THE INDIAN CONSTITUTION
THE PREAMBLE
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC and to ensure 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
Abbreviations Used
1. CAA - Constitutional Amendment Act 2. SC - Supreme Court 3. HC - High Court
4. LS - Loksabha 5. RS - Rajyasabha 6. PM - Prime Minister
7. Art. - Article 8. AGI- Attorney General of India
9. CAG - Comptroller and Auditor-General of India
10. CEC - Chief Election Commissioner
11. SLA - State Legislative Assembly 12. UT - Union Territory
INTRODUCTION TO THE INDIAN CONSTITUTION
The Constitution of a country sets out the fundamental canons of governance to be followed in that country and also delineates the division of power, privileges and responsibilities among different organs of government. The Indian Constitution, prepared after hectic deliberations by the Constituent Assembly, is possibly the lengthiest document of its kind in the world and has far more detailed provisions than any other comparable document. The tradition of having written constitution started with the USA, which had adopted the first-ever written constitution in the world, after the end of the Civil War there in 1776. Much water has flown down the Ganges since. Still, England does not have a written constitution till date. The British judiciary and other parts of the polity work on the basis of conventions that have been evolved after centuries of collective experience.
The Indian Constitution is the outcome of the debate, deliberations and research of a sovereign Constituent Assembly. Various Subject Committees like the Committee on Fundamental Rights and the Union Constitution Committee had submitted their respective proposals and general discussion on all the proposals, a Drafting Committee chaired by Dr. BR Ambedkar was appointed. The Drafting Committee had the full authority to add, modify or delete any of the proposals submitted by the committees. The finalized draft of the Indian Constitution got the signature of the President of the Constituent Assembly, Dr. Rajendra Prasad on Nov 26th, 1949, which is referred to as the Date of Passing. Since the Constituent Assembly which finalized the Constitution was duly elected by means of indirect election by the people of India, the Constitution of India derives its authority from the people of India.
SOURCES OF INDIAN CONSTITUTION
The Indian Constitution has borrowed heavily from other constitutions of the world and can be called a "beautiful patchwork". India could not have afforded to experiment with something entirely new at a crucial juncture in its history. So the founding fathers of the Indian Constitution preferred to rely on the time-tested value of experience elsewhere and adopted those provisions which had proved to be successful and workable in other countries. Some of the prominent features which have been borrowed are as under.
Feature Source / Inspiration
1. Fundamental Rights USA
2. The Parliamentary System of Government UK
3. Directive Principles of State Policy Ireland (Eire)
4. Emergency Provisions Germany (Third Reich)
5. Amendment Procedure South Africa
6. Permeable To The Constitution of India France
7. Federal Model of Governance Canada
The Preamble is a part of the Constitution (and this has been confirmed by the SC also), it contains the basic philosophy of the whole Constitution. It can be used by the Courts to help them in interpretation of the Constitution in certain matters where the Constitution itself is silent.
POINTS TO PONDER
- Date of first sitting of the Constituent Assembly - Dec 9, 1946
- Date of Passing of the Constitution - Nov 26, 1949
- Date of Commencement of the Constitution - Jan. 26, 1950
- Chairman, Constituent Assembly - Dr. Rajender Prasad
- Chairman, Drafting Committee - Dr. BR Ambedkar
- Advisor, Constituent Assembly - BN Rao
- Chairman, first sitting - Sachidanand Sinha
THE FEDERAL SYSTEM
Article 1 of the Indian Constitution describes India as a "Union of States". The term "Union" implies that
I. the Indian federation is not the result of a voluntary agreement by the states themselves. As is well-known, after India’s independence, more than 550 states were integrated into the Union of India by the then Home Minister, Sardar Vallabh Bhai Patel. So their inclusion in India is purely involuntary.
II. the components of the Indian Union have no freedom to secede from it (unlike the erstwhile USSR or the present-day USA where such freedom was/is vested in the states).
The Indian federal system is unique in the sense that in spite of its being a federal set-up, it still does not have many features characteristic of a typical federal set-up (like the USA). In general, the Indian set-up has been mostly described as quasi-federal or semi-federal due to the fact that the balance of power tilts heavily in favour of the Centre i.e. the states enjoy comparatively lesser powers in most spheres as compared with the Centre. Some of the noteworthy points of difference, which illustrate the predominant role of the Centre Vs. States are as follows.
I. The States in India do not have any separate constitution of their own (except Jammu and Kashmir which has a separate constitution as per the special agreement signed at the time of its accession to India). They derive their authority from the same Constitution of India.
