Constitution

Constitution is the fundamental law of a country which ordains the fundamental principles on which the government (or the governance) of that country is based. It lays down the framework and principal functions of various organs of the government as well as the modalities of interaction between the government and its citizens. With the exception Of United Kingdom (U.K.), almost all democratic countries possess a written constitution. India also possesses an elaborate written constitution which was enacted by a constituent assembly specifically set up for the purpose. Our Constitution was adopted by the Constituent Assembly on 26 January, 1949. It came into full operation with effect from 26 January, 1950. The Constitution as originally adopted had 22 parts, 395 articles and 8 schedules. Its present text is as amended from time to time.

?     Preamble : “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, economical and political; Liberty, of thought, expression, belief, faith and worship; Equality of status and of opportunity; And to promote among all Fraternity assuring the dignity of 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 ourselves this constitution” ?     42nd amendment:  “Socialist Secular and integrity” was added to preamble. ?     Drafting Committee was appointed on 1947, August 29. First draft published on 1949, February. Members : BR Ambedkar(Chairman), N Gopalaswamy Ayyangar, Alladi Krishnaswamy Ayyar, KM Munshi, Sayed M Saadullah, N Madhav Rao(replaced BL Mitra), TT Krishnamachari (replaced DP Khaitan)

 

Evolution of Indian Constitution

Although the systems of ancient India do have their reflections in the Constitutions of India, the direct sources of the Constitution lie in the administrative and legislative developments of the British period.

 

Regulating Act of 1773

• This Act was based on the report of a committee headed by the British Prime Minister Lord North.
• Governance of the East India Company was put under the British Parliamentary control.
• The Governor of Bengal was nominated as Governor General for all the three Presidencies of Calcutta Bombay and Madras. Warren Hastings was the first such Governor General.
• A Supreme Court was established in Calcutta (now Kolkata)
• Governor General was empowered to make laws, regulations and ordinances with the consent of the Supreme Court.

 

Pitts India Act of 1784

• It was enacted to improve upon the provisions of Regulating Act of 1773 to bring about better discipline in the Company’s system of administration.
• A 6 member Board of Coordinators was set up which was headed by a minister of the British Government. All political responsibilities were given to this board.
• Trade and commerce related issues were under the purview of the Court of the Directors of the company.
• Provinces had to follow the instructions of the Central Government and Governor General was empowered to dismiss the failing provincial government.

 

Charter Act of 1793

• Main provisions of the previous Acts were consolidated in this Act.
• Provided for the payment of salaries of the members of the Board of Controllers from Indian revenue.
• Courts were given the power to interpret rules and regulations

 

Charter Act of 1813

• Trade monopoly of the East India Company came to an end.
• Powers of the three Councils of Madras, Bombay and Calcutta were enlarged; they were also subjected to greater control of the British Parliament.
• The Christian Missionaries were allowed to spread their religion in India.
• Local autonomous bodies were empowered to levy taxes.

 

Charter Act of 1833

• The Governor General and his Council were given vast powers. This Council could legislate for the whole of India subject to the approval of the Board of Controllers.
• The Council got full powers regarding revenue, and a single budget for the country was prepared by the Governor General.
• The East India Company was reduced to an administrative and political entity and several Lords and Ministers were nominated as ex-officio members of the Board of Controllers.
• For the first time the Governor-General’s Government was known as the ‘Government of India’ and his Council as the ‘Indian Council’.

 

Charter Act of 1853

• This was the last of the Charter Acts and it made important changes in the system of Indian legislation.
• This Act followed a report of then Governor General Dalhousie for improving the administration of the company.
• A separate Governor for Bengal was to be appointed.
• Legislative and administrative functions of the Council were separately identified.
• Recruitment of the Company’s employees was to be done through competitive exams.
• British Parliament was empowered to put Company’s governance of India to an end at any suitable time.

 

Government of India Act, 1858

• British Crown decided to assume sovereignty over India from the East India Company in an apparent consequence of the Revolt of 1857, described as an armed sepoy mutiny by the British historians and remembered as the First War of Independence by the Indians.
• The first statute for the governance of India, under the direct rule of the British Government, was the Government of India Act, 1858.
• It Provide for absolute (British) imperial control over India without any popular participation in the administration of the country.
• The powers of the crown were to be exercised by the Secretary of State for India, assisted by a council of fifteen members, known as the Council of India.
• The country was divided into provinces headed by a Governor or Lieutenant-Governor aided by his Executive Council.
• The Provincial Governments had to function under the superintendence, direction and control of the Governor- General in all matters.
• All authority for the governance of India was vested in the Governor- General in Council who was responsible to the Secretary of State.
• The Secretary of State was ultimately responsible to the British Parliament.

 

Indian Councils Act, 1861

• This is an important landmark in the constitutional history of India. By this Act, the powers of the Crown were to be exercised by the Secretary of State for India, assisted by a council of fifteen members (known as the Council of India). The Secretary of State, who was responsible to the British Parliament, governed India through the Governor General, assisted by an Executive council.
• This Act enabled the Governor General to associate representatives of the Indian people with the work of legislation by nominating them to his expanded council.
• This Act provided that the Governor General’s Executive Council should include certain additional non-official members also while transacting legislative business as a Legislative Council. But this Legislative Council was neither representative nor deliberative in any sense.
• It decentralized the legislative powers of the Governor General’s Council and vested them in the Governments of Bombay and Madras.

 

Indian Councils Act, 1892

• The non-official members of the Indian Legislative Council were to be nominated by the Bengal Chamber of Commerce and Provincial Legislatives Council while the non-official members of the Provincial Councils were to be nominated by certain local bodies such as universities, districts boards, municipalities, zamindars etc.
• The Councils were to have the power of discussing the Budget and addressing questions to the Executive.

 

Morley-Minto Reforms and the Indian Councils Act, 1909

• Reforms recommended by the then Secretary of States for India (Lord Morley) and the Viceroy (Lord Minto) were implemented by the Indian Councils Act, 1909.
• The maximum number of additional members of the Indian Legislative Council (Governor- General’s Council) was raised from 16 (under the Act of 1892) to 60 (excluding the Executive Councilors).
• The size of Provincial Legislative Councils was enlarged by including elected non-official members so that the official majority was gone.
• An element of election was introduced in the Legislative Council at the centre also but here the official majority was maintained.
• The Legislative Councils were empowered to move resolutions on the Budget, and on any matter of public interest except certain specified subjects such as the Armed forces, Foreign Affairs and the Indian States.
• It provided, for the first time, for separate representation of the Muslim community and thus sowed the seeds of separatism.

 

The Government of India Act, 1915

• This act was passed to consolidate the provisions of the preceding Government of India Acts.

 

Montague-Chelmsford Report and the Government of India Act, 1919

• The then Secretary of State for India Mr. E.S. Montague and the Governor General Lord Chelmsford formulated proposals for the Government of India Act, 1919.
• Responsible Government in the Provinces was to be introduced, without impairing the responsibility of the Governor (through Governor General), for the administration of the province, by resorting to device known as ‘Diarchy’ or dual government.
• The subjects of administration were to be divided into two categories Central and Provincial.
• Central subjects were those which were exclusively kept under the control of the Central Government.
• The provincial subjects were sub-divided into ‘transferred’ and ‘reserved’ subjects.
• The ‘transferred subjects’ were to be administered by the Governor with the aid of Ministers responsible to the Legislative Council in which the proportion of elected members was raised to 70 percent.
• The ‘ reserved subjects’ were to be administered by the Governor and his Executive Council with no responsibility to the Legislature.
• The previous Central control over the provinces in the administrative, legislative and financial matters was relaxed. Sources of revenue were divided into two categories so that the provinces could run the administration with the revenue raised y the provinces themselves.
• The provincial budget was separated from the central budget.
• The provincial legislature was empowered to present its own budget and levy its own taxes relating to the provincial sources of revenue.
• The Central Legislature, retained power to legislate for the whole country on any subject.
• The control of the Governor General over provincial legislature was retained by providing that a Provincial Bill, even though assented to by the Governor, would become law only when assented to also by the Governor General.
• The Governor was empowered to reserve a Bill for the consideration of the Governor General if it was related to some specified matters.
• The Governor General in Council continued to remain responsible to the British Parliament through the Secretary of State for India.
• The Indian Legislature was made more representative and, for the first time ‘bi-cameral.’
• The Upper House was named the Council of State. This composed of 60 members of whom 34 were elected.
• The Lower House was named the Legislative Assembly. This was composed of about 144 members of whom 104 were elected.
• The electorates were arranged on a communal and sectional basis, developing the Morley-Minto device further.
• The Governor General’s overriding powers in respect of Central legislation were retained as follows:
• His prior sanction was required to introduce Bills relating to certain matters;
• He had the power to veto or reserve for consideration of the Crown any Bill passed by the Indian Legislature;
• He had the converse power of certifying Bill or any grant refused by the Legislature;
• He could make Ordinances, in case of emergency.

 

Simon Commission

• This commission, headed by Sir John Simon, constituted in 1927 to inquire into the working of the Act of 1919, placed its report in 1930. The report was examined by the British Parliament and the Government of India Bill was drafted accordingly.

 

The Government of India Act, 1935

• The Act of 1935 prescribed a federation, taking the Provinces and the Indian States (native states) as units.
• It was optional for the Indian States to join the Federation, and since they never joined, the Federation never came into being.
• The Act divided legislative powers between the Centre and Provinces.
• The executive authority of a Province was also exercised by a Governor on the behalf of the Crown and not as a subordinate of the Governor General.
• The Governor was required to act with the advice of Ministers responsible to the legislature.
• In certain matters, the Governor was required to act ‘in his discretion’ without ministerial advice and under the control and directions of the Governor General, and, through him, of the Secretary of State.
• The executive authority of the Centre was vested in the Governor General (on behalf of the Crown).
• The councilors of Council of Ministers responsible to the Legislature were not appointed although such provisions existed in the Act of 1935.
• The Central Legislature was bi-cameral, comprising a Legislative Assembly and a Legislative Council. In other provinces, the Legislature was uni-cameral.
• Apart from the Governor General’s power of veto, a Bill passed by the Central Legislature was also subject to veto by the Crown.
• The Governor General could prevent discussion in the Legislature and suspend the proceedings on any Bill if he was satisfied that it would affect the discharge of his special responsibilities.
• The Governor General had independent powers of legislatures, concurrently with those of the Legislature.
• On some subjects no bill or amendment could be introduced in the Legislature without the Governor General’s previous sanction.
• A three-fold division in the Act of 1935 –There was Federal List over which the Federal Legislature had exclusive jurisdiction. There was a Concurrent List also over which both the Federal and the Provincial had competence.
• The Governor General was empowered to authorize either the Federal or the Provincial Legislature to enact a law with respect to any matter which was not enumerated in the above noted Legislative Lists.
• Dominion Status, which was promised by the Simon Commission in 1929, was not conferred by the Government of India Act, 1935.

 

Cripps Mission

• In March, 1942 Sir Stafford Cripps, a member of the British cabinet came with a draft declaration on the proposals of the British Government.
• These proposals were to be adopted at the end of the Second World War, provided Congress and the Muslim League could accept them.
• According to the proposals-
• The Constitution of India was to be framed by an elected Constituent Assembly by the Indian people.
• The Constitution should give India Dominion Status.
• There should be one Indian Union comprising all the Provinces and Indian States.
• Any Province (or Indian State) not accepting the Constitution would be free to retain its constitutional position existing at that time and with such non-acceding Province British Government could enter into separate Constitutional arrangements.

 

Cabinet Mission

• In March 1946, Lord Attlee sent a Cabinet Mission to India consisting of three Cabinet Ministers, namely Lord Pethick Lawrence, Sir Stafford Cripps and Mr. A.V. Alexander.
• The object of Cabinet Mission was to help India achieve its independence as early as possible, and to set up a Constitutional Assembly.
• The Cabinet Mission rejected the claim for a separate Constituent Assembly and a Separate for the Muslim.
• According to Cabinet Mission Plan there was to be a Union of India, comprising both British India and the States, having jurisdiction over the subjects of Foreign Affairs, Defence and Communication. All residuary powers were to be vested in the Provinces and the States.
• The Union was to have an Executive and a Legislature consisting of representatives of the Provinces and the States.
• Any decision involving a major communal issue in the legislature was to require a majority support of representatives of each of the two major communities present and voting.
• The provinces could form groups with executives and legislatures, and each group could be competent to determine the provincial subjects.

 

The Mountbatten Plan

• The plan for transfer of power to the Indians and partition of the country was laid down in the Mountbatten Plan.
• It was given a formal shape by a statement made by the British Government on 3rd June, 1947.

