CH1. Historical Development of Constitution of India

During 200 years of British rule in India, various acts were passed to better control this diversified large land under both Company and the Crown rules. These acts greatly influence the country’s present political structure and various constitutional provisions.

Timeline of British Rule in India

1. The Company Rule(1773-1857)

2. The Crown Rule (1858-1947)

Important Acts passed during British India and their Provisions

Rule in India (1773-1858)

1. Regulating Act, 1773

Features of the Act

• The act was the first attempt to regularize company affairs in India.
• It laid the foundation of Central Administration in India.
• Governor of Bengal became Governor-General of Bengal (Lord Warren Hastings was the first Governor-General of Bengal).
• Created Executive Council of 4 members to assist Governor-General of Bengal.
• Made Governors of Madras and Bombay presidencies subordinate to Governor-General of Bengal.
• Provisioned for setting up the Supreme Court of Calcutta with 1 Chief justice and 3 other judges.
• Prohibited the company’s servants from indulging in any private trade and accepting bribes from locals.
• “Provisioned for the Court of Directors of the Company to report to the British Government regarding its revenue, civil, and military affairs in India.”

2. Act of Settlement or Amending Act, 1781

Features of the Act

• This act was passed to amend the Regulation Act, 1773.
• Safeguarded the Governor-General and its council from the jurisdiction of the Supreme Court. Also provided immunity to the servants for their official actions.
• Exempted matters related to the Company’s revenue from the Supreme Court’s jurisdiction.
• Required the Supreme Court to administer the personal law of the defendant.
• Empowered the Governor-General and its Council to frame regulations regarding Provincial Courts and Councils.

3. Pitt’s India Act, 1784

Features of the Act

• Established a system of Dual Government. Provided for the Court of Directors to manage its commercial affairs while a new body called the Board of Control managed its political affairs.
• Empowered the Board of Control to supervise and direct civil and military operations and revenues of India’s British possessions.

Significance of the Act

• First time acknowledged Indian Territory under control of the company as India’s British possessions.
• The British government became the Supreme Controller of the Company’s affairs and administration in India.

CH4. Preamble of the Constitution

The American Constitution was the first to begin with a Preamble. The Preamble to the Indian Constitution is based on the “Objectives Resolution’, drafted and moved by Pandit Nehru, and adopted by the Constituent Assembly. It has been amended by the 42nd Constitutional Amendment Act t.1976), which added three new words – socialist, secular and integrity.

TEXT OF THE PREAMBLE: The Preamble in its present form 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 and Political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all; FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”

KEY WORDS IN THE PREAMBLE

Certain key words—Sovereign, Socialist, Secular, Democratic, Republic, Justice, Liberty, Equality and Fraternity—are explained as follows:

Sovereign

• The word “sovereign’ implies that India is neither a dependency nor a dominion of any other nation, but an independent state. 
• There is no authority above it, and it is free to conduct its own affairs (both internal and external).

Socialist

• Even before the term was added by the 42nd Amendment in 1976, the Constitution had a socialist content in the form of certain Directive Principles of State Policy. 
• Democratic socialism, on the other hand, holds faith in a “mixed economy’ where both public and private sectors co-exist side by side. As the Supreme Court says, ‘Democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity.

Secular

• The term “secular’ too was added by the 42nd Constitutional Amendment Act of 1976. However, as the Supreme Court said in 1974, although the words “secular state’ were not expressedly mentioned in the Constitution, there can be no doubt that Constitution-makers wanted to establish such a state and accordingly Articles 25 to 28 (guaranteeing the fundamental right to freedom of religion) have been included in the constitution. 
• The Indian Constitution all religions in our country have the same status and support from the state.

Democratic

• A democratic polity, as stipulated in the Preamble, is based on the doctrine of popular sovereignty, that is, possession of supreme power by the people. 
• Democracy is of two types-direct and indirect. In direct democracy, the people exercise their supreme power directly as is the case in Switzerland. There are four devices of direct democracy, namely, Referendum, Initiative, Recall and Plebiscite. 
• In indirect democracy, on the other hand, the representatives elected by the people exercise the supreme power and thus carry on the government and make the laws. This type of democracy, also known as representative democracy, is of two kinds-parliamentary and presidential. 
• The term ‘democratic’ is used in the Preamble in the broader senseembracing not only political democracy but also social and economic democracy.

Republic

• The term ‘republic’ in our Preamble indicates that India has an elected head called the president. He is elected indirectly for a fixed period of five years. 
• A republic also means two more things: one, vesting of political sovereignty in the people and not in a single individual like a king; second, the absence of any privileged class and hence all public offices being opened to every citizen without any discrimination.

Objectives of Indian State 

1. Justice : Social, Economic and Political.
2. Liberty : of thought, expression, belief, faith and worship.
3. Equality : of status and opportunity, and to promote among them all.
4. Fraternity : (=Brotherhood) : assuring the dignity of the individual and the unity and integrity of the nation.

1. Justice: Social, Economic, and Political

The objective of ensuring justice in Indian society is to create a fair, impartial, and equal system for all citizens. Social justice aims to provide equal opportunities and treatment to all individuals, regardless of their caste, religion, gender, or economic status. Economic justice focuses on providing equal opportunities for all citizens to participate in the economy and enjoy the benefits of economic growth. Lastly, political justice ensures that all citizens have the right to participate in the political process and decision-making, as well as equal protection under the law.

