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CONSTITUTION
Introduction: - The Indian constitution is unique in its content and spirit. The salient features of the constitution are as follows:-
Lengthiest written Constitution Blend of Rigidity and Flexibility Federal system with unitary features Parliamentary form of Government Independent judiciary Single citizenship Emergency provision
Structure:- The Indian Constitution originally consisted of 395 Art, 22 parts, 8 Schedules. But after the Constitution 104th^ Amendment Act, 2003, the Indian Constitution Consists of 448 Art, 25 parts, 12 Schedules.
Preamble:- The preamble to the constitution is based on the “ objective resolution” drafted and moved by Pandit Nehru and adopted by constituent assembly. It runs as follows:-
“We THE PEOPLE OF INDIA, having solemnly resolved to constitute India in to a SOVERIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizen:-
JUSTICE, social, Economic, and Political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status^ and of opportunity; , FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation; In our Constituent Assembly, this 26th November, 1949 , do hereby adopt, enact and give to ourselves this constitution.”
Purpose of the Preamble:- The preamble to the constitution is a key to open the minds of the makers and shows the general purpose for which they made the several provisions in the constitution. Preamble serves the following purposes:-
- It discloses the source of the constitution.
- It lays down the date of the commencement of the constitution.
- It set out the rights and freedoms which the people of India wished to secure for themselves.
- It declares the nature of the government.
Q1:- Whether Preamble is the part of the constitution? Ans.:- In the case of Kesvanand Bharti vs. State of Kerala, the supreme has held that preamble is part of the constitution. Preamble is of extreme importance and the constitution should be read and interpreted in the light of grand and noble vision expressed in the preamble. However, two things should be noted:- The preamble is neither a source of power to legislature nor prohibition upon the powers of legislature. It is not justiciable i.e. not enforceable in courts of law.
Q2:- Whether preamble can be amended? Ans:- Supreme Court has held that preamble can be amended subject to the condition that no amendment is done to the ‘ Basic structure’ of the constitution. The Preamble has been amended only once by the 42nd^ Constitutional Amendment act, which has added three new words- Socialistic, Secular and Integrity- to the preamble.
Nature of Indian Constitution:- The Constitution is of two kinds:-
- Unitary :- In a Unitary Constitutions the powers of the Government are centralized in one Government v.z. the States or Provinces are Subordinates to the Centre.
- Federal :- In Federal Constitution, there is a division of Powers between the federal and the State Government and both are independent in their own spheres. The American Constitution is universally regarded as an example of the Federal Constitution.
Characteristics of a federal Constitution:-
- A Written Constitution :- For a federal Constitution it is Mandatory that there should be a written Constitution.
- Dual Government :- In case of federal constitution, there is system of dual government one at centre and another at state.
- Supremacy of Constitutions :- For a federal Constitution there should be supremacy of the Constitution. At the time of the exercise of power by three organs of the Govt. i.e. legislative, executive and Judiciary, all functions are Subordinated and Controlled by the Constitution.
- Distribution of Powers:- Federalism means the distribution of powers of the State among a Number of Co-ordinate bodies each originating in and controlled by the Constitution
- Rigidity: - Rigidity is one of the Basic essential of a federal Constitution. It highly depends on the Process of amendment.
- Independent Judiciary :- There should be an independent judiciary having authority on other organs. In a federal Constitution the courts (judiciary) has the final power to interpret the Constitution. Finally it should say that the judiciary is the Guardian of the Constitution. Conclusion : Finally if can be said that the Indian Constitution is neither Purely federal nor purely unitary but a Unique Combination of Both aspects.
Peculiar feature of Indian Constitution:- Mode of formation Position of the state Citizenship Residuary power The lengthiest Constitution in the world.
In the words of Dr.Jennings - “ Equality before the law” means that among equals the law should be equal and should be equally administered, that like should be treated alike.
Rule of law – The guarantee of „equality before the law‟ is an aspect of what Dicey Calls the “rule of law” in England. It means that no man is above the law and that every person, whatever be his rank or conditions, is subject to the jurisdiction of ordinary courts. “Dicey the Rule of Law has three distinct meaning “ (1) Supremacy of the law (2) Equality before the flaw (3) The Constitution is the result of the ordinary law of the land. (2) Equal Protection of the Laws – This concept is taken from American constitution. This has been interpreted to mean subjection to equal law, applying to all in the same circumstances. It only means that all persons similarly circumstance shall be treated alike both in the privileges conferred and liabilities imposed by the law equal law should be applied to all in the same situation and there should be no discrimination between one person and another. The words “any person” in Art 14 of the constitution denotes that the guarantee of the equal protection of laws is available to any person which includes any company or association or body of individuals. The protection of Art 14 extends to both citizens and non-citizens and to natural persons as well as legal persons. The equality before the law is guaranteed to all without regard to race, colour or nationality. Corporations being juristic persons are also entitled to the benefit of Art 14.
