Ankur Civil Service POLITY

Lectur e # 1 Historical Back ground of constitution

The British came to India in 1600 as traders, in the form of East India Company, which had the exclusive right of trading in India under a charter granted by Queen Elizabeth

In 1765, the Company, which till now had purely trading functions obtained the‘diwani’ (i.e., rights over revenue and civil justice) of Bengal, Bihar and Orissa. This started its career as a territorial power.

In 1858, in the wake of the ‘sepoy mutiny’, the British Crown assumed direct responsibility for the governance of India. This rule continued until India was granted independence on August 15, 1947.

With Independence came the need of a Constitution. As suggested by M N Roy (a pioneer of communist movement in India and an advocate of Radical Democratism) in 1934, a Constituent Assembly was formed for this purpose in 1946 and on January 26, 1950, the Constitution came into being. However, various features of the Indian Constitution and polity have their roots in the British rule. There are certain events in the British rule that laid down the legal framework for the organisation and functioning of government and administration in British India.

The Constitution of India was drawn up by a Constituent Assembly.

The Assembly met for the first time on December 9, 1946. It was not a truly representative body as its members were indirectly elected by those who were themselves elected on a narrow franchise.

The Assembly constituted a Drafting Committee, under the chairmanship of Dr.B.R.Ambedkar, to frame a constitution for India.

Indian Constitution was adopted on November 26, 1949 and it came into effect onJanuary 26, 1950.

It is the longest written Constitution in the world .

During 60 years of its existence, Indian Constitution has undergone several amendments and demand to review it completely has also been raised. But, inspite of all these changes, the ‘basic structure’ of the Indian Constitution remains intact.

What is constitution ? Broadly speaking, it is a set of rules, written and unwritten, that seeks to establish the duties, powers and functions of the various institutions of government, regulate the relationships between them and define the relationships between the state and the individual. Development of the Indian ConstitutionBritish rule in India ended on 15th August 1947 and India emerged as an independent and sovereign republic. Certain features of Indian Polity or Constitution can be understood better with a brief review of the constitutional set up in the preceding periods. As modern political nstitutions originated and developed in India mainly during the British rule, the origin and growth of the Indian Constitution has its roots in the British period of Indian history.MAIN PROVISIONS OF IMPORTANT ACTS PASSED IN BRITISH INDIA

Regulating Act, 1773

Amending Act, 1781

Pitt’s India Act, 1784

Act of 1786

Charter Act, 1793

Charter Act, 1813

Charter Act, 1833

Charter Act, 1853

Government of India Act, 1858

Indian Councils Act, 1861





Indian Independence Act, 1947 Regulating Act, 1773

i) First attempt by the British Parliament to regulate the affairs of the East India Company; (ii) Centralised the administration of Company’s territories in India;(iii) Governor of Bengal was designated as the Governor General of Bengal and Council of 4 members was appointed for Bengal; (iv) Bombay and Madras Presidencies were subordinated to Bengal Presidency;(v) Supreme Court was set up at Calcutta; (viii) Company’s servants were forbidden from accepting bribes or doing private trade. Amending Act, 1781:It settled the question of jurisdiction of the Supreme Court. Pitt’s India Act, 1784(i) It was the first effective substitution of Parliamentary Control over East India Company as it transferred the Indian affairs of the Company into the hands of the British Government;(ii) Abolished dual system of governance.(iii) Board of Control consisting of 6 ParliamentaryCommissioners was constituted to control civil, military and revenue affairs of India;(iv) Court of Directors had to comply with the orders and directions of the Board;(v) Strength of Governor-General’s Council reduced to 3;(vi) Control of Governor-General-in-Council on Bombay and Madrs Presidency was enlarged and made more effective. Act of 1786:Governor-General became the Commanderin- Chief of Indian Forces. Charter Act, 1793(i) East India Company’s monopoly over trade was extended for 20 more years(ii) Expenses and salaries of the Board of Control

to be charged on Indian Revenue; and(iii) Governor-General could over-ride hisCouncil. Charter Act, 1813(i) East India Company was deprived of its trade monopoly in India except in tea and opium trade with China;(ii) All Englishmen could trade with India subject to certain restrictions;(iii) Rules and procedures were made for use of Indian revenue; and(iv) A sum of Rs. 1 lakh was earmarked annually for education. Charter Act, 1833(i) Governor-General of Bengal became the Governor-General of India;(ii) Company was asked to close its business at the earliest;(iii) It put an end on Company’s trade monopoly even in tea and opium with China;(iv) Government of Madras and Bombay was deprived of legislative powers;(v) A fourth member (Law Member) was added to the Council of Governor-General;(vi) Government Service was thrown open to the people of India;(viii) All laws made by Governor General-in- Council, henceforth came to be known as Acts and not regulations. Provision was made for appointment of Law Commission for codification of laws; andSlavery was abolished. Charter Act, 1853(i) For the first time a separate legislative machinery consisting of 12-member Legislative Council was created;(ii) Law Member was made a full member of the Executive Council of the Governor- General. Six additional members were added for legislative purposes; and(iii) Recruitment of Civil Services was based on open annual competitive examination. Government of India Act, 1858(i) Rule of company in India ended and that of the Crown began;(ii) System of double government ended as both the Court of Directors as well as the Board of Control was abolished;(iii) Secretary of State for India was appointed. He was assisted by a 15-member Council (India Council). He was to exercise thepowers of the Crown;(iv) Secretary of State was to be a member of the British Cabinet;(v) Secretary of State governed India through the Governor General;(vi) Governor-General was to be called the Viceroy and was the direct representative of the Crown in India; and(vii) A unitary and highly-centralised administrative structure was created

WHAT DO YOU UNDERSTAND BY THE TERMS ‘DIARCHY’ AND ‘DEVOLUTION RULES’? In Indian administration, these terms were used for the first time in the Government of India Act, 1919 (Montague-Chelmsford Reforms) Diarchy: It meant Dual Government The Provincial subjects of administration were to be divided into two categories — “Transferred” and “Reserved”. The transferred subjects were to be administrated by the Governor with the aid of Ministers responsible to the LegislativeCouncil. The reserved subjects were to be administered by the Governor and his Executive Council without any responsibility towards the Legislature.

Devolution Rules: Through these Rules, subjects of administration were divided into two categories — “Central” and “Provincial”. Subjects of all-India importance (like Railways, Finance) were brought under the category of Central, while matters relating to the administration of the provinces were classifiedas provincial. Indian Councils Act, 1861(i) Policy of Association of Indians in legislationstarted;(ii) Portfolio system was introduced;(iii) For legislation; Executive Council of Viceroywas enlarged by 6 to 12 members composed of half non-official members. Thus foundation of Indian Legislature was laid down;(iv) Legislative powers of the Presidency Governments, abolished in 1833, were restored; and(v) Viceroy could issue ordinances in case of emergency. Indian Councils Act, 1892:It was the beginning of representative system in India.(i) Though the majority of official members was retained, the non-official members of the Indian Legislative Council were henceforth to be nominated by the Bengal Chamber of Commerce and the Provincia Legislative Councils.(ii) Non-official members of the Provincial Council were to be nominated by certain local bodies such as universities, district boards, municipalities, etc.; and(iii) Councils were given the power to discuss budget and to question the Executive. Indian Councils Act, 1909: Also known as the Morley-Minto Reforms(i) Introduced, for the first time, an element of elections to the Legislative Councils;(ii) In Provincial Legislative Councils, nonofficial members were to be in majority; and(iii) This Act introduced the system of separate electorates (for Muslims).Government of India Act, 1919: Popularly known as Montagu Chelmsford Reforms(i) The idea of “Responsible Government” was stressed;(ii) Office of the High Commissioner of India was created in London;(iii) Indian Legislature became “bicameral” for the first time;

iv) Communal representation was extended to Sikhs;(v) Secretary of State for India was now to be paid from British revenue; and(vi) Diarchy was introduced in provinces by dividing subjects of administration between official members and elected members.

Simon Commission In November 1927 itself (i.e., 2 years before the schedule), the British Government announced the appointment a seven-member statutory commission under the chairmanship of Sir John Simon to report on the condition of India under its new Constitution. All the

members of the commission were British and hence, all the parties boycotted the commission.

The commission submitted its report in 1930 and recommended the abolition of dyarchy, extension of responsible government in the provinces, establishment of a federation of British India and princely

states, continuation of communal electorate and so on.

To consider the proposals of the commission, the British Government convened three round table conferences of the representatives of the British Government, British India and Indian princely states.

On the basis of these discussions, a ‘White Paper on Consitutional Reforms’ was prepared and submitted for the consideration of the Joint Select Committee of the British Parliament. The recommendations of this committee were incorporated (with certain changes) in the next Government of Inida Act of 1935.

Communal Award In August 1932, Ramsay MacDonald, the British Prime Minister, announced a scheme of representation of the minorities, which came to be known as the Communal Award.

The award not only continued separate electorates for the Muslims, Sikhs, Indian Christians, Anglo-Indians and Europeans but also extended it to the depressed classes (scheduled castes).

Gandhiji was distressed over this extension of the principle of communal representation to the depressed classes and undertook fast unto death in Yeravada Jail (Poona) to get the award modified.

At last, there was an agreement between the leaders of the Congress and the depressed classes. The agreement, known as Poona Pact, retained the Hindu joint electorate and gave reserved seats to the depressed classes.

Government of India Act, 1935(i) It provided for the establishment of an All- India Federation consisting of the British Provinces and the Princely States. The joining of Princely States was voluntary.TheFederation never came into being.(ii) Diarchy was introduced at the Centre. Diarchy in Provinces was replaced by ‘Provincial Autonomy’ and they were granted separate legal identity. Responsible governments were set up in Statesunder Prime (Chief) Ministers elected byLegislatures;(iii) Governor was given special responsibilities (or discretion) in several matters;

iv) Three-fold division of powers was done- Federal, Provincial and Concurrent Lists. Residuary powers were to be with the

Governor-General;(v) The India Council of Secretary of State for India was abolished;(vi) Principle of separate electorate was extended further to include Anglo-Indians, Indian Christians and Europeans also; and(vii) A Federal Court was to be constituted with a Chief Justice and 10 other Judges. This was set up in 1937. Indian Independence Act, 1947: This Act did not lay down any provision for the administration of India but merely stated that from the “appointed date (Aug. 15, 1947), in place of India as defined in the Government of India Act, 1935, there would be two independent Dominions to be known as “India” and Pakistan”, and the Constituent Assembly of each Dominion would have unlimited powers to frameand adopt any Constitution, and to repeal any Act of the British Parliament.” Points to be noted constitution of india

Laws made before Charter Act of 1833 were called Regulations and those made after are called Acts.

Lord Warren Hastings created the office of District Collector in 1772, but judicial powers were separated from District collector later by Cornwalis.

From the powerful authorities of unchecked executives, the Indian administration developed into a responsible government answerable to the legislature and people.

The development of portfolio system and budget points to the separation of power.

Lord Mayo’s resolution on financial decentralization visualized the development of local self-government institutions in India (1870).

1882: Lord Ripon’s resolution was hailed as the ‘Magna Carta’ of local self government. He is regarded as the ‘Father of local self-government in India’.

1921: Railway Budget was separated from the General Budget.

From 1773 to 1858, the British tried for the centralization of power. It was from the 1861 Councils act they shifted towards devolution of power with provinces.

1833 Charter act was the most important act before the act of 1909.

Till 1947, the Government of India functioned under the provisions of the 1919 Act only. The provisions of 1935 Act relating to Federation and Dyarchy were never implemented.

The Executive Council provided by the 1919 Act continued to advice the Viceroy till 1947. The modern executive (Council of Ministers) owes its legacy to the executive council.

The Legislative Council and Assembly developed into Rajyasabha and Loksabha after independence. Some short type question –answer based on constitution Q.1 – When was Indian Independence Act passed, by whom and on the basis of what plan? Ans. – Thee Indian Independence Act was passed by the British Parliament on 5th July in 1947. This act was passed to give effect to the Mountbatten plan creating the two independent states of India and Pakistan. Q.2- What were the options before the Indian native states in the Indian Independence Act? Ans. – The Indian Independence Act gave three options to the Indian native states—(1) to join India—(2) to join Pakistan—(3) to remain Independent. Q.3 -Who drafted the Indian Constitution? Ans. – The Indian constitution was drafted by the Drafting Committee of the ‘Constituent Assembly. Q.4 -Who was the chairman of the Constituent Assembly? Who was the Chairman of the Drafting Committee? Ans. – Dr. Rajendra Prasad was the Chairman of Constituent Assembly. Dr. B.R. Ambedkar was the Chairman of Drafting Committee. Q.5 -When was the Constitution adopted? Ans. – The constitution was adopted on 26th November 1949. Q.6 -When did the Constitution come into force? Ans. – The constitution came into force on 26th January 1950. Q.7 -According to the Preamble India is what kind of state? Ans. – According to the original preamble India is a Sovereign, Democratic Republic. By 42nd amendment of the constitution India is made also a Socialist and Secular state.