2. Liberty: of thought, expression, belief, faith, and worship
The Indian state aims to guarantee the freedom of thought, expression, belief, faith, and worship to all its citizens. This objective promotes a diverse and tolerant society where individuals have the right to express their opinions, practice their religion, and follow their beliefs without fear of discrimination or persecution. By ensuring these liberties, the Indian state fosters an environment in which the free exchange of ideas and knowledge can flourish, contributing to the nation’s progress.

3. Equality: of status and opportunity, and to promote among them all
The objective of equality in the Indian state focuses on providing equal status and opportunities to all citizens, regardless of their social, economic, or cultural background. This means that all individuals should have equal access to resources, education, and employment, and that discrimination based on caste, religion, gender, or economic status should be eliminated. The Indian state works to promote policies and programs that address inequalities and provide support to marginalized communities to ensure that they have equal opportunities to succeed.

4. Fraternity (Brotherhood): assuring the dignity of the individual and the unity and integrity of the nation
The objective of fraternity in the Indian state is to create a sense of unity among the diverse population while maintaining the dignity of each individual. By promoting brotherhood and understanding among its citizens, the Indian state fosters social cohesion and ensures that the nation remains unified in its pursuit of progress. This objective also emphasizes the importance of respecting each individual’s dignity and rights, which contributes to a harmonious and inclusive society.

PREAMBLE AS PART OF THE CONSTITUTION

• In the Berubari Union case (1960), the Supreme Court said that the Preamble shows the general purposes behind the several provisions in the Constitution, the Supreme Court specifically opined that Preamble is not a part of the Constitution. 
• In the Kesavananda Bharati case 17 (1973), the Supreme Court rejected the earlier opinion and held that Preamble is a part of the Constitution. 
• In the LIC of India case(1995) also, the Supreme Court again held that the Preamble is an integral part of the Constitution. Like any other part of the Constitution. 
• However, two things should be noted 
• The Preamble is neither a source of power to legislature nor a prohibition upon the powers of legislature. 
• It is non-justiciable, that is, its provisions are not enforceable in courts of law.

AMENDABILITY OF THE PREAMBLE

Preamble can be amended under Article 368 of the Constitution arose for the first time in the historic case of Kesavananda Bharati (1973). The Preamble has been amended only once so far, in 1976, by the 42nd Constitutional Amendment Act, which has added three new words Socialist, Secular and Integrity to the Preamble. This amendment was held to be valid.

CH5. Union and its Territory

Part 1 of the Indian Constitution

Part I of the Indian Constitution is titled The Union and its Territory. 

• It includes articles from 1- 4. 
• Part I is a compilation of laws pertaining to the constitution of India as a country and the union of states that it is made of. 
• This part of the constitution contains the law in the establishment, renaming, merging, or altering of the borders of the states.
• Articles under Part I were invoked when West Bengal was renamed, and for the formation of relatively new states such as Jharkhand, Chattisgarh, or Telangana.

The Union and its Territory

Articles 1 to 4 under Part-I of the Constitution deal with the Union and its territory.

Article 1

Article 1 deals with the Name and territory of the Union

• India, that is Bharat, shall be a Union of States.
• The States and the territories thereof shall be as specified in the First Schedule.
• The territory of India shall comprise – the territories of the States; the Union territories specified in the First Schedule; and Such other territories as may be acquired.

Article 2

Article 2 deals with admission or establishment of new States.

• Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.
• Article 2 grants two powers to the Parliament:
• the power to admit into the Union of India new states

• the power to establish new states.

Article 3

Formation Of New States And Alteration Of Areas, Boundaries Or names Of Existing State.

Parliament may by law: 

• form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; 
• increase the area of any State
• diminish the area of any State
• alter the boundaries of any State
• alter the name of any State.

Article 3 notably relates to the formation of or changes in the existing states of the Union of India.

However, Article 3 lays down two conditions in this regard:

• One, a bill contemplating the above changes can be introduced in the Parliament only with the prior recommendation of the President; and
• Two, before recommending the bill, the President has to refer the same to the state legislature concerned for expressing its views within a specified period.
• The President (or Parliament) is not bound by the views of the state legislature and may either accept or reject them, even if the views are received in time.
• Further, it is not necessary to make a fresh reference to the state legislature every time an amendment to the bill is moved and accepted in Parliament.
• In the case of a union territory, no reference need be made to the concerned legislature to ascertain its views and the Parliament can itself take any action as it deems fit.

Article 4

Article 4: declares that laws made under Article 2 and 3 are not to be considered as amendments of the Constitution under Article 368

• Article 4 declares that laws made for admission or establishment of new states (under Article 2) and formation of new states and alteration of areas, boundaries, or names of existing states (under Articles 3) are not to be considered as amendments of the Constitution under Article 368.

• This means that such laws can be passed by a simple majority and by the ordinary legislative process.

• The Supreme Court held that the power of Parliament to diminish the area of a state (under Article 3).
  
  

Dhar Commission and JVP Committee

• There has been a demand from different regions, particularly South India, for the reorganization of states on a linguistic basis.
• Accordingly, in June 1948, the Government of India appointed the Linguistic Provinces Commission under the chairmanship of S K Dhar to examine the feasibility of this.

South Indian States prior to the States Reorganisation Act.

• The commission submitted its report in December 1948 and recommended the reorganization of states on the basis of administrative convenience rather than linguistic factors. This created much resentment and led to the appointment of another Linguistic Provinces Committee by the Congress in December 1948 itself to examine the whole question afresh. It consisted of Jawaharlal Nehru, Vallahbhai Patel, and Pattabhi Sitaramayya and hence was popularly known as JVP Committee.
• It submitted its report in April 1949 and formally rejected language as the basis for the reorganization of states. However, in October 1953, the Government of India was forced to create the first linguistic state, known as Andhra state.

