritage of the country’s 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 endeavor and achievement. 11. To provide opportunities for education to children between the ages of six and fourteen years and ensure that such education is provided. (This duty was added by the 86th Amendment in 2002). 5. Emergency Provisions The Emergency Provisions in the Indian Constitution are contained in Part XVIII (Articles 352 to 360). These provisions grant extraordinary powers to the central government to deal with situations that threaten the security, stability, or integrity of the country. There are three types of emergencies: 1. National Emergency (Article 352): Grounds: A National Emergency can be proclaimed if the President of India is satisfied that there exists a grave threat to the security of India or any part of its territory, due to: 1. War 2. External aggression 3. Armed rebellion (earlier termed as 'internal disturbance'; changed by the 44th Amendment Act in 1978). Procedure: The President can proclaim a National Emergency based on the written recommendation of the Cabinet. The proclamation must be approved by both Houses of Parliament within one month by a special majority. Duration: Once approved, the National Emergency can last for six months and can be extended indefinitely with parliamentary approval every six months. Effects: o The federal structure of governance changes, with the central government gaining sweeping powers. o Fundamental Rights under Articles 19 (freedoms) are automatically suspended. o The Parliament gains the power to legislate on matters within the State List. Instances: A National Emergency has been declared three times: o 1962 - During the Indo-China war. o 1971 - During the Indo-Pak war.  o 1975 - Declared by Indira Gandhi citing internal disturbance. 2. State Emergency or President's Rule (Article 356): Grounds: President’s Rule can be imposed if the President, on receipt of a report from the Governor of a state or otherwise, is satisfied that the governance in a state cannot be carried on in accordance with the provisions of the Constitution. Procedure: The President issues a proclamation, which must be approved by both Houses of Parliament within two months. Duration: President's Rule can initially last for six months and can be extended for a maximum of three years with repeated parliamentary approval every six months. Beyond one year, it can be extended only if: o A National Emergency is in force in the entire country or in the whole or any part of the state. o The Election Commission certifies that elections cannot be held in the state. Effects: o The President assumes the executive authority of the state. o The state legislature is either suspended or dissolved. o The Parliament can make laws on behalf of the state legislature. Instances: President's Rule has been imposed numerous times in various states, often due to political instability, breakdown of law and order, or failure of the ruling government. 3. Financial Emergency (Article 360): Grounds: A Financial Emergency can be proclaimed if the President is satisfied that the financial stability or credit of India or any part thereof is threatened. Procedure: The proclamation must be approved by both Houses of Parliament within two months. Duration: The Financial Emergency continues indefinitely until it is revoked by the President. Effects: o The President can direct states to observe certain financial proprieties and can also reduce the salaries and allowances of all or any class of persons serving in the state. o The President can direct the reduction of salaries and allowances of judges of the Supreme Court and High Courts.  o All money bills passed by the state legislatures may be reserved for the consideration of the President. Instances: No Financial Emergency has been declared in India so far.