II. The States are dependent on the Centre for grants-in-aid and plan assistance to meet their development expenditures. The taxes collected by the States are not wholly appropriated by them, but they are distributed among the States as per the Finance Commission recommendations.
III. The States do not have any say in the matter of Constitutional amendments( except for a few instances where their consultation may be obtained by the President or in certain special matters where at least half of the States must ratify the legislation after being passed by the Parliament))
IV. The Centre can alter, modify or change the boundaries, area or name of any state.
V. There is no separate citizenship of a state (Single citizenship prevails in India whichever state a person is living in India) unlike the US where every state has a separate citizenship part from the Union Citizenship (Double Citizenship).
VI. The President may assume all executive and legislative powers of any state if he is satisfied that the government of a state cannot be carried out according constitutional provisions (Art. 356).
TERRITORY OF THE UNION
The territory of India comprises includes the entire geographical territory over which the sovereignty of India, for the time being, prevails. On the other hand, the Union of India includes only those component units, i.e., the states which share power with the Centre. The UTs are centrally administered areas governed by the President acting through an Administrator appointed by him. As on date, the territory of India consists of 26 states, 6 UTs and 1 National Capital Territory of Delhi (NCT- Delhi is neither a full state nor a UT).
The States Reorganization Act, 1956 reorganized the boundaries of different INDIAN States in order to meet local and linguistic demands. Interestingly, the Union Parliament can
1. form a new state 2. increase the area of any state
3. diminish the area of any state 4. alter the boundaries of any state
5. or alter the name of any state (Art. 4)
by passing a resolution in both Houses of Parliament. Making use of this provision, several landmark changes have been brought about in the political composition of the Indian territory, some of which are found in the table
ACT / LEGISLATION CHANGE
1. States Reorganization Act, 1956 Andhra, Kerala formed
2. Bombay Reorganization Act, 1960 Gujarat, Maharashtra born as new states
3. The Panjab Reorganisation Act, 1966 Panjab, Haryana and Chandigarh created
4. Mysore State Act, 1973 The name Mysore changed to Karnataka
5. State of Mizoram Act, 1986 Mizoram, earlier a UT, made a State
6. State ofArunachal Pradesh Act, 1986 Arunachal Pradesh elevated to statehood
7. Goa, Daman and Diu Reorg. Act, 1987 Goa made a state
8. UP Reorganization Act, 2000 Uttrakhand carved out
9 . MP Reorganization Act, 2000 Chhatisgarh created
10. Bihar Reorganization Act, 2000 Jharkhand created
FUNDAMENTAL RIGHTS AND FUNDAMENTAL DUTIES
The Constitution of India embodies a number of Fundamental Rights in Part III of the Constitution to act as limitations on the Executive (government) as well as legislative powers (law-making). Though the FRs are modelled on the US pattern, the Indian Constitution makes a compromise between the principles of Parliamentary Sovereignty and Judicial Supremacy. In the US, the American President enjoys the power to nullify any decision made by the Federal Court while in the UK, whatever the Parliament says, is law. The Indian Constitution is a via-media between these two extremes.
Herein follows a survey of some major Fundamental Rights granted under the Indian Constitution.
Art 14
: says that the State shall guarantee equality to all persons before law or the equal protection of the laws within the territory of India.
This provision debars the State from making any special privileges in favour of or any discrimination against any person in matters of application of any kind of law in India.
The only exceptions to this provision are that
1. The President/ Governor shall not be answerable to any Court for performing the duties and actions connected with his office.
2. No criminal proceedings can be started or continued against any sitting President/ Governor.
3. Only civil petitions (which claim compensation) can be filed against a sitting President or a Governor by means of a proper written notice to his office.
4. Foreign ambassadors and other Sovereigns enjoy these immunities.
Art 15
: says that
1. The State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them.
2. No citizen can be denied access to shops, public restaurants, hotels and places of public entertainment on any of the above grounds.
However, the State is authorized to make any special provisions for special sections the society keeping in view their social conditions. Exercising this power, the government has made certain special provisions for women in India. Examples include job reservations for SC/STs, criminal immunity for women in cases of adultery etc.
Art 16
: Provides for equality of opportunity in matters of public employment i.e. government service. And prohibits any discrimination in this matter on the grounds only of religion, race, caste, sex, descent, place of birth or any of them. This article does not prohibit any kind of reservation/preferential treatment for any class of citizens who happen to be underprivileged or depressed for instance SC/STs, OBCs etc.