Test of Reasonable classification – While Art 14 forbids class legislation; it permits reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. But classification must not be arbitrary, artificial or evasive”. It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature, classification to be reasonable must fulfill the following two conditions –
- the classification must be founded on an “intelligible differentia” which distinguishes persons or things that are grouped together from others left out of the group.
- the differentia must have a rational relation to the object sought to be achieved by the Act. K.Thimmappa v. Chairman Central Board of Directors SBI and Ram Krishna Dalmia vs. J. Tandulkar
New Concept of Equality : Protection against arbitrariness:- In E.P.Royappa v. State of Tamil Nadu the new concept of equality in the following words – “Equality is a dynamic concept with many aspects and dimensions and it cannot be described, Cabined and confined” within traditional limits from a positivistic point of view, equality is antithesis to arbitrariness. In fact equality and arbitrariness are sworn enemies, one belong to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art.14. Exceptions to the equality before law - Art 361 of the Constitution permits the following exceptions to this rule – The President or the Governor of a State shall not be answerable to any court. No criminal proceeding whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office. No Civil Proceeding in which relief is claimed against the President or the Governor of a state shall be instituted during his term of office in any Court in respect of any act done or purporting to be done by him in his personal capacity.
^^^^^^^^^^^^^^^^^^^^^^ Prohibition of discrimination on certain grounds:- Art 15(1) provides that the state shall not discriminate against any citizen on grounds only of :- Religion Race Caste Sex Place of birth or Any of them Art 15 (2) provides that :- No citizen shall be on above grounds, 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. Exceptions:- Art 15 (3), (4) and (5) contains exceptions to the general principal laid down under Art 15 (1) and (2):- Nothing in this article shall prevent the State from making any special provision for women and children. Nothing in this article 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. Nothing in this article 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 institution. ^^^^^^^^^^^^^^^^^^^^^ Equality of opportunity in matters of public employment :-( Art-16) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen shall, on grounds only of:- o religion, o race, o caste, o sex, o descent, o place of birth, o residence, or o any of them. be ineligible for, or discriminated against in respect of, any employment or office under the State. Exceptions:-
f. Freedom of Profession, occupation, trade or business. These six freedom are however not absolute , and subject to reasonable restriction which are as follows:- i. Security of the State ii. Friendly relation with foreign states iii. Public order iv. Decency and Morality v. Contempt of Court vi. Defamation vii. Incitement to an offence viii. Sovereignty and Integrity of India Judicial pronouncement on Right to speech and expression:- Meaning:- 19(1) (a) Meaning of freedom of speech and expression The freedom of speech and expression, means the right to speak and to express one’s opinions by words of mouth. Writing, printing, pictures or in any other manner. It includes publication also, which includes inherent freedom of press. The liberty of circulation is vested in liberty of publication. Right to know :- the fundamental right principally Principal involved here is the people’s right to know. In Prabhu Datt Vs. Union of India – Supreme Court held that right to know news and information about the functioning of the Govt., is included in the freedom of Press. In Union of India Vs. Association for Democratic Reforms – Supreme Court held that people have right to know about the candidate before voting. Thus, the law preventing the Election Commission from asking for a candidate’s wealth, Assets, liabilities education and other such information is invalid. In Tata Press Ltd. Vs. M.T.N.L. the Supreme Court held that commercial speech (Advertisement) is a part of freedom of speech and expression U/A 19(1) (a). In Union of India V. Naveen Jindal , The Court held that “Flying National Flag” is fundamental Right U/A 19(1) (a) Freedom of Silence – Right not to speak, In Bijoy emmanual Vs. State of Kerala. Freedom of the Press - the freedom of press defined in the Indian Constitution U/A 19(1) (a) In Indian Express newspaper Vs. Union of India, the Court observed the expression “freedom of the Press” has not been used in Art 19. Pre-censorship Invalid – In Ramesh Thapper Vs. State of Madras.
Protection in respect of conviction for offences
Ex-post facto law:- 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.
Double jeopardy :- No person shall be prosecuted and punished for the same offence more than once. The protection under this clause is available only in proceedings before a court of law or a judicial tribunal. In other words, it is not available in proceedings before departmental or administrative authorities.
Self -Incrimination:- No person accused of any offence shall be compelled to be a witness against himself. It extends to both oral and documentary evidence. It extends to only criminal proceedings and not to civil proceedings. The benefit is available only when all the following conditions are satisfied:- Person must be accused of an offence There must be compulsion to be witness Such compulsion should result in his giving evidence against himself.