Fazl Ali Commission

• The creation of the Andhra state intensified the demand from other regions for the creation of states on a linguistic basis. 
• This forced the Government of India to appoint (in December 1953) a three-member States. Reorganisation Commission under the chairmanship of Fazl Ali to re-examine the whole question. 
• Its other two members were K M Panikkar and H N Kunzru. 

It identified four major factors that can be taken into account in any scheme of reorganization of states:

• Preservation and strengthening of the unity and security of the country. 
• Linguistic and cultural homogeneity.
• Financial, economic, and administrative considerations. 
• Planning and promotion of the welfare of the people in each state as well as of the nation as a whole.

CH6. Citizenship

Meaning and Significance

• In India, there are two categories of people: citizens and aliens, with citizens being full members of the Indian State and enjoying all civil and political rights.
• Aliens, citizens of other countries, do not have all the civil and political rights enjoyed by citizens. They are classified as friendly aliens or enemy aliens based on their country’s relationship with India.
• Friendly aliens are citizens of nations with cordial relations with India, while enemy aliens are citizens of nations at war with India, enjoying lesser rights.
• Citizens in India have various rights and privileges guaranteed by the Constitution, including:
  (i) Right against discrimination based on religion, race, caste, sex, or place of birth (Article 15).
  (ii) Right to equality of opportunity in public employment (Article 16).
  (iii) Right to freedom of speech, expression, assembly, association, movement, residence, and profession (Article 19).
  (iv) Cultural and educational rights (Articles 29 and 30).
  (v) Right to vote in elections to the Lok Sabha and state legislative assembly.
  (vi) Right to contest for membership of Parliament and state legislature.
  (vii) Eligibility to hold certain public offices such as President, Vice-President, judges of the Supreme Court and high courts, Governor of states, Attorney General, and Advocate General.
• Citizens also have duties towards the Indian State, including paying taxes, respecting national symbols, and defending the country.
• Both citizens by birth and naturalized citizens are eligible for the office of President in India, unlike the USA where only citizens by birth are eligible for the presidency.

Single Citizenship

• The Indian Constitution is federal, with a dual polity comprising the Centre and states, but it only provides for single citizenship, which is Indian citizenship.
• In contrast to countries like the USA and Australia, where double citizenship exists, Indian citizens owe allegiance solely to the Union, with no separate state citizenship.
• Double citizenship creates issues of discrimination, as states may favor their citizens in various matters such as voting rights, holding public offices, and professional opportunities.
• India’s system of single citizenship ensures uniform political and civil rights for all citizens across the country, without discrimination based on their state of birth or residence.
  
• Exceptions to the absence of discrimination include provisions allowing Parliament to prescribe residence as a condition for certain employments and states to provide benefits or preferences to their residents in matters not covered by constitutional rights.
• Article 19 protects the freedom of movement and residence but restricts outsiders’ rights to settle in tribal areas to safeguard the interests of scheduled tribes and protect their culture and property.
• Until 2019, Jammu and Kashmir had special provisions defining permanent residents and conferring specific rights and privileges on them, based on Article 35-A. However, this special status was abolished in 2019.
• The Constitution aims to promote fraternity and unity among Indians by introducing single citizenship and providing uniform rights, but India continues to face communal riots, class conflicts, caste wars, linguistic clashes, and ethnic disputes, indicating that the goal of building a fully integrated Indian nation has not been fully realized.

Constitutional Provisions

• The Constitution addresses citizenship from Articles 5 to 11 in Part 11, but it lacks permanent or detailed provisions regarding acquisition or loss of citizenship after its commencement.
• It identifies four categories of individuals who became citizens of India on January 26, 1950:
  (i) Individuals with domicile in India who met specific conditions related to birth or residency.
  (ii) Those who migrated to India from Pakistan and met residency requirements or were registered as citizens.
  (iii) Individuals who migrated to Pakistan from India but later returned and met residency criteria.
  (iv) Persons of Indian origin residing abroad who could register as Indian citizens through diplomatic or consular representatives.
• These provisions cover citizenship for those domiciled in India, migrants from Pakistan, return migrants, and overseas Indians.
• Other constitutional provisions include:
  (i) Prohibition on acquiring foreign citizenship voluntarily while remaining an Indian citizen.
  (ii) Continuation of Indian citizenship for those already holding it, subject to parliamentary laws.
  (iii) Parliament’s authority to enact laws concerning citizenship acquisition, termination, and related matters.

Citizenship Act, 1955

• The Citizenship Act (1955) governs the rules for acquiring and losing citizenship after the Constitution’s commencement.
• Initially, the act included provisions for Commonwealth Citizenship, but these were repealed in 2003.

Acquisition of Citizenship

(A) By Birth

• Individuals born in India between January 26, 1950, and July 1, 1987, are citizens regardless of their parents’ nationality.
• Different criteria apply to those born after July 1, 1987, and December 3, 2004.
• Children born to foreign diplomats or enemy aliens in India cannot acquire citizenship by birth.

(B) By Descent

• Citizenship can be acquired by individuals born outside India based on their father’s citizenship.
• The criteria and registration requirements vary depending on specific dates.

(C) By Registration

• The Central Government can register individuals meeting certain criteria, such as Indian origin or marriage to an Indian citizen.
• Registration provisions also apply to minor children of Indian citizens.