Art 17
- Prohibits untouchability in any form in India. As on date, any person
1. refusing admission to any person to any hospital, dispensary or educational institution. or
2. preventing any person from worshipping or offering prayers in any place of worship or
3. insulting a member of the Scheduled Castes on grounds of untouchability or
4. justifying or preaching untouchability in any form is punishable under the Untouchability Act, 1955 (as amended and up-to-date)
Art 18
– Abolishes all titles which can be used as an addition to one’s name. However, this does not prevent the universities, the military or the government from conferring any honour on men of merit. In case of military or academic titles, the use of the title with the name of the person is allowed.
Art. 19
- The Six Freedoms – All citizens shall have the right to
- freedom of speech and expression
- to assembly peacefully and without arms
- to form associations or unions.
- to move freely throughout the territory of India.
- to reside or settle in any part of India
- to practice any profession, occupation or business.
Art 20
– prohibits
1. retrospective criminal legislation. The government cannot make any criminal law effective from a date in the past.
2. double punishment for the same offence.
Art 21
– guarantees personal liberty by providing that
No person can be deprived of his life or personal liberty except according to law
The amended article 21(A), enacted by the parliament recently, provides for free, compulsory elementary education to all children up to 14 years. The onus is on the government to ensure compulsory education and this right, which was a directive principle earlier, is now a justiciable fundamental right.
Art. 22
– contains safeguards against unreasonable arrest and detention by saying that
1. No such person, who is arrested, shall be detained in custody without being informed, as soon as possible, of the grounds for such arrest.
2. Such a person has a right to seek legal advice and consultation
3. The person concerned has to be produced in a Court of Law within 24 hours of arrest.
Art 23
– prohibits exploitation of human beings as bonded labour, begaar or similar forms of unpaid, involuntary service.
Art 24
- bans the employment of any child below 14 years in any factory, mine or any other dangerous employment
Art 25
– India is a secular state i.e. is impartial and neutral towards all religions. The policy of secularism is made clear by provisions like
1. There is no "state" religion in India as is there in Pakistan, Sri Lanka and many other countries.
2. Every person is guaranteed the right to adopt, observe and propagate any religion of his liking subject only to
public order, morality and health
3. no religious education can be provided in any educational institution financed wholly by the government.
Art 29
– says that the government will not impose upon a minority any culture other than the community’s own culture.
Art 30
– gives religious minorities the right to run their educational institutions in the manner they like and the government cannot discriminate against them in the matter of financial grants.
Art 32
– provides constitutional remedies for enforcement of fundamental rights granted in the Constitution.
It says that
The right to move the Supreme Court for the enforcement of any of the fundamental rights is guaranteed. Consequently any person who feels that any of his fundamental rights has been violated can file a suitable writ petition in the Supreme Court directly to seek justice in the matter. Such appeals, however, can be made to the High Courts also under Art. 226.
Five major types of writ petitions can be filed under this provision to secure the enforcement of fundamental rights:
1. Habeas Corpus: Literally, it means to produce the body of the person. This can be used in cases where a person has been arrested and detained without any lawful authority. In such cases, the Court can order the person to be realized if sufficient reasons do not exist for his arrest and detention.
2. Mandamus: Means a command and demands some activity on the part of the person to whom it is addressed. Briefly, it commands the person to perform some public or quasi-public legal duty which he has failed to perform.
3. Prohibition: The writ of prohibition is issued by the Supreme Court / High Court to a lower court forbidding it from continuing proceedings in excess of its powers in particular case or to arrogate a power which it does not enjoy under the law.
4. Certiorari: Means quashing the decision of a judicial tribunal so that its jurisdiction is properly used.
5. Quo Warranto: This proceeding lies in cases in which the Court enquires into the legality of a claim made by a party to a public office (the office must be created by a law or the Constitution).
The Fundamental Rights can be suspended only during an Emergency by a Presidential order, as will be discussed shortly.
FUNDAMENTAL DUTIES
The 42nd Amendment Act has introduced a set of 10 Fundamental Duties to be observed by all the citizens of India. Please note carefully that there is no constitutional provision for direct enforcement of these duties. The duties are
- To abide by the Constitution and respect the National Flag and the National Anthem.
- To cherish and follow the noble ideals which inspired our national struggle for freedom.
- To protect the sovereignty, unity and integrity of India.
- To defend the country
- To promote common brotherhood among the Indian people.
- To preserve the rich heritage of our composite culture
- To protect and improve the natural environment
- To develop scientific temper and the spirit of enquiry
- To safeguard public property
- To strive towards excellence in all spheres of individual and collective activity.