Right to Life & Personal Liberty “No person shall be deprived of his life or personal liberty except according to Procedure established by law.” In Maneka Gandhi v. Union of India. The Court has given the widest possible interpretation of Personal liberty. Thus Art 21 requires the following Conditions to be fulfilled before a Person is deprived of Personal liberty. There must me a valid law. The law must provide a Procedure. The Procedure must be (just, fair and Reasonable) ensuring Natural Justice. Right to life includes within its ambit the right to live with Human dignity. The S.C. held that the right to life defines not only physical existence but the “quality of life.” Judicial Pronouncement on right to Life & personal liberty: - Right to Travel abroad. (Satwant Singh v. Assistant Passport officer) Right to livelihood. (D.K.Yadav v. J.M.A Industries) Right to Shelter. (Chameli Singh v. State of U.P.) Right to Privacy. (R.Raja Gopal v. State of T.N.) In PUCL Vs. Union of India, the S.C. held that telephone tapping is a serious invasion of an individual’s right to Privacy which is part of the right to life and personal liberty. Right to Health & Medical Assistance. Right to die NOT A RIGHT TO LIFE Protection of Ecology and Environmental Pollution Right to education under Art. 21A Prisoner’s Right. The Court held that if the Prisoner died due to beating by Police Officer, his family is entitled to compensation. Right to free Legal Aid Right to speedy Trial Right Against Handcuffing Right against Delayed Execution.
The detention of person cannot exceed three months unless an advisory
board reports sufficient cause for extended detention.
The grounds of detention should be communicated to the detenue.
The detenue should be afforded an opportunity to make representation
against the detention order. ^^^^^^^^^^^^^^^^^^^ Right against exploitation Prohibition of traffic in human beings and forced labour:- Article 23
prohibits traffic in human beings and other similar forms of forced labour. This right is available to both citizens and non-citizens. It protects the individual not only against state but also against the private person. However, state may impose compulsory service for public purpose i.e military service or social service.
Prohibition of employment of children in factories etc.:- Article 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities. But it does not prohibit their employment in any harmless innocent work. ^^^^^^^^^^^^^^^^ Right to freedom of Religion
Freedom of conscience etc.:- Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propogate religion. The implications of these are as follows:- Freedom of conscience Right to profess Right to propogate Right to practice Article 25 covers not only religious belief but also religious practices. This right is available to all person citizen as well as noncitizen.
Freedom to manage religious affairs:- As per article 26, every religious
denomination or any of its section shall have the following right:- to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion. to own and acquire movable and immovable property; and to administer such property in accordance with law. Denomination:- Religious denomination should satisfy the following condition:- It should be body of individuals who have been system of beliefs which they regards as conductive to their spiritual well being. It should have common organisation; and It should be designated by a distinctive name. For example : - ‘Ramakrishna mission’ and ‘Anand Marg’ and Arvindo
Society is not the denomination.
Freedom from taxation for promotion of Religion:- Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. In other words, the state should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion. This provision prohibits only levy of tax and not a fees. This is because the purpose of fee is to control secular administration of religious institutions not to promote or maintain religion.
Freedom from attending religious instruction (RI):- Article 28 provides that no religious instruction shall be provided in any educational institution wholly maintained out of state funds. However, this provision shall not apply to an educational institution administered by the state but established under any endowment or trust requiring imparting of religious institution in such institution. Article 28 distinguishes between four types of educational institutions:- Institutions wholly maintained by the state- RI totally prohibited Institutions administered by the state but established under any endowment or trust-RI permitted Institutions recognised by the state- RI is permitted on voluntary basis Institutions receiving aid from the state- RI is permitted on voluntary basis. Cultural and Educational Rights Protection of interest of minority :- ( Article- 29):- 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. Further, 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.
Right of minorities to establish and administer educational institutions: -( 30):- 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, 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. 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.