Q.8 -What are the political ideals, according to the Preamble India seeks to secure? Ans. – India seeks to secure to her people: Justice: Social Economic and Political. Liberty: of thought, expression, belief, faith and worship Equality: of status and opportunity, and Fraternity, assuring the dignity of the individual and unity of the nation. Q.10 -What is meant by “Secular and Socialist” as described in the Preamble? Ans. – The preamble describes India to be a secular state. It means that there is no established religion in India and that state does not give any preference to any religion in India. The 42nd amendment of the Indian constitution makes India a socialist state. It means that the state shall abolish private ownership of the means of production and distribution. This however has not yet been achieved. On the other hand the state now encourages private ownership. Q.11 – Bring out the significance of the terms “Sovereign, Democratic Republic” as mentioned in the Preamble. Ans. – India is a sovereign state. It means the state in India is the supreme authority over all men and all associations within the country and is absolutely free from any outside control. India is democratic. It means that in India all governments are formed on the basis of popular support. India is republic. It means all offices of the state from the highest to the lowest are held on the basis of merit and no office of the state is held on the basis of hereditary right. Q.13 – Which State of the Indian Union has a separate Constitution? Ans. – The state of Jammu and Kashmir has a separate constitution. Q.14 – What is the importance of Arts 370 of the Constitution? Ans. – This Art gives the state of Jammu & Kashmir a separate constitutional status. Laws passed by the Indian Parliament apply to Jammu & Kashmir if they are accepted by the J. K. legislature. Q.15 – Is the preamble to the Constitution justiciable in character? Ans. – No. The preamble is not justiciable. Q.16 – What is the necessity of the Preamble?

Ans. – The preamble is like an introduction to the constitution. The courts use the preamble to clarify: the meaning of the Law whenever there is an ambiguity. Q.17 – Does the Indian Constitution recognize the principle of dual citizenship? Ans. – Though India is a federation, the principle of dual citizenship has not been accepted in the constitution. All Indian’s are accepted as the citizens of India. There is no citizenship of the states. Q.18 – When was the Indian Citizenship Act passed? Ans. – Indian Citizenship Act was passed in 1955. Q.19 – Into how many categories are the Indian citizens divided? Ans. – Indian citizens are divided into two categories—citizens by birth and citizens by adoption. Q.20 – What are the provisions of the Indian Constitution regarding integration or creation of new states? Ans. – The Indian Parliament by Acts passed that it can integrate new states into India or can create new states out of the territory of an existing state or states. Q.21 – How many categories of fundamental rights of citizens has been recognized by the Indian Constitution? Ans. – Originally the constitution conferred on the Indian citizens seven fundamental rights. They are (a) right to equality (b) right to freedom (c) right against exploitation (d) right to religious freedom. (e) right to education and culture (f) right to property and (g) right to constitutional remedies:. At present there are six fundamental rights. Right to private property has been removed from the list of fundamental rights by the 44th amendment of the constitution. Q.22 – What is meant by equality in the eye of law? Ans. – Equality in the eye of law as provided by Art. 14 of the constitution mean that nobody is above the law. Law applies to all persons equally. Q.23 – What are the freedoms granted to citizens by Art 19 of the Constitution? Ans. – Art 19 of the constitution grants six freedoms to the citizens They are right to freedom of – (I) expression, (2) to assemble peaceably and without arms (3) to form association, (4) to move freely in India, (5) to five anywhere in India and (6) to adopt any profession or business. Q.24 – What Art of the Constitution forbids use of titles or honor conferred by foreign states? Ans. – Art 18. Q.25 – Is the right to work and employment recognized by Constitution? Ans. – No. The directive principle of the constitution declares right to work and employment as desirable. But the directives are non- justiciable in character.

Q.26 – Are the conferment of honour like Bharat Ratna or Padma Bibhusun violative of right to equality under Art. 114? Ans. – No, because Bharat Ratna, Padma Bibhusun etc. are not considered as titles. They cannot be used before or after the names of the persons on whom they are conferred. Q.27 – How the Indian Constitution seeks to protect children against exploitation? Ans. – Arts 24 of the constitution forbids employment of children in factories, mines, or in hazardous works. Q.28 – What categories of people can be imprisoned without trial? Ans. – Under Arts 22 (3) of the constitution enemy aliens and persons arrested under preventive detention Acts can be imprisoned without trial. Q.29 – “India is a Secular State”. What does it mean? Ans. – Indian secularism means that the state does not have any established religion, that people are free to practice and profess any religion and that the state does not show any preference to any religion. Q.30 -What Arts of the Constitutions confer right to freedom of religion? Ans. – Arts 25 to 28 confer right to freedom of religion on the citizens. Q.31 – Is possession of private property a Fundamental Right? Ans. – Private property was a fundamental right before the passing of 44th amendment of the constitution. Now the possession of private property is an ordinary legal right and not a fundamental right. Q.32 -What Art of the Constitution confers right to constitutional remedies? Ans. – Art 32 of the constitution confer the right to constitutional remedies on the citizens. Q.33 – How many kinds of writs the Supreme Court or the High Court may issue in case of transgression of Fundamental Rights? Ans. – The Supreme Court or the High Courts may issue five kinds of writs. These are writs of (1) Habeas Corpus (2) Mandamus (3) Prohibition (4) Certiorari and (5) Quowarranto. Q.34 – What is Habeas Corpus? What Art of the Constitution provides for it? Ans. – Habeas Corpus: literally means that human person is sacred. Hence no man can be detained illegally. Whenever a man is detained he must be produced before a court. This writ is a powerful safeguard against arbitrary arrest and detention Art. 32 of the constitution provides for Habeas Corpus. Q.35 -Do the members of the armed forces enjoy the Fundamental Rights given by the Constitution?

Ans. – The parliament may restrict the fundamental rights by passing laws. Beyond such restrictions the members of the Armed Forces enjoy their fundamental rights. Q.36 -What are principal duties of the Indian Citizens? Ans. – Obeying the constitution, showing respect to the national flag and the national anthem, defending India’s sovereignty, integrity, and unity protecting national properties and upholding Indias glorious mixed culture and also showing respect to woman are the principal duties of the Indian citizens. Q.37 -When were the duties of the citizens added to the Constitution? Ans. – Ten duties of the Indian citizens have been added to the constitution by the 42nd amendment to the constitution. Q.38 – In what chapter of the Constitution and in what Arts are the Directive principles of the Constitution given? Ans. – In chapter IV Arts 35-51 the directive principle of the constitution are given. Q.39 -What is the principal difference between the directive principles and the fundamental rights? Ans. – The fundamental rights are justiciable while the directive principals are non-justiciable i.e. the fundamental rights are enforced by the courts while the directives are not enforced by the courts. Q.40 -Name four important directives given in the Indian Constitution? Ans. – (1) The states should provide help in cases of old age, unemployment and disability. (2) State should strive to reduce inequality between individuals, groups and professions (3) State should promote and foster rural cottage industries. (4) The state should provide compulsory free primary education to children below 14 years if age. Q.41 – Name two directives based on the ideal of socialism? Ans. – (A) The state should prevent concentration of the ownership of the means of production in the hands of the few (Art. 39c). (B) The state should provide help and assistance in case of unemployment and disability. Q.42 -What directive is based on a Gandhian ideal? Ans. -Art 45 of the constitution directs the state to promote and foster Panchayeti Raj in India. Q.43 -What are the value and importance of the directive principles? Ans. – The directive principles though non-justiciable are not worthless. Sir B.N. Rao contends that the directives are moral precepts. K.M. Panikkar holds that the directives promise India to achieve economic socialism or economic democracy. Q.44 -What directive aims to secure separation of the executive from the judiciary?

Ans. – Art 50 of the constitution direct the state to separate the executive from the judiciary. This is important to secure the independence of the judiciary from executive control and influence. Q.45 -How the Arts related to fundamental rights may be amended? Ans. – The Arts related to fundamental rights may be amended when a bill to that effect is passed by 2/3 votes of the members present and voting in each House of the Parliament but the members present and voting must constitute a majority of total membership of each House. Q.46 – In what Art of the Indian Constitution India has been described as a “Union of States”. Ans. – Art one of the Indian constitutions says that India that is Bharat shall be a Union of States. Q.47 – What is the other name of India given in the Constitution and in what Art.? Ans. – India is also called Bharat in Art.1 of the constitution. Q.48 – Does any Art of the Indian Constitution use the term “federation”? If not what is the term used in the constitution by which India can be called a federation’? Ans. – No Art of the constitution calls India a federation. Instead Art.1 of the constitution calls India a Union of States. From this, constitutional experts infer that India is a federation. Q.49 – “An indestructible federation of indestructible states” Does this description apply to India? Ans. – President Abraham Lincoln called the United States an indestructible federation of indestructible states. This description does not apply to India because an Indian state may be easily destroyed through the process of Re-organization of states. Hence India may be called an indestructible federation of very much destructible state. Q.50 – Through how many lists powers have been distributed between the Union and the States in India? Name them. Ans. – The Indian constitution distributes powers between the union and the states through three lists, the Union list, the State list and the Concurrent list. Q.51 – What is the procedure through which powers have been distributed between the Union and the States in India? Ans. – The Indian Constitution has not followed either the U. S. or the Canadian system of distribution of powers between the federal government and the governments of the federating units. In the U. S. A. there is only one list of powers of the national government. The residues belong to the states. In Canada there is only one list of powers of the governments of the provinces and the residues belong to the central government. In India there are three lists—the Union list, the State list and the Concurrent list. The residues belong to the centre.

52 – Under what circumstances the union government can legislate on subjects in the state list? Ans. – On three occasions the Union government may legislate on state subjects.(i) to give effect to an international treaty, (ii) when the Rajyasabha by 2/3 majority authorized the Parliament under Art 249 to legislate on any state subject, (iii) when one or more states request the union government to legislate on any state subject.

53 – Under what Art the President may constitute Inter State Councils and for what purpose? Ans. – Under Arts 263 of the Indian constitution the President may constitute Inter State Councils to regulate the relations between the centre and the states or between the states.

54 – Name four important subjects in the Union list? Ans. – Defence, Foreign relations, Citizenship and Banking are four important subjects in the Union list.

55 – Name four important subjects in State list? Ans. – (i) Land Revenue, (ii) Law and order, (iii) Local government, (iv) Education up to the secondary level.

56 – What do you mean by Concurrent list? Name four important subjects in Concurrent list. Ans. – The concurrent list mentions the subjects on which the union and the state governments, both can legislate but in case of conflict between a union and state law the union law prevails. Administrative and criminal law, vagrancy, forests, protection of wild animals and birds are four important subjects in the concurrent list.

57 – Mention two circumstances when the Union Government can issue directives to the State Governments. Ans. – The union government may issue directive to the state government for the protection of the Railways and Ports and also on subjects considered important in the national interest.

58 – What is meant by residual powers? Ans. – In a federal constitution powers not mentioned in any list of powers given to the centre or the states is known as the residual power. In India the residuary belongs to the union government.

59 – Mention two taxes the proceeds of which are divided between the union and the state governments. Ans. – Non-agricultural income tax and excise duties except on cosmetics and medicines.

60 – Mention four subjects on which the state government may impose taxes. Ans. – The state government may realize (i) sales tax, (ii) land revenue, (iii) amusement tax and taxes on (iv) transportations. SOME MCQS

Constitution of India was adopted by constituent assembly on ?

25 October, 1948

25 October, 1949

26 November, 1948

26 November, 1949

Answer: Option DNote: Question is not about from when it came into effect.

Constitution of India came into effect from ?

15 January, 1950

26 January, 1950

15 August, 1950

15 January, 1950Answer And Explanation Answer: Option B

Setting a supreme court was Calcutta is a part of ?

Regulating Act of 1773

Pitts India Act of 1784

Charter Act of 1793

Charter Act of 1893Answer: Option AExplanation:“Regulating Act of 1773” :Governance of East India Company was put under British parliamentary control.Setting a supreme court in Calcutta.The Governor of Bengal was nominated as Governor General for Calcutta, Bombay and Madras.

Which Act is associated with “Courts can interpret the rules and regulations.” ?

Regulating Act of 1773


Charter Act of 1793

Charter Act of 1893 Answer: Option C

The Christian Missionaries were allowed to spread their religion in India, under the Act ?


Charter Act of 1813

Charter Act of 1833

Charter Act of 1853Answer: Option B

A separate Governor for Bengal to be appointed under the act ?


Charter Act of 1793

Charter Act of 1733

Charter Act of 1753Answer: Option D

The first statute for the governance of India, under the direct rule of the British Government, was the





Answer: Option A

LECTURE #2

FRAMING OF INDIAN CONSTITUTION It was under the Cabinet Mission Plan of 1946 that the Constituent Assembly was constituted to frame a Constitution for India.The Constituent Assembly, which had been elected for undivided India and held its first sitting on Dec. 9, 1946, reassembled on Aug. 14, 1947, as the sovereign Constituent Assembly for the Dominion of India.As a result of the partition under the Plan of June 3, 1947, a separate Constituent Assembly was set up for Pakistan. The representatives of Bengal, Punjab, Sind,North-Western Frontier Province, Baluchistan and the Sylhet district of Assam (which had joined Pakistan by a referendum) ceased to be members of the Constituent Assembly of India, and there was a fresh election in the new Provinces of West Bengal and East Punjab. (Hence, when the Constituent Assembly reassembled on Oct. 31,1947) the membership of the House was reduced to 299. Of these 284 were actually present on Nov. 26, 1949, and appended their signatures to the Constitution that was finally passed.President of the Constitution Assembly was Dr. Rajandra Prasad.Acceptance of the Constitution: On Aug. 29, 1947, the Constituent Assembly appointed a Drafting Committee under the chairmanship of Dr. Ambedkar. This committee came out with a draft Constitution of India in Feb. 1948

MEMBERS OF THE DRAFTING COMMITTEEDr. B.R.Ambedkar (Chairman)N. Gopalaswamy AyyanagarAlladi Krishnaswamy AyyarK.M. MunshiMohd. Saadullah,B.L. Mitter (later replaced by N. Madhava Rao)Dr. D.P.Khaitan (replaced on death by T.T. Krishnamachari) HOW THE CONSTITUENT ASSEMBLY OF INDIA WAS CONSTITUTED?The Constituent Assembly of India was elected through indirect election by the members of the Provincial Legislative Assembly (Lower House only), according to the scheme recommended by the Cabinet Delegation.The essentials of this scheme were as follows:(i) The Provinces elected 292 members; while the Indian States were allotted a maximum of 93 seats.(ii) The seats in each province were distributed among the three main committees Muslim, Sikh, and General, in proportion to their respective population.(iii) Members of each community in the Provincial Legislative Assembly elected their own representatives by the method of proportional representation with single transferable vote.(iv) The method of selection in the case of representativesof Indian States was to be determined by nomination WORKING OF THE CONSTITUENT ASSEMBLYThe Constituent Assembly held its first meeting on December 9, 1946. The Muslim League boycotted the meeting and insisted on a separate state of Pakistan.The meeting was thus attended by only 211 members. Dr Sachchidan-and Sinha, the oldest member, was elected as the temporary President of the Assembly, following the French practice.

Later, on December 11, 1946, Dr Rajendra Prasad and H C Mukherjee were elected as the President and Vice-President of the Assembly respectively. Sir B N Rau was appointed as the Constitutional advisor to the Assembly.COMMITTEES OF THE CONSTITUENT ASSEMBLYThe Constituent Assembly appointed a number of committees to deal with different tasks of constitution-making. Out of these, eight were major committees and the others wereminor committees. The names of these committees and their chairmen are given below :Major CommitteesUnion Powers Committee – Jawaharlal NehruUnion Constitution Committee – Jawaharlal NehruProvincial Constitution Committee – Sardar PatelDrafting Committee – Dr. B.R. AmbedkarAdvisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas – Sardar Patel. This committee had the following sub-committes:(a) Fundamental Rights Sub-Committee – J.B. Kripalani(b) Minorities Sub-Committee – H.C. Mukherjee(c) North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub- Committee – Gopinath Bardoloi(d) Excluded and Partially Excluded Areas (Other than those in Assam) Sub-Committee – A.V. ThakkarRules of Procedure Committee – Dr. Rajendra PrasadStates Committee (Committee for Negotiating with States) Jawaharlal NehruSteering Committee – Dr. Rajendra PrasadMinor CommitteesCommittee on the Functions of the Constituent Assembly – G.V. MavalankarOrder of Business Committee – Dr. K.M. MunshiHouse Committee – B. Pattabhi SitaramayyaAd-hoc Committee on the National Flag – Dr. Rajendra PrasadSpecial Committee to Examine the Draft Constitution – Alladi Krishnaswamy AyyarCredentials Committee – Alladi Krishnaswamy AyyarFinance and Staff Committee – Dr. Rajendra Prasad.Hindi Translation CommitteeUrdu Translation CommitteePress Gallery CommitteeCommittee to Examine the Effect of Indian Independence Act of 1947Committee on Chief Commissioners’ Provinces – B. Pattabhi Sitaramayya.Commission on Linguistic ProvincesExpert Committee on Financial ProvisionsAd-hoc Committee on the Supreme Court – S. Varadachariar. CRITICISM OF THE CONSTITUENT ASSEMBLYThe critics have criticised the Constituent Assembly on various grounds. These are as follows:

Not a Representative Body: The critics have argued that the Constituent Assembly was not a representative body as its members were not directly elected by the people of India on the basis of universal adult franchise.

2. Not a Sovereign Body: The critics maintained that the Constituent Assembly was not a sovereign body as it was created by the proposals of the British Government. Further, they said that the Assembly held its sessions with the permission of the British Government.

Time Consuming: According to the critics, the Constituent Assembly took unduly long time to make the Constitution. They stated that the framers of the American Constitution took only four months to complete their work.

Dominated by Congress: The critics charged that the Constituent Assembly was dominated by the Congress party. Granville Austin, a British Constitutional expert, remarked: ‘The Constituent Assembly was a one-party body in an essentially one-party country. The Assembly was the Congress and the Congress was India’9.

Lawyer–Politician Domination: It is also maintained by the critics that the Constituent Assembly was dominated by lawyers and politicians. They pointed out that other sections of the society were not sufficiently represented. This, to them, is the main reason for the bulkiness and complicated language of the Constitution.

Dominated by Hindus: According to some critics, the Constituent Assembly was a Hindu dominated body. Lord Viscount Simon called it ‘a body of Hindus’. Similarly, Winston Churchill commented that the Constituent Assembly represented ‘only one major community in

India’ Salient Features of the Constitution of India(i) A written and lengthy constitutionThe Constitution of India is a single, written document (unlike the British constitution which is not a single, written document, but is drawn from legislation, treaties, judicial precedents, convention, and numerous other sources).It was framed by a Constituent Assembly which was established for the purpose in 1946. As originally adopted, it had 22 Parts, 395 Articles and 8 Schedules. A number of amendments, passed since its enforcement in 1950, have also become a part of the Constitution.The Constitution of India is the lengthiest constitution in the world as no other constitution contains as many articles. The constitution of USA has 7 Articles, of China 138, Japan 103, and Canada 107 Articles.(ii) Single ConstitutionUnlike the US which is considered as role model of federalism, India has a single Constitution, that is, the Indian states do not have separate Constitutions.(iii) Sovereign, socialist, secular, democratic, republic The Constitution declares India to be a Sovereign, Socialist, Secular, Democratic, Republic. The words, ‘Socialist’ and ‘secular’ were added in the Preamble of the Constitution by 42nd amendment which was passed in 1976.Sovereign means absolutely independent; it is not under the control of any other state.Socialist – Word ‘Socialist’ was added in the Preamble by 42nd Amendment of the Constitution which was passed in 1976. This implies a system which will endeavour to avoid concentration of wealth in a few hands and will assure its equitable distribution.Secular – The word ‘Secular’, like Socialist, was also added in the Preamble by 42nd Amendment of the Constitution. There is no state religion in India. Every citizen is free to follow and practise the religion of his/her own choice. The state cannot discriminate among its citizens on the basis of religion.Democratic – It means that the power of the government is vested in the hands of the people. People exercise this power through their elected representatives who, in turn, are responsible to them. All the citizens enjoy equal political rights.Republic – It means that the head of the State is not a hereditary monarch but a President who is indirectly elected by the people for a definite period.(iv) Unique blend of rigidity and flexibilityWhether a constitution is rigid or flexible depends on the process of amendment. If the constitutional laws and ordinary laws are amended separate ways, it is a rigid constitution.On the contrary, in a flexible constitution, constitutional laws and ordinary laws are amended in the same way. Some provisions of the Constitution of India can be amended by the Indian Parliament with simple majority.

The amendment of most provisions of the constitution requires a special majority in both houses of the parliament. There are some other provisions of constitution which cannot be amended by the parliament alone.In case of such provision the amending bill has first to be approved by both houses of parliament by a special majority (with the support of two-thirds of the members of each house present and voting).Then it has to be ratified by the legislatures of at least half of the states of India.So, there is a balance between rigidity and flexibility in our constitution. Some amount of flexibility was introduced into our constitution in order to encourage its growth.(v) Patchwork, but a beautiful patchworkThe Indian Constitution is often referred to as a patchwork. It has been inspired and derived from various sources. The best features of various constitutions have been incorporated in our constitution. (vi) Parliamentary form of democracyIndian Constitution provides for a parliamentary form of government. President is the nominal head of the state. In actual practice, the government is run by the Prime Minister and other members of the Council of Minister. The Council of Ministers is collectively responsible to the Parliament.(vii) Fundamental rights and dutiesThe Constitution of India guarantees six fundamental rights to every citizen.These are:Right to Equality.Right to Freedom.iii. Right against Exploitation.Right to Freedom of Religion.Cultural and Educational Rights.Right to Constitutional Remedies.The Constitution initially did not provide for Fundamental Duties. By 42nd Amendment of the Constitution, ten Fundamental Duties of citizens have also been added. Currently there are 11 Fundamental Duties.(viii) Directive principles of state policyThe Directive Principles of State Policy are listed in Part Four of the Constitution. The framers of our constitution took the idea of having such principles from the Irish Constitution. These principles are instructions given by the Constitution to government.All the governments-Central, State and Local-are expected to frame their policies in accordance with these principles. The aim of these principles is to establish a welfare state in India. They, however, are not binding on the government-they are mere guidelines.(ix) Single citizenshipIn federation, normally we have double citizenship. In U.S.A. every citizen besides being a citizen of United States of America is the citizen of the state in which he or she resides. But the Constitution of India provides for single citizenship – every Indian, irrespective of his place of birth or residence, is a citizen of India.(x) Universal adult franchiseThe constitution provides for Universal Adult Franchise (article 326). It means that every citizen who is 18 years of age or more is entitled to cast his/her vote irrespective of his caste, creed, sex, religion or place of birth.(xi) Affirmative actionThe Constitution provides for affirmative action by the State to improve the conditions of the weaker sections of society by providing reservations in the legislatures and government jobs (articles 15 & 16).(xii) Independent judiciaryThe Indian Constitution provides for an independent judiciary. The judiciary has been made independent of the Executive as well as the Legislature. The judges give impartial justice.(xiii) Independent agencies

The Constitution provides for some Independent Agencies to perform functions allotted to them. The important agencies are Election Commission (article 324) Comptroller and Auditor General (article 148)iii. Union and State Public Service Commissions (article 315) (iv) Finance Commission (article 280)(xiv) Emergency provisionsThe framers of our constitution had realised that there could be certain dangerous situations when government could not be run as in ordinary time. Hence our constitution contains certain emergency provisions. During emergency the fundamental rights of the citizens can be suspended and our government becomes a unitary one.The Constitution makes provisions for the proclamation of National Emergency under Article 352, State Emergency under Article 356 and Financial Emergency under Article 360.

Lecture# 3Preamble of Constitution , Union and its territories & citizenshipThe American Constitution was the first to begin with a Preamble.The term ‘preamble’ refers to the introduction or preface to the CONSTITUTION.It contains the summary or essence of the Constitution.N A Palkhivala, an eminent jurist and constitutional expert, called the Preamble as the ‘identity card of the Constitution.’The Preamble to the Indian Constitution is based on the ‘Objectives Resolution’, drafted and moved by Pandit Nehru, and adopted by the Constituent Assembly.It has been amended by the 42nd Constitutional Amendment Act (1976), which added three new words—socialist, secular and integrity.“We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into aSOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, Social, Economic and Political; LIBERTY of thought, expression, belief,faith and worship; EQUALITY of status and of opportunity; and to promote among them all; FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBYADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”.Sovereign RepublicThe Preamble begins with the words, “We, the people of India….”, thus clearly indicating the source of all authority under the Constitution. The Preamble establishes the ultimate sovereignty of the people of India on whose authority the Constitution rests.

It points out the Constitution of India has been ordained by the people of India through their representatives in Constituent Assembly.In the present times, the term ‘sovereignty‘ may be losing rigid connotations of “supreme and absolute power acknowledging no superior” -no modern state can be considered sovereign in that sense. However, through the words of the Preamble, what is sought to be established is the oneness of the people of India (not the people of different states but of one nation), that the sovereignty vests in the collectivity, and that the people of India are not subordinate to any external authority.With the enactment of the Constitution, India was no longer a ‘dominion’ it was a ‘republic’.IS PREAMBLE A PART OF THE CONSTITUTION?The preamble of an Act is not recognised as part of the Act because it is not enacted and adopted by the enacting body in the same manner as the acting provisions. The preamble of Indian Constitution was, however, enacted and adopted by the same procedure as the rest of the Constitution. This difference was not brought to the notice of the Supreme Court in Berubari Union and Exchange of Enclaves case where it observed that “the preamble is not part of the constitution”.Later when the constituent history of the preamble was brought to the notice of the Court in Keshavananda Bharti v. State of Kerala it held that “the preamble of the Constitution was part of the Constitution and the observations to the contrary in Berubari Union case were not correct”. The recognition of the preamble as an integral part of the Constitution makes the preamble a valuable aid in the construction of the provisions of the Constitution because unlike the preamble to an Act, the preamble of the Constitution occupies the same position as other enacting words or provisions of the Constitution.A republic derives its powers directly or indirectly from the people and “is administered by persons holding their offices during pleasure,for a limited period, or during good behaviour” (Madison).India is a republic in that sense. From January 26, 1950 when the Constitution commenced, India ceased to owe allegiance to the British crown. India has a President as head of the Union, elected indirectly for a fixed term by the people’s representatives.All citizens are equal in law, there is no privileged class, every citizen has the right to try for any public office irrespective of caste, race, sex or religion.Despite declaring itself a republic India remained a member of the Commonwealth of Nations.Indeed the group of nations accommodated India’s status as a sovereign independent republic owing no allegiance to th British Crown: the ‘British Commonwealth of Nations’ became simply ‘Commonwealth of Nations’. The King or Queen would be the ‘symbolic’ head of he Commonwealth as far as India was concerned, and the decisions at the conferences of the Commonwealth will not be binding on Indians.India’s conduct would be based on ‘free will’. The decision to remain in the Commonwealth was in keeping with the ideal of promoting international cooperation and peace – a concept expressed in our Constitution.DemocracyThe term ‘democracy’ has assumed different connotations for different people. But common to all forms of democracies in the participation of the people directly or indirectly.India has adopted the representative parliamentary democracy. The Constitution makes no provision for direct control by the people through such devices as ‘referendum’ and ‘initiative’. However, the people of India exercise their sovereignty through a Parliament at the Centre and a legislature in each State elected on the basis of universal adult franchise.The Executive is responsible to the popular house of the Legislature.Beyond political democracy, the Preamble also envisages social and economic democracy.Equality in the political sphere gives each adult citizen the power to vote freely. Equality must also pervade society and economic conditions, as far as possible.Ambedkar considered social and economic democracy to be the real goals to strive for.Jawharlal Lal Nehru too felt that political structure would weaken and disintegrate if socio-economic problems like poverty and gross inequalities are not tackled and removed.

A vote, after all, does not mean much to a starving person. It is in this context that the Preamble speaks of justice, equality, liberty and fraternity.SocialismWhile the original Constitution did not mention any particular ideology, it did give expression to the resolve of securing to the citizens economic justice and equality of opportunity.This is the essence of socialism. The word ‘socialist’ was introduced in the Preamble by the 42nd The term, however, is not defined in the Constitution. It may be pointed out that the socialism envisaged in India does not mean abolition of private property or nationalisation of all means of production.Thus a ‘mixed economy’ was envisaged, along with provision of equal opportunity, abolition of vested interests, and elimination of inequality in income and status and standards of living. In the present context of economic liberalisation, however, the socialist credentials of our State may well be questioned.SecularismThe term ‘secular’ was inserted in the Preamble only in 1976, but the state envisaged by the Constitution was always a secular state- it could not have been otherwise in a country of such a vast size and diversity of culture and religions. Indeed, the fraternity and unity of the country could be built only on a secular basis.The term ‘secular’, has not been defined in the Constitution but its operative meaning may be drawn from the different provisions of the Constitution.Discrimination on the basis of religion is forbidden to the State. Equality is assured to all irrespective of religion. Freedom of faith, belief and worship is allowed to all.The State is to be impartial towards all religions. Furthermore, the state does not uphold any particular religion as the state religion, but protects all religions equally.JusticeThe Preamble speaks of social, economic and political justice. The concept of justice goes beyond its narrow legal connotation. Significantly the words ‘social’ and ‘economic’ occur before the word ‘political’. Social justice implies that discrimination on the basis of birth, caste, race, sex or religion should cease.To that end all citizens should enjoy equal opportunities in the matter of public appointment.It is the good of all people that the Government must strive to achieve. The concept of a welfare state as envisaged in the Directive Principles is an embodiment of guidelines for ensuring the social justice expected in the Preamble.Economic justice implies that the gap between the rich and the poor is bridged, and the exploitation ceases. Removal of poverty is to be achieved not by taking away assets from those who have but by ensuring a more equitable distribution of national wealth and resources among those who contribute to its creation.Thus the Directive Principles call upon the state to try and secure ownership and control over resources to subserve common good, reduce concentration of wealth, ensure equal pay for equal work, and see that people, especially women and children, are not abused or forced by economic want into work unsuitable for their age or strength.Political justice implies that all citizens should have equal opportunity to participate in the political system.One person-one vote is ensured irrespective not only of caste, sex or religion, but also of proprietary or educational qualifications. It is the basis of the political democracy envisaged in the Constitution.LibertyDemocracy is closely connected with the idea of liberty; certain minimal rights must be enjoyed by every person in a community for a free and civilized existence.These basic rights are spelt out by the Preamble as freedom of thought, expression, belief, faith and worship.The chapter on Fundamental Rights guarantees these freedoms explicitly, subject to certain regulations; after all, liberty is not to degenerate into license if democracy is to survive.EqualityRights have no meaning if they cannot be enjoyed equally by all members of the community. To ensure that it is possible for all to enjoy these rights, social and economic equality is sought to be achieved.

The Fundamental Rights enjoin the State not to discriminate between citizen and citizen simply on the basis of caste, race, sex or religion. Public places are open to all citizens, titles of honour stand abolished, untouchability is abolished, among other things.The rule of law is to prevail:All citizens are equal before law and enjoy equal protection of the laws of the land.Political equality is provided by the principle of universal adult franchise and by allowing, at least in principle, any citizen the opportunity to participate in the process of governance.Economically, the same ability and work entitles persons to the same salary. Exploitation of individual or group is to be removed.FraternityA democratic system would function in a healthy manner only if there is a spirit of brotherhood of oneness, among the people of the land.India being a land of immense diversity is all the more in need of this spirit of unity – the sense of belonging to one nation.The principle of common citizenship is directed towards strengthening this sense of‘unity and integrity’ of the nation.Fraternity is also sought to be promoted by ensuring equal rights to all.Fraternity, said Ambedkar, “is the principle which gives unity and solidarity to social life“.It is the feeling that will protect the unity of India against external attack or disintegration through internal unrest born of social, political and economic causes.Fraternity, how ever is not possible unless the dignity of each individual is preserved and respected.Maintaining this dignity requires the guarantee of certain minimal justiciable rightsto each individual. The ensure that an individual is free from want and misery – without which freedom, ideas of self-respect and dignity are meaningless- the Directive Principles have been framed calling upon the State to form its policies to benefit all citizens equally in the matter of providing adequate means of livelihood.The State is also asked to provide just and humane conditions of work and create conditions in which a decent standard of life and full enjoyment of leisure and social and cultural opportunities become possible for all the people of this land.It is in keeping with the principle of individual dignity that the practice ofuntouchability has been abolished by the Constitution.In the context of fraternity, it may also be mentioned that India’s Constitution goes beyond national boundaries, and speaks of the ideal of universal brotherhood, an international fraternity with all nations and peoples coexisting in peace and amity. THE UNION AND ITS TERRITORYQ.’INDIAN TERRITORY’ IS OF HOW MANY TYPES?The territory of India falls under three categories :(i)State territories, (ii) the Union territories and (iii) territories which may be acquired by the Government of India.No Parliamentary legislation is required to acquire a foreign territory. It is the inherent attribute of a sovereign State to acquire new territories. Article 1(3) (c), in including the acquired territory as part of the Indian territory, merely states a factual situation and does not confer a power on Parliament to acquire foreign territory.The Union Territories are centrally administered according to provisions contained in Part VII of the Constitution. They are governed by the President through an Administrator appointed by him.At present there are 29 states in India.Since 1987, there are seven Union Territories : Delhi, Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu, Pondicherry and Chandigarh.WHAT IS AN ‘ACQUIRED TERRITORY’?

A territory can be said to have been acquired when the Indian Union acquires sovereignty over such territory.The expression ‘acquired’ should be taken to be a reference to ‘acquisition’ as understood in public international law. If there was any public notification, assertion or declaration by which the Government of India had declared or treated a territory as part and parcel of India, the courts would be bound to recognise an ‘acquisition’ as having taken place, with the consequence that the territory would be part of theterritory of the Union within Articles 1(3) (c).A statement by the Government of India that it did not consider a particular area to have been acquired by it is binding on the Court.Articles 1 to 4 under Part-I of the Constitution deal with the Union and its territory.UNION OF STATESArticle 1 describes India, that is, Bharat as a ‘Union of States’ rather than a ‘Federation of States’.

This provision deals with two things: one, name of the country, and two, type of polity.

There was no unanimity in the Constituent Assembly with regard to the name of the country.

Some members suggested the traditional name (Bharat) while other advocated the modern name (India).

Hence, the Constituent Assembly had to adopt a mix of both (‘India, that is, Bharat’) Secondly, the country is described as ‘Union’ although its Constitution is federal in structure.

According to Dr B R Ambedkar, the phrase ‘Union of States’ has been preferred to ‘Federation of States’ for two reasons: one, the Indian Federation is not the result of an agreement among the states like the American Federation; and two, the states have no right to secede from the federation.

The federation is an Union because it is indestructible. The country is an integral whole and divided into different states only for the convenience of administration.Ques. 1: Bring out the significance of the expression “Union” instead of the expression “Federation” in the Indian Constitution? Ans. Moving the Draft Constitution for the consideration of the Constituent Assembly in 1948, Dr. Ambedkar explained the significance of the use of the expression “Union” instead of the expression “Federation”.Two reasons are given Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.The expression- India is a Union of States was chosen as India was already a Union at the time of the Constituent Assembly debates.There are two expressions used in the context of governance in India- ‘Union of India’ and ‘Territory of India’ the former includes States that share federal powers with the Union Government, the latter includes not only States but all other units like UT’s and soon. In other words, territory of India encompasses a larger area than Union of India. That is, Territory of India encompasses the entire territory over which Indian sovereignty is exercised while Union of India covers only the federal system.Government of India can acquire any territory by purchase, treaty, cession, conquest or any other method, administer it on the basis of Parliamentary Act.The States and the territories, thereof are specified in the First Schedule. ‘The territory of India ‘comprises of the territories of the States; the Union territories specified in the First Schedule; and such other territories as may be acquired. Ques. 2 : The amendment of the Article 2 and Article 3 are not to be deemed to be an amendment under Article 368. Discuss?

Ans. Art.2 says that the Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.Art 3. Formation of the States and alteration of areas, boundaries or names of existing States: – Parliament may by law:-(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a Part of any State;(b) increase the area of any State;(c) diminish the area of any State; (d) alter the boundaries of any State;(e) alter the name of any State;The relevant Bill may be introduced in either House of Parliament only on the recommendation of the President.The Bill should be referred by the President to the Legislature/Legislatures of the State/States for expressing views within such period as may be specified in the reference. Such period may be extended by the President. The opinion of the State Legislatures is not binding on the President. The Bill can be introduced in the Parliament- either House- only on the recommendation of the President. The Bill needs to be passed by the Parliament by a simple majority.Art. 4 says that laws made under Articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and incidental and consequential matters are not to be deemed to be an amendment of this Constitution for the purposes of Article 368. Ques. 3 : The use of the provisions under Article 2 and Article 3 since independence has been truly federal rather than unitary in nature. Examine the statement with examples? Ans. A federation is one consisting of ‘an. indestructible Union of indestructible States’ as in the USA. India, though a federation, has Constitutional mandate for the abolition of a state. That is, in India, states are not indestructible’. A state can he abolished or merged with another state. Its boundaries, area and name can be changed. The process is initiated by the Union Government and the role of the affected state is only to express its opinion which is not binding on the Union Government. Parliament needs to pass the Bill only by a simple majority. The Council of States (Rajya Sabha) which is the representative of states does not have any special powers in this matter. Thus, the process is Unitary. However, there are certain aspects that require considerationPresident is given the power to refer the Bill to the state concerned. The Bill can not be introduced in the Parliament without the Presidential recommendation. The President is unlikely to allow abuse of the power by the union government. The need for political integration after Independence even in the face of any provincial resistance was the overriding factor.The Constitution was drafted at a time when the country was partitioned and the danger from centrifugal tendencies made the Constituent Assembly members feel the need for a strong centre. It is true that the provisions in Art. 2 and 3 are unitary in content. But, as shown the use of the provisions is truly federal. The case of Pondicherry (Puducherry)It is a former French colony. A treaty of cession was signed by India and France in 1956. It was ratified by the French parliament in May 1962.Till 1962, therefore, it could not be given the status of a Union Territory and was given the status of ‘acquired territory’.

In 1962 India and France exchanged the instruments of ratification under which France ceded to India full sovereignty over the territories it held.It came to be administered as the Union Territory of Pondicherry from 1963. Its new name is Puducherry.Parliament in 2006 passed a Bill to rename the Union Territory (UT) of Pondicherry as Puducherry in response to the wishes of the people of the Union Territory expressed through a unanimous resolution by the legislative Assembly in 1980.The Bill amends Part VIII, the First and Fourth Schedules of the Constitution and the Government of Union Territories Act 1963.Puducherry encompasses four regions – Puducherry, Karaikal (near Nagapattinam in Tamil Nadu), Mahe (near Thalassery, Kerala) and Yanam (near Kakinada, Andhra Pradesh). The Case of SikkimSikkim was originally a protectorate* of India. Reflecting the wishes of the people of Sikkim, the Constitution (Thirty-fifth amendment) was passed in Parliament in 1974 to up-grade the status of Sikkim from a protectorate to an associate state of the Indian Union.Sikkim Assembly unanimously adopted a resolution in April, 1975, abolishing the institution of the Chogyal (royalty) and declaring Sikkim as a constituent unit of India.The Assembly also resolved to submit its resolution to the people of Sikkim by way of a general referendum. Consequently, Parliament made the Thirty- sixth Constitution Amendment Act in 1975 and Sikkim became the 22nd state of the Indian Union.*In international law, a protectorate is a political entity that formally agrees by treaty to enter into a relationship with another, stronger state, called the protector, which agrees to protect it (diplomatically or militarily) against third parties, in exchange for which the protectorate usually accepts specified obligations. Union Territories ‘The reasons for having UTs differ with the Union Territory in question. General reasons are: unique history; geographical size/location; cultural heritage; Inter- State disputes; need for territories administered by the Union Government.Specific reasons areDelhi — capital of India.Pondicherry – French colonial & cultural heritage – small far-flung areas.Daman & Diu – Portuguese colonial & cultural heritage – far from Goa.Dadra & Nagar Haveli – Portuguese heritage – far from Goa, Daman & Diu.Andaman & Nicobar – group of islands deep into the Bay of Bengal far from the mainland.Lakshwadweep – group of small islands deep into the Arabian Sea – far from mainland.Chandigarh – dispute between states of Punjab & Haryana – Punjab Accord awarded to Punjab – transfer not yet through – continues as UT. Creating New States Even before Independence, Government was exploring the appropriate basis for states reorganization. Dhar Commission was set up by the President of the Indian Constituent Assembly in 1948 to consider the question of reorgnization of states in India. The Commission favoured reorganization on the basis of administrative efficacy and not language. The Indian National Congress at its Jaipur Session (1948) set up a high level committee called Linguistic Provinces Committee – consisting of Jawaharlal Nehru, Vallabh bhai Patel and Pattabhi Sitararniah to consider the Dhar Commission’s recommendations. In its report (J.V.P. Report) the committee counseled utmost caution in proceeding with the proposal for the linguistic reorganization of states.

Political movements for the creation of new language based states emerged after indepen-dence. The Telugu-speaking people agitated in Madras State for the formation of Andhra. In 1953, the 16 Telugu-speaking districts of Madras State became the new State of Andhra. It comprised Coastal Andhra and Rayalaseema Regions. In 1956 Andhra State was merged with the Telangana region of Hyderabad State to form a united Telugu-speaking state of Andhra Pradesh.Jawahar Lal Nehru subsequently appointed the States Reorganization Commission (1953) that included Fazl Ali, KM Panikkar and HN Kunzru. In 1955 the States Reorganization Commission submitted its report recommending that many British-imposed administrative boundaries be redrawn to recognize certain regional, cultural, and linguistic configurations. The change was justified or the basis of administrative efficiency – the use of a single language in a given state. Explaining the criterion of language as the basis for constituting a state, it said: Ques. 4 : “Linguistic homogeneity provides the only rational basis for reconstituting the state for it reflects the social and cultural pattern of living obtaining in well defined regions of the country”? Critically examine the statements. Ans. The four criteria laid down by the States Reorganisation Commission (SRC) for accepting the demand by a region for the formation of a State are:

Creation of new States should strengthen and preserve national unity.

States are to be formed on the basis of linguistic and cultural unity.

Financial, administrative and economic viability should govern the formation of new states. It should aid the process of implementation of five years plans.

Parliament passed the States Reorganization Act (1956) that was based on the SRC report. This was the beginning of states reorganization in India on a linguistic basis. It was a major development toward incorporating cultural identities into political and administrative units. The federal devolution of power strengthened this expression of cultural diversity. Linguistic reorganization of states was the only viable model as it helped administrative efficiency; greater citizen convenience; effective management of diversities and thus strengthening the federal system of governance. It prevents fissiparous tendencies like separatism and disintegration.

Formation of States in India on the basis of languages in 1956 was because language represented relatively acceptable base in comparison to other contending criteria like geography, ethnicity, ecology, economic development and so on. States Reorganization Act 1956 and Constitution (Seventh) Amendment Act 1956In order to understand the significance of the SR Act 1956 and the Constitution (Seventh) Amendment Act 1956, the nature of political and administrative organization under the British needs to be followed. British India had two types of territories provinces, governed directly by British officials who were responsible to the Governor-General of India and princely states under the control of local hereditary rulers having British government as the sovereign but enjoying autonomy based on a treaty When India became Independent on August 15, 1947, British dissolved their treaty relations with over 600 princely states, who had the option of acceding to either India or Pakistan.Most of the princely states joined India. Hyderabad was incorporated into India after armed intervention.In the three year period during 1947-1950, the princely states were politically integrated into the Indian Union- either merged with the existing provinces or organised into new provinces.The Constitution of India, when it came into existence on January 26, 1950 had three class of states.

The nine Part A states, which were the former governors’ provinces of British India, were ruled by an elected governor and state legislature:The eight Part B states were former princely states or groups of princely states, governed by a Rajpramukhs, who was often a former prince, along with an elected legislature. The Rajpramukh was appointed by the President of India.The ten Part C states included both the former chief commissioners’ provinces and other centrally administered areas except Andarnan and Nicobar islands. The chief commissioner was appointed by the President of India.The States Reorganization Act 1956 brought about linguistic reorganization of the states under which absorbed the former British provinces and princely states on the basis of language. The Seventh Amendment to the Constitution (1956) abolished the difference between Part A and Part B states- both became “states” constituting a single category. Part C states were renamed “union territories.”The personal privileges of the princes – the Privy Purse, the exemption from customs duty etc continued till they were abolished in 1971. CITIZENSHIPThe provisions of citizenship are covered by Articles 5 to 11 of Indian Constitution and are embodied in Part II of the Constitution.Article 5 refers to citizenship not in any general sense but to citizenship on the date of the commencement of the Constitution.Article to lay down a permanent law of citizenship for the country. That business was left to the Parliament of India.Accordingly, at the commencement of the Constitution, every person who had his domicile in the territory of India and who was born in India, or either of whose parents was born in India, orwho had been ordinarily resident in India for not less than five years immediately preceding the commencement of the Constitution, was to be considered a citizen of India.Persons of Indian origin who had been residing outside India at the commencement of the Constitution were given the free choice of becoming Indian citizens under the above provisions if they so desired. The only condition that they had to fulfill in his connection was to get themselves registered as Indian citizens by the diplomatic or consular representatives of India in the country where they were residing (Art. 8).Articles 6 and 7 deal with two categories of persons, namely, those who were residents in India but had migrated to Pakistan and those who were residents in Pakistan but had migrated to India. Those who migrated from Pakistan to India were divided into two categories:those who came before July 19, 1948 and those who came after that date.According to article 6 those who came before July 19, would automatically become citizens on the commencement of the Constitution, and those who came after July 19 would become such provided they had been registered in the form and manner prescribed for this purpose by the Government of India.These two articles thus provided for all cases of mass migration from Pakistan to India without making any distinction between one community and another, although the partition of the country itself was based upon such as a distinction Article 7 provides for those who had migrated to Pakistan but who had returned to India from Pakistan with the intention of permanently residing in India. Such a provisionhad to be made because the Government of India, in dealing with persons who left India for Pakistan and who subsequently returned from Pakistan to India, allowed them to come and settle permanently under what is called a “permit system'”.This permit system was introduced from July 19, 1948.

The Citizenship Act, 1955

A comprehensive law dealing with citizens was passed by Parliament in 1955 in accordance with the powers vested in it by Article 11 of the Constitution.

The provisions of the Act may be broadly divided into three parts, acquisition of citizenship, termination of citizenship and supplemental provisions.WHY THE ISSUE OF INDIAN CITIZENSHIP WAS NOT PERMANENTLY SETTLED BY THE CONSTITUTION?

There is hardly any constitution in which an attempt has been made to embody a detailed nationality law.But since India’s Constitution is of a republican character and provision is made throughout the Constitution for election to various offices under the State by and from among the citizens, it was thought essential to have some provisions which precisely determined who was an Indian citizen at the commencement of the Constitution.

Otherwise, there could have arisen difficulties in connection with the holding of particular offices and even with the starting of representative institutions in the country under the republican Constitution. This is why Parliament has been given plenary power to deal with the question of nationality and enact any law in this connection that it deems suited to the conditions of the country.

Such Parliamentary power embraces not only the question of acquisition of citizenship but also its termination as well as any other matter relating to citizenship (Art. 11) Also under Article 9 of the Constitution, and person who voluntarily acquiresthe citizenship of any foreign State, even if qualified for Indian citizenship under any provision of the Constitution, may not be a citizen of India.Acquisition of CitizenshipThe Act provides five modes of acquiring the citizenship of India. These are:Accordingly, at the commencement of the Constitution, every person who had his domicile in the territory of India andwho was born in India, or either of whose parents was born in India,or who had been ordinarily resident in India for not less than five years immediately preceding the commencement of the Constitution, was to be considered a citizen of India.

Persons of Indian origin who had been residing outside India at the commencement of the Constitution were given the free choice of becoming Indian citizens under the above provisions if they so desired. The only condition that they had to fulfill in his connection was to get themselves registered as Indian citizens by the diplomatic or consular representatives of India in the country where they were residing (Art. 8).

Articles 6 and 7 deal with two categories of persons, namely, those who were residents in India but had migrated to Pakistan and those who were residents in Pakistan but had migrated to India.

Those who migrated from Pakistan to India were divided into two categories:

those who came before July 19, 1948 and those who came after that date.According to article 6 those who came before July 19, would automatically become citizens on the commencement of the Constitution, and those who came after July 19 would become such provided they had been registered in the form and manner prescribed for this purpose by the Government of India.

These two articles thus provided for all cases of mass migration from Pakistan to India without making any distinction between one community and another, although the partition of the country itself was based upon such as a distinction.

By Birth:Every person born in India on or after January 26, 1950, shall be a citizen of India by birth.

There are two exceptions, to this rule, namely, children born to foreign diplomatic personnel in India and those of enemy aliens whose birth occurs in a place then under occupation by the enemy.

(2)By Descent : A person born outside India on or after January 26, 1950, shall be citizen of India by descent if his father or mother is a citizen of India at the time of his birth.(3)Children of those who are citizens of India by descent, as also children of non-citizens who are in service under a government in India, may also take advantage of this provision and become Indian citizens by descent,if they so desire, through registration.(3) By Registration : Any person who is not already an Indian citizen by virtue of the provisions of the Constitution or those of this Act can acquire citizenship by registration if that person belongs to any one of the following five categories :(a) Persons of Indian origin who are ordinarily resident in India and who have been so resident for at least six months immediately before making an application for registration.(b) Persons of Indian origin who are ordinarily resident in any country or place outside undivided India;(c) Women who are, or have been, married to citizens of India;(d) Minor children of persons who are citizens of India; and(e) Persons of full age and capacity who are citizen of the Common wealth countries or the Republic of Ireland.(4) By Naturalisation : Any person who does not come under any of the categories mentioned above can acquire Indian citizenship by naturalisation if his application for the same has been accepted by the Government of India and certificate is granted to him to that effect.An applicant for a naturalisation certificate has to satisfy the following conditions:(a) He is not a citizen of a country which prohibits Indians becoming citizens of that country by naturalisation;(b) He has renounced the citizenship of the country to which he belonged;(c) He has either resided in India or has been in the service of a government in India, normally, for one year immediately prior to thedate of application;(d) During the seven years proceeding the above mentioned one year, he has resided in India or been in the service of a government in India for a period amounting in the aggregate to not less than four years;(e) He is of good character;(f) He has an adequate knowledge of a language specified in the Constitution;(g) If granted a certificate, he intends to reside in India or enter into, or continue in service under a government in India. The Act provides, however, for a conspicuous exemption under which any or all of the above conditions may be waived in favour of a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally.Every person to whom a certificate of naturalisation is granted has to take an oath of allegiance solemnly affirming that he will bear true faith and allegiance to the Constitution of India as by law established, and that he will faithfully observe the laws of India and fulfill his duties as a citizen of India.(5) By Incorporation of Territory : If any territory becomes part of India, the Government of India, by order, may specify the persons who shall be citizen of India by reason of their connection with that territory.Termination of CitizenshipThe Act envisages three situations under which a citizen of India may lose his Indian nationality. These are:(1) By Renunciation: If any citizen of India who is also a national of another country renounces his Indian citizenship through a declaration in the prescribed manner, he ceases to be an Indian citizen of registration of such declaration. When a male person ceases to be a citizen of India, every minor child of his also ceases to be a citizen of India. However, such a child may within one year after attaining full age, becomes Indian citizen by making a declaration of his intention to resume Indian citizenship. (2) By Termination: Any person who acquired Indian citizenship by naturalisation, registration or otherwise,, of he or she voluntarily acquired the citizenship of another country at any time between January 26, 1950, the date of commencement of the Constitution, and December 30, 1955, the date of commencement of this Act, shall have ceased to be a citizen of India from the date of such acquisition.

By Deprivation: The Central Government is empowered to deprive a citizen of his citizenship by issuing an order under 10 of the Act. But, this power of the Government may not be used in case of every citizen; it applies only to those who acquired Indian citizenship by naturalisation or by virtue only of clause (c) of Article 5 of the Constitution or by registration.The possible grounds of such deprivation are : obtaining of a citizenship certificate by means of fraud, false representation, concealment of any material fact; disloyalty of disaffection towards the Constitution shown by act or speech; assisting an enemy with whom India is at war; sentence to imprisonment in any country for a term of not less than two years within the first five years after the acquisition of Indian citizenship and continuous residence outside Indian for a period of seven years without expressing in a prescribed manner his intention to retain his Indian citizenship.The Act also provides for reasonable safeguards in order to see that a proper procedure is followed in every case of deprivation of citizenship.Single CitizenshipThe most important aspect of the constitutional provisions dealing with citizenship is that it has established a unified or single system of citizenship law for the whole country. A citizen of India is accepted legally as a citizen in every part of the territory of India with almost all the benefits and privileges that attend such a status.This is in striking contrast to the system of double citizenship that prevails in some federal states. Before the inauguration of the Constitution, there were two broad divisions among Indian citizens, British Indian subjects and state subjects.Since there were over 500 Indian States, the State subjects themselves were further subdivided into as many groups of citizens as there were states.Thus, the term Indian citizenship had little precise legal significance except that the Indian people as a whole came under the overall jurisdictions of the British Government that ruled India.The abolition of such distinctions makes the essential unity of the nation a reality.A single citizenship for the entire country removes much of the artificial State barriers that prevailed in pre Independence days and facilities the freedom of trade and commerce throughout the territory of India.There is, however one barrier still that hinders that full realisation of the ideal of a single citizenship established under the Constitution.This is the existence of what are known as “domiciliary rule” in the different states in India.The term “domicile” is difficult to define. According to the rules prevailing today, in the different States in India, domicile requirements vary from three to fifteen years’ continuous residence within the State in addition to other conditions.Thus, the status of domicile is given only to a permanent resident of the State. On the basis of such a distinction, there exist practices in different States which amount to gross discrimination as between citizen and citizen.The also engender provincialism and parochialism which tend to disrupt the unity to the nation. Domiciliary rules which govern eligibility to public services in most of the State illustrate this point. Such rules are applied in some State not only to determine eligibility for appointment to public services but also to regulate admission to higher educational institutions, the awards of contracts and rights in respect of fisheries, ferries, toll-bridges, forests and excise shops. The conditions to be satisfied for acquiring a domicile in some of the states are of such an extremely rigorous nature that it is almost impossible for any person to satisfy them.

Lecture#4Fundamental RightsWhat are Fundamental Rights?

Fundamental Rights are those Rights which are mentioned under Part III of the Indian Constitution.

There are certain Rights which are mentioned in the Constitution, but not under Fundamental Such Rights are called Constitutional Rights. (E.g. Right to Vote)

There are certain Rights which are available to citizens through laws passed by Legislatures (Centre or State). Such Rights are called Statutory Rights. (E.g. Right to Information)

These rights ensure the fullest physical, mental and moral development of every citizen.

They include those basic freedoms and conditions which alone can make life worth living.

Fundamental Rights generate a feeling of security amongst the minorities in the country.

They establish the framework of ‘democratic legitimacy’ for the rule of the majority.

No democracy can function in the absence of basic rights such as freedom of speech and expression.

The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35.

Inthis regard, the framers of the Constitution derived inspiration from the Constitution of USA (i.e., Bill of Rights).

Part III of the Constitution is rightly described as the Magna Carta of India. It contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights.

In fact, the Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA.

The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land. They are ‘fundamental’ also in the sense that they are most essential for the all-round development (material, intellectual, moral and spiritual) of the individuals.Originally, the Constitution provided for seven Fundamental Rights viz ,

Right to equality (Articles 14–18)

Right to freedom (Articles 19–22)

Right against exploitation (Articles 23–24)

Right to freedom of religion (Articles 25–28)

Cultural and educational rights (Articles 29–30)

Right to property (Article 31)

Right to constitutional remedies (Article 32)

However, the right to property was deleted from the list of Fundamental Rights by the 44thAmendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution.

So at present, there are only six Fundamental Rights.

Recently by the 86th Amendment Act, the Right to Education has been included in the listof Fundamental Rights as part of the Right to Freedom by adding Article 21(A).Nature of Fundamental Rights

Most of the Rights are Negative Obligations on the State (E.g. Article 14), with certain exceptions (E.g. Article 21A). Negative Obligations means that the State cannot do something that hurts or curtails people’s rights.

Majority of Rights mentioned in Part III are enjoyed by citizens against the State.

These Rights are Justiciable.

Fundamental Rights are not absolute i.e. certain reasonable restrictions can be imposed upon them.

Fundamental Rights can be suspended during emergency.

Fundamental Rights of people occupying sensitive positions (Armed Forces, Intelligence Agencies etc.) can be restricted or even denied by Parliament by law.

Most of the Right are self executory i.e. the parliament need not make laws to implement these Rights. There are certain exceptions e.g. For Right to Education under Article 21A, a law was required by the parliament.

Some of these Rights are available to aliens (Foreigners).Justiciable: Justiciable means that if these rights are violated by the government oranyone else, the individual has the right to approach the Supreme Court or HighCourts for the protection of his/her Fundamental Rights.

WHAT ARE ‘JUSTICIABLE’ AND ‘NONJUSTICIABLE’ RIGHTS?The real problem that confronted the framers of Indian Constitution was how to limit their selection of rights to certain categories only.

What rights were fundamental and what are not, and why?

If the rights of life, liberty and property were fundamental, what about right to employment and education? Has not the traditional concept of fundamental rights in its individualistic setting undergone a change in the modern era of the welfare State? The framers had no doubt about the answers to these questions. They were quite conscious of the change in the character of the modern state.They knew that the age of the American Bill of Rights which believed in the “perfectibility of man and the malignancy of Government” had gone for ever. And yet, it was a task of utmost difficulty.

This was because the State in India was not yet in a position to guarantee the right to employment or education. It was a matter of physical impossibility, not the lack of will. Hence, they divided these rights into two categories, justiciable and non-justiciable. Justiciable rights are those which canbe enforced by a court of law.

Part III of the Constitution which is entitled “Fundamental Rights” contains justiciable rights like the right of life, liberty and property.

Part IV, “The Directive principles of State Policy, contains non-justiciable rights such as right to employment and education. The citizen has no judicial remedy if he is denied the enjoyment of these rights.

Right to Equality (Arts. 14,15,16,17 & 18) Article 14 declares that “the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India”.

Thus, Article 14 stands for the establishment of a situation under which there is complete absence of any arbitrary discrimination by the laws themselves or in their administration.

The Right to Equality affords protection not only against discriminatory laws passed by legislatures but also prevents arbitrary discretion being vested in the executive. In the modern State, the executive is armed with vast powers, in the matter of enforcing bylaws, rules and regulations as well as in the performance of a number of other functions.

The equality clause prevents such powers being exercised in a discriminatory manner. Article 14 prevents discriminatory practices only by the State and not by individuals. For instance, if a private employer like the owner of a private business concern discriminates in choosing his employees or treats his employees, unequally, the person discriminated against will have no judicial remedy.

Q.What is the difference between “equality before the law” & “equal protection of laws”?

The phrase “equality before the law” occur in almost all written constitutions that guarantee fundamental rights. Equality before the law is an expression of English Common Law while “equal protection of laws“: owes its origin to the American Constitution.

Both the phrases aim to establish what is called the “equality to status and of opportunity” as embodied in the Preamble of the Constitution.

While equality before the law is a somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law, equal protection of laws is a more positive concept employing equality of treatment under equal circumstances.

Amendment of Fundamental RightsArticle 13 (2) states that the state shall not make any laws which take away Fundamental Rights of a citizen. A question arises as to whether the term ‘law’ inArticle 13 (2) includes just ordinary laws or Constitutional Amendment Acts also.

If Constitutional Amendment Act is not covered under law then the Parliament can amend the Fundamental rights by Amending the Constitution itself.

The Supreme Court Shankari Prasad vs. Union of India (1951) case held that Constitutional Amendment Act is not a law and thus Parliament can amend any Fundamental Right by using Constitutional Legislative Power. It gave a similar verdict in Sajjan Singh vs. State of Rajasthan Case (1965) case.

However in Golaknath vs. State of Punjab (1967) case the Supreme Court held that Fundamental Rights had been given transcendental position by the Constitution and even Parliament cannot amend Fundamental Rights.

The 24th Constitutional Amendment Act amended Article 13 and 368 which made it clear that Parliament has the power to amend Fundamental Rights through Constitutional Amendment. This was challenged in the Supreme Court in Keshavananda Bharati vs. State of Kerala (1979) case. The Supreme Court upheld the validity of 24th Amendment Act. However, the Supreme Court held that the Parliament’s amendment power is limited and is subject to “Basic Structure” of the Constitution. The Supreme Court has not explicitly defined the term “Basic Structure”. However, in various judgments, the Supreme Court has held that the following concepts form a part of Basic Structure

RIGHT TO EQUALITYClassification of Fundamental Rights

Right to Equality (Article 14 to 18)

Right to Freedom (Article 19 to 22)

Right against Exploitation (Article 23 to 24)

Right to Freedom of Religion (Article 25 to 28)

Cultural and Educational Right (Article 29 to 30)

Right to Constitutional RemediesArticle 14 – Equality before LawIt states that – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.NOTE: Equality before the law means that every person (including aliens) shall be treated equally by the law. There are certain exceptions (E.g. Article 361, Diplomatic Immunity).Equal Protection of law means law must operate equally among equals. Rolling out special schemes only for BPL category does not amount to violation of Article 14 as it attempts to bring BPL category towards non BPL category (reduce inequality).To operationalize Equal protection of Laws, categories formed should be homogenous and the categories so formed should have a reasonable correlation with the objective that has to be achieved.Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

NOTE: This right is available only to citizens and not aliens. The state cannot discriminate only on the above mentioned grounds but can discriminate on grounds other than these. (E.g. Marks in Entrance Exams)

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

NOTE: The rights under 15 (2) are not only available against a state but also against other citizens as shops, restaurants etc. can be owned by state or can be a private property.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

NOTE: Article 15 (1) states that no citizen shall be discriminated on the grounds of caste, sex, religion. But there are special considerations for SC/ST, OBC, Women and Children. Exceptions for these categories are mentioned in Clause 2 and 3 of Article 15.15.(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.NOTE: In order to serve the educationally and socially backward classes, the state asked the private education institutions also to reserve seats for the backward classes. Private institutions objected to it, stating it would amount to violation of right under Article 19 (1) g. The Parliament, by amending the constitution in 2005, added Clause 15 (5). According to this, it is mandatory to reserve seats for backward classes also even in private institutions whether aided or unaided, by law. The only exception is educational institutions run by minority communities. A law was enacted in this effect called Central Educational Institutions Reservation in Admission Act 2006. This Act was challenged in the Supreme Court, but the Supreme Court upheld the validity of this law.Vishaka CaseA was a PIL filed in Supreme Court by Vishaka and four other women’s organizations in Rajasthan against the State of Rajasthan and the Union of India. This case in reference to the Bhanwari Devi’s alleged Gang Rape in 1992 in Rajasthan. Bhanwari Devi’s legal battle culminated when the Supreme Court of India in a PIL, defined sexual harassment at workplace, preventive measures and redress mechanism. Vishaka Guidelines against Sexual Harassment at Workplace Guidelines and norms were laid down by the Hon’ble Supreme Court in Vishaka and Others vs. State of Rajasthan and Others. Article 16 – Our Constitution guarantees equality of opportunity in matters relating to employment or appointment to public services to all citizens. There shall be no discrimination on the basis of religion, race, caste, sex, place of birth or residence in matters relating to employment in public services. Merit will be the basis of employment. However, certain limitations have been provided to the enjoyment of these rights.Article 17 – Abolition of UntouchabilityIt states that – “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.The Constitution abolishes untouchability and its practice in any form is forbidden. The following actions are considered as offences when committed on the grounds of untouchability

Refusing admission to any person to the public institutions;

Preventing any person from worshipping in place of public worship;

Insulting a member of Scheduled Caste on the grounds of untouchability;

Preaching untouchability directly or indirectly.Punishments for violations include minimum jail sentence of 6 months and/or fine, or the person can be permanently debarred from contesting any elections in the country. According to the article, punishment has to be in accordance with law. Parliament, for this purpose, enacted ‘The Untouchability offenses Act, 1955’. This was renamed as ‘The Civil Rights Protection Act’ in 1976. If a case of untouchability is brought before the court, the court will act on the assumption of guilt (unlike other cases where assumption is innocent until proven guilty).Article 18 – Abolition of titles18 (1) No title, not being a military or academic distinction, shall be conferred by the State.18 (2) No citizen of India shall accept any title from any foreign State18 (3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

18 (4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.All titles national or foreign which create artificial distinctions in social status amongst the people have been abolished.This provision has been included in the Constitution to do away with the titles like ‘Rai Sahib’, ‘Rai Bahadur’ have been conferred by the British on a few Indians as a reward for their effective co-operation to the colonial regime. The practice of conferring titles like this is against the doctrine of equality before law. To recognise the meritorious service rendered by individual citizens to the country or mankind, the President of India can confer civil and military awards on those individuals for their services and achievements such as; Bharat Ratna, Padma Vibhushan, Padma Sri, Param Veer Chakra, Veer Chakra etc., but these cannot be used on ‘titles’.Right to Freedom (Article 19 – 22)Article 19 –The Constitution guarantees the following six Fundamental Freedoms at present:

Freedom of speech and expression

Freedom to assemble peacefully without arms

Freedom to form associations or unions

Freedom to move freely throughout the territory of India

Freedom to reside and settle in any part of the territory of India

Freedom to practise any profession or to carry on any occupation, trade or businessConcept of Inferred Rights: Article 19 (1) (a) gives the right to Freedom of speech and expression. This also means that a person can stay silent if he wishes to. This can be inferred from Article 19 (1) (a). Hence, there are rights in the constitution which can be inferred from the given rights. This is Concept of Inferred Rights.Explaining the scope of freedom of speech and expression Supreme Court has said that the words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audio visual instrumentalities. It therefore includes the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution.Freedom of Press: The fundamental right of the freedom of press implicit in the right the freedom of speech and expression is essential for the political liberty and proper functioning of democracy. The Indian Press Commission says that “Democracy can thrive not only under the vigilant eye of legislature, but also under the care and guidance of public opinion and the press is par excellence, the vehicle through which opinion can become articulate.” Unlike the American Constitution, Art. 19(1) (a) of the Indian Constitution does not expressly mention the liberty of the press but it has been held that liberty of the press is included in the freedom of speech and expression. The editor of a press for the manager is merely exercising the right of the expression, and therefore, no special mention is necessary of the freedom of the press. Freedom of press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of press and invalidate all laws or administrative actions, which interfere with it contrary to the constitutional mandate.Grounds of Restrictions: Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of speech and expression can be imposedSecurity of State: Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. The term “security of state” refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression

on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State.Freedom of speech and expression is an important freedom. This freedom ensures free and frank speech, discussion and exchange of opinions. It includes the freedom of the press. However these freedoms like freedom of speech and expression are not absolute. The state is empowered to impose reasonable restrictions on the exercise of this right in the interest of security of the state, public order, morality etc.Friendly relations with foreign states: This ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardise the maintenance of good relations between India, and that state. No similar provision is present in any other Constitution of the world. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government.Public Order: This ground was added by the Constitution (First Amendment) Act. ‘Public order’ is an expression of wide connotation and signifies “that state of tranquillity which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.”Freedom of assembly is not absolute but restricted. The assembly must be must be non-violent and must not cause any breach of public peace. If the assembly is riotous then it is not protected under Article 19 (1) (b) and reasonable restrictions may be imposed.Freedom to form Associations includes association of political, social or cultural. Further, it also gives the right to join or not join associations or right to continue or not to continue with any association. It also gives the right to form trade unions. Article 33 of the constitution empowers the to pass a law restricting the right to form political association to members of armed forces, persons employed in any bureau or other organizations established by the state for the purpose of intelligence or counter intelligence, persons employed in or in connection with the telecommunications system.Freedom of movement guarantees to the citizens the right to move freely throughout the territory of India. But this can restricted on the grounds of Security, Public order or for protecting the interests of the scheduled tribes.Freedom of Residence provides the right to reside or settle down throughout the territory of India. This right is subject to certain reasonable restriction in areas like scheduled areas or border areas.Freedom of Trade and Occupation guarantees all citizens right to choose any profession, occupation, trade or business. This right can be restricted by the state under Clause 6 which includes

Imposing reasonable restrictions in the interest of general public

Prescribing professional or technical qualifications necessary for carrying on any profession, trade or business to the exclusion of private citizens, wholly or partially.

These freedoms can be suspended during the State of National Emergency. As soon as the State of National Emergency is declared under Article 352, the above- mentioned freedoms except the right to life and liberty, automatically remain suspended as long as the State of National Emergency continues. All these freedoms get restored as soon as the proclamation of National Emergency is lifted.Article 20 – Protection in respect of conviction for offences20 (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.20 (2) No person shall be prosecuted and punished for the same offence more than onceThis Constitutional provision assures protection against arbitrary arrest and excessive punishment to any person who is alleged to have committed an offence. No person shall be punished except for the violation of law which is in force when the crime was committed. An accused cannot be compelled to be a witness

against himself/herself. No person shall be punished for the same offence more than once. Also, no criminal law can be invoked retrospectively.Article 21 – Protection of life and Personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.21A. Right to education—The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.The Constitution lays down that no person shall be deprived of his/her life or personal liberty except according to the procedure established by law. It guarantees that life or personal liberty shall not be taken away without the sanction of law. It ensures that no person can be punished or imprisoned merely at the whims of some authority. He/she may be punished only for the violation of the law.Right to Education was introduced by the 86th Amendment Act, 2002. It was earlier under Article 45 of the Constitution as a part of Directive Principles of State Policy. Right to Education Act, a law required to execute this right, was passed by the Parliament in 2009.According to the law, 25% of the seats have to be reserved for economically backward section even in private institutions, only exception being minority institutions.Article 22 – Prevention against Arbitrary Arrest and DetentionOur Constitution guarantees certain rights to the arrested person. As per the provision, no person can be arrested and/or be detained in custody without being informed of the grounds for detention. He /she has the right to consult and be defended by a lawyer of his/her choice. The accused has to be produced before the nearest magistrate within a period of twenty-four hours of arrest. These safeguards however are not available to foreigners as well as to those citizens detained under Preventive Detention Act.Q.What is Preventive Detention?When the State feels that a person is likely to commit crime or is a threat to the security of the State, he/she may be detained without trial for a limited period. However, no person can be kept under detention for more than three months until permitted by an Advisory Board consisting of persons who are qualified to be appointed as judges of the High Courts. Such a board is presided over by a sitting judge of a High Court. Writ PetitionA writ petition is essentially a court petition for extraordinary review, asking a court to intervene in a lower court’s decision. Under the Indian legal system, jurisdiction to issue ‘prerogative writs’ is given to the Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are set forth in the Constitution of India. Right to Freedom of Religion (Article 25 – 28)Secularism

In the West, the state has nothing to do with religion.

In India, the state will remain neutral in the matters of religion.

This means, if a state seeks to promote religion, it has to promote all religions equally.

Secularism is seen as a means to promote communal harmony.Why aren’t we able to achieve a secular society?

Considering Hindu-Muslim communalism, the wounds of partition have not healed so far.

Imbalances in development in the Hindu and Muslim community.

These imbalances were brought out by Sachar Committee Report (2006).

Majority of communities have not been magnanimous enough to accommodate the diversity of this country.

Absence of Uniform Civil code.

There is no effective framework, legal or institutional, to check communalism and promote National Unity.Article 25 – Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

This right guarantee to every person the freedom of conscience and right to profess, practise and propagate religion. This right is however, subjected to public order, morality and health and to the other provisions of Part III of constitution. Right to propagate does not include right to convert. This means no one has the right to convert another person to his own religion by force, fraud or by offering incentives.The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.Article 26 – Freedom to manage religious affairs

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

a) To establish and maintain institutions for religious and charitable purposes;

b) To manage its own affairs in matters of religion;

c) To own and acquire movable and immovable property;

d) To administer such property in accordance with law.This article permits every religious group, the right to manage its own affairs in matters of religion. Every religious sect has the right to establish and maintain institutions for religious and charitable purposes. Each religious group is also free to purchase and manage its movable and immovable property in accordance with law, for the propagation of its religion.Cultural and Educational Rights (Article 29 – 30)Also referred to as Rights of Minorities.Types of minorities identified under the Indian Constitution are primarily Linguistic and Religious.Article 27 – Freedom as to payment of taxes for promotion of any particular religion

No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

According to this article, the state cannot levy or collect any tax, the proceeds of which are to be used exclusively for the promotion of a particular religion. E.g. Jizyah, tax levied during medieval times imposed on non-Muslims and the proceeds of the tax were reserved for the promotion of Islamic religion. The government can levy fee for maintenance of religious shrines and this does not amount to violation of Article 27.Article 28 – Freedom as to attendance at religious instruction or religious worship in certain educational institutions

(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.

(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

According to this article, no religious education can be imparted in any educational institution which is wholly maintained out of the state funds. This restriction does not apply to those educational institutions which are not wholly maintained out of State funds. But, even in those institutions, no child can be compelled to receive religious instructions against his /her wishes.If religious denominations are set up under religious denominations or charitable trusts, religious education can be provided at such institutions and students can be compelled to attend.Article 29 – Protection of interests of minorities

(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Cultural and Educational Rights provide necessary guarantees to preserve maintain and promote their culture and language. The Constitution allows minorities to establish and maintains educational institutions of their own. It also provides that the state shall not discriminate against any educational institution while granting financial aid on the grounds that it is being run by a minority community. These rights ensure that minorities will be given assistance by the state in the preservation of their language and culture. The Ideal before the state is to preserve and propagate the composite culture of the country.Right to PropertyIn the original Constitution, all citizens had a threefold right to property.

Article 19 (1) (f) – repealed in 1978.

Article 31 (1) – was removed from Fundamental Rights and placed under Article 300A in 1978.

Article 31 (2) – repealed in 1978.

By the 4th Amendment Act, 1955, Article 31 (2) was amended. It added that if a citizen is not satisfied with the compensation received, it cannot be challenged in the court of law.

25th Amendment Act, 1971 again amended Article 31 (2). In this amendment the word ‘compensation’ from the article was replaced with ‘amount’.

By the 1st Amendment Act, 1951, Article 31A and 31B was added. These were exceptions to Right to Property.

In 2007, SC in its verdict held that even Schedule nine cannot provide immunity to those laws which are violating that part of Fundamental Rights, which according to apex court, are a component of basic structure.

Article 31C was introduced by 25th Amendment Act, 1971. This is also an exception to Right to property.

42nd Amendment Act, 1976 expanded the scope of Article 31C. Accordingly, if a law is made to give effect to any Directive Principle and if it violates Article 14 and 19, it shall not be an invalid law.

In the case of Minerva mills Vs. Union of India, 1980, this expansion beyond 39 (B) and (C) was considered unconstitutional and struck down.

Article 31D was added by the 42nd Amendment Act, 1976. According to this, if any law is made in the context of checking anti – national activities, even if it violates Article 14 and 19, it shall be a valid law.

Article 31D was removed from the constitution by the 43rd Amendment Act, 1977.

Right to property is, at present, a Constitutional Right under Article 300A.

Article 30 – Right of minorities to establish and administer educational institutions

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

Right to Constitutional Remedies (Article 32)Part III of the Constitution provides for legal remedies for the protection of these rights against their violation by the State or other institutions/individuals. It entitles the citizens of India to move the Supreme Court or High Courts for the enforcement of these rights. The State is forbidden from making any law that may be in conflict with the Fundamentals Rights.The Constitution empowers the Supreme Court and High Courts to issue orders or writs. It broadly provides for five kinds of “prerogative” writs, namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition.The writ of prohibition is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself.

The writ of habeas corpus is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free.

The writ of certiorari is issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence and documents, usually with the intention of overruling the judgment of the lower court. It is one of the mechanisms by which the fundamental rights of the citizens are upheld.

The writ of mandamus is issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain acts or duties.

The writ of quo warranto is issued against a person who claims or usurps a public office. Through this writ the court inquires ‘by what authority’ the person supports his or her claim.

Supreme Courts can issue writs only for the restoration and enforcement of Fundamental Rights whereas High Courts can issue writs for Fundamental Rights and any other issues also.

Supreme Court has writ jurisdiction across the territory of India whereas jurisdiction of High Courts are restricted to the particular state.

Suspension of Fundamental RightsDuring National Emergency under Article 352

President can proclaim a state of emergency in the threat of war, external aggression or armed rebellion.

Under Article 358, if National Emergency is imposed on grounds of war or external aggression, six rights under Article 19 stand automatically suspended.

Under Article 359, other rights can also be suspended but a separate notification has to be issued by the President.

Article 20 and 21 can never be suspended.

Constitutional emergency and financial emergency have no impact on Fundamental Rights.

Lecture#5Directive Principles of State Policy

The Directive Principles of State Policy are enumerated in Part IV of the Constitution from Articles 36 to 51.

The framers of the Constitution borrowed this idea from the IrishConstitution of 1937, which had copied it from the Spanish Constitution.

Dr B R Ambedkar described these principles as ‘novel features’ of the Indian Constitution. The Directive Principles along with the Fundamental Rights contain the philosophy of the Constitution and is the soul of the Constitution.

Granville Austin has described the Directive Principles and the Fundamental Rights as the ‘Conscience of the Constitution’.Part IV of the Indian Constitution which deals with the Directive Principles of State Policy, is directly connected with the Preamble.

The Preamble gives us the fundamental principles on which the Constitution has been founded and the Directive Principles of State Policy lay down the fundamental principles according to which the Constitution is to b operated.

Though the Directive Principles are not enforceable in a Court, they are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws.

The provisions contained in this Part, shall not be enforceable by any court, but the principles the in laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

The State shall secure a social order in which social, economic and political justice shall inform all the institutions of national life.

Wealth and its source of production shall not be concentrated in the hands of the few but shall be distributed so as to subserve the common good, and there shall be adequate means of livelihood for all and equal pay for equal work.

The State shall endeavour to secure the health and strength of workers, the right to his right to education is subject to the limits of economic capacity and development of the State.

What are the different categories of DPSPs?The Directive Principles covering Article 38 to 51 of the Indian Constitution can be classifiedin the following categories:(a) Socialistic Principles :(i) Adequate means of livelihood for all citizens;(ii) fair distribution of wealth and material resources amon all classes and to prevent concentration of wealth in a few hands;(iii) equal pay for equal work for men as well as women; and(iv) to secure just and humane conditions of work and maternity relief.(b) Gandhian Principles :(i) To organise village panchayats and to endowing them with such powers and authority as may be necessary to enable them toe function as unit of self-government;(ii) to promote cottage industries on individual or co-operative basisin rural areas;(iii) the safeguard and promote the educational and economic interests or the scheduled castes and scheduled tribes;(iv) to bring about the prohibition and consumption of intoxicating liquor;(v) to organise agriculture and animal husbandry on modern and scientific lines and in particular prohibit slaughter of cows.(c) Liberal Principles :(i) To secure uniform and liberal code of law for all citizens of India;(ii) to separate the judiciary from the executive;(iii) to raise the standard of nutrition and standard of living of the people;(iv to protect monuments of historical and national interest;(v) equal justice and free legal aid to economically backward classes;(vi) participation of workers in management of organisations engaged in any industry; and(vii) promotion and improvement of environment and safeguarding of forests and wild life.(d) Provisions relating to be International Peace and Security :

To promote international peace and security ;

and to maintain just and honourable relations between nations;

to foster respect for international law and treaty obligations;

to encourage settlement of disputes by arbitration. WHAT IS SUPERIOR – FUNDAMENTAL RIGHTS OR DIRECTIVE PRINCIPLES?It is now universally recognised that the difference between the fundamental rights and the directive principles lies in this that the fundamental rights are primarily aimed at assuring political freedom to the citizens by protecting them against excessive State action while the directive principles are aimed at securing social and economic freedom by appropriate action.The fundamental rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be enforced by resort to courts, so they are made justiciable.However, notwithstanding their great importance the directive principles cannot in their nature of things be enforced in a court of law. It is unimaginable that any court can compel a legislature to make a law. If the court can compel Parliament to make laws then parliamentary democracy would soon be reduced to a oligarchy of judges.DPSPs explained State to secure a social order for the promotion of welfare of the people: The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.Certain principles of policy to be followed by the State: The State shall, in particular, direct itspolicy towards securing –(a) that the citizens, men and women equally, have the right to an adequate means of livelihood.(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;(d) that there is equal pay for equal work for both men and women;(e) that the health and strength of workers, me and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength;(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.This article specifically requires the State to ensure for its people adequate means of livelihood, fair distribution of wealth, equal pay for equal work and protection of children and labour. Article 39 (b) and (c) together with other provisions of the Constitution contain the main objectives, namely, the building of a welfare society and an equalitarian social order in the Indian Union. When the Constitution-makers envisaged development in social , economic and political fields, they did not desire that it should be a society where a citizen will have the dignity of the individual.Equal justice and free legal aid: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in another way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.Organisation of village panchayats: The State shall take steps to organise village panchayats and down them with such powers and authority as may be necessary to enable them to function as units of self-government.

Under this article, the State is expected to take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.

But, this directive is to be read with the directive contained in Article 50 which lays down the principle of separation of the executive from the judiciary. The organization of village panchayats must be carried out in practice consistently with Article 50 so as to maintain the fundamental principle of the rule of law.

Power of the people, which is the soul of a republic, stands subverted if decentralization and devolution desiderated in Article 40 is ignored by the executivein action even after holding elections to the floor-level of administrative bodies.

Right to work, to education and to public assistance in certain cases: The State shall, within the limits of its economic capacity and son that the Constitution says that the directive principles shall not be enforceable by courts.

However, it does not mean that the directive principles are less important than the fundamental rights for the simple reason that they are not judicially enforceable.

Article 37 of the Constitution emphatically states that directive principles are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making principles in interpreting the Constitution and the laws.

The directive principles thus be interpreted in he light of the directive principles and the latter should the Constitution must be ever present in the minds of the judges when interpreting statues which concern themselves directly or indirectly with matters set out in the directive principles.

In Bandhaua Mukti Morcha Union of India52, the Court has also held that thought he directive principles are unenforceable by the courts and the courts cannot direct the legislature or executive to enforce them, the State to enforce the law, particularly when non-enforcement of law leads to denial of a fundamental right.

development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.The State is directed by this article to ensure to the people within the limits of its economic capacity and development:(i) employment, (ii) education, and (iii) public assistance in cases of unemployment,old age, sickness and disablement and in other cases of undeserved want.Provision for just and humane conditions of work and maternity relief: The State shall make provision for securing just and humane conditions of work and for maternity relief.

These directives, like those contained in Article 38, relate to economic rights. Living wage etc. for workers – The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular State shall endeavor to promote cottage industries on an or co-operative basis in rural areas.

This article requires the State to strive to secure to the worker work, a living age, conditions of work ensuring a decant standard of life and full enjoyment leisure and social and cultural opportunities. The last portion of the article lays emphasis on the promotion of cottage industries on an ‘individual or co-oprative basis in rural areas’.

Article 43 read with Article 38 requires the State to provide work but not necessarily a job in State civil service or a security against the termination of such service for good cause.Important cases related to fixation of minimum wages of labourers are – Bijay Cotton Mills Ltd. v. State of Ajmer Standard Vaccum Refining Co. of India v.Workmen Participation of workers in management of industries: The state shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishment or other organisations engaged in any industry. In upholding the right of workers to be heard in the winding up proceedings of a company, the court drew support from this article.Uniform civil code for the citizens: The State shall endeavour to secure for the citizens a uniform civil code throughout territory of India. This article requires on the State to take steps for establishing a uniform civil code throughout the territory of India.

Two objections were put forward in the Constituent Assembly against the making of a uniform civil code applying throughout India: firstly, it would infringe the fundamental right to freedom of religion mentioned in

Article 25 and secondly, it would be a tyranny to the minority. The first objection is misconceived. The directive contained in Article 44 in no way infringes the freedom of religion guaranteed by Article 25.

Clause (2) of that article specifically saves secular activities associated with religious practices from the guarantee of religious freedom contained in clause (1) of Article 25.

Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections: The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.In States of Madras v. Champakam Dorairajan’, the Supreme Court refused to let the Fundamental Right declared in Article 29(2) to be whittled down by this article. The Court asserted the supremacy of the fundamental rights over the Directive Principles of State Policy.Duty of the State to raise the level of nutrition and the standard of living and to improve public health: The State shall regard the raising of the level of nutrition and the standard of living of its people and improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prolongation of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. No one has a legal right to sell liquor. From the earliest times it has been found exdpedient to control the use and traffic in liquor, and this control embraces both regulatory and prohibitory measures.This doctrine has been recognised by the Directive Principles of State Policy in this article.Organisation of agriculture and animal husbandary: The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.The protection recommended by this part of the directive is confined only to cows and calves and to those animals which are presently or potentially capable of yielding milk or of doing work as draught cattle, but does, not from the very nature of the purpose for which it is obviously recommended, extend to cattle, such thought at one time were milch or draught cattle have ceased to be such.Protection and improvement of environment and safeguarding of forests and wild life:The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. The Environment (Protection Act, 1986 and the Wild Life (Protection) Act, 1972 as amended in 1986 are among the steps taken under this article.Protection of monuments and places and objects of national importance: It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, (declared by or under law made by Parliament) to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.Separation of judiciary from executive:The State shall take steps to separate the judiciary from the executive in the public services of the State. The Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts of the branches have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State of functions that essentially belong to another. Broadly stated, Article 45 provides that there shall be a separate judicial service free from executive control.Promotion of international peace and security:The State shall endeavour to(a) promote international peace and security.;(b) maintain just and honourable relations between nations;(c) foster respect for international law and treat obligations in the dealings of organized peoples with one another; and(d) encourage settlement of international disputes by arbitration

Fundamental Rights vs. Directive Principles of State PolicyIt should be remembered that the Preamble, the Fundamental Rights and the Directive Principles are all integral parts of the same constitutional edifice.They are all equally important and have to be read with each other. The emphasis in the entire scheme of the Constitution under the headings of the Preamble, the Fundamental Rights and the Directive Principles is on building an egalitarian society and on the concept of socio-economic justice.Inasmuch as the Directive Principles, though declared to be fundamental as guiding principles for making and administering laws, were not made enforceable in courts of law, they represented subtle compromise between what the framers, as the leaders of the freedom struggle, looked upon as the ideal or the goal and what, as realists, they found to be immediately feasible.The Fundamental Rights and the Directive Principles together constituted the soul of the Constitution.It is now clearly understood that there is no essential dichotomy between Rights and Duties or between the Fundamentally Rights and the Directive in Other Parts of Indian Constitution (Not in Part IV)The following Directives are also non-justiciable:Art. 350 A: Enjoins every State and every local authority within the State to provide adequate facilities for instruction in the mother tongue at primary stage to children of linguistic minorities.Art 351 A: Enjoins the Union to promote the spread of Hindi language so that if may serve as a medium of expression of all the elements of the composite culture of India.Art 355 A: Claims of Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with affairs of Union or of a State. Directive Principles. They complement and supplement each other (Kesavananda Bharti v. State of Kerala, AIR 1973 SC 146). If the Fundamental Rights represent the don’ts for the Government and the legislature, the Directive Principles represent the do’s.There is no conflict. Again, while speaking on the constitution Fourth Amendment in the Lok Sabha, Nehru declared that the responsibility for the economic and social welfare policies of the nation should lie with Parliament and not with the courts. In so far as the decisions of courts had shown that there was some inherent contradiction betwee the Fundamental Rights and the Directive Principles, it was for Parliament to remove the contradiction and “make Fundamental Rights subserve the Directive Principles of State Policy.” A distinction is sometimes sought to be made between what may be called ‘positive rights’ and ‘negative rights’.Broadly speaking, while Part III deals with areas of individual freedom and the extent to which the State can restrain it, Part IV deals with positive duties cast upon the State to attain the ideal of social and economic justice. Even among the fundamental rights, however, there are some positive injunctions which seek to protect the interests of the society and the rights of the poor citizens from encroachment by entrenched sections.Thus, article 17 abolished untouchability and makes its practice in any form an offence punishable by law. Article 15 inter alia provides that no citizen shall be discriminated against in the use of public places like shops, wells, roads, eating houses etc. on account of his religion, race, caste, sex or place of birth. Article 23 prohibits another great social evil, that of forced labour.The whole effort has been to ensure that the fundamental rights of the citizens do not degenerate into the liberties of the few against the interests of the many.

LECTURE#6 (Fundamental duties & Basic Structure of Constitution)

The fundamental duties which were added by the Forty-second Amendment of the Constitution in 1976, in addition to creating and promoting a culture, also strengthen the hands of the legislature in enforcing these duties visa- vis the fundamental rights.

Even though Part IV A, laying down certain duties of the Indian citizens, is one of the most valuable parts of the Constitution.

It is also the most neglected. While the Fundamental Rights provisions covered the rights of the individual and the Directive Principles the duties of the State, there wereuntil 1976 no provisions in our Constitution laying down the duties of the individual. For every right, there is a corresponding duty.

Duty is an inalienable part of right; the two represent the two sides of the same coin. What is duty for one is another’s right and vice versa. If all men have a right to life, a duty is also cast upon all men to respect human life and not to injure another person.

Ten Fundamental Duties were incorporated in the Constitution under Art. 51 A through the 42nd Amendment in 1976 on the recommendation of Swaran Singh Committee. Eleventh duty was added by 86th Amendment in 2002. Theseconsist of:

1. abiding by the Constitution and national flag respectively;

to cherish and follow noble ideas of our freedom struggle;

to maintain integrity;

to render national service when called upon to do so;

to promote common brotherhood and harmony;

to preserve the rich heritage of our composite culture;

to protect and improve our environment;to develop scientific temper and humanism;

to abjure violence and;

to strive towards excellence in all spheres of life.

to provide opportunities for education to child/ward aged 6-14 years.

The fundamental duties are not justiciable like Fundamental Rights. However, a person is liable to punishment if he deliberately violates them.

Like the duties of the State under the Directive Principles, the duties of citizens alsocannot be enforced by courts.

There is no provision in the Constitution for ensuring their compliance or for punishing their violation.

But the courts can certainly take them into consideration while construing a law amenable to more than one interpretation.

Article 51 A (g) regarding protection of environment has particularly come up before the courts. In the ultimate analysis, the only way to bring about adherence to fundamental duties is through public opinion and education in citizenship values and duties, and building adequate awareness and a congenial climate wherein every citizen feels proud and bound to perform his constitutional duties to the nation and pay his debt to society.

BASIC STRUCTURE OF CONSTITUTION

The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights.

The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts (constituent laws).

Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.

But in the Golak Nath case (1967), the Supreme Court reversed its earlier stand. In that case, the constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth Schedule, was challenged.

The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights.

A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of the Fundamental Rights.

The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case(1967) by enacting the 24th Amendment Act (1971). This Act amended Articles 13 and 368.

It declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and such an act will not be a law under the meaning of Article 13.

However, in the Kesavananda Bharati case (1973), the Supreme Court overruled its judgement in the Golak Nath case (1967).

It upheld the validity of the 24th Amendment Act (1971) and stated that Parliament is empowered to abridge or take away any of the Fundamental Rights. At the same time, it laid down a new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution. It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution. This means that the Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.

Again, the Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976). This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.

The Supreme Court in the Minerva Mills case (1980) invalidated this provision as it excluded judicial review which is a ‘basic feature’ of the Constitution.

Again in the Waman Rao case (1981), the Supreme Court adhered to the doctrine of the ‘basic structure’ and further clarified that it would apply to constitutional amendments enacted after April 24, 1973 (i.e., the date of the judgement in the Kesavananda Bharati case).

ELEMENTS OF THE BASIC STRUCTUREThe present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution. ‘ Basic features’ of the Constitution or elements / components / ingredients of the ‘basic structure’ of the constitution:

Supremacy of the Constitution

Sovereign, democratic and republican nature of the Indian polity

Secular character of the Constitution

Separation of powers between the legislature, the executive and the judiciary

Federal character of the Constitution

Unity and integrity of the nation

Welfare state (socio-economic justice)

Judicial reviewFreedom and dignity of the individual

Parliamentary system

Rule of law

Harmony and balance between Fundamental Rights and Directive Principles

13. Principle of equality

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