 

The Indian Independence Act, 1947 of the British Parliament

• In pursuance of this Act, the Government of India Act, 1935 was amended by the Adaptation Orders, both in India and Pakistan, for setting up an interim Constituent Assembly to draw up future Constitution of the country.
• From the 15th August 1947 India ceased to be a Dependency, and the suzerainty of the British Crown over the Indian States and the treaty relations with Tribal Areas lapsed from that date.
• The office of the Secretary of State for India was abolished.
• The Governor General and the Governors lost extraordinary powers of legislations to compete with the legislature.
• The Central Legislature Of India, composed of the Legislative Assembly and the Council of States, ceased to exist on August 14, 1947.
• The Constituent Assembly itself was to function as the Central Legislature with complete sovereignty.

 

---

 

 

Amendments to the Constitution are made by the Parliament, the procedure for which is laid out in Article 368. An amendment bill must be passed by both the Houses of the Parliament by a tw

o-thirds majority and voting. In addition to this, certain amendments which pertain to the federal nature of the Constitution must be ratified by a majority of state legislatures. As of June 2013 there have been 118 amendment bills presented in the Parliament, out of which 98 have been passed to become Amendment Acts.

 

Amendments of constitution                 

 

1. 1951 To fully secure the constitutional validity of zamindari abolition laws and to place reasonable restriction on freedom of speech. A new constitutional device, called Schedule 9 introduced to protect laws that are contrary to the Constitutionally guaranteed fundamental rights. These laws encroach upon property rights, freedom of speech and equality before law.
2. 1953 A technical amendment to fix the size of each parliamentary constituency between 650,000 and 850,000 voters.
3. 1955 LS limit of 500 members, one member of a constituency represents between 500000 and 750000 people.
4. 1955 Restrictions on property rights and inclusion of related bills in Schedule 9 of the constitution.
5. 1955 Provides for a consultation mechanism with concerned states in matters relating to the amendments to the territorial matters and in the re-naming of the state.
6. 1956 Amend the Union and State Lists with respect to raising of taxes.
7. 1956 Reorganization of states on linguistic lines, abolition of Class A, B, C, D states and introduction of Union Territories.
8. 1960 Clarify state’s power of compulsory acquisition and requisitioning of private property and include Zamindari abolition laws in Schedule 9 of the constitution.
9. 1960 Minor adjustments to territory of Indian Union consequent to agreement with Pakistan for settlement of disputes by demarcation of border villages, etc.
10. 1961 Incorporation of Dadra, Nagar and Haveli as a Union Territory, consequent to acquisition from Portugal.
11. 1961 Election of Vice President by Electoral College consisting of members of both Houses of Parliament, instead of election by a Joint Sitting of Parliament.

Indemnify the President and Vice President Election procedure from challenge on grounds of existence of any vacancies in the electoral college.

12. 1961 Incorporation of Goa, Daman and Diu as a Union Territory, consequent to acquisition from Portugal.
13. 1963 Formation of State of Nagaland, with special protection under Article 371A.
14. 1962 Incorporation of Pondicherry into the Union of India and creation of Legislative Assemblies for Himachal Pradesh, Tripura, Manipur and Goa.
15. 1963 Raise retirement age of judges from 60 to 62 and other minor amendments for rationalizing interpretation of rules regarding judges etc.,
16. 1963 Make it obligatory for seekers of public office to swear their allegiance to the Indian Republic and prescribe the various obligatory templates.
17. 1964 To secure the constitutional validity of acquisition of Estates and place land acquisition laws in Schedule 9 of the constitution
18. 1966 Technical Amendment to include Union Territories in Article 3 and hence permit reorganisation of Union Territories.
19. 1966 Abolish Election Tribunals and enable trial of election petitions by regular High Courts.
20. 1966 Indemnify & validate judgments, decrees, orders and sentences passed by judges and to validate the appointment, posting, promotion and transfer of judges barring a few who were not eligible for appointment under article 233. Amendment needed to overcome the effect of judgement invalidating appointments of certain judges in the state of Uttar Pradesh.
21. 1967 Include Sindhi as an Official Language.
22. 1969

Provision to form Autonomous states within the State of Assam.

 

23. 1970 Extend reservation for SC / ST and nomination of Anglo Indian members in Parliament and State Assemblies for another ten years i.e. up to 1980.
24. 1971 Enable parliament to dilute fundamental rights through amendments to the constitution.
25. 1972 Restrict property rights and compensation in case the state takes over private property.
26. 1971 Abolition of privy purse paid to former rulers of princely states which were incorporated into the Indian Republic.
27. 1972 Reorganization of Mizoram into a Union Territory with a legislature and council of ministers.
28. 1972 Rationalize Civil Service rules to make it uniform across those appointed prior to Independence and post independence.
29. 1972 Place land reform acts and amendments to these act under Schedule 9 of the constitution.
30. 1973 Change the basis for appeals in Supreme Court of India in case of Civil Suits from value criteria to one involving substantial question of law.
31. 1973 Increase size of Parliament from 525 to 545 seats. Increased seats going to the new states formed in North East India and minor adjustment consequent to 1971 Delimitation exercise.
32. 1974 Protection of regional rights in Telengana and Andhra regions of State of Andhra Pradesh.
33. 1974 Prescribes procedure for resignation by members of parliament and state legislatures and the procedure for verification and acceptance of resignation by house speaker.
34. 1974 Place land reform acts and amendments to these act under Schedule 9 of the constitution.
35. 1975 Terms and Conditions for the Incorporation of Sikkim into the Union of India.
36. 1975 Formation of Sikkim as a State within the Indian Union.
37. 1975 Formation of Arunachal Pradesh legislative assembly.
38. 1975 Enhances the powers of President and Governors to pass ordinances
39. 1975 Amendment designed to negate the judgement of Allahabad High Court invalidating Prime Minister Indira Gandhi’s election to parliament. Amendment placed restrictions on judicial scrutiny of post of President, vice-president and Prime Minister.
40. 1976 Enable Parliament to make laws with respect to Exclusive Economic Zone and vest the mineral wealth with Union of India

Place land reform & other acts and amendments to these act under Schedule 9 of the constitution.

 

41. 1976 Raise Retirement Age Limit of Chairmen and Members of Union and State Public Commissions from 60 to 62.
42. 1977 Amendment passed during internal emergency by Indira Gandhi. Provides for curtailment of fundamental rights, imposes fundamental duties and changes to the basic structure of the constitution by making India a “Socialist Secular” Republic.
43. 1978 Amendment passed after revocation of internal emergency in the Country. Repeals some of the more ‘Anti-Freedom’ amendments enacted through Amendment Bill 42.
44. 1979 Amendment passed after revocation of internal emergency in the Country. Provides for human rights safeguards and mechanisms to prevent abuse of executive and legislative authority. Annuls some Amendments enacted in Amendment Bill 42.
45. 1980 Extend reservation for SC / ST and nomination of Anglo Indian members in Parliament and State Assemblies for another ten years i.e. up to 1990.
46. 1983 Amendment to negate judicial pronouncements on scope and applicability on Sales Tax.
47. 1984 Place land reform acts and amendments to these act under Schedule 9 of the constitution.
48. 1985 Article 356 amended to permit President’s rule up to two years in the state of Punjab.
49. 1984 Recognize Tripura as a Tribal State and enable the creation of a Tripura Tribal Areas Autonomous District Council.
50. 1984 Technical Amendment to curtailment of Fundamental Rights as per Part III as prescribed in Article 33 to cover Security Personnel protecting property and communication infrastructure.
51. 1986 Provide reservation to Scheduled Tribes in Nagaland, Meghalaya, Mizoram and Arunachal Pradesh Legislative Assemblies.
52. 1985 Anti Defection Law – Provide disqualification of members from parliament and assembly in case of defection from one party to other.
53. 1987 Special provision with respect to the State of Mizoram.
54. 1986 Increase the salary of Chief Justice of India & other Judges and to provide for determining future increases without the need for constitutional amendment.
55. 1987 Special powers to Governor consequent to formation of state of Arunachal Pradesh.
56. 1987 Transition provision to enable formation of state of Goa.
57. 1987 Provide reservation to Scheduled Tribes in Nagaland, Meghalaya, Mizoram and Arunachal Pradesh Legislative Assemblies.
58. 1987 Provision to publish authentic Hindi translation of constitution as on date and provision to publish authentic Hindi translation of future amendments.
59. 1988 Article 356 amended to permit President’s rule up to three years in the state of Punjab, Articles 352 and Article 359A amended to permit imposing emergency in state of Punjab or in specific districts of the state of Punjab.
60. 1988 Profession Tax increased from a maximum of Rs. 250/- to a maximum of Rs. 2500/-.
61. 1989 Reduce age for voting rights from 21 to 18.
62. 1989 Extend reservation for SC / ST and nomination of Anglo Indian members in Parliament and State Assemblies for another ten years i.e. up to 2000.
63. 1990 Emergency powers applicable to State of Punjab, accorded in Article 359A as per amendment 59 repealed.
64. 1990 Article 356 amended to permit President’s rule up to three years and six months in the state of Punjab.
65. 1990 National Commission for Scheduled Castes and Scheduled Tribes formed and its stututory powers specifed in The Constitution.
66. 1990 Place land reform acts and amendments to these act under Schedule 9 of the constitution.
67. 1990 Article 356 amended to permit President’s rule up to four years in the state of Punjab.
68. 1991 Article 356 amended to permit President’s rule up to five years in the state of Punjab.
69. 1992 To provide for a legislative assembly and council of ministers for Federal National Capital of Delhi. Delhi continues to be a Union Territory.
70. 1991 Include National Capital of Delhi and Union Territory of Pondicherry in electoral college for Presidential Election.
71. 1992 Include Konkani, Manipuri and Nepali as Official Languages.
72. 1992 Provide reservation to Scheduled Tribes in Tripura State Legislative Assembly.
73. 1993 Statutory provisions for Panchyat Raj as third level of administration in villages.
74. 1993 Statutory provisions for Local Administrative bodies as third level of administration in urban areas such as towns and cities. (Municipalities)
75. 1994 Provisions for setting up Rent Control Tribunals.
76. 1994 Enable continuance of 69% reservation in Tamil Nadu by including the relevant Tamil Nadu Act under 9th Schedule of the constitution.
77. 1995 A technical amendment to protect reservation to SC/ST Employees in promotions.
78. 1995 Place land reform acts and amendments to these act under Schedule 9 of the constitution.
79. 2000 Extend reservation for SC / ST and nomination of Anglo Indian members in Parliament and State Assemblies for another ten years i.e. up to 2010.
80. 2000 Implement Tenth Finance Commission recommendation to simplify the tax structures by pooling and sharing all taxes between states and The Centre.
81. 2000 Protect SC / ST reservation in filling backlog of vacancies.
82. 2000 Permit relaxation of qualifying marks and other criteria in reservation in promotion for SC / ST candidates.
83. 2000 Exempt Arunachal Pradesh from reservation for Scheduled Castes in Panchayati Raj institutions.
84. 2002 Extend the usage of 1991 national census population figures for statewise distribution of parliamentary seats.
85. 2002 A technical amendment to protect seniority in case of promotions of SC/ST Employees.
86. 2002 Provides Right to Education until the age of fourteen and Early childhood care until the age of six.
87. 2003 Extend the usage of 2001 national census population figures for statewise distribution of parliamentary seats.
88. 2004 To extend statutory cover for levy and utilization of Service Tax.
89. 2003 The National Commission for Scheduled Castes and Scheduled Tribes was bifurcated into The National Commission for Scheduled Castes and The National Commission for Scheduled Tribes.
90. 2003 Reservation in Assam Assembly relating to Bodoland Territory Area.
91. 2004 Restrict the size of council of ministers to 15 % of legislative members & to strengthen Anti Defection laws.
92. 2004 Enable Levy of Service Tax. Include Bodo, Dogri, Santali and Maithili as National Languages.
93. 2006 Reservation for OBCs in government as well as private educational institutions
94. 2006 To provide for a Minister of Tribal Welfare in newly created Jharkhand and Chhattisgarh States.
95. 2010 Extended the reservation of seats in Lok Sabha and State Assemblies for SCs and STs from sixty to seventy years.
96. 2011 Changed “Oriya” in the Eighth Schedule to “Odia.
97. 2012, Jan 12 Right to form unions or co-operative societies. (19(1)C)

Promotion of Co-operative Societies. (43B)

 

The Co-operative Societies. (Part 9B)

 

98. 2013, Jan 2 To empower the Governor of Karnataka to take steps to develop the Hyderabad-Karnataka Region.

(To insert Article 371J in the Constitution)

Within a state there is generally a four-tier structure of ad- ministration – division, district, taluka/tehsil/block, and village. The district has been so far the most important unit of administration. Some of the states have introduced the system of Panchayati Raj, generally a three-tier structure of local self- government in rural areas at the vil- lage, block and district levels. Two recent constitutional amendments have bestowed on the local bodies in rural and urban areas constitutional status and specific functions including education, covering education upto secondary level, technical training and vocational education, adult and non-formal education. These amendments will strengthen decentralised management of educa- tion at the grass-root level.

 

 

For the administrative ease rajasthan has been devided into following seven devisions:-

 

1          Ajmer Division

2          Bharatpur Division

3          Bikaner Division

4          Jaipur Division

5          Jodhpur Division

6          Kota Division

7          Udaipur Division

 

 

 

Districts of Rajasthan

 

 

 

 

 

 

Citizen’s Charter is a document which represents a systematic effort to focus on the commitment of the Organisation towards its Citizens in respects of Standard of Services, Information, Choice and Consultation, Non-discrimination and Accessibility, Grievance Redress, Courtesy and Value for Money.

The main objective of the exercise to issue the Citizen’s Charter of an organisation is to improve the quality of public services. This is done by letting people know the mandate of the concerned Ministry/ Department/ Organisation, how one can get in touch with its officials, what to expect by way of services and how to seek a remedy if something goes wrong. The Citizen’s Charter does not by itself create new legal rights, but it surely helps in enforcing existing rights. This website provides the details of Citizen’s Charter of various Ministries/ Departments/ Organistions of the Government of India.

The basic objective of the Citizen’s Charter is to empower the citizen in relation to public service delivery. The six principles of the Citizen’s Charter movement as originally framed were:

 

(i) Quality: Improving the quality of services;

 

(ii) Choice: Wherever possible;

 

(iii) Standards: Specifying what to expect and how to act if standards are not met;

 

(iv) Value : For the taxpayers’ money;

 

(v) Accountability: Individuals and Organisations; and

 

(vi) Transparency: Rules/Procedures/Schemes/Grievances.

 

These were later elaborated by the Labour Government as the nine principles of Service Delivery (1998), which are as follows:-

 

1. Set standards of service

 

2. Be Open and provide full information

 

3. Consult and involve

 

4. Encourage access and the promotion of choice

 

5. Treat all fairly

 

6. Put things right when they go wrong

 

7. Use resources effectively

 

8. Innovate and improve

 

9. Work with other providers

Government of Rajasthan(Administrative Reforms and Coordination Department, Jaipur, Rajasthan) manages the citizen charters in the state Following departments have issued there separate charters, which could be accessed from their websites.

 

1. Registration and Stamps Department, Rajasthan, Ajmer

 

2. Food and Civil Supplies Department, Rajasthan, Jaipur

 

3. Revenue Department

 

4. Local Bodies

 

5. Transport Department

 

6. Medical & Health & Associate Hospitals

 

7. SMS Medical College & Hospital, Jaipur

 

8. Jawahar Lal Nehru Medical College, Ajmer

 

9. Psychiatry Centre & Mental Hospital, Jaipur

 

10. Sir Padampat Mother & Child Health Institute , Jaipur

 

11. Chest & T.B. Hospital, Jaipur

 

12. Mahila Chikitsalaya, Jaipur

 

13. Zenana, Hospital, Jaipur

 

14. Medical & Health Services (E.S.I) Rajasthan, Jaipur

 

15. Police Department

 

16. Rajasthan State Road Transport Corporation, Jaipur

 

17. Labour Deprtment

 

18. Factories & Boilers Department

 

19. Land & Buildings Taxes Department

 

20. Commercial Taxes Department

 

21. Bureau of Anticorruption, Rajasthan, Jaipur

 

22. Command Area Development & Water Utilization Department

 

23. Mines & Geology Department

 

24. Literacy & Adult Education Department, Rajasthan, Jaipur

 

25. Irrigation Department, Rajasthan, Jaipur

 

26. Animal Husbandry Department

 

27. Jaipur Vidyut Vitran Nigam Ltd, Jaipur (Jaipur DISCOM)

 

28. State Insurance & General Provident Fund Department

 

29. Home Guard & Civil Aviation Department

 

30. Colonization Department

 

31. Jaipur Development Authority

 

32. Women & Child Development Department

 

33. Secondary Education Department

 

34. Citizen’s Charter for Divisional Commissioners’ Office

 

35. Higher Education, Jaipur

 

36. Panchayati Raj Department

 

37. Technical Education Department

 

38. Public Works Department

 

39. Agriculture Marketing Department

 

40. Settlement Department

 

41. Rural Development Department

 

42. Directorate of Water Shed Development & Soil Conservation Department

 

43. Fisheries Department

 

44. Cooperative Department

 

45. Employment Department

 

46. Agriculture Marketing Board

 

47. Public Health Engineering Department

 

48. Rajasthan State Industrial Development & Investment Corporation Ltd., Jaipur

 

49. Industries Department, Rajasthan, Jaipur

 

50. Rajasthan Finance Corporation (RFC)

 

51. Small Savings Department

 

52. Vidut Nirikshanalaya Rajasthan, Jaipur (Electrical Inspector, Rajasthan, Jaipur)

 

53. Agriculture Department, Rajasthan, Jaipur

 

54. Forest Department

 

55. Director, Elementary Education, Rajasthan, Bikaner

 

56. Director, Prosecution, Rajasthan, Jaipur

 

57. Jail Department, Rajasthan, Jaipur

 

58. Tourism, Art and Culture Department, Rajasthan, Jaipur

 

59. Devasthan Department, Rajasthan, Udaipur

 

60. Excise Department, Rajasthan, Udaipur

 

61. Director, Horticulture Department, Rajasthan, Jaipur

 

62. Town Planning Department, Jaipur (JLN Marg).

 

 

The Rajasthan Guaranteed Delivery of Public Services Act, 2011

The Rajasthan Guaranteed Delivery of Public Services Act, 2011 guarantees the delivery of 108 services in 53 areas concerning 15 departments. The time period kept for the delivery of services ranges from one day in the case of removal of animal carcasses from public places to two days for driving licences, 75 days for land use conversion and a maximum of 90 days for sanction of old age pension. Issue of birth/death certificates has been promised in 7-15 days and new ration card in seven days.

 

Right To Information

RTI stands for Right To Information and has been given the status of a fundamental right under Article 19(1) of the Constitution. Article 19 (1) under which every citizen has freedom of speech and expression and have the right to know how the government works, what role does it play, what are its functions and so on.

Right to Information Act empowers every citizen to seek any information, take notes, extracts or certified copies of documents or records, take certified samples of material.

 

Evolution of Indian Constitution

Although the systems of ancient India do have their reflections in the Constitutions of India, the direct sources of the Constitution lie in the administrative and legislative developments of the British period.

 

Regulating Act of 1773

• This Act was based on the report of a committee headed by the British Prime Minister Lord North.
• Governance of the East India Company was put under the British Parliamentary control.
• The Governor of Bengal was nominated as Governor General for all the three Presidencies of Calcutta Bombay and Madras. Warren Hastings was the first such Governor General.
• A Supreme Court was established in Calcutta (now Kolkata)
• Governor General was empowered to make laws, regulations and ordinances with the consent of the Supreme Court.

 

Pitts India Act of 1784

• It was enacted to improve upon the provisions of Regulating Act of 1773 to bring about better discipline in the Company’s system of administration.
• A 6 member Board of Coordinators was set up which was headed by a minister of the British Government. All political responsibilities were given to this board.
• Trade and commerce related issues were under the purview of the Court of the Directors of the company.
• Provinces had to follow the instructions of the Central Government and Governor General was empowered to dismiss the failing provincial government.

 

Charter Act of 1793

• Main provisions of the previous Acts were consolidated in this Act.
• Provided for the payment of salaries of the members of the Board of Controllers from Indian revenue.
• Courts were given the power to interpret rules and regulations

 

Charter Act of 1813

• Trade monopoly of the East India Company came to an end.
• Powers of the three Councils of Madras, Bombay and Calcutta were enlarged; they were also subjected to greater control of the British Parliament.
• The Christian Missionaries were allowed to spread their religion in India.
• Local autonomous bodies were empowered to levy taxes.

 

Charter Act of 1833

• The Governor General and his Council were given vast powers. This Council could legislate for the whole of India subject to the approval of the Board of Controllers.
• The Council got full powers regarding revenue, and a single budget for the country was prepared by the Governor General.
• The East India Company was reduced to an administrative and political entity and several Lords and Ministers were nominated as ex-officio members of the Board of Controllers.
• For the first time the Governor-General’s Government was known as the ‘Government of India’ and his Council as the ‘Indian Council’.

 

Charter Act of 1853

• This was the last of the Charter Acts and it made important changes in the system of Indian legislation.
• This Act followed a report of then Governor General Dalhousie for improving the administration of the company.
• A separate Governor for Bengal was to be appointed.
• Legislative and administrative functions of the Council were separately identified.
• Recruitment of the Company’s employees was to be done through competitive exams.
• British Parliament was empowered to put Company’s governance of India to an end at any suitable time.

 

Government of India Act, 1858

• British Crown decided to assume sovereignty over India from the East India Company in an apparent consequence of the Revolt of 1857, described as an armed sepoy mutiny by the British historians and remembered as the First War of Independence by the Indians.
• The first statute for the governance of India, under the direct rule of the British Government, was the Government of India Act, 1858.
• It Provide for absolute (British) imperial control over India without any popular participation in the administration of the country.
• The powers of the crown were to be exercised by the Secretary of State for India, assisted by a council of fifteen members, known as the Council of India.
• The country was divided into provinces headed by a Governor or Lieutenant-Governor aided by his Executive Council.
• The Provincial Governments had to function under the superintendence, direction and control of the Governor- General in all matters.
• All authority for the governance of India was vested in the Governor- General in Council who was responsible to the Secretary of State.
• The Secretary of State was ultimately responsible to the British Parliament.

 

Indian Councils Act, 1861

• This is an important landmark in the constitutional history of India. By this Act, the powers of the Crown were to be exercised by the Secretary of State for India, assisted by a council of fifteen members (known as the Council of India). The Secretary of State, who was responsible to the British Parliament, governed India through the Governor General, assisted by an Executive council.
• This Act enabled the Governor General to associate representatives of the Indian people with the work of legislation by nominating them to his expanded council.
• This Act provided that the Governor General’s Executive Council should include certain additional non-official members also while transacting legislative business as a Legislative Council. But this Legislative Council was neither representative nor deliberative in any sense.
• It decentralized the legislative powers of the Governor General’s Council and vested them in the Governments of Bombay and Madras.

 

Indian Councils Act, 1892

• The non-official members of the Indian Legislative Council were to be nominated by the Bengal Chamber of Commerce and Provincial Legislatives Council while the non-official members of the Provincial Councils were to be nominated by certain local bodies such as universities, districts boards, municipalities, zamindars etc.
• The Councils were to have the power of discussing the Budget and addressing questions to the Executive.

 

Morley-Minto Reforms and the Indian Councils Act, 1909

• Reforms recommended by the then Secretary of States for India (Lord Morley) and the Viceroy (Lord Minto) were implemented by the Indian Councils Act, 1909.
• The maximum number of additional members of the Indian Legislative Council (Governor- General’s Council) was raised from 16 (under the Act of 1892) to 60 (excluding the Executive Councilors).
• The size of Provincial Legislative Councils was enlarged by including elected non-official members so that the official majority was gone.
• An element of election was introduced in the Legislative Council at the centre also but here the official majority was maintained.
• The Legislative Councils were empowered to move resolutions on the Budget, and on any matter of public interest except certain specified subjects such as the Armed forces, Foreign Affairs and the Indian States.
• It provided, for the first time, for separate representation of the Muslim community and thus sowed the seeds of separatism.

 

The Government of India Act, 1915

• This act was passed to consolidate the provisions of the preceding Government of India Acts.

 

Montague-Chelmsford Report and the Government of India Act, 1919

• The then Secretary of State for India Mr. E.S. Montague and the Governor General Lord Chelmsford formulated proposals for the Government of India Act, 1919.
• Responsible Government in the Provinces was to be introduced, without impairing the responsibility of the Governor (through Governor General), for the administration of the province, by resorting to device known as ‘Diarchy’ or dual government.
• The subjects of administration were to be divided into two categories Central and Provincial.
• Central subjects were those which were exclusively kept under the control of the Central Government.
• The provincial subjects were sub-divided into ‘transferred’ and ‘reserved’ subjects.
• The ‘transferred subjects’ were to be administered by the Governor with the aid of Ministers responsible to the Legislative Council in which the proportion of elected members was raised to 70 percent.
• The ‘ reserved subjects’ were to be administered by the Governor and his Executive Council with no responsibility to the Legislature.
• The previous Central control over the provinces in the administrative, legislative and financial matters was relaxed. Sources of revenue were divided into two categories so that the provinces could run the administration with the revenue raised y the provinces themselves.
• The provincial budget was separated from the central budget.
• The provincial legislature was empowered to present its own budget and levy its own taxes relating to the provincial sources of revenue.
• The Central Legislature, retained power to legislate for the whole country on any subject.
• The control of the Governor General over provincial legislature was retained by providing that a Provincial Bill, even though assented to by the Governor, would become law only when assented to also by the Governor General.
• The Governor was empowered to reserve a Bill for the consideration of the Governor General if it was related to some specified matters.
• The Governor General in Council continued to remain responsible to the British Parliament through the Secretary of State for India.
• The Indian Legislature was made more representative and, for the first time ‘bi-cameral.’
• The Upper House was named the Council of State. This composed of 60 members of whom 34 were elected.
• The Lower House was named the Legislative Assembly. This was composed of about 144 members of whom 104 were elected.
• The electorates were arranged on a communal and sectional basis, developing the Morley-Minto device further.
• The Governor General’s overriding powers in respect of Central legislation were retained as follows:
• His prior sanction was required to introduce Bills relating to certain matters;
• He had the power to veto or reserve for consideration of the Crown any Bill passed by the Indian Legislature;
• He had the converse power of certifying Bill or any grant refused by the Legislature;
• He could make Ordinances, in case of emergency.

 

Simon Commission

• This commission, headed by Sir John Simon, constituted in 1927 to inquire into the working of the Act of 1919, placed its report in 1930. The report was examined by the British Parliament and the Government of India Bill was drafted accordingly.

 

The Government of India Act, 1935

• The Act of 1935 prescribed a federation, taking the Provinces and the Indian States (native states) as units.
• It was optional for the Indian States to join the Federation, and since they never joined, the Federation never came into being.
• The Act divided legislative powers between the Centre and Provinces.
• The executive authority of a Province was also exercised by a Governor on the behalf of the Crown and not as a subordinate of the Governor General.
• The Governor was required to act with the advice of Ministers responsible to the legislature.
• In certain matters, the Governor was required to act ‘in his discretion’ without ministerial advice and under the control and directions of the Governor General, and, through him, of the Secretary of State.
• The executive authority of the Centre was vested in the Governor General (on behalf of the Crown).
• The councilors of Council of Ministers responsible to the Legislature were not appointed although such provisions existed in the Act of 1935.
• The Central Legislature was bi-cameral, comprising a Legislative Assembly and a Legislative Council. In other provinces, the Legislature was uni-cameral.
• Apart from the Governor General’s power of veto, a Bill passed by the Central Legislature was also subject to veto by the Crown.
• The Governor General could prevent discussion in the Legislature and suspend the proceedings on any Bill if he was satisfied that it would affect the discharge of his special responsibilities.
• The Governor General had independent powers of legislatures, concurrently with those of the Legislature.
• On some subjects no bill or amendment could be introduced in the Legislature without the Governor General’s previous sanction.
• A three-fold division in the Act of 1935 –There was Federal List over which the Federal Legislature had exclusive jurisdiction. There was a Concurrent List also over which both the Federal and the Provincial had competence.
• The Governor General was empowered to authorize either the Federal or the Provincial Legislature to enact a law with respect to any matter which was not enumerated in the above noted Legislative Lists.
• Dominion Status, which was promised by the Simon Commission in 1929, was not conferred by the Government of India Act, 1935.

 

Cripps Mission

• In March, 1942 Sir Stafford Cripps, a member of the British cabinet came with a draft declaration on the proposals of the British Government.
• These proposals were to be adopted at the end of the Second World War, provided Congress and the Muslim League could accept them.
• According to the proposals-
• The Constitution of India was to be framed by an elected Constituent Assembly by the Indian people.
• The Constitution should give India Dominion Status.
• There should be one Indian Union comprising all the Provinces and Indian States.
• Any Province (or Indian State) not accepting the Constitution would be free to retain its constitutional position existing at that time and with such non-acceding Province British Government could enter into separate Constitutional arrangements.

 

Cabinet Mission

• In March 1946, Lord Attlee sent a Cabinet Mission to India consisting of three Cabinet Ministers, namely Lord Pethick Lawrence, Sir Stafford Cripps and Mr. A.V. Alexander.
• The object of Cabinet Mission was to help India achieve its independence as early as possible, and to set up a Constitutional Assembly.
• The Cabinet Mission rejected the claim for a separate Constituent Assembly and a Separate for the Muslim.
• According to Cabinet Mission Plan there was to be a Union of India, comprising both British India and the States, having jurisdiction over the subjects of Foreign Affairs, Defence and Communication. All residuary powers were to be vested in the Provinces and the States.
• The Union was to have an Executive and a Legislature consisting of representatives of the Provinces and the States.
• Any decision involving a major communal issue in the legislature was to require a majority support of representatives of each of the two major communities present and voting.
• The provinces could form groups with executives and legislatures, and each group could be competent to determine the provincial subjects.

 

The Mountbatten Plan

• The plan for transfer of power to the Indians and partition of the country was laid down in the Mountbatten Plan.
• It was given a formal shape by a statement made by the British Government on 3rd June, 1947.

 

The Indian Independence Act, 1947 of the British Parliament

• In pursuance of this Act, the Government of India Act, 1935 was amended by the Adaptation Orders, both in India and Pakistan, for setting up an interim Constituent Assembly to draw up future Constitution of the country.
• From the 15th August 1947 India ceased to be a Dependency, and the suzerainty of the British Crown over the Indian States and the treaty relations with Tribal Areas lapsed from that date.
• The office of the Secretary of State for India was abolished.
• The Governor General and the Governors lost extraordinary powers of legislations to compete with the legislature.
• The Central Legislature Of India, composed of the Legislative Assembly and the Council of States, ceased to exist on August 14, 1947.
• The Constituent Assembly itself was to function as the Central Legislature with complete sovereignty.

 

Making of the constitution

• 1934: Idea of constituent assembly put forward by M N Roy
• 1935: INC officially demands constituent assembly
• 1938: JL Nehru’s declaration on the constitution of India
• 1940: Nehru’s demand accepted in the form of August Offer
• August Offer
  • PM: Winston Churchill
  • While rejecting INCs demand for independence of India after the war on the ground that INC is not representative of the minorities, three offers were made
  • Expansion of Viceroy’s executive council with the inclusion of Indian representatives
  • An advisory body with the members from British India and Indian princely states which were supposed to meet at consequent intervals was established
  • Two practical steps were decided to be taken in which it was to come at an agreement with the Indians on the form which the post representatives body should take and the methods by which it should come to a conclusion.
  • It further planned to draw out the principles and outlines of the Constitution itself
  • Congress rejected the offer
• 1942: Cripps Mission
  • PM: Winston Churchill Sec of State: Leo Amery                                Viceroy: Linlithgow
  • On the framing of an independent constitution to be adopted after the WW II
  • Cripps proposals rejected by the ML which wanted India to be divided into two autonomous states
• 1946: Cabinet Mission
  • PM: Clement Attlee Viceroy: Lord Wavell
  • Members: Pethick Lawrence (sec of state for India), Stafford Cripps, A V Alexander
  • Simla Conference
  • May 16 plan
    • United dominion of india would be given independence
    • Muslim majority and Hindu majority provinces to be grouped
    • Central government to run foreign affairs, defence and communications while rest of the responsibility would belong to the provinces, coordinated by the two groups
  • Interim cabinet was formed. ML joined the cabinet but decided to boycott the constituent assembly
• 1946, Nov: Constituent Assembly formed under the Cabinet Mission Plan
• First meeting of CA on December 9, 1946. Sacchidanada Sinha was elected the temporary Presidetn
• Dec 11, 1946: Rajendra Prasad and H C Mukharjee elected as the President and VP of the assembly respectively.
• BN Rao was the constitutional advisor to the assembly
• Dec 13, 1946: Objectives Resolution moved by JL Nehru
• Jan 22, 1947: Objectives resolution adopted
• June 3, 1947: Mountbatten plan. Partition of the country announced.
• Jan 24, 1950: Final session of the CA. It however continued as a provisional body from Jan 26, 1950 till the formation of the new Parliament after the first general elections in 1951-52

Major Committees of CA

Committee	Chairman
Union Powers Committee	JL Nehru
Union Constitution Committee	JL Nehru
Committee for Negotiating with States	JL Nehru
Steering Committee	Rajendra Prasad
Rules of Procedure Committee	Rajendra Prasad
Provincial Constitution Committee	Sardar Patel
Committee on Fundamental Rights and  Minorities. Two sub committees ( FR , Minorities)	Sardar Patel (J B Kriplani, H C Mukharjee)
Drafting Committee	B R Ambedkar

• Drafting Committee was setup on Aug 29, 1947. It had seven members
  • B R Ambedkar
  • Alladi Krisnaswamy Ayyer
  • N Gopalaswamy Ayyangar
  • K M Munshi
  • TT Krishnamchari
  • N Madhava Rau
  • Syed Mohammad Saadullah
• Nov 26, 1949: Constitution was adopted
• The Preamble was enacted after the entire Constitution was already enacted

	Features

• Lengthiest written Constitution: Originally our constitution contained 395 articles divided in 22 parts and 8 schedules. Constitution has been amended 98 times. Currently there are 25 Parts, 12 Schedules, and 448 Articles. These figures show our constitution as the most comprehensive constitution in the world. (British have no written constitution and Constitution of USA had originally only 7 articles)
• Starts with a Preamble: It gives an insight into the Philosophy of the Constitution.
• Drawn from different sources: fundamental rights from USA, bicameralism from UK, Fundamental duties from USSR etc,
• Blend of Rigidity and Flexibility: making Law is quite flexible and easy in comparison to amending a law.
• Sovereignty of the Country: managing internal and external affairs freely without any external forces.
• Democratic state: governing power is derived from the people by means of elected representatives of the people.
• Republic: India does not have a hereditary post of Head of the State. The Head of the state in India is President and he / she is elected.
• Socialist State: Indian socialism is democratic socialism. The goals of the socialism are to be realized through democratic means.
• Secular state: India is secular country. Here No religion is a state religion. The constitution provides equal treatment to all religions.
• Parliamentary Form of Government: Westminster model of government. Presence of nominal and real executives, majority party rule, collective responsibility of executive to legislature, dissolution of lower house, prime minister has crucial and important role.
• A blend of Federal and Unitary System: there are separate governments in the Union and States and there is division of power. Unitary features: Strong centre. Single Citizenship, single constitution for both the centre and states, emergency provisions, all India services. India is also quasi-federal as constitution describes India as union of states. States cannot unjoin as well as there is no agreement by states. We have union as well as state lists.
• Integrated and independent Judiciary: The states have high courts but the verdicts of these courts are subject to appeal to the Supreme Court. The Constitution has made the High Courts subordinate to the Supreme Court.
• Universal Adult Franchise: Every citizen who is above 18 years has a Voting Right without any discrimination.
• Three tier government structure: union, state and panchayats.
• Synthesis of parliamentary sovereignty and judicial supremacy: judicial review of Supreme Court by procedure established by law. Also, parliament can amend major portion of constitution.
• Fundamental rights: to promote political democracy. Enforceable by courts for violation. They are Justiciable in nature.
• Fundamental duties: to respect constitution; to promote national unity, integrity, sovereignty; to preserve rich cultural heritage and promote common brotherhood. They are not justiciable in nature.
• Directive principles of state policy: socialistic, liberal and gandhian meant for promoting ideal social and economic democracy. To establish welfare state. It is the duty of state to apply these in governance. They are not justiciable.
• Independent bodies: constitution not only provides legislative, executive and judicial organs of government (state and centre) but also has independent election commission, CAG, UPSC, SPSC with security of tenure, service conditions.

 

The Judiciary plays a very important role as a protector of the constitutional values that the founding fathers have given us. They try to undo the harm that is being done by the legislature and the executive and also they try to provide every citizen what has been promised by the Constitution under the Directive Principles of State Policy. All this is possible thanks to the power of judicial review.

 

All this is not achieved in a day it took 50 long years for where we are right now, if one thinks that it is has been a roller coaster ride without any hindrances they are wrong judiciary has been facing the brunt of many politicians, technocrats, academicians, lawyers etc. Few of them being genuine concerns, and among one of them is the aspect of corruption and power of criminal contempt. In this paper I would try to highlight the ups and downs of this greatest institution in India.

 

 

 

The rule of law is the bedrock of democracy, and the primary responsibility for implementation of the rule of law lies with the judiciary.1 This is now a basic feature of every constitution, which cannot be altered even by the exercise of new powers from parliament. It is the significance of judicial review, to ensure that democracy is inclusive and that there is accountability of everyone who wields or exercises public power. As Edmund Burke said: “all persons in positions of power ought to be strongly and lawfully impressed with an idea that “they act in trust,” and must account for their conduct to one great master, to those in whom the political sovereignty rests, the people”.2

 

 

 

India opted for parliamentary form of democracy, where every section is involved in policy-making, and decision taking, so that every point of view is reflected and there is a fair representation of every section of the people in every such body. In this kind of inclusive democracy, the judiciary has a very important role to play. That is the concept of accountability in any republican democracy, and this basic theme has to be remembered by everybody exercising public power, irrespective of the extra expressed expositions in the constitution.3

 

 

 

The principle of judicial review became an essential feature of written Constitutions of many countries. Seervai in his book Constitutional Law of India noted that the principle of judicial review is a familiar feature of the Constitutions of Canada, Australia and India, though the doctrine of Separation of Powers has no place in strict sense in Indian Constitution, but the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the Government could not usurp the functions of another.4

 

The power of judicial review has in itself the concept of separation of powers an essential component of the rule of law, which is a basic feature of the Indian Constitution. Every State action has to be tested on the anvil of rule of law and that exercise is performed, when occasion arises by the reason of a doubt raised in that behalf, by the courts. The power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution, the judiciary in India has come to control by judicial review every aspect of governmental and public functions.5

 

 

 

Extent of Judicial Review in India:

 

The initial years of the Supreme Court of India saw the adoption of an approach characterised by caution and circumspection. Being steeped in the British tradition of limited judicial review, the Court generally adopted a pro-legislature stance. This is evident form the rulings such as A.K. Gopalan, but however it did not take long for judges to break their shackles and this led to a series of right to property cases in which the judiciary was loggerhead with the parliament. The nation witnessed a series of events where a decision of the Supreme Court was followed by a legislation nullifying its effect, followed by another decision reaffirming the earlier position, and so on. The struggle between the two wings of government continued on other issues such as the power of amending the Constitution.6 During this era, the Legislature sought to bring forth people-oriented socialist measures which when in conflict with fundamental rights were frustrated on the upholding of the fundamental rights of individuals by the Supreme Court. At the time, an effort was made to project the Supreme Court as being concerned only with the interests of propertied classes and being insensitive to the needs of the masses. Between 1950 and 1975, the Indian Supreme Court had held a mere one hundred Union and State laws, in whole or in part, to be unconstitutional.

 

After the period of emergency the judiciary was on the receiving end for having delivered a series of judgments which were perceived by many as being violative of the basic human rights of Indian citizens 7and changed the way it looked at the constitution. The Supreme Court said that any legislation is amenable to judicial review, be it momentous amendments8 to the Constitution or drawing up of schemes and bye-laws of municipal bodies which affect the life of a citizen9. Judicial review extends to every governmental or executive action – from high policy matters like the President’s power to issue a proclamation on failure of constitutional machinery in the States like in Bommai case, to the highly discretionary exercise of the prerogative of pardon like in Kehar Singh case  or the right to go abroad as in Satwant Singh case.Judicial review knows no bounds except the restraint of the judges themselves regarding justifiability of an issue in a particular case.

 

Judicial Review of Political Questions:

 

In the initial stages of the judicial adjudication Courts have said that where there is a political question involved it is not amenable to judicial review but slowly this changed, in Keshavananda Bharathi’s case,10 the Court held that, “it is difficult to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal constitution…. Judicial Review of constitutional amendments may seem involving the Court in political question, but it is the Court alone which can decide such an issue. The function of Interpretation of a Constitution being thus assigned to the judicial power the State, the question whether the subject of law is within the ambit of one or more powers of the legislature conferred by the constitution would always be a question of interpretation of the Constitution.”

 

Than it was in Special Courts Bill, 1978, In re, case where the majority opined that, “The policy of the Bill and the motive of the mover to ensure a speedy trial of persons holding high public or political office who are alleged to have committed certain crimes during the period of emergency may be political, but the question whether the bill or any provisions are constitutionally invalid is a not a question of a political nature and the court should not refrain from answering it.” What this meant was that though there are political questions involved the validity of any action or legislation can be challenged if it would violate the constitution. This position has been reiterated in many other cases11 and in S.R. Bommai’s case the Court held, “though subjective satisfaction of the President cannot be reviewed but the material on which satisfaction is based open to review…” the court further went on to say that, “The opinion which the President would form on the basis of Governor’s report or otherwise would be based on his political judgment and it is difficult to evolve judicially manageable norms for scrutinizing such political decisions. Therefore, by the very nature of things which would govern the decision-making under Article 356, it is difficult to hold that the decision of the president is justiciable. To do so would be entering the political thicker and questioning the political wisdom which the courts of law must avoid. The temptation to delve into the President’s satisfaction may be great but the courts would be well advised to resist the temptation for want of judicially manageable standards. Therefore, the Court cannot interdict the use of the constitutional power conferred on the President under Article 356 unless the same is shown to be male fide.”

 

As Soli Sorabjee points out, “there is genuine concern about misuse by the Centre of Article 356 on the pretext that the State Government is acting in defiance of the essential features of the Constitution. The real safeguard will be full judicial review extending to an inquiry into the truth and correctness of the basic facts relied upon in support of the action under Article 356 as indicated by Justices Sawant and Kuldip Singh. If in certain cases that entails evaluating the sufficiency of the material, so be it.”

 

What this meant was the judiciary was being cautious about the role it has to play while adjudicating matters of such importance and it is showing a path of restraint that has to be used while deciding such matters so that it does not usurp the powers given by the Constitution by way of the power of review at the same it is also minimizing the misusing of the power given under Article 356 to the President.

 

Judicial Review as a part of the Basic Structure:

 

In the celebrated case of Keshavanda Bharathi v. State of Kerela, the Supreme Court of India the propounded the basic structure doctrine according to which it said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution, The Judges made no attempt to define the basic structure of the Constitution in clear terms. S.M. Sikri, C.J mentioned five basic features:

 

1. Supremacy of the Constitution. 2. Republican and democratic form of Government. 3. Secular character of the Constitution. 4. Separation of powers between the legislature, the executive and the judiciary. 5. Federal character of the Constitution.

He observed that these basic features are easily discernible not only from the Preamble but also from the whole scheme of the Constitution. He added that the structure was built on the basic foundation of dignity and freedom of the individual which could not by any form of amendment be destroyed. It was also observed in that case that the above are only illustrative and not exhaustive of all the limitations on the power of amendment of the Constitution. The Constitutional bench in Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.) held that Judicial Review in election disputes was not a compulsion as it is not a part of basic structure. In S.P. Sampath Kumar v. Union of India((1987) 1 SCC 124 at 128.), P.N. Bhagwati, C.J., relying on Minerva Mills Ltd. ((1980) 3 SCC 625.) declared that it was well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was. In Sampath Kumar the Court further declared that if a law made under Article 323-A(1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.

 

In Kihoto Hollohan v. Zachillhur (1992 Supp (2) SCC 651, 715, para 120) another Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs, observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic structure.

 

Subsequently, in L. Chandra Kumar v. Union of India ((1997) 3 SCC 261) a larger Bench of seven Judges unequivocally declared:

 

“that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure”.

 

Though one does not deny that power to review is very important, at the same time one cannot also give an absolute power to review and by recognizing judicial review as a part of basic feature of the constitution Courts in India have given a different meaning to the theory of Check’s and Balances this also meant that it has buried the concept of separation of powers, where the judiciary will give itself an unfettered jurisdiction to review any thing every thing that is done by the legislature.

 

Expansion of Judicial Review through Judicial Activism:

 

After the draconian exposition of power by the Executive and the Legislature during Emergency the expectations of the public soared high and the demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions. Likewise the judiciary has taken an activist view the Beginning with the Ratlam Municipality case 12the sweep of Social Action Litigation13 had encompassed a variety of causes14.

 

With the interpretation given by it in Menaka Gandhi case the Supreme Court brought the ambit of constitutional provisions to enforce the human rights of citizens and sought to bring the Indian law in conformity with the global trends in human-rights-jurisprudence. This was made possible in India, because of the procedural innovations with a view to making itself more accessible to disadvantaged sections of society giving rise to the phenomenon of Social Action Litigation/Public Interest Litigation15. During the Eighties and the first half of the Nineties, the Court have broken there shackle’s and moved much ahead from being a mere legal institution, its decisions have tremendous social, political and economic ramifications. Time and again, it has sought to interpret constitutional provisions and the objectives sought to be achieved by it and directed the executive to comply with its orders.

 

SAL, a manifestation of judicial activism, has introduced a new dimension regarding judiciary’s involvement in public administration16. The sanctity of locus standi and the procedural complexities are totally side-tracked in the causes brought before the courts through SAL. In the beginning, the application of SAL was confined only to improving the lot of the disadvantaged sections of the society who by reason of their poverty and ignorance were not in a position to seek justice from the courts and, therefore, any member of the public was permitted to maintain an application for appropriate directions17.

 

The new role of the Supreme Court has been criticised in some quarters as being violative of the doctrine of separation of powers; it is claimed that the Apex Court has, by formulating policy and issuing directions in respect of various aspects of the country’s administration, transgressed into the domain of the executive and the legislature. As Justice Cardozo puts it, “A Constitution states or ought to state not rules for the passing hour but principles for an expanding future.”18 It is with this view that innovations in the rules of standing have come into existence.

 

Limitation on the power of review:

 

The expansion of the horizon of judicial review is seen both with reverence and suspicion; reverence in as much as the judicial review is a creative element of interpretation, which serves as an omnipresent and potentially omnipotent check on the legislative and executive branches of government. But at the same time there is a danger that they may trespass into the powers given to the legislature and the executive.

 

One many say that if there is any limitation on judicial review other than constitutional and procedural19 that is a product of judicial self-restraint. As justice Dwivedi empathically observed, “Structural socio-political value choices involve a complex and complicated political process. This court is hardly fitted for performing that function. In the absence of any explicit Constitutional norms and for want of complete evidence, the court’s structural value choices will be largely subjective. Our personal predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of rule of law.”20

 

The above observations also reveal another assumption to support an attitude of self-restraint, viz., the element subjectiveness in judicial decision on issues having socio-political significance. When one looks at the decisions of the Supreme Court on certain questions of fundamental issues of constitutional law one can see that there is a sharp division among the judges of the apex court on such basic questions of power of the Parliament to amend the Constitution, federal relations, powers of the President etc. This aptly demonstrates the observation of the judge. This would mean that though there has been expansion of powers of judicial review one cannot also say that this cannot be overturned.

 

Judicial self-restrain in relation to legislative power manifests itself in the form the there is a presumption of constitutionality when the validity of the statute is challenged. In the words of Fazl Ali, “…the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles”21

 

In applying the presumption of constitutionality the Courts sometimes apply an interpretational device called ‘reading down’. The essence of the device is that “if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction.”22 But all this depends on the outlook and values of the judge.23

 

When it come judicial review of administrative action though the presumption of validity is not so strong in the case of administrative action as in the case of statutes. Still, when the legislature expressly leaves a matter to the discretion of an administrative authority the courts have adopted an attitude of restraint. They have said we cannot the question the legality of the exercise of discretionary power unless and until it is an abuse of discretionary power (which includes mala fide exercise of power, exercising the power for an improper motive, decision based on irrelevant considerations or in disregard of relevant consideration, and in some cases unreasonable exercise of power) and non-exercise of discretion ( which come when power is exercised without proper delegation and when it is acted under dictation).

 

The relevant considerations which should make the judicial choice in favour of activism or restraint are the policy and scheme of the statute, the object of conferring discretionary powers, the nature and scope of the discretion, and finally, the nature of the right and interests affected by the decision. Any impulsive move to activism without a serious consideration of these factors may only be viewed as undesirable. Judicial activism, being an exception, not the general rule, in relation to the control of discretionary power, needs strong reasons to justify it. In the absence of such strong support of reasons the interventionist strategy may provoke the other branches of Government may retaliate and impose further limitations on the scope of judicial review.

 

Conclusion:

 

Accountability is an essential part of the rule of law. It is essential for another reason, as in the earlier editions of Dicey,24 of course modified in later editions, referring to John Wilkes’s case,25 that “conferment of any discretion tends to arbitrariness and therefore there is something inconsistent with the rule of law.” But then, as time passed, it was realized that conferment of some discretion for the purpose of application to the facts of a given case is something you cannot do away with. The area of discretion should be the minimum possible, and set norms, standards or guidelines should regulate it, so that it does not tend to become arbitrary. Therefore, the rule of non-arbitrariness is something to be tested by the judiciary whenever the occasion arises.26

 

The growth of judicial review is the inevitable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people; the trend of judicial scrutiny of every significant governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary. There is a general perception that the judiciary in this country has been active in expansion of the field of judicial review into non-traditional areas, which earlier were considered beyond judicial purview.

 

The Judges have a duty to perform, which is even more onerous to keep the judicial ship afloat on even keel. It must avoid making any ad hoc decision without the foundation of a juristic principle, particularly, when the decision appears to break new grounds. The judgments must be logical, precise, clear, and sober, rendered with restraint in speech avoiding saying more than that, which is necessary in the case.27

 

It must always be remembered that a step taken in a new direction is fraught with the danger of being a likely step in a wrong direction. In order to be a path-breaking trend it must be a sure step in the right direction. Any step satisfying these requirements and setting a new trend to achieve justice can alone be a New Dimension of Justice and a true contribution to the growth and development of law meant to achieve the ideal of justice.

 

Emergency Provisions in the Constitution of India

The Emergency Provisions are mentioned from Article 352 to Article 360.

?      Article 352: Proclamation of Emergency – due to external intrusion or war the President of India can declare a state of emergency through a Proclamation. This Article suggests that such a Proclamation can be revoked or a varied Proclamation can also be issued. However, the decision of the Cabinet ministers to issue such a proclamation must be sent to the President in written form prior to his issuance of the same. According to the Article, all such Proclamations should be presented to both the Houses of the Parliament. The Proclamations, if not accepted by a resolution, will be counted as ineffective after one month. If the Proclamation is not accepted after the passing of a second resolution, then it will become ineffective after the expiry of 6 months of the second resolution. It is also mentioned in the Article that not less than two-thirds of the members of any of the Parliamentary Houses should be required to pass a resolution. There are certain rules specified in this Article regarding the President revoking or issuing a varied Proclamation during Emergency.

?      Article 353: Effect of Proclamation of Emergency – this Article states that the Proclamation of Emergency includes extending the executive power of the union to the states in the form of directions. The Parliament, as per this Article, can confer the power to make laws, upon the officers or authorities of the Union.

?      Article 354: Application of provisions relating to distribution of revenues while a Proclamation of Emergency is in operation – provisions made under Articles 268 to 279 can be modified or exceptions can be made by the President of India by an Order while the Proclamation period of emergency is going on. Information about all such Orders must be conveyed to both the Houses of Parliament.

?      Article 355: Duty of the Union to protect States against external aggression and internal disturbance – this Article states the fact that the Union or Center is solely responsible for defending the various states from all types of violence and aggressions erupting from outside and disturbances occurring within the nation’s territory.

?      Article 356: Provisions in case of failure of constitutional machinery in States – the President of India can take charge of a state if the reports submitted to him by the Governor suggest that the government of the state has become incapable of exercising the Constitutional powers. The President is also subjected to exercise the powers of the government of such state by Proclamation. The Proclamation issued under such circumstances become ineffective after 6 months from the date of issuance, if not revoked during this time period. All such Proclamations have to be presented to both the Houses of Indian Parliament and will expire after two months. The Legislative powers of such state shall also be exercised by the Parliament. In the Houses of Parliament there are certain rules and regulations regarding the expiry of the Proclamation and the time period normally depends upon the fact whether it has been revoked earlier or not.

?      Article 357: Exercise of legislative powers under Proclamation issued under article 356 – the powers of the Legislature shall be exercised by the Parliament during emergency. The Parliament has the right to delegate Legislative powers to the President of India or any such authority. The President of India, after the Proclamation of Article 356, can make laws and shall have access to the consolidated fund during the time period when the House of the People is not in operation.

?      Article 358: Suspension of provisions of article 19 during emergencies – any provision under Article 19 will not be effective during emergency and the states can make law and undertake executive action. However, only those laws and executive actions containing recital related to emergency during the Proclamation of Emergency are effective as per the Article.

?      Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies – the President of India can suspend all ongoing proceedings in any court of the nation during emergencies by an Order. The President can also call upon all pending court proceedings in case of emergencies. All such orders declaring the suspension of court proceedings have to be submitted to both the Houses of Parliament.

?      Article 360: Provisions as to financial emergency – a declaration shall be made by the President of India through a Proclamation regarding the financial crisis of the nation if such situation arises. Such a Proclamation can be revoked and has to be presented in both the Houses of the Parliament. The Proclamation thus issued will become null and void after two months if the same is not approved through a resolution passed by the Houses of Parliament. In case the Houses are not in session the Article suggests certain specific guidelines regarding the Proclamation. This Article also includes provisions relating to the salary and allowance reduction of those who are employed with Union and state departments. A provision relating to money bills and other financial bills passed by the state Legislature is mentioned in the Article. This provision states that all such bills have to be considered by the President during financial instability.

 

Special Provisions Relating to Certain Classes

The Constitution of India has listed the special provisions relating to certain classes in Part XVI. From Article 330 to Article 342.

?      Article 330: Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People – this Article states that a certain number of seats should be reserved in the House of the People for both the Schedule Castes and Schedule Tribes. However, clause b of the Article includes Schedule Tribes excluding those who live in the autonomous districts of Assam. Clause c of the Article includes the Schedule Tribes belonging to the autonomous Assam districts. It is also mentioned in this Article that the total number of such seats assigned to the Schedule Tribes of autonomous Assam districts should match the total number of seats allotted in the House of the People. The seats alloted to the Schedule Castes and Schedule Tribes of a particular state or Union Territory should be proportional to the total number of seats reserved for such state or Union Territory in the house of the People.

?      Article 331: Representation of the Anglo-Indian Community in the House of the People – it is specified in this Article of the Indian Constitution that the President of India has the sole right to elect a maximum of 2 members belonging to the Anglo-Indian section to represent the entire community.

?      Article 332: Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States – This Article of the Constitution states that a definite number of seats in every state’s Legislative Assembly should be alloted to the Schedule Castes and Schedule Tribes. The Schedule Castes and Schedule Tribes of the autonomous districts of Assam are also given seats in the Legislative Assembly. It is also specified that a person not belonging to the Schedule Tribes category of Assam state cannot contest the Legislation Assembly election from any of the constituencies of the districts of the state. Also, all areas outside the periphery of the districts of Assam should not hold any constituency of the Legislative Assembly of the Assam state. The total seats alloted to the state Legislative Assembly of Assam should be in proportion of the total population and the share of the SC/ST in such population.

 

As per Article332, the number of seats alloted to the SC/STs of a state should follow a proportion to the total number of seats assigned in the Assembly as the total population of the SC/STs in that state with respect to the total state population.

In case of such states as Nagaland, Mizoram, Meghalaya and Arunachal Pradesh, as per the Constitution Act 1987, if all the seats of the Legislative Assembly after the first census of 2000, belong to the Schedule Tribes, then only one seat shall be alloted to other communities. Also, the total number of seats alloted to the Schedule Tribes shall not be less than the existing number of seats in the Assembly of the state.

The Article suggests that the the total number of seats of Schedule Tribes in the Legislative Assembly of Tripura state should be proportional to the total number of existing seats in the Assembly. As per the Constitution Act 1992, the number of the Schedule Tribe members in the Legislative Assembly of Tripura shall not be less than the total number of seats already available in the Assembly.

 

?      Article 333: Representation of the Anglo-Indian community in the Legislative Assemblies of the States – according to this Article of the Constitution of India if the Governor of any state thinks it necessary to elect one representative of the Anglo-Indian community for the Legislative Assembly of that state then he can do the same. Also, if the governor feels that Anglo-Indian community does not have sufficient representation in the state Legislative Assembly then also he can elect one member of that community for the Assembly.

?      Article 334: Reservation of seats and special representation to cease after 289A – This Article holds the fact that after 60 years of the enactment of the Indian Constitution, certain provisions shall become ineffective. However, it is also specified that the Article will not be applied until and unless the House of the People or the Legislative Assembly gets dissolved because of some significant reason. The Provisions with which this Article deals with include reserving seats for Anglo-Indian community, Schedule Castes and Schedule Tribes in the House of the People or in the Legislative Assembly.

?      Article 335: Claims of Scheduled Castes and Scheduled Tribes to services and posts – The Article states that the various claims of the Schedule Castes and Schedule Tribes shall be regarded accordingly. Relaxation of age, lower cut off marks and easier parameters of evaluation for the purpose of selecting SC/ST candidates to different posts and services will remain intact irrespective of the provisions mentioned in this Article.

?      Article 336: Special provision for Anglo-Indian community in certain services – as per this Article, for such posts of Union as postal and telegraph, customs and railway, the members of the Anglo-Indian community will be selected, for the first two years of the initiation of the Constitution, following the rules prevailing before 15th August, 1947. It is also specified that in every two years the total number of seats allotted to the Anglo-Indian community in different services and posts will go down by 10%. The Article states that these provisions will become ineffective after 10 years of the enactment of the Indian Constitution. However, clause 2 of this Article clearly mentions that if a candidate of the concerned community is eligible for any post other than the ones mentioned above then he will be selected with immediate effect.

?      Article 337: Special provision with respect to educational grants for the benefit of Anglo-Indian community – the provisions of this Article deal with the fact that grants to the Anglo-Indian community shall be offered in the first three years of the enactment of the Constitution following the same rules made on 31st March 1948. It is also stated that the amount of such grants will reduce by 10% in every three succeeding years. It is mentioned that after 10 years of the initiation of the Constitution of India all such grants will cease to exist. Moreover, the Article states that only when at least 40% of the admissions in educational units belong to communities other than Anglo-Indians, such grants will be offered to the said community.

?      Article 338: National Commission for Scheduled Castes and Scheduled Tribes – This Article covers the issues to be dealt with by the said Commission exclusively made for the Schedule Castes and Schedule Tribes. As per the Constitution of India, the Article holds that the Commission should include a Chairperson, Vice-Chairperson and other members all of whom are elected by the President of India. The Commission, according to the Article, has the power to investigate all matters that are related to the safeguard of the Sc/STs. The commission can also exercise its power by summoning any person from any part of the nation to interrogate him regarding a particular issue of the SC/STs. The Commission shall also take necessary measures to improve the socio-economic status of the Schedule Castes and Schedule Tribes. A report specifying whether the safeguards of the ST/SCs are maintained properly shall be submitted to the President of India every year by the Commission.

?      Article 339: Control of the Union over the administration of Scheduled Areas and the welfare of Scheduled Tribes – the Article suggests that a Commission specifying the administration of Scheduled Areas and Welfare of Scheduled Tribes shall be formed by Order of the President after 10 years of the Indian Constitution’s enactment. The various procedures and powers of the commission are to be included in the said Order. Planning and execution of various schemes pertaining to the development of the Schedule Tribes included in the executive power of the Union is also mentioned in the Article.

?      Article 340: Appointment of a Commission to investigate the conditions of backward classes – this Article specifies that the President of India can form a Commission by Order that will look into the overall condition of the people belonging to the backward classes. This Commission is also supposed to recommend any state or union the necessary steps through which the underprivileged classes can improve their social and economic status. On the basis of the investigation done, the Commission shall submit a report to the President of India. The President, in turn, shall present such report with a memorandum to both of the Houses of the Indian Parliament and will prescribe the necessary steps to be taken to develop the condition of the backward classes.

?      Article 341: Scheduled Castes – this Article states that the President of India after taking the advice of the Governor of any state or Union Territory, has the right to demarcate tribes, races or castes or a part of any group as Scheduled Castes, in accordance with the law of the Constitution. The president can do the same by issuing a public notification. However, the Parliament of India can, by law, accept or reject the list containing the Scheduled Caste groups.

?      Article 342: Scheduled Tribe – a group belonging to a tribe or an entire tribal community of a state or an Union Territory can be declared as Scheduled Tribe by the President of India through issuing a public notice. The President consults with the Governor of the concerned state or Union Territory before specifying a tribe as Scheduled Tribe. The Parliament of India can decide upon canceling or keeping the particular ST in the list of Scheduled Tribes. However, the public notification issued for declaration of the Scheduled Tribe can be saved by the Parliament.

 

Other provisions

 

Article 369 {Temporary power to Parliament to make laws with respect to certain matters in the State List as if they were matters in the Concurrent List}

Article 370 {Temporary provisions with respect to the State of Jammu and Kashmir}

Article 371 {Special provision with respect to the States of Maharashtra and Gujarat}

Article 371A {Special provision with respect to the State of Nagaland}

Article 371B {Special provision with respect to the State of Assam}

Article 371C {Special provision with respect to the State of Manipur}

Article 371D {Special provisions with respect to the State of Andhra Pradesh}

Article 371E {Establishment of Central University in Andhra Pradesh}

Article 371F {Special provisions with respect to the State of Sikkim}

Article 371G {Special provision with respect to the State of Mizoram}

Article 371H {Special provision with respect to the State of Arunachal Pradesh}

Article 371I {Special provision with respect to the State of Goa}

Article 372 {Continuance in force of existing laws and their adaptation}

Article 372A {Power of the President to adapt laws}

Article 373 {Power of President to make order in respect of persons under preventive detention in certain cases}

Article 374 {Provisions as to Judges of the Federal Court and proceedings pending in the Federal Court or before His Majesty in Council}

Article 375 {Courts, authorities and officers to continue to function subject to the provisions of the Constitution}

Article 376 {Provisions as to Judges of High Courts}

Article 377 {Provisions as to Comptroller and Auditor-General of India}

Article 378 {Provisions as to Public Commissions}

Article 378A {Special provisions as to duration of Andhra Pradesh Legislative Assembly}

Basic Structure

 

 

 

 

 

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. Key among these “basic features”, are the fundamental rights granted to individuals by the constitution. The doctrine thus forms the basis of a limited power of the Indian Supreme Court to review and strike down constitutional amendments enacted by the parliament which conflict with or seek to alter this “basic structure” of the constitution.

In 1965, The “basic features” principle was first expounded by Justice J.R. Mudholkar in his dissent in the case of Sajjan Singh v. State of Rajasthan.

In 1973, the basic structure doctrine triumphed in Justice Hans Raj Khanna’s judgment in the landmark decision of Kesavananda Bharati v. State of Kerala. Previously, the Supreme Court had held that the power of parliament to amend the constitution was unfettered. However, in this landmark ruling, the court adjudicated that while parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.

In 1975, Indira Nehru Gandhi v. Raj Narain, a Constitutional Bench of the Supreme Court used the basic structure doctrine to strike down the 39th amendment and paved the way for restoration of Indian democracy.

In 1980, The Constitution (Forty-Second Amendment) Act had been enacted by the government of Indira Gandhi in response to the Kesavananda judgment in an effort to reduce the power of the judicial review of constitutional amendments by the Supreme Court. In the Minerva Mills case, Nani Palkhivala successfully moved the Supreme Court to declare sections 4 & 55 of the 42nd amendment as unconstitutional. Chief Justice Yeshwant Vishnu Chandrachud explained in the Minerva Mills judgment that since the power of Parliament to amend the constitution was limited, as had been previously held through the basic structure doctrine in the Kesavananda case, the parliament could not by amending the constitution convert this limited power into an unlimited power (as it had purported to do by the 42nd amendment). In addition, the court also ruled that the parliament’s “power to amend is not a power to destroy”.

The basic structure doctrine applies only to constitutional amendments. It does not apply to ordinary acts of parliament, which must itself be in conformity with the constitution.

In Kesavananda there were differing opinions even among the majority for what the “basic structure” of the constitution comprised.

Chief Justice Sikri, writing for the majority, indicated that the basic structure consists of the following:

• The supremacy of the constitution.
• A republican and democratic form of government.
• The secular character of the Constitution.
• Maintenance of the separation of powers.
• The federal character of the Constitution.

Justices Shelat and Grover in their opinion added three features to the Chief Justice’s list:

• The mandate to build a welfare state contained in the Directive Principles of State Policy.
• Maintenance of the unity and integrity of India.
• The sovereignty of the country.

Justices Hegde and Mukherjea, in their opinion, provided a separate and shorter list:

• The sovereignty of India.
• The democratic character of the polity.
• The unity of the country.
• Essential features of individual freedoms.
• The mandate to build a welfare state.

Justice Jaganmohan Reddy preferred to look at the preamble, stating that the basic features of the constitution were laid out by that part of the document, and thus could be represented by:

• A sovereign democratic republic.
• The provision of social, economic and political justice.
• Liberty of thought, expression, belief, faith and worship.
• Equality of status and opportunity.

The interpretation of the basic structure has since evolved in numerous other court rulings since theKesavananda judgment.

 

Citizenship

Part II of the Indian Constitution consists of the following articles:

• Article 5. Citizenship at the commencement of the Constitution.
• Article 6. Rights of citizenship of certain persons who have migrated to India from Pakistan.
• Article 7. Rights of citizenship of certain migrants to Pakistan.
• Article 8. Rights of citizenship of certain persons of Indian origin residing outside India.
• Article 9. Persons voluntarily acquiring citizenship of a foreign State not to be citizens.
• Article 10. Continuance of the rights of citizenship.
• Article 11. Parliament to regulate the right of citizenship by law.

Citizen is a native or naturalized member of a state or other political community. The citizenship is a state of being a citizen of a particular social, political, or national community. The major issues in Constituent assembly on citizenship For the constitution assembly, to arrive at a final draft for Citizenship was one of the most arduous tasks while framing the constitution.

The problem was partition of India on one hand and India being recreated by uniting the princely states on the other. India’s partition into India and Pakistan caused millions of people cross the border. Partition on the basis of religion forced  The Hindus and Sikhs who were born in Pakistan side came to India and Muslims who were born in India migrated to Pakistan. Apart from that, there were people who had left their homeland India and started living abroad and now wanted to come back as the country was a free nation.

Constitution as Part II. The problem of citizenship was basically as follows: The people who were born and living in Pakistan and migrated to India were to be provided Indian Citizenship. The people who were born and living in India and migrated to Pakistan were to be excluded and debarred from Indian Citizenship. People who migrated to Pakistan in 1947 but returned back to live in India permanently had to be provided Citizenship. The people who were born in India, but living abroad but came back, had to be provided citizenship.

Article 5 : Citizenship at the commencement of the Constitution. At the commencement of this Constitution, every person who has his domicile in the territory of India and- who was born in the territory of India; or either of whose parents was born in the territory of India; or who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India. Article5 refers to the Citizenship on January 26, 1950. This article provided that the ordinary resident in the territory of India since or before January 26, 1945 were deemed to be Indian Citizens

Article 6. Rights of citizenship of certain persons who have migrated to India from Pakistan. Notwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if- he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and (i) in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or (ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him there for to such officer before the commencement of this Constitution in the form and manner prescribed by that Government: Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application. Article 6 deals with those persons who migrated to India from Pakistan. India as defined in the Government of India Act, 1935 means undivided India.

These persons were divided into two categories.

Category 1: Those who came before July 19, 1948

Category 2: Those who came after July 19, 1948

Those who came from Pakistan to India before July 19, 1948 would automatically become Indian Citizens. Those who came after July 19, 1948 would become Indian Citizens provided they had been registered in the form and manner as prescribed by the Government of India.

Article 7: Rights of citizenship of certain migrants to Pakistan. Notwithstanding anything in articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India: Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948. Article 7 deals with those persons who had migrated to Pakistan but returned to India from Pakistan with intention to live here permanently. Please note that this article deals with the “permit system”. The permit system was introduced in July 19, 1948. This system provided that a person who is desiring to return back to India with an intention to permanently reside was required to get a separate permit

Article 8: Rights of citizenship of certain persons of Indian origin residing outside India. Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefor to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India. Article 8 deals with those persons who were living abroad. The article provides that any person who was born or his parents /grandparents were born in undivided India but living abroad and wants to return to India would need to be registered at the as Citizen of India by the diplomatic or consular representative of India in that country.

Article 9: Persons voluntarily acquiring citizenship of a foreign State not to be citizens. No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State. Under article 9 of the constitution, any person who has voluntarily acquired the citizenship of a foreign country, even if qualified for Indian Citizenship under any of the provisions of the constitution will not be a Citizen of India.

Article 10: Continuance of the rights of citizenship. Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

Article 11: Parliament to regulate the right of citizenship by law. Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. The nature of provisions from Article 5 to 9 show that the objective of the constituent assembly was not to make a permanent law for citizenship. Ours is a Republic Country and various offices are to be occupied by the persons who are elected by the citizens. So, keeping this in view, it was necessary for the Constituent Assembly to make some provisions which could precisely determine that who is a Citizen of Independent Indian Dominion and who is not, at the time of the commencement of the constitution. Further, the constituent also gave plenary power to the parliament of India to deal with the question of nationality. Article 10 and more precisely Article 11 give the power to the parliament to make law in this connection as and when it suits to the demands of the circumstances. The power in parliament vested by Article 11 embraced not only acquisition but also the termination or any other matter related to Citizenship. Using the power vested in parliament by Article 11 of the Constitution of India, a comprehensive law “The Citizenship Act, 1955” was passed by the parliament. This act has been amended from time to time to make space for provisions as and when required.

OCI

An Overseas Citizen of India is a lifetime visa status. It is the closest thing to dual citizenship that India offers.

Who can be an OCI?

(This list was expanded as of 9 January 2015)

1. A person who used to be an Indian citizen
2. A person with at least one parent, grandparent,or great-grandparent who is/was an Indian citizen
3. A person married to an Indian citizen or an existing OCI for at least two continuous years

The following groups of people cannot have OCI status:

• Anyone who was ever a citizen of Pakistan or Bangladesh
• Anyone whose parents or grandparents were citizens of Afghanistan, Pakistan, Bangladesh, China, or Sri Lanka
• Anyone who served in a foreign military or worked in a foreign defense department

What are the benefits of being an OCI?

• Lifelong multiple entry visa to India
• You never have to report to the FRRO regardless of the length of your stay
• You can eventually become a citizen of India if you remain an OCI for 5 years and live in India for at least 1 year(short breaks are now allowed)
• You can use special counters during immigration
• You don’t need a student visa to study in India
• You don’t need an employment visa to get a job
• You can open a special bank account in India, just like an NRI
• You can make investments in India
• You can buy non-farm property and exercise property ownership rights
• Your can use your OCI card to apply for a driver’s license, open a bank account, or get a PAN card
• You get the same economic, financial, and education benefits as NRIs (e.g. reserved admission quotas), and you can adopt children like an NRI
• You pay the Indian resident fee when visiting a national parks, monuments, museums or wildlife sanctuary (of course it is ultimately up to the discretion of the man issuing tickets)

What are the drawbacks?

• You may not purchase agricultural land or farm houses
• You may not vote
• You may not hold a government job
• You may not be elected to a political position
• You may not travel to restricted areas without permission

How do you become an OCI?

You can apply through the Indian embassy in your country of residence or within India at the local FRRO.

Here is a sample of documentation you will need (see your local consulate for a specific list):

• Proof of present citizenship
• Proof of former Indian citizenship (for you or your relative)
• Proof of renunciation of Indian citizenship (if applicable)
• Proof of relationship to an Indian citizen

The entire process can take several months in some cases. Fees vary from nationality to nationality. If you apply in India, the fee is Rs. 15,000 for an adult or Rs. 8,000 for a minor. You can convert a PIO card to an OCI card if you qualify, and the fees are very nominal.

PIO (Person of Indian Origin) used to be a 15 year visa for non-Indian citizens, but it has since been removed.

Fundamental Rights

The Constitution of India guarantees certain Fundamental Rights to the Citizens of India.

The Indian constitution contains a chapter on fundamental rights. Part III (Art. 12-35) contains fundamental rights of Indian citizens. The fundamental rights are called fundamental because they are basic to the development of human personality.

The Indian fundamental rights, contrasted with such rights contained in the U. S. bill of rights, present several peculiarities. First, the fundamental rights in India are far more elaborate than in the U. S. A. Thus, for example, the U. S. bill of rights (first ten amendments) only names some rights. The Supreme Court, through the process of judicial review decides the limitations on these rights. In India, determination of limitations on fundamental rights is not left to judicial interpretation. The constitution itself contains (clauses 2-6 in Art. 19) such limitations. The limitations contemplated by the constitution are-

• public order,
• security of the state and
• sovereignty and integrity of India.

In the face of these limitations, the fundamental rights guaranteed by the constitution cannot be said to be absolute.

However, whenever the state restricts fundamental rights by legislation, the courts have the right to examine whether the limitations imposed are “reasonable or not.” The courts are free to strike down any law imposing unreasonable restriction on the enjoyment of fundamental rights. The courts in India enjoy a limited degree of judicial review with respect to fundamental rights.

Yet, in view of these limitations, some critics argue that the Indian constitution gives fundamental rights with one hand and takes them away with the other. It should also be pointed out that provision of preventive detention under Art. 22 is a gross violation of the individual liberty under Art. 21. The power of the state to detain persons without trial is not to be found in any other democratic country like the U. S. A. Further, in case of proclamation of emergency under Art. 352, fundamental rights guaranteed under Art. 19 remain suspended by virtue of Arts 358 and 359.

Again, the Indian constitution is based on the theory of Parliamentary sovereignty and not constitutional sovereignty, as is the case in the U. S. A. Consequently, the Parliament may easily tamper with Indian fundamental rights. The capacity of the judiciary to afford protection to the fundamental rights is very limited. The Supreme Court verdict that the fundamental rights are not amendable was subsequently reversed. In the Keshavanand Bharati case, Supreme Court held that the Parliament may amend the entire constitution. It cannot only alter any basic feature of the constitution.

The processes of amendment given in Art 368 are far easier than the one given in Art 5 of the U.S. constitution. Consequently, the Union Parliament with a qualified majority may now easily amend any fundamental right contained in Part III of the constitution.

Kinds of fundamental rights

The Indian constitution originally provided 7 categories of fundamental rights. But one fundamental right, that to property was removed from the list of fundamental rights by 44th amendment. Right to property now is an ordinary legal right. Thus there are now 6 categories of fundamental rights. These are:

 (1) Right to equality (Arts. 14-18).

In this category there are five rights

• Equality Before Law:- Equality before law is well defined under the Article 14 of the Constitution which ensures that every citizen shall be likewise protected by the laws of the country. It means that the State will not distinguish any of the Indian citizens on the basis of their gender, caste, creed, religion or even the place of birth. The state cannot refuse equality before the law and equal defense of the law to any person within the territory of India. In other words, this means that no person or groups of people can demand for any special privileges. This right not only applies to the citizens of India but also to all the people within the territory of India. Equality means that equals should be treated equally.
• Abolition Of Discrimination On Grounds Of Caste, Race, Sex Or Religion:- The right of Social Equality and Equal Access to Public Areas is clearly mentioned under the Article 15 of the Constitution of India stating that no person shall be shown favoritism on the basis of color, caste, creed language, etc. Every person shall have equal admittance to public places like public wells, bathing ghats, museums, temples etc. However, the State has the right to make any special arrangement for women and children or for the development of any socially or educationally backward class or scheduled castes or scheduled tribes. This article applies only to citizens of India.
• Equality in public employment, Article 16 of the Constitution of India clearly mentions that the State shall treat everyone equally in the matters of employment. No citizen shall be discriminated on the basis of race, caste, religion, creed, descent or place of birth in respect of any employment or office under the State. Every citizen of India can apply for government jobs. However, there are some exceptions to this right. The Parliament may pass a law mentioning that specific jobs can only be filled by candidates who are residing in a particular area. This requirement is mainly for those posts that necessitate the knowledge of the locality and language of the area. Apart from this, the State may also set aside some posts for members of backward classes, scheduled castes or scheduled tribes which are not properly represented in the services under the State to uplift the weaker sections of the society. Also, a law may be passed which may entail that the holder of an office of any religious institution shall also be a person professing that specific religion. Though, this right shall not be granted to the overseas citizens of India as directed by the Citizenship (Amendment) Bill, 2003.
• Abolition of untouchability, Article 17 of the Constitution of India abolishes the practice of untouchability in India. Practice of untouchability is declared as a crime and anyone doing so is punishable by law. The Untouchability Offences Act of 1955 (and now Protection of Civil Rights Act in 1976) states punishments for not allowing a person to enter a place of worship or from taking water from a well or tank.
• Abolition of titles. Article 18 of the Constitution of India prohibits the State from granting any titles. Citizens of India are not allowed to accept titles from a foreign State. Titles like Rai Bahadurs and Khan Bahadurs given by the British government have also been abolished. Nevertheless, academic and military distinctions can be conferred upon the citizens of India. The awards of ‘Bharat Ratna’ and ‘Padma Vibhushan’ cannot be used by the beneficiary as a title and is not prohibited by the Constitution of India. From 15 December 1995, the Supreme Court has sustained the validity of such awards

 (2) Rights to freedom.

(Arts. 19-22) these now include six freedoms-

• Freedoms of speech and expression,
• Freedom of assembly without arms of association,
• Freedom of movement,
• Freedom of residence and
• Freedom of profession oroccupation.

Each one of these six freedoms is subject to some restrictions. For rights can never be absolute. Individual rights must be reconciled with the interests of the community. It is logical that equal rights for all must mean limited rights for any. Hence, the state may impose ‘reasonable restrictions’ upon the exercise of any of these rights.

Restrictions

Firstly, the state may impose restrictions on the exercise of the right to freedom of speech and expression on eight grounds. These are:

1. defamation,
2. contempt of court,
3. decency or morality,
4. security of the state,
5. friendly relations with other states,
6. incitement of offence and,
7. sovereignty and
8. integrity of India.

Secondly, the freedom to assemble is subject to two restrictions. The assembly must be peaceable and the members of assembly must not bear arms. However the Sikhs are allowed to carry ‘Kirpan’ as part of their religious creed. In the U.S.A. right to bear arms is fundamental right. In India, this right is denied in the interest of public order.

Thirdly, the right to form associations or unions does not entitle persons to enter into criminal conspiracy either against individuals, groups or against the state.

Fourthly, the right to move freely or to reside and settle in any part of India, does not cover trespass into homes or restricted areas. State also may restrict this freedom to protect the aboriginal tribes.

Finally, the right to practice any profession or to carry on any occupation, trade or business are also subject to reasonable restrictions. Thus professions or, trade or, business must not be harmful to the interest of the community. The state may also prescribe qualifications for particular profession or, technical occupation. The state may itself carry on trade or business to the exclusion of citizens.

Power of Courts to enforce freedom of citizens of India

Every Indian citizen has the power to move the High Court or the Supreme Court for protecting and securing his personal freedom. The Courts are empowered to issue writs in the nature of habeas corpus. The courts can order the presence of detained or imprisoned person and set him free in case there is no legal justification for his detainment or imprisonment.

Rights to Freedom during National Emergency

The rights to freedom under Article 19 of Indian constitution are suspended during the period of National Emergency declared by the President of India.

Further, during the period when the National emergency is in operation, the President is empowered to suspend the right of citizens to move the Supreme Court for the enforcement of their personal freedom.

Conclusion

Each one of the fundamental freedoms guaranteed by the constitution of India is hedged by many restrictions. They are not absolute. This led to the criticism that Indian freedom is a myth and not reality for what has been given with one hand has been taken away with the other.

This criticism is unfair. For fundamental rights can nowhere be absolute. For logically, one can be absolutely free only when all others are absolute, slaves Individual freedom to be real must be social and hence must be limited.

There is a difference in the scheme of limitations on fundamental rights in the U.S. constitution and in the constitution of India. In the U.S.A. the restrictions are not mentioned in the constitution itself. This is left to judicial interpretations. In India on the other hand, the restrictions are mentioned in the constitution itself. It is not left to the vagaries of judicial interpretation.

On the whole fundamental rights everywhere are restricted or, limited. As Mr. Justice Mukherji observed in A. K. Gopalan vs. State of Madras case” There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraints.”

 

These freedoms are however not without limitations.

(3) Rights against exploitation (Arts. 24 and 25)

Include prohibition of traffic in human beings and prohibition of child labour.

(4)  Rights to freedom of religion (Arts. 25-28)

Include  freedom of conscience and freedom of religion. Citizens are free to profess and practice any religion. These provisions make India a secular state.

 (5) Cultural and Educational rights (Arts. 29-30)

Include right to protection of language, script and culture given to the minorities. The minorities are also given the right to establish and administer educational institutions of their own.

(6)   Right to constitutional remedies (Arts. 32-35)

Provides for enforcement of fundamental rights through the judicial process.Dr BR Ambedkar  expressed it to be the heart and soal of Indian constitution.

Thus the constitution contains an elaborate scheme of fundamental rights. But the fundamental rights in India are not absolute. They are hedged by many limitations. Indeed, fundamental rights cannot be absolute anywhere in the world. Countries differ only in their degree of limitations on fundamental rights.

Preamble

The Constitution of India begins with a Preamble which describes the nature of the Indian State and the objectives it is committed to secure. K.M. Munshi describes the Preamble as the political horoscope of the constitution. Thakur Dass Bhargawa says Preamble is the most precious part and the soul of the constitution.

The Preamble reads:

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, political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and 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.

The words ‘Socialist ‘Secular” and ‘Integrity were initially not there in the Preamble. These were added by the 42nd Amendment (1976) of the Constitution.

Preamble: Features:

I. The Source of Authority:

Popular Sovereignty:

The Preamble categorically accepts the principle of Popular Sovereignty. It begins with the words: ‘We the people of India’. These words testify to the fact that the people of India are’ the ultimate source of all authority. The Government derives its power from them.

II. Nature of State:

The Preamble describes five cardinal features of the Indian state:

(1) India is a Sovereign State:

The Preamble proclaims that India is a sovereign state. Such a proclamation denotes the end of rule over India. It testifies to the fact that India is no longer a dependency or colony or possession of British Crown. As a sovereign independent state, India is free both internally and externally to take her own decisions and implement these for her people and territories.

(2) India is a Socialist State:

In 1976, the Preamble was amended to include the word ‘Socialism’. It is now regarded as a prime feature of the State. It reflects the fact that India is committed to secure social, economic and political justice for all its people. India stands for ending all forms of exploitation as well as for securing equitable distribution of income, resources and wealth. This has to be secured by peaceful, constitutional and democratic means. The term ‘India is a Socialist state’ really means, ‘India is a democratic socialist state.’

(3) India is a Secular State:

By the 42nd Amendment, the term ‘Secular’ was incorporated in the Preamble. Its inclusion simply made the secular nature of the Indian Constitution more explicit. As a state India gives special status to no religion. There is no such thing as a state religion of India. India guarantees equal freedom to all religions. All religions enjoy equality of status and respect.

(4) India is a Democratic State:

The Preamble declares India to be a Democratic State. The Constitution of India provides for a democratic system. The authority of the government rests upon the sovereignty of the people. The people enjoy equal political rights. The people freely participate in the democratic process of self rule.

They elect their government. For all its acts, the government is responsible before the people. The people can change their government through elections. The government enjoys limited powers. It always acts under the Constitution which represents the supreme will of the people.

(5) India is a Republic:

The Preamble declares India to be a Republic. Negatively, this means that India is not ruled by a monarch or a nominated head of state. Positively, it means that India has an elected head of state who wields power for a fixed term. President of India is the elected sovereign head of the state. He holds a tenure of 5 years. Any Indian citizen can get elected as the President of India.

III. Four Objectives of the Indian State:

The Preamble lists four cardinal objectives which are to be “secured by the state for all its citizens”.

These are:

(1) Justice:

India seeks to secure social, economic and political justice for its people.

(i) Social Justice:

Social Justice means the absence of socially privileged classes in the society and no discrimination against any citizen on grounds of caste, creed, colour, religion, sex or place of birth. India stands for eliminating all forms of exploitations from the society.

(ii) Economic Justice:

Economic Justice means no discrimination between man and man on the basis of income, wealth and economic status. It stands for equitable distribution of wealth, economic equality, end of monopolistic control over means of production and distribution, decentralisation of economic resources, and securing of adequate opportunities to all for earning their livelihoods.

(iii) Political Justice:

Political Justice means equal, free and fair opportunities to the people for participation in the political process. It stands for the grant of equal political rights to all the people without any discrimination. The Constitution of India provides for a liberal democracy in which all the people have the right and freedom to participate.

(2) Liberty:

The Preamble declares liberty to be the second cardinal objective to be secured. It includes liberty of thought, expression, belief, faith and worship. The grant of Fundamental Rights (Part III) including the right to freedom is designed to secure this objective. Liberty of faith and worship is designed to strengthen the spirit of secularism.

(3) Equality:

The Preamble declares Equality as the third objective of the Constitution. Equality means two basic things:

(i) Equality of status i.e. natural equality of all persons as equal and free citizens of India enjoying equality before law.

(ii) Equality of opportunity i.e. adequate opportunities for all to develop. For securing the equality of status and opportunity, the Constitution of India grants and guarantees the fundamental Right to Equality.

(4) Fraternity:

Promotion of Fraternity among the people is the fourth objective is to promote Fraternity among all the people. Fraternity means the inculcation of a strong feeling of spiritual and psychological unity among the people. It is designed to secure dignity of the individual and unity and integrity of the nation.

IV. Date of Adoption and Enactment:

In its final paragraph, the Preamble specifies the important historical fact that the Constitution was adopted on 26 November, 1949. It was on this day that the Constitution received the signatures of the President of the Constituent Assembly and was declared passed.

V. Self-made Constitution:

The Constitution of India is an adopted, enacted and self-made constitution. It was adopted and enacted by the Constituent Assembly acting as the elected representative body of the people of India. The Preamble states the philosophical foundations of the Constitution India and enumerates its objectives.

It constitutes a Key for the interpretation of the Constitution. It is a part of the Basic Structure of the Constitution. Through, it’s Preamble, the Constitution a commits itself to Democracy, Republicanism, Socialism, Secularism, Liberalism and Welfare State. The Preamble states the objectives which the Constitution is committed to secure for all the people of India.

 

 

Part IV-A was added by the 42nd Amendment Act, 1976. It encompasses Part IV, Article 51A enu­merating Ten Fundamental Duties of the Citizens of India.

There is no provision in the Constitution for direct enforcement of any of these Duties nor for any sanction to prevent their violation.But it may be expected that in determining the Consti­tutionality of any law, if a Court finds that it seeks to give effect to any of these duties, it may consider such law to ‘be reasonable’ in relation to Article 14 or 19, and thus save such law from unconstitutionality.

Directive Principles Of State Policy

An important feature of the constitution is the Directive Principles of State Policy. Although the Directive Principles are asserted to be “fundamental in the governance of the country,” they are not legally enforceable. Instead, they are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the constitution’s preamble.

Article 37 of the Constitution declares that the DPSP “shall not be enforceable by any court, but the principles therein 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.” It is not a mere coincidence that the apparent distinction that is drawn by scholars between the ICCPR rights and ESC rights holds good for the distinction that is drawn in the Indian context between fundamental rights and DPSP. Thus the bar to justiciability of the DPSP is spelled out in some sense in the Constitution itself.

 

Determinants and Nature of Indian Politics, Election and Voting Behavior, Coalition Governments.