Prohibition:- Literally means ‘to forbid’. It is issued by higher court to a lower court or tribunal to prevent the latter from exceeding the jurisdiction. Thus unlike, mandamus that directs activity, the prohibition directs inactivity. It is not issued against:- Administrative authorities Legislative authorities Private individuals. Certiorari:- In the literal sense, it means ‘to be certified’ or ‘ to be informed’. It is issued by higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or squash the order of the latter in a case. It is issued on the grounds of:- Excess of jurisdiction Lack of jurisdiction Error of law. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative. Certiorari can be issued against even the administrative authorities affecting the rights of individual as per the ruling of the supreme since 1991. Quo-Warranto:- In the literal sense, ‘it means by what authority or warrant’. It is issued by the court to enquire in to the legality of claim of a person to a public office. Directive Principles of State Policy Introduction:- The D.P.S.P. contained in Part IV of the Constitution set out aims and
objective to be taken up by the States in the governance of the country. This
feature of the Constitution is borrowed from the Constitution of Ireland. The idea of
a welfare State established by our constitution can only be achieved if the States try
to implement them with a high sense of moral duty. The main object in enacting
the directive principles appears is to set standard of achievement before the
legislature and the executive, the local and other authorities, by which their success or failure can be judge. The Constitution of India contains the following directive
principals:-
i. Directive for social order based on justice – Art 38(1) requires the State to try and promote the welfare of the people by securing a social order in which every one is assured social, economic and political justice. ii. Directives in the nature of non-justifiable right of every citizen – right to adequate means of livelihood Art 39 (a), right of both sexes to equal pay for equal work Art 39 (b) Right against economic exploitation. Art 39 (e) Equitable justice and free legal aid, Art 39 (A). iii. To organize village Panchayats as units of self-government (Art. 40) iv. Right of work within the economic capacity of the state. Art 41 v. The State shall make provision for securing just and humane conditions of work and for maternity relief. Art. 42.
vi. To develop cottage industries. (Art 43) vii. Participation of workers in management of industries, (Art 43A) viii. To secure a uniform civil code for the Citizen (Art 44). ix. The State shall endeavour to provide, free and compulsory education for all children until they complete the age of fourteen years. Art. 45 x. To promote with special care the educational and economic interests of the weaker section 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. xi. To prohibit consumption of liquors and intoxicating drug except for medical purposes. (Art 47). xii. To organize agriculture and animal husbandry on modern lines. xiii. Protection and improvement of environment and safeguarding of forests and wild life, (art 48A) xiv. To protect and maintain places of historic, and artistic interest. (Art 49). xv. To separate judiciary from executive (Art 50). xvi. The State shall endeavour to— a.promote international peace and security; b. maintain just and honourable relations between nations;
Relation between fundamental rights & D.P.S.P:-
D.P.S.P contained in Part IV of the Constitution. These are defined in Art 36 to 51 set out the aims and objectives to be taken up by the State in the Governance of the country. The D.P.S.P. is borrowed from the Constitution of Ireland. The D.P.S.P. are not justifiable. Fundamental Rights are contained in Part III of the Constitution. These are defined in Art 12 to 35. These rights are provided for to every person of India and it can be enforced by the Court. In Kesvanand Bharti v. State of Kerala, The Supreme Court held that the fundamental right & D.P.S.P. aim is the some goal of bringing about a social revolution and establishment of a welfare state and they can be interpreted and applied together. Fundamental duties 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 woman. f. To value and presence the rich heritage of our composite culture. g. To protect and improve the Natural, environment, Including forests, lakes, rivers and wild life, to have compassion for living creatures.
“The Majority judgement in the Atiabari Tea Co’s Case read with a majority judgement in the Automobile’s case lead to the following principles relating of Art.
- Art.301 assures freedom of inter-State as well as intra-State trade, Commerce and intercourse.
- Trade, Commerce and intercourse have the widest connotation and take in movement of goods and persons.
- The freedom is not only from laws enacted in the exercise of the powers conferred by the legislative entries relating to trade and commerce or production, supply and distribution of goods, but also to all laws including tax laws. only those laws whose direct and immediate effect to inhibit or restrict freedom of trade or commerce will come with the mischief of Art.301. Laws which are merely regulatory or which impose purely compensatory taxes, and hence intended to facilitate freedom of trade, are outside the scope Art. 301.
- Restrictions on Trade and Commerce – Art 301 is subject to the restrictions imposed under Art. 302 to 305. Parliament’s Power to regulate trade and commerce in the Public interest – Art 302 authorizes Parliament to impose such restrictions on the freedom of trade, commerce or inter course between one State and another or within any part of the territory of India as may be required in the public interest. State‟s power to regulate trade and commerce – Art 304 (a) empowers the State to impose any tax on goods imported from other State if similar goods in the State are subject to similar tax so as not to discriminate between goods so imported and goods manufactured or produced in the State. Saving of existing laws – Art 305 saves existing laws and laws providing for State monopolies in so far as the President may by order otherwise direct. In Saghir Ahmad v. State of U.P. The Supreme Court raised the question whether an Act providing for State monopoly in a particular trade or business conflicts with the freedom of trade and commerce, guaranteed by Art. 301, but left the question undecided. Art 19 was amended by the Constitution (first Amendment) Act in order to take out such State monopolies out of the purview of Art. 19 (1)(g). But no corresponding provision was added to Art 305. It appears from the judgement of the Supreme Court that in spite of such an amendment a law introducing such State monopoly might have to be justified before the courts as being “in the public interest” or as amounting to a “reasonable” under Art. (b) of the Constitution.
