Indian constitution module 1

Philosophy and framing

Definition According to Aristotle, “constitution is the way in which citizens,
who are component parts of the state, are arranged in relation to one another”.

Lord Bryce says, “Constitution is a set of established rules embodying and

enacting the practice of government”.

Herman finer observes, “Constitution is a system of fundamental political

institution. He also points out that it is an autobiography of a power relationship
in society. The units of power are individual, society, elections, parties,
parliament, executive and judiciary”.

In the words of Cooley, an American jurist, it is the fundamental law of the state,
containing the principles upon which the government is founded, regulating the
division of the sovereign powers, and directing to what persons each of these
powers is to be exercised”.

Elements From the above mentioned definitions one may observe a rare
unanimity among scholars regarding the nature and characteristics of
constitution. Perhaps, this understanding has risen out of enormous theory of
constitution and extensive practice of it over the past two hundred and more
years.

a) It determines the form of the state- democratic or totalitarian.

b) The power and function of the organs of government and their mutual
relations are described in it separation or fusion.
c) It provides the relation between the government and the people- basic
rights with protection of the judiciary.
d) It may be written or unwritten- in one or many documents.
e) The method of changing the constitution is provided in it.

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The constituent assembly of India
Every country of the world does have a constitution. Constitution is
fundamentally a body of rules and regulation, which serves as a basic frame work
under which people are governed in a country. The constitution is referred to as
the fundamental law of the land. Remarking on the importance of constitution a
political scientist has said, as there can’t be a man without his head, similarly no
state can exist without a constitution.

The constitution of India is the culmination of long historical struggle against the
British. The freedom struggle in its initial phase was oriented towards getting
legislative measures to address the grievances of the Indians. The need for having
our own constitution was felt in the later phases of freedom struggle.

The prominent members of the constituent assembly consisted of members from

all walks of life. Eminent lawyers dominated the assembly. Some of the members
were Jawaharlal Nehru, Maulana Azad, and Sardar Patel, Rajendar Prasad,
Ambedkar, Sarojini Naidu.

Preamble
Came into existence on 26th January 1950, subsequently changed in 1976 reads as
follows:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its
citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of
the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do
HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

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The enacting words "We, the people of India ...in our constituent assembly ...do
here by adopt, enact and give to ourselves this constitution", signifies the
democratic principle that power is ultimately vested in the hands of the people. It
also emphasizes that the constitution is made by and for the Indian people and
not given to them by any outside power (such as the British Parliament).

Sovereign:-The word sovereign means supreme or independent. India is internally

and externally sovereign - externally free from the control of any foreign power
and internally, it has a free government which is directly elected by the people
and makes laws that govern the people. She allies in peace and war. The Popular
sovereignty is also one of the basic structures of constitution of India. Hence,
Citizens of India also enjoys sovereign power to elect their representatives in
elections held for parliament, state legislature and local bodies as well.

Socialist:-The word socialist was added to the Preamble by the Forty-second

Amendment. It implies social and economic equality.

Social equality in this context means the absence of discrimination on the grounds
only of caste, color, creed, sex, religion, or language. Under social equality,
everyone has equal status and opportunities.

Economic equality in this context means that the government will endeavor to
make the distribution of wealth more equal and provide a decent standard of
living for all. This is in effect emphasized a commitment towards the formation of
a welfare state. India has adopted a socialistic and mixed economy and the
government has framed many laws to achieve the aim.

Secular:-The word secular was also inserted into the preamble by the Forty-
second Amendment. (1976) it implies equality of all religions and religious
tolerance. India therefore does not have an official state religion. Every person
has the right to preach, practice and propagate any religion they choose. The
government must not favor or discriminate against any religion. It must treat all
religions with equal respect. All citizens, irrespective of their religious beliefs are
equal in the eyes of law. No religious instruction is imparted in government or
government-aided schools. Nevertheless, general information about all
established world religions is imparted as part of the course in Sociology, without
giving any importance to any one religion or the others. The content presents the
basic/fundamental information with regards to the fundamental beliefs, social
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values and main practices and festivals of each established world religions. The
Supreme Court in S.R Bommai v. Union of India held that secularism was an
integral part of the basic structure of the constitution.

Democratic:-The first part of the preamble “We, the people of India” and, its last
part “give to ourselves this Constitution” clearly indicate the democratic spirit
involved even in the Constitution. India is a democracy. The people of India elect
their governments at all levels (Union, State and local) by a system of universal
adult suffrage; popularly known as "one man one vote". Every citizen of India,
who is 18 years of age and above and not otherwise debarred by law, is entitled
to vote. Every citizen enjoys this right without any discrimination on the basis of
caste, creed, color, sex, religion or education.

Republic:-As opposed to a monarchy, in which the head of state is appointed on

hereditary basis for a lifetime or until he abdicates from the throne, a democratic
republic is an entity in which the head of state is elected, directly or indirectly, for
a fixed tenure. The President of India is elected by an electoral college for a term
of five years. The post of the President of India is not hereditary. Every citizen of
India is eligible to become the President of the country.

Justice:-Indian society was ridden with social and economic inequalities. There are
enormous differences in terms of wealth and status. The caste system also divides
the people into upper and lower caste. Indian constitution seeks to remove such
inequalities and ensure social, economic, and political justice.

Liberty:-It is essential requirement of democratic and free society as it aims to

ensure all round development of the individual and ensure adequate rights to
people. Liberty implies absence of arbitrary restriction on individuals, as well as
creation of conditions in which individuals can freely develop their personality.

Equality:-It implies equal opportunity to all individuals. It has two dimensions

equality of status and opportunity. The status is ensured by abolition of
untouched ability and the titles and no discrimination based on caste sex or color.
Opportunity is secured by principle of rule of law and non discrimination in the
matters of public appointment.

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Fraternity:-Fraternity means a sense of common brotherhood of all Indians, all
Indians being one people. It is a principle that gives solidarity to social life. Since
different communities have different cultures there needs to be a sense of
brotherhood to maintain unity and integrity of the nation. The constitution also
aims to remove divisive practices like classism and communalism.

Fundamental right is a charter of rights contained in the Constitution of

India. It guarantees civil liberties such that all Indians can lead their lives in peace
and harmony as citizens of India. These include individual rights common to most
liberal democracies, such as equality before law, freedom of speech and
expression, freedom of association and peaceful assembly, freedom to practice
religion, and the right to constitutional remedies for the protection of civil rights
by means of writs such as habeas corpus. Violations of these rights result in
punishments as prescribed in the Indian Penal Code, subject to discretion of the
judiciary. The Fundamental Rights are defined as basic human freedoms which
every Indian citizen has the right to enjoy for a proper and harmonious
development of personality. These rights universally apply to all citizens,
irrespective of race, place of birth, religion, caste, creed, color or Gender. They
are enforceable by the courts, subject to certain restrictions. However, this does
not mean that they are absolute or that they are immune from amendment.

The six fundamental rights recognized by the constitution are:

 The right to equality

 The right to freedom
 The right to freedom from exploitation
 The right to freedom of religion
 Cultural and educational rights
 The right to constitutional remedies

1. Right to equality (article 14-18)

All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such

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discrimination. All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood. 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 access to shops, public restaurants, hotels
and places of public entertainment; or 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.

2. Right to freedom (article 19-22)

The right to freedom is one of the most important fundamental rights that have
been granted to us by the founders of Indian Constitution. This right allows every
citizen of India to be free from the ancient form of slavery. This fundamental right
is described in the constitution as:
All citizens shall have the right-

 To freedom of speech and expression;

 To assemble peaceably and without arms;
 To form associations or unions;
 To move freely throughout the territory of India;
 To reside and settle in any part of the territory of India;
 To practice any profession, or to carry on any occupation, trade or business.

3. Right against exploitation (article 23-24)

The right against exploitation allows Indian citizens to stand up against any kind of
exploitation that he/ she might be going through. This fundamental right is
described in the constitution as:

Article 23. Prohibition of traffic in human beings and forced labour - Traffic in
human beings and beggar and other similar forms of forced labour are prohibited
and any contravention of this provision shall be an offence punishable in
accordance with law.
Nothing in this article shall prevent the State from imposing compulsory service
for public purposes, and in imposing such service the State shall not make any
discrimination on grounds only of religion, race, caste or class or any of them.

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Article24. Prohibition of employment of children in factories, etc.- No child below
the age of fourteen years shall be employed to work in any factory or mine or
engaged in any other hazardous employment.

4. Right to freedom of religion

Freedom of religion is a principle that supports the freedom of an individual or

community, in public or private, to manifest religion or belief in teaching, practice,
worship, and observance; the concept is generally recognized also to include the
freedom to change religion or not to follow any religion. The freedom to leave or
discontinue membership in a religion or religious group —in religious terms called
"apostasy" —is also a fundamental part of religious freedom.

5. Cultural and educational rights(article29 - 30)

This right allows every citizen of India to have a cultural and education up to
where that person wants. This fundamental right is described in the constitution
as:
Any section of the citizens residing in the territory of India or any part there of
having a distinct language, script or culture of its own shall have the right to
conserve the same.
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.
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 any
educational institution established and administered by a minority, 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.
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.

6. Right to constitutional remedies(article32)

Right to constitutional remedies empowers the citizens to move a court of law in

case of any denial of the fundamental rights. The courts can issue various kinds of

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writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and
certiorari. When a national or state emergency is declared, this right is suspended
by the central government.

Habeas corpus: (Latin meaning "you are to have the body[1]") is a writ, or legal
action, through which a prisoner can be released from unlawful detention. A writ
of habeas corpus is a summons with the force of a court order, addressed to the
custodian (a prison official for example) demanding that a prisoner be taken
before the court, and that the custodian present proof of authority, allowing the
court to determine if the custodian has lawful authority to detain the person.