(C) By Naturalisation

• The Central Government may grant citizenship through naturalisation under specific qualifications and conditions.
• Recent amendments have reduced residency requirements for certain communities.

(D) By Incorporation of Territory

• When foreign territory becomes part of India, citizenship is granted to specified individuals from that territory.
• An example includes the Citizenship (Pondicherry) Order (1962) for Pondicherry’s incorporation.

(E) Special Provisions

• Assam Accord and Migrants: Special provisions apply to persons covered by the Assam Accord, granting citizenship based on residency and registration.
• Migrants from Afghanistan, Bangladesh, or Pakistan:
  (i) Recent amendments allow citizenship for migrants belonging to specified communities who entered India before December 31, 2014.
  (ii) Exemptions from certain penal consequences and eligibility for long-term visas were granted before the Citizenship (Amendment) Act, 2019.

Loss of Citizenship

(A) By Renunciation:

• Citizens can voluntarily renounce their citizenship, leading to its termination.
• Exceptions exist during wartime.

(B) By Termination:

• Citizenship automatically terminates if a citizen voluntarily acquires citizenship of another country.
• Exceptions exist during wartime.

(C) By Deprivation:

• The Central government can compulsorily terminate citizenship for various reasons, including fraud, disloyalty, unlawful communication with enemies, imprisonment, or continuous residency outside India for seven years.

Overseas Citizenship of India

• In September 2000, the Indian Government established a High-Level Committee on the Indian Diaspora chaired by L.M. Singhvi.
• The committee aimed to study the global Indian diaspora comprehensively and propose measures for a constructive relationship.
• It recommended amending the Citizenship Act (1955) to grant dual citizenship to Persons of Indian Origin (PIOs) from certain countries.

  

• The Citizenship (Amendment) Act, 2003, allowed PIOs from 16 specified countries (excluding Pakistan and Bangladesh) to acquire Overseas Citizenship of India (OCI).
• The act also removed provisions related to Commonwealth Citizenship from the Principal Act.
• The Citizenship (Amendment) Act, 2005, expanded OCI eligibility for PIOs from all countries allowing dual citizenship under their laws.
• The OCI is not technically dual citizenship due to constitutional restrictions.
• The Citizenship (Amendment) Act, 2015, merged the PIO card scheme and OCI card scheme into a single “Overseas Citizen of India Cardholder” scheme.
• This was done to address confusion and enhance facilities for applicants.
• The PIO scheme was terminated on January 9, 2015, and all existing PIO cardholders were considered OCI cardholders from that date.

The Citizenship (Amendment) Act of 2015 introduced a change in terminology, substituting “Overseas Citizen of India” with “Overseas Citizen of India Cardholder,” and included the following provisions in the Principal Act:

Registration of Overseas Citizen of India Cardholder

The Central Government may register individuals as overseas citizens of India cardholders if they meet certain criteria:

• Individuals who were Indian citizens at the time of or after the commencement of the Constitution, or were eligible for Indian citizenship at that time.
• Individuals who were citizens of another country but belonged to a territory that became part of India after August 15, 1947.
• Minor children of eligible individuals, or individuals whose both parents are Indian citizens or one parent is an Indian citizen.
• Spouses of foreign origin of Indian citizens or overseas citizens of India cardholders, provided their marriage has been registered for at least two years.
• However, individuals or their ancestors from Pakistan, Bangladesh, or specified countries are not eligible for registration.

Conferment of Rights on Overseas Citizen of India Cardholder

• Overseas citizen of India cardholders are entitled to certain rights as specified by the Central Government.
• They are not entitled to certain rights granted to Indian citizens, such as equality of opportunity in public employment, eligibility for certain political positions, registration as a voter, or membership in legislative bodies.

Renunciation of Overseas Citizen of India Card

• Cardholders have the option to renounce their overseas citizen status by making a declaration.
• Once the declaration is registered by the Central Government, the individual ceases to be an overseas citizen of India cardholder.
• Additionally, the spouse and minor children of the cardholder also lose their overseas citizen status upon renunciation.

Cancellation of Registration as Overseas Citizen of India Cardholder:

• The Central Government has the authority to cancel the registration of a person as an overseas citizen of India cardholder under various circumstances.
• These circumstances include obtaining registration through fraudulent means, showing disaffection towards the Indian Constitution, engaging in unlawful activities during wartime, violating citizenship laws, imprisonment, or actions deemed against national security or public welfare.
• Before cancellation, the individual has the right to be heard, as per the provisions added by the Citizenship (Amendment) Act, 2019.

CH7. Fundamental Rights

Introduction

Part III of the Constitution is rightly described as the Magna Carta of India. It contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights. In fact, the Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA. Originally, the Constitution provided for seven Fundamental Rights via,

1. Right to equality (Articles 14-18)
2. Right to freedom (Articles 19-22)
3. Right against exploitation (Articles 23-24)
4. Right to freedom of religion (Articles 25-28)
5. Cultural and educational rights (Articles 29-30)
6. Right to property (Article 31)
7. Right to constitutional remedies (Article 32) However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.

Article 12 (Definition Of State)

Article 12 of the Indian Constitution defines The State as: 

• The Government and Parliament of India,
• The Government and legislatures of the states,
• All local authorities and
• Other authorities in India or under the control of the Government of India.

Article 13 (Laws Inconsistent With Fundamental Rights) 

Article 13 of the Indian Constitution states that:

• All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
• The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
• In this article, unless the context otherwise required,
  (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
  (b)“laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
• Nothing in this article shall apply to any amendment of this Constitution made under article 368.
• Further, Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the Supreme Court held in the Kesavananda Bharati case (1973) that a Constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the Constitution and hence, can be declared as void.

Right to Equality (14-18)

Article 14

Equality before Law and Equal Protection of Laws: Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This provision confers rights on all persons whether. The concept of “equality before law” is of British origin while the concept of equal protection of laws” has been taken from the American Constitution. The first concept connotes: 

• the absence of any special privileges in favour of any person, 
• the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, and 
• No person (whether rich or poor, high or low, official or non-official) is above the law.

Rule of Law

The concept of ‘equality before law’ is an element of the concept of ‘Rule of Law’, propounded by A.V. Dicey, the British jurist. His concept has the following three elements or aspects: 

• Absence of arbitrary power, that is, no man can be punished except for a breach of law. 
• Equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered.

Exceptions to Equality

The rule of equality before law is not absolute and there are constitutional and other exceptions to it. These are mentioned below: The President of India and the Governor of States enjoy the following immunities (Article 361): 

• The President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office. 
• No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office. 
• No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office. 
• No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee there of (Article 105).

Article 15 (Prohibition of Discrimination on Certain Grounds) 

• Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. The two crucial words in this provision are discrimination’ and only”. 
• The word discrimination” means To make an adverse distinction with regard to’ or ‘to distinguish unfavourably from others’. The use of the word “only’ connotes that discrimination on other grounds is not prohibited. 
• The state is permitted to make any special provision for women and children. For example, reservation of seats for women in local bodies or provision of free education for children.

Article 16 (Equality of Opportunity in Public Employment)

Article 16 provides equal employment opportunities in State service for all citizens.

• No citizen shall be discriminated against in matters of public employment or appointment on the grounds of race, religion, caste, sex, place of birth, descent or residence.
• Exceptions to this can be made for providing special provisions for the backward classes.

Article 17 (Abolition of Untouchability)

• In 1976, the Untouchability (Offences) Act, 1955 has been comprehensively amended and renamed as the Protection of Civil Rights Act, 1955 to enlarge the scope and make penal provisions more stringent.
• Under the Protection of Civil Rights Act (1955), the offences committed on the ground of untouchability are punishable either by imprisonment up to six months or by fine upto 500 or both.

Article 18 (Abolition of Titles)

Article 18 abolishes titles and makes four provisions in that regard: 

• It prohibits the state from conferring any title (except a military or academic distinction) on anybody, whether a citizen or a foreigner. 
• It prohibits a citizen of India from accepting any title from any foreign state.
• A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president. 
• No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument, or office from or under any foreign State without the consent of the president.
• The article abolishes the titles that were awarded by the British Empire such as Rai Bahadur, Khan Bahadur, etc.
• Awards like Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna and military honours like Ashok Chakra, Param Vir Chakra do not belong to this category.

Right to Freedom (Articles 19 – 22)

Article 19

Protection of Six Rights Article 19 guarantees to all citizens the six rights. These are:

• Right to freedom of speech and expression. 
• Right to assemble peaceably and without arms. 
• Right to form associations or unions or co-operative societies. 
• Right to move freely throughout the territory of India. 
• Right to reside and settle in any part of the territory of India. 
• Right to practice any profession or to carry on any occupation, trade or business. 
• Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978.

Freedom of Speech and Expression Article 19(1)(a)

It implies that every citizen has the right to express his views, opinions, belief and convictions freely by word of mouth, writing, printing, picturing or in any other manner.
The Supreme Court held that the freedom of speech and expression includes the following: 

• Right to propagate one’s views as well as views of others.
• Freedom of the press.
• Freedom of commercial advertisements.
• Right against tapping of telephonic conversation, (e) Right to telecast, that is, government has no monopoly on electronic media.
• Right against bundh called by a political party or organisation.
• Right to know about government activities.
• Freedom of silence.
• Right against imposition of pre-censorship on a newspaper.

Freedom of Assembly Article 19(1)(b)

Every citizen has the right to assemble peaceably and without arms. It includes the right to hold public meetings, demonstrations and take out processions. This freedom can be exercised only on public land and the assembly must be peaceful and unarmed. This provision does not protect violent, disorderly, riotous assemblies, or one that causes breach of public peace or one that involves arms. The State can impose reasonable restrictions on the exercise of right of assembly on two grounds.

Freedom of Association Article 19(1)(c)

• All citizens have the right to form associations or unions or co-operative societies. It includes the right to form political parties, companies, partnership firms, societies, clubs, organisations, trade unions or any body of persons. It not only includes the right to start an association or union but also to continue with the association or union as such. 
• Reasonable restrictions can be imposed on the exercise of this right by the State on the grounds of sovereignty and integrity of India, public order and morality.

Freedom of Movement Article 19(1)(d)

• This freedom entitles every citizen to move freely throughout the territory of the country. He can move freely from one state to another or from one place to another within a state. Thus, the purpose is to promote national feeling and not parochialism. 
• The grounds of imposing reasonable restrictions on this freedom are two,namely, the interests of general public and the protection of interests of any scheduled tribe.

Freedom of Residence Article 19(1)(e)

• Every citizen has the right to reside and settle in any part of the territory of the country. This right has two parts:
  (i) the right to reside in any part of the country, which means to stay at any place temporarily, and
  (ii) the right to settle in any part of the country, which means to set up a home or domicile at any place permanently.
• The State can impose reasonable restrictions on the exercise of this right on two grounds, namely, the interest of general public and the protection of interests of any scheduled tribes.

Freedom of Profession Article 19(1)(f)

All citizens are given the right to practice any profession or to carry on any occupation, trade or business. This right is very wide as it covers all the means of earning one’s livelihood. The State can impose reasonable restrictions on the exercise of this right in the interest of the general public.

Article 20 (Protection in Respect of Conviction for Offences) 

Article 20 deals with the protection of citizens in respect of conviction for offences. This provides for three types of protection of the individual against the State.

• Retrospective criminal legislation: This is also known as ex-post facto criminal legislation. Under this, a person cannot be convicted for an act that was committed at a time when the act had not been declared by law as an offence.
  • This means that criminal legislation cannot be given a retrospective effect.
  • This immunity cannot be used against the provision of preventive detention, and also does not cover the trial.
  • The law also provides that a person cannot be subject to a punishment greater than what is prescribed by law for the offence committed.
• Double jeopardy: This indicates that a person cannot be convicted for the same offence more than once.
• Prohibition against self-incrimination: This implies that no person accused of an offence shall be compelled by the State to bear witness against himself.

Article 21 (Protection of Life and Personal Liberty)

• This fundamental right is available to every person, citizens and foreigners alike.
• Article 21 provides two rights:
  • Right to life
  • Right to personal liberty
• The fundamental right provided by Article 21 is one of the most important rights that the Constitution guarantees.
• The Supreme Court of India has described this right as the ‘heart of fundamental rights’. 
• The right specifically mentions that no person shall be deprived of life and liberty except as per the procedure established by law. This implies that this right has been provided against the State only. State here includes not just the government, but also, government departments, local bodies, the Legislatures, etc.
• Any private individual encroaching on these rights of another individual does not amount to a violation of Article 21. The remedy for the victim, in this case, would be under Article 226 or under general law.
• The right to life is not just about the right to survive. It also entails being able to live a complete life of dignity and meaning.
• The chief goal of Article 21 is that when the right to life or liberty of a person is taken away by the State, it should only be according to the prescribed procedure of law.

Interpretation of Article 21

Judicial intervention has ensured that the scope of Article 21 is not narrow and restricted. It has been widening by several landmark judgements.
A few important cases concerned with Article 21:

• AK Gopalan Case (1950): Until the 1950s, Article 21 had a bit of a narrow scope. In this case, the SC held that the expression ‘procedure established by law’, the Constitution has embodied the British concept of personal liberty rather than the American ‘due process’. 
• Maneka Gandhi vs. Union of India Case (1978): This case overturned the Gopalan case judgement. Here, the SC said that Articles 19 and 21 are not watertight compartments. The idea of personal liberty in Article 21 has a wide scope including many rights, some of which are embodied under Article 19, thus giving them ‘additional protection’. The court also held that a law that comes under Article 21 must satisfy the requirements under Article 19 as well. That means any procedure under law for the deprivation of life or liberty of a person must not be unfair, unreasonable or arbitrary. 
• Francis Coralie Mullin vs. Union Territory of Delhi (1981): In this case, the court held that any procedure for the deprivation of life or liberty of a person must be reasonable, fair and just and not arbitrary, whimsical or fanciful.
• Olga Tellis vs. Bombay Municipal Corporation (1985): This case reiterated the stand taken earlier that any procedure that would deprive a person’s fundamental rights should conform to the norms of fair play and justice.
• Unni Krishnan vs. State of Andhra Pradesh (1993): In this case, the SC upheld the expanded interpretation of the right to life.

The Court gave a list of rights that Article 21 covers based on earlier judgments. Some of them are:

1. Right to live with human dignity.
2. Right to decent environment including pollution free water and air and protection against hazardous industries.
3. Right to livelihood.
4. Right to privacy.
5. Right to shelter.
6. Right to health.
7. Right to free education up to 14 years of age.
8. Right to free legal aid.
9. Right against solitary confinement.
10. Right to speedy trial.
11. Right against handcuffing.
12. Right against inhuman treatment.
13. Right against delayed execution.
14. Right to travel abroad.
15. Right against bonded labour.
16. Right against custodial harassment.
17. Right to emergency medical aid.
18. Right to timely medical treatment in government hospital.
19. Right not to be driven out of a state.
20. Right to fair trial.
21. Right of prisoner to have necessities of life.
22. Right of women to be treated with decency and dignity.
23. Right against public hanging.
24. Right to hearing.
25. Right to information.
26. Right to reputation.
27. Right of appeal from a judgement of conviction
28. Right to social security and protection of the family
29. Right to social and economic justice and empowerment
30. Right against bar fetters Right to appropriate life insurance policy
31. Right to sleep
32. Right to freedom from noise pollution
33. Right to electricity

Right to Education Article 21 A (86th Amendment 2002)

• Declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine. This amendment is a major milestone in the country’s aim to achieve ‘Education for AIl. 
• Even before this amendment, the Constitution contained a provision for free and compulsory education for children under Article 45 in Part IV. However, being a directive principle 
• It now reads-‘The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years.’ It also added a new fundamental duty under Article 51A that reads- ‘It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years’.

Article 22 (Protection Against Arrest and Detention)

Article 22 deals with the protection against arrest and detention in certain cases.

• This article is applicable to both citizens and non-citizens.
• This provision extends certain procedural safeguards for individuals in case of an arrest.
• It comes into the picture after a person has been arrested. It is not a fundamental right against detention and arrest.
• The idea behind this right is to prevent arbitrary arrests and detention.
• The article provides the following safeguards: 
  • Article 22(1): Any person who is in custody has to be informed as to why he has been arrested. Further, he cannot be denied the right to consult an advocate.
  • Article 22(2): The arrested individual should be produced before a judicial magistrate within 24 hours of his arrest.
  • Article 22(3): No individual who has been arrested can be kept in custody for more than the period determined by the judicial magistrate. These safeguards are, however, not applicable to Enemy aliens People arrested under preventive detention laws.

What is Preventive Detention?

There are two types of detention:

• Punitive
• Preventive

Punitive detention is detention after a trial. Preventive detention is detention without trial. The idea behind this is to prevent an individual from committing a crime. This means that persons can be detained on grounds of suspicion. The rights of people arrested in this manner are governed by preventive detention laws.

Right against Exploitation (Articles 23 & 24)

Article 23 (Prohibition of Traffic in Human Beings and Forced Labour) 

• Article 23(1): Traffic in human beings and the beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.
• Article 23(2): Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
  • Exploitation implies the misuse of others’ services by force and/or labour without payment. 
  • There were many marginalized communities in India who were forced to engage in manual and agricultural labour without any payment. 
  • Labour without payment is known as begar. 
  • Article 23 forbids any form of exploitation. 
  • Also, one cannot be forced to engage in labour against his/her will even if remuneration is given. 
  • Forced labour is forbidden by the Constitution. It is considered forced labour if the less-than-minimum wage is paid. 
  • This article also makes ‘bonded labour’ unconstitutional. 
  • Bonded labour is when a person is forced to offer services out of a loan/debt that cannot be repaid. 
  • The Constitution makes coercion of any kind unconstitutional. Thus, forcing landless persons into labour and forcing helpless women into prostitution is unconstitutional. 
  • The Article also makes trafficking unconstitutional. 
  • Trafficking involves the buying and selling of men and women for illegal and immoral activities. 
  • Even though the Constitution does not explicitly ban ‘slavery’, Article 23 has a wide scope because of the inclusion of the terms ‘forced labour’ and ‘traffic’. 
  • Article 23 protects citizens not only against the State but also from private citizens. 
  • The State is obliged to protect citizens from these evils by taking punitive action against perpetrators of these acts (which are considered crimes), and also take positive actions to abolish these evils from society. 
  • Under Article 35 of the Constitution, the Parliament is authorized to enact laws to punish acts prohibited by Article 23. 
  • Clause 2 implies that compulsory services for public purposes (such as conscription to the armed forces) are not unconstitutional. 
  • Laws passed by the Parliament in pursuance of Article 23:
    • Suppression of Immoral Traffic in Women and Girls Act, 1956 
    • Bonded Labour System (Abolition) Act, 1976

Article 24 (Prohibition of Employment of Children in Factories)

Article 24 says that “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”

• This Article forbids the employment of children below the age of 14 in any hazardous industry or factories or mines, without exception.
• However, the employment of children in non-hazardous work is allowed.

Laws that were passed in pursuance of Article 24 in India.

• The Factories Act, 1948: This was the first act passed after independence to set a minimum age limit for the employment of children in factories. The Act set a minimum age of 14 years. In 1954, this Act was amended to provide that children below the age of 17 could not be employed at night.
• The Mines Act of 1952: This Act prohibits the employment of people under the age of 18 years in mines.
• The Child Labour (Prohibition and Regulation) Act, 1986: This was a landmark law enacted to curb the menace of child labour prevalent in India. It described where and how children could be employed and where and how this was forbidden. This Act designates a child as a person who has not completed his/her 14th year of age. The 1986 Act prohibits the employment of children in 13 occupations and 57 processes.
• Child Labour (Prohibition & Regulation) Amendment Act, 2016: This Act completely forbids the employment of children below 14 years of age. It also bans the employment of people between the ages of 14 and 18 in hazardous occupations and processes. Punishments to violators of this law were made stricter by this amendment act. This Act allows children to be employed in certain family occupations and also as artists.
• Child Labour (Prohibition and Regulation) Amendment Rules, 2017: The government notified the above Rules in 2017 to provide a broad and specific framework for prevention, prohibition, rescue, and rehabilitation of child and adolescent workers. The Rules clarified on issues concerning the employment of family enterprises and also provides safeguards for artists in that the working hours and conditions are specified.

Right to Freedom of Religion (Articles 25 – 28)

Article 25 (Freedom of Conscience and Free Profession, Practice and Propagation of Religion)

Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. The implications of these are: Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires. 

• Right to profess: Declaration of one’s religious beliefs and faith openly and freely. 

• Right to practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas. 

• Right to propagate: Transmission and dissemination of one’s religious beliefs to others.

Article 26 (Freedom to Manage Religious Affairs)

According to Article 26, every religious denomination or any of its section shall have the following rights:

• Right to establish and maintain institutions for religious and charitable purposes;
• Right to manage its own affairs in matters of religion; 
• Right to own and acquire movable and immovable property; and 
• Right to administer such property in accordance with law.

Article 27 (Freedom from Taxation for Promotion of a Religion)

Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. In other words, the State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion. This means that the taxes can be used for the promotion or maintenance of all religions.

Article 28 (Freedom from Attending Religious Instruction)

This article permits educational institutions that are maintained by religious groups to disseminate religious instruction.

• This provides that no religious instruction shall be provided in State-run educational institutions.
• Educational institutions administered by the State but that were established under any endowment or trust which requires that religious instruction shall be imparted in such institutions are exempt from the above clause (that no religious instruction shall be provided).
• Any person who attends any educational institution recognized by the State or receiving State aid shall not be required to participate in any religious instruction that may be imparted in such institution, or also attend any religious worship in such institutions unless he/she has given consent for the same. In the case of minors, the guardians should have given consent for the same.

Cultural & Educational Rights (Articles 29 & 30)

Article 29 (Protection of Interests of Minorities)

This article is intended to protect the interests of minority groups.

• Article 29(1): This provides any section of the citizens residing in India having a distinct culture, language, or script, the right to conserve their culture, language and script.
• Article 29(2): The State shall not deny admission into educational institutes maintained by it or those that receive aid from it to any person based only on race, religion, caste, language, or any of them.

Article 30 (Right of Minorities to Establish and Administer Educational Institutions)

This right is given to minorities to form and govern their own educational institutions. Article 30 is also called the “Charter of Education Rights”.

• Article 30(1): All religious and linguistic minorities have the right to establish and administer educational institutions of their choice. 
• Article 30(2): The State shall not, when granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

Right to Constitutional Remedies (32 – 35)

Article 32 (Right To Constitutional Remedies)

Dr Ambedkar called Article 32 as the most important article of the Constitution—’an Article without which this constitution would be a nullity. It is the very soul of the Constitution and the very heart of it’. The Supreme Court has ruled that Article 32 is a basic feature of the Constitution.

It contains the following four provisions: 

• The right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed. 
• The Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo-warranto. 
• Parliament can empower any other court to issue directions, orders and writs of all kinds. Article 226 has already conferred these powers on the high courts. 
• The right to move the Supreme Court shall not be suspended except as otherwise provided for by the Constitution, Thus the Constitution provides that the President can suspend the right to move any court for the enforcement of the fundamental rights during a national emergency.

What is a Writ?

Writs are written orders issued by the Supreme Court of India to provide constitutional remedies to protect the fundamental rights of citizens from a violation.

Facts about writs in India

• Article 32 also empowers Parliament to authorize any other court to issue these writs 
• Before 1950, only the High Courts of Calcutta, Bombay, and Madras had the power to issue the writs 
• Article 226 empowers all the high courts of India to issue the writs 
• Writs of India are borrowed from English law where they are known as ‘Prerogative writs’.

What is a Writ Petition?

A writ petition is essentially a court petition for extraordinary review, asking a court to intervene in a lower court’s decision. Under the Indian legal system, jurisdiction to issue ‘prerogative writs’ is given to the Supreme Court and the High Courts of Judicature of all Indian states. Parts of the law relating to writs are outlined in the Constitution of India.

Type of Writs

The Constitution empowers the Supreme Court and High Courts to issue orders or writs.
The types of writs are: 

• Habeas Corpus
• Certiorari
• Prohibition
• Mandamus
• Quo Warranto

(i) Habeas Corpus: It is a Latin term which literally means ‘to have the body oiMt is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal. Thus, this writ is a bulwark of individual liberty against arbitrary detention.

(ii) Mandamus: It literally means ‘we command’. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose. 

(iii) Prohibition: Literally, it means To forbid’. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. Thus, unlike mandamus that directs activity, the prohibition directs inactivity. 

(iv) Certiorari: In the literal sense, it means to be certified’ or To be informed’. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
(v) Quo-Warranto: In the literal sense, it means ‘by what authority or warrant’. It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person.

Status of Writs in Other Countries

• The writs other than habeas corpus are discretionary remedies and have been known as prerogative orders in England and Wales since 1938.

The writs of quo warranto and procedendo are now obsolete. The modified names of certiorari, mandamus, and prohibition are mentioned under the new Civil Procedure Rules 1998 known as quashing orders, mandatory orders, and prohibiting orders respectively.

• Mandamus has been replaced by injunction in the United States district courts.
• The Supreme Court of the United States grants certiorari while the supreme court of other states grant review.

Article 33 (Armed Forces And Fundamental Rights)

• Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed forces, para-military forces, police forces, intelligence agencies and analogous forces.
• The objective of this provision is to ensure the proper discharge of their duties and the maintenance of discipline among them.

Article 34 (Martial Law And Fundamental Rights)

• Article 34 provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India.
• The Parliament can also validate any sentence passed, punishment inflicted.

Article 35 (Effecting Certain Fundamental Rights)

Article 35 lays down that the power to make laws, to give effect to certain specified fundamental rights shall vest only in the Parliament and not in the state legislatures.

CH8. Directive Principles of State Policy

Part IV of the Indian Constitution deals with Directive Principles of our State Policy (DPSP). The provisions contained in this Part cannot be enforced by any court, but these principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. 

Features of the Directive Principles of Policy

• Definition:
  • Directive Principles of State Policy are ideals for the government while making laws.
  • They guide legislative, executive, and administrative actions.
• Scope: “State” in this context includes central and state governments, local authorities, and other public bodies (Article 36).
• Historical Connection:
  • Similar to the “Instrument of Instructions” in the 1935 Government of India Act.
  • Dr. B.R. Ambedkar equated them, stating they are instructions to the legislature and executive.
• Comprehensive Program:
  • Encompasses economic, social, and political aspects.
  • Aims for justice, liberty, equality, and fraternity, aligning with the Constitution’s Preamble.
  • Focuses on creating a ‘welfare state,’ not a ