Indian Constitution Study Material 2024.pdf

Unit- 1 Making of the Indian Constitution: Constituent Assembly- Composition, Objectives, Preamble and Salient features of the Indian Constitution INTRODUCTION Most countries in the world have a Constitution. The Constitution serves several purposes. First, it lays out certain ideals that form the basis of the kind of country that we as citizens aspire to live in. A Constitution tells us what the fundamental nature of our society is. A Constitution helps serve as a set of rules and principles that all persons in a country can agree upon as the basis of the way in which they want the country to be governed. The making of Indian Constitution was in progress even before the country attained independence in 1947. The British enacted some legislations, such as the Government of India, Act 1858; the Indian Council Act, 1861; the Indian Council Act, 1892; the Indian Council Act, 1909; the Government of India Act, 1919; and the Government of India Act, 1935. The Constituent Assembly of India was elected in 1946 to write the Constitution of India. The previous unit introduced you to the process of Constitution development under the British Rule. This unit will introduce you to the composition of the Constituent Assembly, several committees constituted under the Constituent Assembly to facilitate the process of formation of the Constitution of India. OBJECTIVES The idea of making the Constitution cannot be attributed to the Constituent Assembly alone. It needs to be seen from the evolutionary perspective. The adoption of the famous Motilal Nehru Resolution in 1924 and 1925, on national demand, was a historic event. It is because the central legislature had, for the first time, lent its support to the growing demand of the future Constitution of India. It also agreed to the opinion that the Constitution of India should be framed by Indians themselves. In November 1927, the Simon Commission was appointed without any Indians represented in it. Therefore, all-party meetings, held at Allahabad, voiced the demand for the right to participate in the making of the Constitution of their country. Earlier on 17 May 1927, at the Bombay session of the Congress, Motilal Nehru had moved a resolution. The resolution called upon the Congress Working Committee to frame the Constitution for India in consultation with the elected members of the central and provincial legislatures, and the leaders of political parties. Adopted by an overwhelming majority with amendments, it was this resolution on the Swaraj Constitution which was later restated by Jawaharlal Nehru in a resolution passed by the Madras Session of the Congress on 28 December 1927. In all-party conference in Bombay on 19 May 1929, a committee was appointed under the chairmanship of Motilal Nehru. The committee established the principles of the Constitution of India. The Report of the Committee, which was submitted on 10 August 1928, later became famous as the Nehru Report. It was the first attempt by Indians to frame the Constitution for their country. The Report depicted the perception of the modern nationalists. It also provided an outline of the Constitution of India. The outline was based on the principles of dominion status and it suggested that the government should be made on the parliamentary pattern. The Report asserted the principle that sovereignty belongs to Indians. It laid down a set of fundamental rights and provided for a federal system with maximum autonomy granted to the units. The residuary powers were given to the central government. A broad parliamentary system with government responsible to the parliament, a chapter on justifiable Fundamental Rights and Rights of Minorities envisaged in the Nehru Report in 1928 largely embodied the Constitution of the independent India. The Third Round Table Conference issued a White Paper outlining the British Government’s proposal for Constitutional reforms in India. However, the joint parliamentary committees, which examined this proposal, observed that ‘a specific grant of constituent power to authorities in India is not at the moment a practicable proposition’. In its response, the Congress Working Committee in June 1934 declared that the only satisfactory alternative to the White Paper was that the Constitution be drawn out by the Constituent Assembly. They demanded that the members of the Constituent Assembly be elected on the basis of adult suffrage. Significantly, this was the first time that a definite demand for a Constituent Assembly was formally put forward. The failure of the Simon Commission and the Round Table conference gave rise to the ratification of the Government of India Act, 1935. The Congress in its Lucknow Session in April 1936 adopted a resolution in which it declared that no Constitution imposed by an outside authority shall be acceptable to India. The resolution asserted that it has to be framed by an Indian Constituent Assembly elected by the people of India on the basis of adult franchise. On 18 March 1937, the Congress adopted another resolution in Delhi which asserted these demands. After the outbreak of the Second World War in 1939, the demand for a Constituent Assembly was reiterated in a long statement issued by the Congress Working Committee on 14 September 1939. Gandhi wrote an article in the Harijan on 19 November 1939, in which he expressed the view that the Constituent Assembly alone can produce a Constitution for the country which truly and completely represents the will of Indians. It declared that the Constituent Assembly was the only way out to arrive at the solution of communal and other problems of the country. The demand was partially considered by the British Government in the ‘August Offer of 1940’. In March 1942, the British Government sent the Cripps Mission to India with a draft declaration which needed to be implemented at the end of the Second World War. The main proposals of the Mission were: (i) the Constitution of India was to be framed by an elected Constituent Assembly of the Indian people; (ii) the Constitution should give dominion status to India, i.e., equal partnership of the British Commonwealth of Nations; (iii) there should be an Indian union, comprising all the provinces and Indian states; and (iv) any province or Indian state, which was not prepared to accept the Constitution would be free to retain its Constitutional position existing at that time. With such provinces, the British Government could enter into separate Constitutional arrangements. However, the Cripps Mission was a failure and no steps were taken for the formation of the Constituent Assembly until the World War in Europe came to an end in May 1945. In July, when the new labour government came to power in England, Lord Wavell affirmed that His Majesty’s intention was to convene a Constitutional making body as soon as possible. In 1946, the British Cabinet sent three members, including Cripps to make another serious attempt to solve the problem. However, the Cabinet delegation rejected the claim for a separate Constituent Assembly and a separate state for the Muslims. It forwarded the following proposals: (i) There would be a Union of India, comprising both British India and states, and having jurisdiction over the subjects of foreign affairs, defence and communications. All residuary powers would belong to the provinces and the states. (ii) The Union should comprise an executive and a legislature having representatives from the provinces and states. To explain the actual meaning of the clauses of the proposals of the Cabinet Mission, the British Government published the following statement: On 6 December 1946 ‘Should a Constitution come to be framed by the Constituent Assembly in which large section of the Indian population had not been represented? His Majesty’s government would not consider imposing such a Constitution upon any restrictive part of the country.’ The British Government for the first time pondered over the likelihood of forming two constituent assemblies and two states. The Cabinet Mission recommended a basic framework for the Constitution and laid down a detailed procedure to be followed by the Constitution making body. In the election for the 296 seats, the Congress won 208 seats including all the General seats except nine. The Muslim League won 73 seats. With the Partition and independence of the country on 14 and 15 August 1947, the Constituent Assembly of India was said to have become free from the fetters of the Cabinet Mission Plan. Following the acceptance of the plan of 3 June, the members of the Muslim League from the Indian dominion also took their seats in the Assembly. The representatives of some of the Indian states had already entered the Assembly on 28 April 1947. By 15 August 1947, most of the states were represented in the Assembly and the remaining states also sent their representatives in due course. The Constituent Assembly, thus, became a body fully representative of the states and provinces in India, free from external authority. It could change any law made by the British Parliament. Composition of the Constituent Assembly The Constituent Assembly was first held to meeting 9 December 1946. It included provinces comprising Pakistan and Bangladesh today, and represented the princely states of India as well. Further, the delegations from provinces of Sind, East Bengal, West Punjab, Baluchistan and the North West Frontier Province in June 1947 formed the Constituent Assembly of Pakistan in Karachi. After India became independent, the Constituent Assembly became the Parliament of India. The Constituent Assembly was indirectly elected by the Provincial Legislative Assembly members (Lower House only), as per the scheme of the Cabinet Delegations. The prime features of the scheme were: Every Indian state or group of states and the province were allotted a specific number of seats relative to their populations respectively. Due to this, the provinces were needed to elect 292 members and the Indian states were assigned a minimum number of 93 seats. Each provincial seat was distributed amongst three major communities—Muslim, Sikh and General proportional to their respective populations. Within the Provincial Legislative Assembly, each community member electedhis own representatives through proportional reorientation with single transferable vote. The selection method for Indian representatives had to be determined through consultation. In all, the Constituent Assembly was to have 389 members but Muslim League boycotted the Assembly. Only 211 members attended its first meeting on 9 December 1946. Apart from that, the Partition Plan of 3 June 1947 gave rise to the setting up of a separate Constituent Assembly for Pakistan. The representatives of Bengal, Punjab, Sind, North Western Frontier Province, Baluchistan, and the Sylhet district of Assam had to join Pakistan. Due to this, on 31 October 1947, when the Constituent Assembly reassembled, the House membership was lessened to 299. Out of these, 284 members were actually present on 26November 1949 and signed the Constitution to regard it as finally passed. Committees of Constitution Assembly The salient principles of the proposed Constitution were outlined by various committees of the Assembly. There were twenty-two major committees formed by the Constituent Assembly to handle different tasks of the making of the Constitution. Out of these, ten focused on procedural affairs and twelve on substantive affairs. The reports of these committees created the basis for the first draft of the Constitution. 1. Committees on Procedural Affairs The committees on procedure affairs were: (i) The Steering Committee (Chairman: Dr K.M. Munshi) (ii) The Rules of Procedure Committee (Chairman: Dr Rajendra Prasad) (iii) The House Committee (iv) The Hindi-translation Committee (v) The Urdu-translation Committee (vi) The Finance and Staff Committee (vii) The Press Gallery Committee (viii) The Committee based on the Indian Independence Act of 1947 (ix) The Order of Business Committee (x) The Credential Committee 2. Committees on Substantial Affairs The committees on Substantial affairs were: (i) The Drafting Committee (Chairman: B. R. Ambedkar) (ii) The Committee for negotiating with States (Chairman: Dr Rajendra Prasad) (iii) The Union Constitution Committee (Chairman: Jawaharlal Nehru) (iv) The Provincial Constitution Committee (Chairman: Sardar Patel) (v) A Special Committee to examine the Draft Constitution (Chairman: Sir Alladi Krishnaswami Iyer) (vi) The Union Powers Committee (Chairman: Pandit Jawaharlal Nehru) (vii) The Committee on Fundamental Rights and Minorities (Chairman: Sardar Patel) (viii) The Committee on Chief Commissioners Provinces (ix) The Commission of Linguistic Provinces (x) An Expert Committee on Financial Provisions (xi) Ad-hoc Committee on National Flag (xii) Ad-hoc Committee on the Supreme Court During its entire sitting, the Constituent Assembly had 11 sessions and 165 days of actual work. After three years of efforts, the historic document, i.e., the Constitution of the free India was adopted by the Assembly on 26 November 1949. It came into force on 26 January 1950. The draft Constitution had 315 Articles and 13 Schedules. The final form of the Constitution, as it was originally passed in 1949, had 395 Articles and eight Schedules. This shows that the original draft had undergone considerable changes. In fact, there were over 7000 amendments which were proposed to be made in the Draft Constitution. Of these 2473 were actually moved, debated and disposed of. It was indeed a great democratic exercise as discussion, debates and deliberation were encouraged. There was also a great tolerance of criticism. It was truly a full-fledged democratic procedure which helped in the making of the Constitution. ENACTMENT OF THE CONSTITUTION The Constitution of India was made by the Constituent Assembly which represented nearly all shades of opinions existing at that time in the country. The first session of the Constituent Assembly was held on 9 December 1946 and the assembly finally passed the Constitution on 26 November 1949. However, the Constitution was inaugurated only on 26 January 1950, which was the twentieth anniversary of the day on which the Indian National Congress adopted the Resolution on Purna Swaraj and had ever since become the Republic Day of India. Most members of the Constituent Assembly (e.g. Jawaharlal Nehru, Patel, Azad, Ambedkar, Sitaramayya, Ayyar, N. G. Ayyangar, etc.) belonged to an extremely small, westernized professional middle-class, moulded by the 19th century English education system and sustained a radical social perspective based largely on the European experience in the 20th century. This was particularly true of those 20-member core group that comprised the most influential members of the Constituent Assembly. The ideology of the members of the Assembly clearly reflected on the Constitution of India. A study of the Constitution shows that it embodies the liberal-democratic ideology to a very large extent. However, the Constitution also depicts slight socialist and Gandhian leanings. The members of the Assembly drafted the Constitution that expressed the aspirations of the nation. They skillfully selected and modified the provisions that they borrowed from other Constitutions, helped by the experts. The Assembly members also applied to their task with great effectiveness two wholly Indian concepts, consensus and accommodation. Accommodation was applied to the principles to be embodied in the Constitution. For example, India’s membership in the Commonwealth reconciled the incompatibles of republicanism and monarchy. The solution of the panchayat question was also based on accommodation. Consensus was the aim of the decision-making process, the single most important source of the Assembly’s effectiveness. Indian Constitution: Preamble and salient features The first historical session of Indian Constituent Assembly held its meeting on 9 December 1946 under the chairmanship of Dr. Sachidananda Sinha. On 11 December, it elected Dr. Rajendra Prasad as its permanent president. The membership of the Constituent Assembly included all eminent Indian leaders. Pt. Jawaharlal Nehru introduced the objectives Resolution on 13 December 1946. After a full discussion and debate, the Constituent Assembly passed the objectives Resolution on 22 January 1947. It clearly laid down the ideological foundations and values of the Indian Constitution and it guided the work of the Constituent Assembly. When on 15 August 1947, India became independent; the Constituent Assembly became a fully sovereign body and remained so till the inauguration of the Constitution of India. During this period, it acted in a dual capacity: first as the Constituent Assembly engaged in the making of the Indian Constitution, and secondly as the Parliament of India, it remained involved in legislating for the whole of India. For conducting its work in a systematic and efficient manner, the Constituent Assembly constituted several committees which were to report on the subjects assigned to them. Some of these committees were committees on procedural matters while others were committees on substantive matters. The reports of these committees provided the bricks and mortar for the formulation of the Constitution of India. In the making of the Constitution, a very valuable role was played by the Drafting Committee. The Committee was constituted on 29 August 1947 with Dr. B. R. Ambedkar as its chairman. The Drafting Committee submitted its report (draft) to the Constituent Assembly on 21 February 1948 and the Constituent Assembly held debates on it. On the basis of these discussions, a new draft was prepared by the Drafting Committee and submitted to the Assembly on 4 November 1948. From 14 November 1949 to 26 November 1949 the final debate was held on the draft. 26 November was observed as the Independence Day every year as long as the British Rule in India. Later, in order to perpetuate the memory of the great pledge of the ‘Purna Swaraj Day’ 26 January 1950 was chosen to be the day of the commencement of our Constitution and was declared as Republic with Dr. Rajendra Prasad as its first president. On completion of the constitution-making task of the Constituent Assembly, Dr. Rajendra Prasad said: ‘I desire to congratulate the Assembly on accomplishing a task of such tremendous magnitude. It is not my purpose to appraise the value of the work that the Assembly has done or the merits and demerits of the Constitution which it has framed, I am content to leave that to others and posterity.’ Preamble to the Constitution of India: Preamble to the Constitution of India is a brief introductory statement that sets out the guiding purpose and principles of the document, and it indicates the source from which the document derives its authority, meaning, and the people. The hopes and aspirations of the people as well as the ideals before our nation are described in the preamble in clear words. It may be considered as the heart and soul of Constitution. The preamble can be referred to as the preface which highlights the entire Constitution. It was adopted on 26 November 1949 by the Constituent Assembly and came into effect on 26th January 1950. The Constitution of India begins with a Preamble which describes the nature of the Indian State and the objectives it is committed to secure. K.M. Munshi describes the Preamble as the political horoscope of the constitution. Thakur Dass Bhargawa says Preamble is the most precious part and the soul of the constitution. The preamble is based on the Objectives which was drafted and moved in the Constituent Assembly by Jawaharlal Nehru on 13 December 1946. B.R Ambedkar said about the preamble: “It was, indeed, a way of life, which recognizes liberty, equality, and fraternity as the principles of life and which cannot be divorced from each other: Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things.” The Supreme Court of India originally stated in the BeruBari case presidential reference that the preamble is not an integral part of the Indian constitution, and therefore it is not enforceable in a court of law. However, the same court, in the 1973 Kesavananda case, overruled earlier decisions and recognised that the preamble may be used to interpret ambiguous areas of the constitution where differing interpretations present themselves. In the 1995 case of Union Government Vs LIC of India, the Supreme Court once again held that the Preamble is an integral part of the Constitution. As originally enacted the preamble described the state as a "sovereign democratic republic", to which the terms "Secular" and "Socialist" were later added by the 42nd Amendment. The preamble-page, along with other pages of the original Constitution of India, was designed and decorated by the renowned painter Beohar Rammanohar Sinha of Jabalpur who was at Shantiniketan with acharya Nandalal Bose at that time. Nandalal Bose endorsed Beohar Rammanohar Sinha's artwork without any alteration whatsoever. As such, the page bears Beohar Rammanohar Sinha's short signature Ram in Devanagari lower-right corner. The calligraphy was done by Prem Behari Narain Raizada. “ 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 26th day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. ” Sovereign India is a sovereign state in the sense that she is internally supreme and externally independent. Internally supreme in the sense that the Central government or the Indian Constitution controls all other states and she is externally independent in the sense that India is not under the control of any other foreign countries. She is free to conduct external relations with other countries of the world. According to preamble, the constitution of India has been pursuance of the solemn resolution of the people of India to constitute India into a ‘Sovereign Democratic Republic’, and to secure well defined objects set forth in the preamble. Sovereignty denotes supreme and ultimate power. It may be real or normal, legal or political, individual or pluralistic. In monarchial orders, sovereignty was vested in the person of monarchs. But, in republican form of governments, which mostly prevail in the contemporary world, sovereignty is shifted to the elected representatives of the people. According to D.D Basu, the word ‘sovereign’ is taken from article 5 of the constitution of Ireland. ‘Sovereign or supreme power is that which is absolute and uncontrolled within its own sphere’. In the words of Cooley, “A state is sovereign when there resides within itself supreme and absolute power, acknowledging no superior”. Sovereignty, in short, means the independent authority of a state. It has two aspects- external and internal. External sovereignty or sovereignty in international law means the independence of a state of the will of other states, in her conduct with other states in the comity of nations. Sovereign in its relation between states and among states signifies independence. The external sovereignty of India means that it can acquire foreign territory and also cede any part of the Indian territory, subject to limitations(if any) imposed by the constitution. On the other hand, internal sovereignty refers to the relationship between the states and the individuals within its territory. Internal sovereignty relates to internal and domestic affairs, and is divided into four organs, namely, the executive, the legislature, the judiciary and the administrative. Though India became a sovereign country on 26th January, 1950, having equal status with the other members of the international community, she decided to remain in the Commonwealth of Nations. Pandit Nehru declared that India will continue – “her full membership of the Commonwealth of Nations and her acceptance of the King as the symbol of the free association of the independent nations and as such the Head of the Commonwealth”. Her membership of the Commonwealth of Nations and that of the United Nations Organization do not affect her sovereignty to any extent. It is merely a voluntary association of India and it is open to India to cut off this association at her will, and that it has no constitutional significance. Socialist Before the term was added by the 42nd Amendment in 1976, the Constitution had a socialist content in the form of certain Directive Principles of State Policy. The term socialist here means democratic socialism i.e. achievement of socialistic goals through democratic, evolutionary and non-violent means. Socialist state basically means that wealth is generated socially and should be shared equally by society through distributive justice. It shall not be concentrated in the hands of few. Government should regulate the ownership of land and industry to reduce socio-economic inequalities. Secular Secular means the relationship within between the government and the people which is determined according to constitution and law. By the 42nd Amendment in 1976, the term "Secular" was also incorporated in the Preamble. There is no difference of religion i.e. all religion is equally respected and moreover there is no state religion. All the citizens of India are allowed to profess, practise and propagate any religion. Explaining the meaning of secularism as adopted by India, Alexander Owics has written, "Secularism is a part of the basic of the Indian Constitution and it means equal freedom and respect for all religions. Democratic The people of India elect their governments by a system of universal adult franchise; popularly known as "one man one vote". Every citizen of India, 18 years of age and above and not otherwise debarred by law, is entitled to vote. The word 'democratic' not only refers to political but also to social & economic democracy. Republic In a republic form of government, the head of the state is an elected person and not a heredity monarch. This word denotes a government where no one holds a public power as proprietary right. As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. Justice India seeks to secure social, economic and political justice for its people. (i) Social Justice: Social Justice means the absence of socially privileged classes in the society and no discrimination against any citizen on grounds of caste, creed, colour, religion, sex or place of birth. India stands for eliminating all forms of exploitations from the society. (ii) Economic Justice: Economic Justice means no discrimination between man and woman on the basis of income, wealth and economic status. It stands for equitable distribution of wealth, economic equality, end of monopolistic control over means of production and distribution, decentralisation of economic resources, and securing of adequate opportunities to all for earning their living. (iii) Political Justice: Political Justice means equal, free and fair opportunities to the people for participation in the political process. It stands for the grant of equal political rights to all the people without any discrimination. The Constitution of India provides for a liberal democracy in which all the people have the right and freedom to participate. Liberty The idea of Liberty refers to the freedom on the activities of Indian nationals. This establishes that there are no unreasonable restrictions on Indian citizens in term of what they think their manner of expressions and the way they wish to follow up their thoughts in action. This is found to be an important tool in ensuring democratic framework. However, liberty does not mean freedom to do anything, and it must be exercised within the constitutional limits. This is second provision. Equality This envisages that no section of the society enjoys special privileges and individuals are provided with adequate opportunities without any discrimination. All are equal in front of law. Again, there are three dimensions of Equality - Political, Economic & Civic. Fraternity This refers to a feeling of brotherhood and a sense of belonging with the country among its people. It embraces psychological as well as territorial dimensions of National Integration. It leaves no room for regionalism, communalism, casteism etc, which hinders the Unity of the State. The inclusion of the word "Fraternity" was proposed by Dr. B.R Ambedkar. The Preamble declares that fraternity has to assure two things-- the dignity of the individual and the unity and integrity of the nation. The word 'integrity' has been added to the Preamble by the 42nd Constitutional Amendment (1976)... Features of the Indian Constitution: The Constitution of India is considered as a distinctive constitution around the globe. It is the largest written liberal democratic constitution of the world. It offers for a mixture of federalism and Unitarianism, and flexibility and with rigidity. The Constitution of India was outlined by a Constituent Assembly. This Assembly was an indirectly chosen body. It had laid down certain ideals to be included in the Constitution. These ideals included commitment to democracy, guarantee to all the people of India, Justice, equality and freedom. It had also proclaimed that India will be a Democratic Republic. Reports suggested that the Constituent Assembly held its first sitting on the 9th December, 1946. It reassembled on the 14th August, 1947, as the sovereign Constituent Assembly for the Dominion of India. Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights, directive principles and duties of citizens. Passed by the Constituent Assembly on 26 November 1949, it came into effect on 26 January 1950. The date 26 January was chosen to commemorate the declaration of independence of 1930. Since its inauguration on 26th January 1950, the Constitution India has been efficaciously guiding the path and development of India. With the help of Article 368, Parliament can amend the constitution. Every part of constitution can be modified by the Parliament except “basic structure” of the constitution as held by the Supreme Court. Any law which violates the basic structure of the constitution is declared unconstitutional & invalid by the court. Indian Constitution can be said as the hugely written constitution in the world because of its contents. In its innovative form, it consisted of 395 Articles and 8 Schedules to which additions have been made through subsequent amendments. At present, it contains 395 Articles and 12 Schedules, and more than 80 amendments. There are many factors responsible for the long size of the constitution. One major factor was that the framers of the constitution copied provisions form several sources and several other constitutions of the world. They have followed and reproduced the Government of India Act 1935 in providing matters of administrative detail. It was needed to make provisions for a typical problems of India like scheduled castes, Scheduled Tribes and backward regions. In Indian constitution, provisions were made for elaborate centre-state relations in all aspects of their administrative and other activities. The size of the constitution became large, as provisions regarding the state administration were also included. Additionally, a detail list of individual rights, directive principles of state policy and the details of administration procedure were laid down to make the Constitution clear and unambiguous for the ordinary citizen. Therefore, the Constitution of India became an exhaustive and lengthy one. India has implemented the Parliamentary system as established in Britain. In this system, the executive is responsible to the legislature, and remains in power only as long as it enjoys the confidence of the legislature. The president of India, who remains in office for five years is the nominal, titular or constitutional head. The Union Council of Ministers with the Prime Minister as its head is drawn from the legislature. It is jointly responsible to the House of People (Lok Sabha), and has to resign as soon as it loses the confidence of that house. The President, the nominal executive shall exercise his powers according to the advice of the Union Council of Ministers, the real executive. In the states also, the government is Parliamentary in nature. The Constitution of India identifies only single citizenship. In the United States, there is provision of dual citizenship. In India, people are citizens of India only, not of the respective states to which they belong. This provision would help to promote harmony and integrity of the nation. India is a secular state, because it does not discriminate between individuals on the basis of religion. Neither it encourages nor discourages any religion. In contrast, right to freedom of religion is ensured in the Constitution and people belonging to any religious group have the right to acknowledge, practice or propagate any religion they like. The salient features of the Constitution of India are as under: The Constitution of a state is not only the fundamental law of the state, but it is also like a mirror of its social, political and economic systems. The Constitution of a State is different from the Constitution of another State. Each Constitution grows and develops within a particular environment. The Constitution of India is unique in many ways. Several special features of the Indian Constitution distinguish it from many other constitutions of the world. The salient features of the Indian Constitution of India described as follows: · Written Constitution: The Constitution of India is a written document. To draft the Indian Constitution, a Drafting Committee was constituted by the Constituent Assembly under the Chairmanship of Dr. B. R. Ambedkar. The Constituent Assembly was a representative body which is indirectly elected by the people. It consisted of 389 members out of whom 296 members were elected from British India and 93 members were the ‘representatives of Native States’. The elections to the Constituent Assembly were held in 1946 and Dr. Rajendra Prasad was elected the President of the Constituent Assembly. The Drafting Committee prepared the draft of the Constitution. After long efforts, the new Constitution was finally adopted on November 26, 1949. Thus, the Indian Constitution came into force on January 26, 1950. · The Lengthiest Constitution: The Indian Constitution is the lengthiest, bulkiest and most detailed Constitution in the World. It contains 395 Articles (divided into 22 parts) and 8 Schedules at the time of its enforcement. At present, it has 444 Articles, divided into 24 parts and 12 Schedules. The Constitution of India contains a detailed list of Fundamental Rights, Directive Principles of State Policy, distribution of Powers between Centre and the States, Official Languages, Election and many other provisions over and above laying out the provisions regarding the executive, legislature and judiciary. · Partly rigid and partly flexible: The Constitution of India is neither too rigid nor too flexible. A flexible constitution is that in which its provisions may be amended or modified by ordinary legislative process, whereas, in the case of a rigid constitution, a special procedure is required to be followed for the amendment or revision of its provisions. The Indian Constitution follows three methods for amendment. Firstly, some of the provisions can be amended by a simple majority of the Parliament. Secondly, some provisions may be amended by a special majority of the Parliament and thirdly, some other provisions which are federal in character may be amended only with a joint initiative of both the Parliament and the State legislature. The framers of the Indian Constitution adopted this system so that the Indian Constitution can adopt itself to the changing circumstances while still retaining its basic characteristics. Because of all these provisions, the Indian Constitution is characterized by the mixture of flexibility and rigidity. Supremacy of the Constitution: The Constitution of India is the supreme law of the country. All the three organs of the Government i.e.: the Executive, Legislature and Judiciary function under the Constitution of India and are controlled by it. They cannot violate the Constitution. Mixture of Federal and Unitary features: The Constitution of India establishes India as a partly Federal and partly unitary government. The word ‘Federalism’ is not mentioned anywhere in the Constitution. It describes India as a ‘Union of States’. Because of the peculiar features of the Indian Constitution, some experts describe it as a ‘quasi-federal state’. Indian federalism is also known as ‘co-operative federalism’. Some of the federal features included in the Indian Constitution are written constitution, supremacy of the constitution, division of powers and distribution of powers between the centre and the states, a strong judiciary, bicameral legislature etc. But, India cannot be called a true federation because some non-federal features or unitary features like- a strong centre, some rigid methods of amendment of the constitution, single citizenship, common All- India services, uniformity of judiciary, emergency provisions enjoyed by the President, appointment of Governors in the States, are distinctly noticed in the Constitution. Therefore, the Constitution of India is a mixture of federal and unitary features. Parliamentary Government: The Constitution of India provides for a Parliamentary form of Government on the British model. In the Parliamentary form of Government, the Head of the State is nominal, whereas the Prime Minster who is the leader of the majority in the Parliament is the real executive. In India, the President only the nominal head of our country and the real and actual powers of the government are exercised by the Prime Minister. Secularism: Secularism is another important feature of the Indian Constitution. The word has been included in the Preamble by the 42nd Amendment in 1976. India does not recognize any religion as the state or official religion and treats all religions equally. All the people of India are given the liberty of thought, expression, belief and worship and there is no discrimination on the grounds of religion, caste or community. Provision of Fundamental Rights: The Fundamental Rights are contained in Part-III of the Constitution from Articles 12 to 35. The framers of the Constitution derived inspiration from the ‘Bill of Rights’ from the Constitution of the U.S.A. Fundamental Rights are justiciable in the sense that a person can approach the court in case of violation of his or her Fundamental Rights. The Supreme Court of India is the Guardian of the rights and liberties of the people. They are not absolute. The Government can impose reasonable restrictions on them. The significance of the Fundamental Rights is that they protect the liberty and the freedom of the citizens against encroachment by the state. Originally, the Constitution provided for seven Fundamental Rights. But the Right to Property was abolished by the 44th Constitutional Amendment Act of 1978. At present, there are six Fundamental Rights. Fundamental Duties: Fundamental Duties are incorporated in Article 51A of Part IVA of the Constitution by the 42nd Constitutional Amendment Act of 1976. The original Constitution did not contain the fundamental duties. The Fundamental Duties are very important. For the overall development of the country, these Duties must be performed by the citizens of India. These duties are not legally binding upon the citizens. Some of the duties include abiding by the Constitution, to defend the country and render national service, to develop the scientific temper, the safeguard public property, etc. Directive Principles of State Policy: Another distinctive feature of the Indian Constitution is the Directive Principles of State Policy described in Part IV of our Constitution from Articles 36-51. These Directive Principles are fundamental in the governance of our Country and it is the duty of the state to apply these principles in making laws. These principles aim at securing social and economic freedoms by appropriate state action. Independent and impartial Judiciary: A basic feature of the Indian Constitution is independence of the judiciary. The judiciary is separated from the other two organs i.e. executive and legislature. The tenure of the Judges of the Supreme Court and High Court is fixed and the judges cannot be removed by simple procedure. Independence of judiciary is very is very essential for the success of democracy. Division of Powers between the Centre and the States: Another important feature of the Indian Constitution of India is the division of powers between the Central and State Government in terms of the Union List, the State List, and the Concurrent List. This important provision is incorporated in the Seventh Schedule of the Constitution. Universal Adult Franchise: The Universal Adult Franchise is introduced by the Constitution and thus, all adult citizens above the age of 18 years, irrespective of their religion, caste, race, color and sex are entitled to participate in the election process. Single Citizenship: To promote the feeling of unity and oneness among the people of India, the framers of the Indian Constitution provided for a single citizenship for its citizens. In the Federation like the United States of America single citizenship is a very important federal feature, unlike India. Emergency Powers: The emergency powers are introduced in the Indian Constitution so that the whole nation can meet with any emergency situation the country may be faced with. The emergency powers are vested in the hands of the President of India. There are three kinds of Emergency powers. These are-National Emergency (Article-352), Emergency in a State (Article 356) and Financial Emergency (Article 360). The above are some the important salient features of the Indian Constitution which makes it one of the most unique and distinct constitutions in the world. Unit -I Chapter 2 Fundamental Rights, Fundamental Duties, Directive Principles Fundamental Rights, Fundamental Duties and Directive Principle of State Policy The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the State to its citizens and the duties and the rights of the citizens to the State. These sections comprise a constitutional bill of rights for government policy-making and the behaviour and conduct of citizens. These sections are considered vital elements of the constitution, which was developed between 1947 and 1949 by the Constitution of India The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste, creed, or gender. They are enforceable by the courts, subject to specific restrictions. The Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing law's. The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties, set out in Part IV–A of the Constitution, concern individuals and the nation. Like the Directive Principles, they are not enforceable by the law. The Fundamental Rights and Directive Principles had their origins in the Indian independence movement, which strove to achieve the values of liberty and social welfare as the goals of an independent Indian state. The development of constitutional rights in India was inspired by historical documents such as England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. The demand for civil liberties formed an important part of the Indian independence movement, with one of the objectives of the Indian National Congress (INC) being to end discrimination between the British rulers and their Indian subjects. This demand was explicitly mentioned in resolutions adopted by the INC between 1917 and 1919. The demands articulated in these resolutions included granting to Indians the rights to equality before law, free speech, trial by juries composed at least half of Indian members, political power, and equal terms for bearing arms as British citizens. The experiences of the First World War, the unsatisfactory Montague-Chelmsford reforms of 1919, and the rise to prominence of M. K. Gandhi in the Indian independence movement marked a change in the attitude of its leaders towards articulating demands for civil rights. The focus shifted from demanding equality of status between Indians and the British to assuring liberty for all Indians. The Commonwealth of India Bill, drafted by Annie Beasant in 1925, specifically included demands for seven fundamental rights – individual liberty, freedom of conscience, free expression of opinion, freedom of assembly, non-discrimination on the ground of sex, free elementary education and free use of public spaces. In 1927, the INC resolved to set up a committee to draft a "Swaraj Constitution" for India based on a declaration of rights that would provide safeguards against oppression. The 11-member committee, led by Motilal Nehru, was constituted in 1928. Its report made a number of recommendations, including proposing guaranteed fundamental rights to all Indians. These rights resembled those of the American Constitution and those adopted by post-war European countries, and several of them were adopted from the 1925 Bill. Several of these provisions were later replicated in various parts of the Indian Constitution, including the Fundamental Rights and Directive Principles. In 1931, the Indian National Congress, at its Karachi session, adopted a resolution committing itself to the defence of civil rights and economic freedom, with the stated objectives of putting an end to exploitation, providing social security and implementing land reforms. Other new rights proposed by the resolution were the prohibition of State titles, universal adult franchise, abolition of capital punishment and freedom of movement. Drafted by Jawaharlal Nehru, the resolution, which later formed the basis for some of the Directive Principles, placed the primary responsibility of carrying out social reform on the State, and marked the increasing influence of socialism and Gandhian philosophy on the independence movement. The final phase of the Independence movement saw a reiteration of the socialist principles of the 1930s, along with an increased focus on minority rights – which had become an issue of major political concern by then – which were published in the Sapru Report in 1945. The report, apart from stressing on protecting the rights of minorities, also sought to prescribe a "standard of conduct for the legislatures, government and the courts". During the final stages of the British raj, the 1946 Cabinet Mission to India proposed a Constituent Assembly to draft a Constitution for India as part of the process of transfer of power. The Constituent Assembly of India, composed of indirectly elected representatives from the British provinces and Princely states, commenced its proceedings in December 1946, and completed drafting the Constitution of India by November 1949. According to the Cabinet Mission plan, the Assembly was to have an Advisory Committee to advise it on the nature and extent of fundamental rights, protection of minorities and administration of tribal areas. Accordingly, the Advisory Committee was constituted in January 1947 with 64 members, and from among these a twelve- member sub-committee on Fundamental Rights was appointed under the chairmanship of J.B. Kripalani in February 1947. The sub-committee drafted the Fundamental Rights and submitted its report to the Committee by April 1947, and later that month the Committee placed it before the Assembly, which debated and discussed the rights over the course of the following year, adopting the drafts of most of them by, December 1948. The drafting of the Fundamental Rights was influenced by the adoption of the Universal Declaration of Human Rights by the U.N. General Assembly and the activities of the United Nations Human Rights Commission, as well as decisions of the U.S. Supreme Court in interpreting the Bill of Rights in the American Constitution. The Directive Principles, which were also drafted by the sub-committee on Fundamental Rights, expounded the socialist precepts of the Indian independence movement, and were inspired by similar principles contained in the Irish Constitution. The Fundamental Duties were later added to the Constitution by the 42nd Amendment in 1976. Fundamental Rights in India The Fundamental Rights, embodied in Part III of the Constitution, guarantee civil rights to all Indians, and prevent the State from encroaching on individual liberty while simultaneously placing upon it an obligation to protect the citizens' rights from encroachment by society. Seven fundamental rights were originally provided by the Constitution – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. However, the right to property was removed from Part III of the Constitution by the 44th Amendment in 1978. The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles based on equality of all members of society. Dr Ambedkar said that the responsibility of the legislature is not just to provide fundamental rights but also and rather more importantly, to safeguard them. They act as limitations on the powers of the legislature and executive, under Article 13, and in case of any violation of these rights the Supreme Court of Indiaand the High Courts of the states have the power to declare such legislative or executive action as unconstitutional and void. These rights are largely enforceable against the State, which as per the wide definition provided in Article 12, includes not only the legislative and executive wings of the federal and state governments, but also local administrative authorities and other agencies and institutions which discharge public functions or are of a governmental character. However, there are certain rights – such as those in Articles 15, 17, 18, 23, 24 – that are also available against private individuals. Further, certain Fundamental Rights – including those under Articles 14, 20, 21, 25 – apply to persons of any nationality upon Indian soil, while others – such as those under Articles 15, 16, 19, 30 – are applicable only to citizens of India. The Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of public interest. In the Kesavananda Bharati v. State of Kerala case in 1973, the Supreme Court, overruling a previous decision of 1967, held that the Fundamental Rights could be amended, subject to judicial review in case such an amendment violated the basic structure of the Constitution. The Fundamental Rights can be enhanced, removed or otherwise altered through a constitutional amendment, passed by a two-thirds majority of each House of Parliament. The imposition of a state of emergency may lead to a temporary suspension any of the Fundamental Rights, excluding Articles 20 and 21, by order of the President. The President may, by order, suspend the right to constitutional remedies as well, thereby barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and 21, during the period of the emergency. Parliament may also restrict the application of the Fundamental Rights to members of the Indian Armed Forces and the police, in order to ensure proper discharge of their duties and the maintenance of discipline, by a law made under Article 33. Right to Equality The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles 14–16, which collectively encompass the general principles of equality before law and non- discrimination, and Articles 17–18 which collectively encompass further the philosophy of social equality. Article 14 guarantees equality before law as well as equal protection of the law to all persons within the territory of India. This includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances. The latter permits the State to classify persons for legitimate purposes, provided there is a reasonable basis for the same, meaning that the classification is required to be non-arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as have a rational relation to the object sought to be achieved by the classification.[ Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex, place of birth, or any of them. This right can be enforced against the State as well as private individuals, with regard to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds. However, the State is not precluded from making special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled Castes and Scheduled Tribes. This exception has been provided since the classes of people mentioned therein are considered deprived and in need of special protection. Article 16 guarantees equality of opportunity in matters of public employment and prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or any of them. It creates exceptions for the implementation of measures of affirmative action for the benefit of any backward class of citizens in order to ensure adequate representation in public service, as well as reservation of an office of any religious institution for a person professing that particular religion. The practice of untouchability has been declared an offence punishable by law under Article 17, and the Protection of Civil Rights Act, 1955 has been enacted by the Parliament to further this objective. Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state. Thus, Indian aristocratic titles and title of nobility conferred by the British have been abolished. However, awards such as the Bharat Ratna have been held to be valid by the Supreme Court on the ground that they are merely decorations and cannot be used by the recipient as a title. Right to Freedom The Right to Freedom is covered in Articles 19-22, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six freedoms in the nature of civil rights, which are available only to citizens of India. These include the freedom of speech and expression, freedom of assembly without arms, freedom of association, freedom of movement throughout the territory of our country, freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may imposed on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to the freedom sought to be restricted, and include national security, public order, decency and morality, contempt of court, incitement to offences, and defamation. The State is also empowered, in the interests of the general public to nationalise any trade, industry or service to the exclusion of the citizens. The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20–22. The scope of these articles, particularly with respect to the doctrine of due process, was heavily debated by the Constituent Assembly. It was argued, especially by Benegal Narsing Rau, that the incorporation of such a clause would hamper social legislation and cause procedural difficulties in maintaining order, and therefore it ought to be excluded from the Constitution altogether. The Constituent Assembly in 1948 eventually omitted the phrase "due process" in favour of "procedure established by law". As a result, Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law, was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable, and effectively reading due process into Article 21. In the same case, the Supreme Court also ruled that "life" under Article 21 meant more than a mere "animal existence"; it would include the right to live with human dignity and all other aspects which made life "meaningful, complete and worth living". Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, good health, clean environment, water, speedy trial and humanitarian treatment while imprisoned. The right to education at elementary level has been made one of the Fundamental Rights under Article 21A by the 86th Constitutional amendment of 2002. Article 20 provides protection from conviction for offences in certain respects, including the rights against ex post facto laws, double jeopardy and freedom from self-incrimination. Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one's own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate. The Constitution also authorizes the State to make laws providing for preventive detention, subject to certain other safeguards present in Article 22. The provisions pertaining to preventive detention were discussed with skepticism and misgivings by the Constituent Assembly, and were reluctantly approved after a few amendments in 1949. Article 22 provides that when a person is detained under any law of preventive detention, the State can detain such person without trial for only three months, and any detention for a longer period must be authorised by an Advisory Board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity. Right against Exploitation Child labour and Beggar is prohibited under the Right against Exploitation. The Right against Exploitation, contained in Articles 23–24, lays down certain provisions to prevent exploitation of the weaker sections of the society by individuals or the State. Article 23 prohibits human trafficking, making it an offence punishable by law, and also prohibits forced labour or any act of compelling a person to work without wages where he was legally entitled not to work or to receive remuneration for it. However, it permits the State to impose compulsory service for public purposes, including conscriptionand community service. The Bonded Labour system (Abolition) Act, 1976, has been enacted by Parliament to give effect to this Article. Article 24 prohibits the employment of children below the age of 14 years in factories, mines and other hazardous jobs. Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986, providing regulations for the abolition of, and penalties for employing, child labour, as well as provisions for rehabilitation of former child labourers. Right to Freedom of Religion The Right to Freedom of Religion, covered in Articles 25–28, provides religious freedom to all citizens and ensures a secular state in India. According to the Constitution, there is no official State religion, and the State is required to treat all religions impartially and neutrally. Article 25 guarantees all persons the freedom of conscience and the right to preach, practice and propagate any religion of their choice. This right is, however, subject to public order, morality and health, and the power of the State to take measures for social welfare and reform. The right to propagate, however, does not include the right to convert another individual, since it would amount to an infringement of the other's right to freedom of conscience. Article 26 guarantees all religious denominations and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with law. These provisions do not derogate from the State's power to acquire property belonging to a religious denomination. The State is also empowered to regulate any economic, political or other secular activity associated with religious practice. Article 27 guarantees that no person can be compelled to pay taxes for the promotion of any particular religion or religious institution. Article 28 prohibits religious instruction in a wholly State-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian's) consent. Cultural and Educational Rights See also: Eighty-sixth Amendment of the Constitution of India and Right of Children to Free and Compulsory Education Act The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect the rights of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination. Article 29 grants any section of citizens having a distinct language, script culture of its own, the right to conserve and develop the same, and thus safeguards the rights of minorities by preventing the State from imposing any external culture on them. It also prohibits discrimination against any citizen for admission into any educational institutions maintained or aided by the State, on the grounds only of religion, race, caste, language or any of them. However, this is subject to reservation of a reasonable number of seats by the State for socially and educationally backward classes, as well as reservation of up to 50 percent of seats in any educational institution run by a minority community for citizens belonging to that community. Article 30 confers upon all religious and linguistic minorities the right to set up and administer educational institutions of their choice in order to preserve and develop their own culture, and prohibits the State, while granting aid, from discriminating against any institution on the basis of the fact that it is administered by a religious or cultural minority. The term "minority", while not defined in the Constitution, has been interpreted by the Supreme Court to mean any community which numerically forms less than 50% of the population of the state in which it seeks to avail the right under Article 30. In order to claim the right, it is essential that the educational institution must have been established as well as administered by a religious or linguistic minority. Further, the right under Article 30 can be availed of even if the educational institution established does not confine itself to the teaching of the religion or language of the minority concerned, or a majority of students in that institution do not belong to such minority. This right is subject to the power of the State to impose reasonable regulations regarding educational standards, conditions of service of employees, fee structure, and the utilisation of any aid granted by it. Right to Constitutional Remedies The Right to Constitutional Remedies empowers citizens to approach the Supreme Court of India to seek enforcement, or protection against infringement, of their Fundamental Rights. Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution. The Supreme Court has been empowered to issue writs, namely habeas corpus, mandamus, prohibition, certiorari and quo warranto, for the enforcement of the Fundamental Rights, while the High Courts have been empowered under Article 226 – which is not a Fundamental Right in itself – to issue these prerogative writs even in cases not involving the violation of Fundamental Rights. The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to the affected individual. Exercise of jurisdiction by the Supreme Court can also be suo motu or on the basis of a public interest litigation. This right cannot be suspended, except under the provisions of Article 359 when a state of emergency is declared. The Supreme Court recently held that Right to Privacy is another fundamental right The Directive Principles of State Policy The Directive Principles of State Policy, embodied in Part IV of the Constitution, are directions given to the state to guide the establishment of an economic and social democracy, as proposed by the Preamble. They set forth the humanitarian and socialist instructions that were the aim of social revolution envisaged in India by the Constituent Assembly. The state is expected to keep these principles in mind while framing laws and policies, even though they are non-justiciable in nature. The Directive Principles may be classified under the following categories: ideals that the state ought to strive towards achieving; directions for the exercise of legislative and executive power; and rights of the citizens which the State must aim towards securing. Despite being non-justiciable, the Directive Principles act as a check on the state; theorised as a yardstick in the hands of the electorate and the opposition to measure the performance of a government at the time of an election. Article 37, while stating that the Directive Principles are not enforceable in any court of law, declares them to be "fundamental to the governance of the country" and imposes an obligation on the State to apply them in matters of legislation. Thus, they serve to emphasise the welfare state model of the Constitution and emphasise the positive duty of the state to promote the welfare of the people by affirming social, economic and political justice, as well as to fight income inequality and ensure individual dignity, as mandated by Article 38. Article 39 lays down certain principles of policy to be followed by the State, including providing an adequate means of livelihood for all citizens, equal pay for equal workfor men and women, proper working conditions, reduction of the concentration of wealth and means of production from the hands of a few, and distribution of community resources to "subserve the common good". These clauses highlight the Constitutional objectives of building an egalitarian social order and establishing a welfare state, by bringing about a social revolution assisted by the State, and have been used to support the nationalisation of mineral resources as well as public utilities. Further, several legislation pertaining to agrarian reform and land tenure have been enacted by the federal and state governments, in order to ensure equitable distribution of land resources. Articles 41–43 mandate the State to endeavour to secure to all citizens the right to work, a living wage, social security, maternity relief, and a decent standard of living. These provisions aim at establishing a socialist state as envisaged in the Preamble. Article 43 also places upon the State the responsibility of promoting cottage industries, and the federal government has, in furtherance of this, established several Boards for the promotion of khadi, handlooms etc., in coordination with the state governments. Article 39A requires the State to provide free legal aid to ensure that opportunities for securing justice are available to all citizens irrespective of economic or other disabilities. Article 43A mandates the State to work towards securing the participation of workers in the management of industries. The State, under Article 46, is also mandated to promote the interests of and work for the economic uplift of the scheduled castes and scheduled tribes and protect them from discrimination and exploitation. Several enactments, including two Constitutional amendments, have been passed to give effect to this provision. Article 44 encourages the State to secure a uniform civil code for all citizens, by eliminating discrepancies between various personal laws currently in force in the country. However, this has remained a "dead letter" despite numerous reminders from the Supreme Court to implement the provision. Article 45 originally mandated the State to provide free and compulsory education to children between the ages of six and fourteen years, but after the 86th Amendment in 2002, this has been converted into a Fundamental Right and replaced by an obligation upon the State to secure childhood care to all children below the age of six. Article 47 commits the State to raise the standard of living and improve public health, and prohibit the consumption of intoxicating drinks and drugs injurious to health. As a consequence, partial or total prohibition has been introduced in several states, but financial constraints have prevented its full-fledged application. The State is also mandated by Article 48 to organise agriculture and animal husbandry on modern and scientific lines by improving breeds and prohibiting slaughter of cattle. Article 48A mandates the State to protect the environment and safeguard the forests and wildlife of the country, while Article 49 places an obligation upon the State to ensure the preservation of monuments and objects of national importance. Article 50 requires the State to ensure the separation of judiciary from executive in public services, in order to ensure judicial independence, and federal legislation has been enacted to achieve this objective. The State, according to Article 51, must also strive for the promotion of international peace and security, and Parliament has been empowered under Article 253 to make laws giving effect to international treaties. The Fundamental Duties of citizens Any act of disrespect towards the Indian National Flag is illegal. The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee that was constituted by the government earlier that year. Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which added a duty on every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of six and fourteen years. The other Fundamental Duties obligate all citizens to respect the national symbols of India, including the Constitution, to cherish its heritage, preserve its composite culture and assist in its defense. They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life. However, many of these are non-justifiable, without any legal sanction in case of their violation or non-compliance. There is reference to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian Constitution into conformity with these treaties. The Fundamental Duties noted in the constitution are as follows: It shall be the duty of every citizen of India —  To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;  To cherish and follow the noble ideals which inspired our national struggle for freedom;  To uphold and protect the sovereignty, unity and integrity of India;  To defend the country and render national service when called upon to do so;  To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;  To value and preserve the rich heritage of our composite culture;  To protect and improve the natural environment including forests, lakes, rivers, wildlife and to have compassion for living creatures;  To develop the scientific temper, humanism and the spirit of inquiry and reform;  To safeguard public property and to abjure violence;  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;  Who is a parent or guardian, to provide opportunities for education to his child, or as the case may be, ward between the age of six to fourteen years.  We the people of India hereby adopt that to make India a safer place to live we had to be clean and make our surrounding clean and not to hurt anybody physically and mentally. (This fundamental duty has been added to the Constitution of India by the 86th constitutional amendment in 2002) Unit -II Chapter 3 Union Government- President, Prime Minister and council of Ministers President Powers and Functions: The President of India is the Head of State. The system of government of India is a cabinet form of government. The Indian President is, therefore, a constitutional head like the King or Queen of Britain—that is, all executive powers are constitutionally vested in him, although those are actually exercised and executed by the cabinet. In India the powers of the Union government are treated as the powers of the President because these powers are used in his name in pursuance of the constitutional stipulation under Article 53 which reads: The executive powers of the Union shall be vested in the President and shall be exercised by him either directly or through the officer’s subordinate to him in accordance with this Constitution. The constitutional powers and functions of the President of India may be classified into six principal types. Executive Functions 1. Head of the Union: The President is at the head of the Union Executive. Consequently, all executive powers are exercised in his name. The executive power of the Union to be exercised by the President is extended to the matters with respect to which Parliament has power to make laws and to conclude treaty and agreement. 2. Appointments: As head of the executive, the President appoints the Governors of States, the Judges of the Supreme Court and the High Courts, the Auditor General of India and many other high officials, such as the members of Finance Commission, Election commission, Union Public commission etc. 3. Appointment of the Prime Minister and other Ministers: The President also appoints the Prime Minister and with his advice the other Ministers of the Union Council of Ministers. But here too, as in all other appointments, the President can seldom use his discretion. He is, ordinarily, duty-bound to summon the leader of the political party which secures an absolute majority in the Lok Sabha to become the Prime Minister and form the Ministry. He does enjoy some discretionary powers in the matter only under exceptional circumstances. When no single political party wins a clear absolute majority and, as a result, no Council of Ministers can be formed without a coalition of parties the President can exercise his discretion judiciously in appointing the Prime Minister. Such situations developed in the past. India has entered into an age of coalition politics. And it may so happen that no single party will be able to secure an absolute majority, and the President may be required to exercise his discretionary power for some time to come, in appointing Prime Minister. 4. Can ask to prove Majority in Lok Sabha: Union Council of Ministers normally remains in office for five years, unless dissolved earlier for any reason. The President must be satisfied that the Council of Ministers enjoys the confidence of the majority of the Lok Sabha. In case of any doubt, he can ask the Council of Ministers to prove its majority in the Lok Sabha, as the Prime Ministers Sri H.D. Deve Gowda was asked by the President after the official withdrawal of support by the Congress Party from Ministry. The President can also dissolve the Union Council of Ministers in accordance with Article 75(2) of the constitution, if he finds that the Ministry does not enjoy the support of the majorities in the Lok Sabha. 5. Supreme Commander: As head of State, the President is the supreme Commander of the Armed Forces of India and is entitled to declare war or conclude a treaty. Legislative Powers and Functions 1. President is a part of Parliament: The Union Legislature or Parliament consists of the President and two Houses of Parliament. The President is, therefore, an integral part of Union Legislature. He shall summon from time to time, either separately or jointly, the Houses of Parliament. The President can prorogue the Houses or either House of Parliament and, if necessary, can dissolve the lower Chamber of Parliament, the Lok Sabha. For example, the President solved the twelfth Lok Sabha in early 1999 when the confidence motion in favour of the Vajpayee government was lost in the Lok Sabha. 2. Summons and Addresses Parliament: The President may address either or both House of Parliament. In such address, at the first session after general election to the Lok Sabha and at beginning of a joint session of Parliament each year, he may place the reasons for summoning it. Apart from addressing Parliament, the President may also, in case of necessities, send messages to either House, or to both Houses [Article 86(2)]. Normally, the President does not send such a message, unless however, he has a serious disagreement with the Council of Ministers. 3. Nomination: The President nominates a number of members in both Houses. The chief purpose of the nomination is to ensure adequate representation in Parliament of all sections of population which many not always be achieved through elections. 4. Power in respect of Bills: The President has certain functions in respect of passing of a Bill. A bill passed by both the Houses of Parliament requires his assent in order to become an Act. He may give his assent to a bill or can withhold assent when a bill, after getting approved in both the Houses, is placed before the President. But, if Parliament, acting on President’s refusal to assent to a bill, passes it again with or without amendment, for the second time and presents it to the President for his approval, the President shall not withhold his assent there from under Article 111. In other words, it becomes obligatory upon him to give his assent. In certain cases, prior sanction of the President is required for initiating any legislation. For instance, bill for formation of a new State or altering the boundaries of the existing State or States is to be placed before Parliament with prior approval of the President. Money bill is another example were obtaining of such approval of the President is a constitutional necessity. 5. Bill passed by a State Legislature: A bill passed by a State Legislature may also be reserved for the consideration of the President by the Governor of that State. The President enjoys this right in relation to a bill passed by a State Legislature only in such cases where those are referred to him by the Government of a State under Article 200. Power to Promulgate Ordinances Except when both Houses of Parliament are in session, the President may promulgate such Ordinances as the circumstances appear to him to require (Article 123). Such an ordinance can have the same force and effect of an Act of Parliament. Such an ordinance shall cease to operate unless passed by both Houses of Parliament within the stipulated period. A.K. Roy vs. Union of India (1982) illustrates the proposition that the satisfaction of the President must be as to the existence of a situation which makes it necessary for the President to promulgate such on Ordinance. Financial Powers and Functions The President causes the annual budget of the Union Government to be laid before Parliament every year. No proposal for spending money or raising revenues for purposes of government can be introduced in Parliament without previous permission of the President. Emergency Powers of the President 1. The constitution of India empowers the President to proclaim three kinds of Emergencies: National Emergency (Art. 352); 2. Emergency for failure of Constitutional Machinery in a State (Art. 356); 3. Financial Emergency (Art. 360) Powers of Prime Minister Of India The Indian Prime Minister occupies the most powerful position to function as the head of the Council of ministers. Article 74 of the Indian constitution creates the office of the Prime Minister. This article provides that there will be a Council of Ministers with the Prime Minister at the head to “aid and advice” the President in the exercise of his functions.This article of the Indian constitution thus specifies that the Prime Minister is the head of the Council of Ministers and that his function is to aid and advice the President. The Prime Minister’s leadership with the Council of Minister is further consolidated by Article 75 of the constitution of India. All the ministers are appointed by the President on the advice of the Prime Minister Portfolios are distributed among the ministers by the President according to the wishes of the Prime Minister. Inconvenient ministers are dismissed and ministerial portfolios are redistributed, as the Prime Minister desires. Thus, though constitutionally, the ordinary ministers serve during the pleasure of the President, in reality they serve during the pleasure of the Prime Minister. Again, the constitution does not spell out the size of the Council of Ministers. The Prime Minister decides how many ministers should be there. The ministers also are classified in 3 categories: 1. The cabinet ministers 2. Ministers of cabinet rank called the ministers of state and 3. The deputy ministers. The Council of Ministers is thus constituted and directed by the Prime Minister. He is in reality the “key-stone of the cabinet arch.” Secondly, though the constitution formally makes the President, the head of the state, he is not given the powers of governing the country. The Indian President is emphatically not like the U. S. President but, rather is constituted into a constitutional figure head like the British Queen. Art. 74 require the President to act on the aid and advice of the Council of Ministers. Constitutional amendment, the 42nd, in 1976 has made it explicit that the President is to act only on advice by the Council of Ministers of which the Prime Minister is the key-stone. Thirdly, though the Prime Minister and the Council of Ministers are formally appointed by the President and they serve during his pleasure, actually neither their appointment nor their tenure in office depends on the President’s sweet will. The constitution makes them collectively responsible to the House of People. The President is politically obliged to find a Prime Minister who enjoys the majority support in the House of People. This means that the leader of the majority party in the House of People must be appointed Prime Minister. Any other person cannot carry the Parliamentary majority with him. Thus in a very real sense, the Prime Minister is not a nominee of the President but is self-chosen, He serves during the President’s pleasure. But the pleasure is political rather than personal. So long the Prime Minister enjoys the support of the majority in the Lok Sabha. The President cannot withdraw his pleasure from the Prime Minister. The Prime Minister is the leader of the Parliament. He derives this position from his position as the leader of the majority party in the House of People. Since in India’s Parliamentary system, the President acts only on advice and since the Prime Minister is the principal adviser to the President, all the powers of the President over the Parliament are in reality the Prime Minister’s powers. With his assured majority support in the House of People, the Prime Minister can make the Parliament pass whatever laws he wishes the Parliament to pass. The sovereignty of the Parliament is in reality the authority of the Prime Minister. The constitution itself makes the position of the Prime Minister all powerful. Over and above that, India has been blessed from the very dawn of independence, with some very exceptional Prime Ministers who made the office of the Prime Minister tower over any other constitutional office. Both Jawaharlal Nehru and Mrs. Indira Gandhi contributed significantly in making the position of the Prime Minister very strong. But however strong, the Indian Prime Minister is never a dictator. In the ultimate analysis, the strength of the Prime Minister lies in popular support. Function of Council of Ministers in India Though there is an elected President at the top of the Government structure, the constitution in reality establishes a British cabinet type of Government in India. Article 74(1) requires the President to have a Council of Ministers with the Prime Minister at the head to “aid and advice” him in the exercise of his power. To remove the impression that the advice given by the Council of Ministers may not be binding on the President, the 42nd amendment of the constitution has made the ministerial advice expressly binding on the President. In terms of Article 74(1) the President is bound to have a Council of Ministers with the Prime Minister at the head. The Prime Minister is appointed by the President and all other ministers are appointed by the President on the advice of the Prime Minister. India has a three-tier ministry consisting of cabinet ministers, ministers of state and the deputy ministers. The term cabinet is absent in the constitution. Usually, senior ministers with independent charge of ministries constitute a body that the Prime Minister consults in arriving at policy decisions, constitute the cabinet. The cabinet thus is the policy making part of the ministry. It is an informal body and its members are chosen by the Prime Minister himself. Article 75 make the Council of Minister responsible to the House of People. This obliges the President to appoint the leader of the majority party as the Prime Minister and to appoint other ministers on his advice. Thus the Prime Minister is not the President’s nominee but the nation’s choice. The nation votes a party to power and its leader becomes the Prime Minister. Indian general elections are really elections of the Prime Minister. The Prime Minister and the members of the council of ministers serve legally “during the pleasure of the President.” But the President’s pleasure is not personal but political. So long the Prime Minister retains his support in the House of People; the President cannot withdraw pleasure from the Prime Minister and the Council of Ministers. Functions The executive government in India is really the Prime Minister’s government. The cabinet, as in England is the steering wheel of the government. As the nation’s chief executive body, the cabinet performs the following principal functions. Firstly, it is in charge of administering all the subjects entrusted to the national government by the union list. Principal among these functions are providing for security and defence of the country, maintaining and conducting the nation’s foreign affairs, maintaining the system of communication within the country, keeping the national economy in good health, preserving and improving inter- state relations and a host of other things. Ministers are put in charge of administrative departments. The ministers are in reality political heads of administrative departments of governments. An elaborate bureaucracy conducts the day to day administration, under the political control of the ministers. Thus the Cabinet and the Prime Minister administers the country. In the sphere of law making the cabinet is equally supreme and the President has only a formal role. The President is no doubt an integral part of the Parliament. The President addresses the joint sessions of the Parliament after every general election and at the beginning of each session of the Parliament. But the President only reads out the address drafted for him by the Cabinet. The President signs the bills passed by the Parliament into law. But the President does exactly what the cabinet asks him to do. Again, strictly constitutionally, the Parliament is the nation’s supreme law making body. But the Prime Minister and the cabinet have a firm control over the Parliamentary majority. Because of this majority support, the Prime Minister and the cabinet can make the Parliament pass whatever law, the Prime Minister wants the Parliament to pass. Conversely, the Parliament shall never pass a bill which the Prime Minister and the Cabinet oppose. Thus the law making powers of the Parliament is also the powers of the Cabinet. The Prime Minister and the Cabinet also have an absolute control over the nation’s finances. The annual budget is prepared at the instance of the cabinet. The proposals for taxes and expenditures are really made by the Cabinet, and only formally approved by the Parliament. Finally, Indian constitution is partially based on the theory of Parliamentary sovereignty. The sovereignty of the Parliament realistically means the sovereignty of the cabinet. Even the judiciary is not beyond cabinet control. Judges of the Supreme Court and the High Courts are appointed and transferred by the President on Cabinet advice. Similarly the President’s rights to grant pardon or reprieve or remission of sentences are also the powers of the Cabinet. Thus the Indian Cabinet, like its British counterpart enjoys powers of dictatorial dimensions. Unit -II Chapter-4 State Government- Governor, Chief Minister and Council of Minister State Legislature: Powers and Functions Legislatures. For every state, there is a legislature, which consists of Governor and one House or, two Houses as the case may be. In Bihar, Andhra Pradesh, Telangana,Jammu and Kashmir, Karnataka, Maharashtra and Uttar Pradesh, there are two Houses known as legislative council and legislative assembly. I. State Legislature: The Constitution of India provides for a legislature in each State and entrusts it with the responsibility to make laws for the state. However, the composition of a state Legislature can be different in different states. It can be either bicameral or unicameral. Presently, only six states (Andhra Pradesh, Bihar, J&K, Karnataka Maharashtra and UP) have bi-cameral legislatures. Twenty-two States and Two Union Territories (Delhi and Puducherry) have uni-cameral Legislatures. In case of a bicameral state legislature, the upper house is known as State Legislative Council (Vidhan Parishad) and the lower house as the State Legislative Assembly (Vidhan Sabha). Where there is only one House of the State Legislature, it is known as the State Legislative Assembly. Orissa has a unicameral legislature with Orissa Legislative Assembly as its all-powerful house. (I) Method of Abolition or Creation of a State Legislative Council: The power to establish or abolish the Legislative Council in a state belongs to the Union Parliament. It can do it by enacting a law. The Parliament, however, acts when the Legislative Assembly of the concerned state passes a desired resolution by a majority of its total membership and by a majority of not less than two-thirds of the members of the State Legislative Assembly present and voting. Organisation of a State Legislature: (A) Composition of the State Legislative Assembly (Vidhan Sabha): The State Legislative Assembly, popularly known as Vidhan Sabha, is the lower, directly elected, popular and powerful house of the state legislature. Its membership is in proportion to the population of the state and hence it differs from state to state. The members are directly elected by the people of the state through a secret ballot, simple majority vote victory and single member territorial constituency system. Orissa Legislative Assembly has 147 members. A citizen of India, who is not less than 25 years of age and who fulfills every other qualification as laid down by a law can become its member by winning an election from any constituency in the state. However, no person can simultaneously be a member of two Houses of the Parliament or of any other State Legislature. The normal term of Legislative is 5 years. However, it can be dissolved by the Governor at any time. It can be suspended or dissolved when an emergency under Art. 356 is proclaimed in the state. In May 2009, in the Orissa Legislative Assembly elections the BJD won 103 seats while the Congress got 26, the BJP 6 and independents and other 12 seats. (B) Composition of State Legislative Council: At present only 6 States — Andhra Pradesh, UP, Maharashtra, Karnataka, J&K and Bihar—have Legislative Councils. The popular name of the State Legislative Council is Vidhan Parishad. The total membership of a Legislative council cannot be normally less than 40 and more than l/3rd of the total membership of the State Legislative Assembly. Andhra Pradesh Vidhan Parishad has 90 members UP Vidhan Parishad 100, Maharashtra Vidhan Parishad 78, J&K Vidhan Parishad 36, Bihar Vidhan Parishad 75 and Karnataka Vidhan Parishad 75 members. The membership of Vidhan Parishad includes elected as well as nominated representatives from several types of constituencies. The following formula is used: (i) 1/3rd members are elected by the members of State Legislative Assembly. (ii) 1/3rd members are elected by local bodies of the state. (iii) 1/12th members are elected by teachers of at least three years standing, serving educational institutions of the state. (iv) 1/12 members are elected by state university graduates of not less than three years-standing. (v) 1/6th members are nominated by the Governor of the state. Any citizen of India who is not less than 30 years of age, who possesses all the qualifications as laid down by the Parliament, who is not a member of any other legislature or Union Parliament can become a member of the State Legislative Council either by winning an election or by securing Governor’s nomination. Legislative council is a semi-permanent House. It is never dissolved as a whole. 1/3rd of its members retires after every 2 years. Each member has a term of 6 years. Powers and Functions of a State Legislature: Each State Legislature exercises law-making powers over the subjects of the State List and the Concurrent List. In case a state has a unicameral legislature, i.e., in case it has only State Legislative Assembly, all the powers are exercised by it. However, even in case it is a bicameral state legislature with state Legislative Council (Vidhan Parishad) as the upper house and state Legislative Assembly as the lower house, almost all the powers are exercised by the latter. The Legislative Council plays only a secondary and minor role. Powers of State Legislature: 1. Legislative Powers: The State Legislature can make laws on the subjects of the State List and the Concurrent List. It can enact any bill on any subject of State List, which becomes an Act with the signatures of the Governor. Normally, the Governor acts as a nominal and constitutional head and as such follows the advice of the state Chief minister and his Council of Ministers. However, he can reserve some bills passed by the State Legislature for the approval of the President of India. Further, in case a law made by the State Legislature on a concurrent subject comes into conflict with a Union Law on the same subject, the latter gets precedence over the former. In ordinary law-making, both the Houses (Legislative Assembly and Legislative Council wherever these exist together) have co-equal powers. In practice the Legislative Assembly dominates the law-making work. Most of the non-money ordinary bills are introduced in the Legislative Assembly and it plays a major role in their passing. The Legislative Council acts only as a revising and delaying second chamber. A bill passed by the Legislative Assembly and rejected by the Legislative Assembly or not decided upon by the latter within 3 months, when re-passed by the Legislative Assembly becomes an Act after the expiry of one month from the date on which it was sent to the Legislative Council a second time. A bill first passed by the Legislative Council becomes an Act only when it gets the approval of the Legislative Assembly. Thus, Legislative Council can only delay the passing of an ordinary bill by a maximum of 4 months. In cas

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