Mandamus:

Writ of mandamus is a court order which compels someone to execute a duty

which he or she is legally compelled to complete. This type of writ can also be
used to order a lower court to complete a duty which is assigned by law. The writ
of mandamus is rarely used, because it must be demonstrated that there is no
other remedy available and that someone is suffering an injustice as a result of
the failure to complete a legally required duty.

Prohibition: A writ of prohibition is a writ directing a subordinate to stop doing

something that they may not do, according to law, but are doing. The writ also
covers the parties involved in the case, ordering them to cease their activities.

Certiorari: this writ is an order commonly issued by a superior court to withdraw

a case of tribunal is acting without jurisdiction or in excess if it or in violation of
the principles of natural justice. By this writ the superior court prevents the lower
courts from exceeding their limit.

Quo warranto:

This writ prevents the illegal assumption of any public office or usurpation of any
public office till the matter is finally decided by the court if a person acts in an
office in which he is not entitled to act and injunction may be granted restring him
from further acting.

Article 32 is a remedial writ for the enforcement of the fundamental rights

guaranteed by the constitution and this right has also been made fundamental by
its incorporation in the part 3 of the constitution. Thus, the Supreme Court is
made the protector and guarantor of fundamental rights.

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Fundamental duties of citizens

A. To abide by the Constitution and respect its ideals and institutions, the
National Flag and the National Anthem.

B. To cherish and follow the noble ideals which inspired our national struggle
for freedom.

C. To uphold and protect the sovereignty, unity and integrity of India.

D. To defend the country and render national service when called upon to do
so.

E. To promote harmony and the spirit of common brotherhood amongst all

the people of India transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory to the dignity of
women.

F. To value and preserve the rich heritage of our composite culture.

G. To protect and improve the natural environment including forests, lakes,

rivers and wild life, and to have compassion for living creatures.

H. To develop the scientific temper, humanism and the spirit of inquiry and
reform.

I. To safeguard public property and to abjure violence.

J. To strive towards excellence in all spheres of individual and collective

activity so that the nation constantly rises to higher levels of endeavor and
achievement.

Directive principles of state policy

The directive principles of the state policy are included in part 4 of the
constitution ranging from article 36 to article 51. They constitute a very
comprehensive political, social, and economic program for a democratic state.

The principles are embodied in as many as 16 articles from article 36 to article

51. These can be classified into various categories namely

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 a) Socialist principles
b) Gandhian principles
c) Liberal principles
d) General principles

Socialist principle: - it is important for establishing a welfare state.

 Article 38: To secure and protect a social order which stands for the
welfare of the people.
 Article 39: The State will, in particular, direct its policy towards securing :
Adequate means of livelihood to all citizens
o A proper distribution of the material resources of the community for the
common good.
o Prevention of concentration of wealth to common detriment.
o Equal pay for equal work for both men and women.
o The protection of the strength and health of the workers and avoiding
circumstances that force citizens to enter avocations unsuited to their age or
strength.
o The protection of childhood and youth against exploitation or moral and
material abandonment.
 Article 41: To secure the right to work, education and public assistance in
cases of unemployment, old age, sickness, etc.
 5. Article 42: To secure just and humane conditions of work and maternity
relief.
 Article 43 : To secure work, a living wage, a decent standard of life, leisure
and social and cultural opportunities for people, and in particular to
promote cottage industries.
 Article 46: To promote with special care the educational and economic
interests of the weaker sections of the people, especially the Scheduled
Castes and Scheduled Tribes.
 Article 47: To secure the improvement of public health and the prohibition
of intoxicating drinks and drugs.

Gandhian principle:-

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 Article 40: State shall organize village panchayats as unit of self-
government.

 Article 43: State shall try to promote cottage industries.

 Article 46: State shall promote with special care the educational and
economic interests at the weaker sections of the peoples: SC and ST.

 Article 45: State shall provide compulsory primary education for the
children up to 14 years.

 Article 47: State shall try to secure the improvement of public health and the
prohibition of intoxicating drinks and drugs.

 Article 48: State shall preserve and improve the breeds and prohibit the
slaughter of cows, calves and other cows and drought cattle.

Liberal principle:-

 Article 44: to secure a uniform civil code throughout the territory of India.

 Article 45: Free compulsory and primary education for the children up to 14
years.

 Article 50: to work towards separating the judiciary from the executive.

 Article 51: to promote international peace and amity, maintain honorable

relations between nations, foster respect for international law and treaty
obligation.

General principle:-

 Article 49: to-protect and maintain places of - historic or rustic interests.

 Article 335 says The claims of the members of the 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 the affairs of the
Union or of a State

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 Article 350 - on Language to be used in representations for redress of
grievances.
 Article 350A - on Facilities for instruction in mother-tongue at primary
stage.
 Article 350B - on provision for Special Officer for linguistic minorities.
 Article 351 - on Directive for development of the Hindi language.

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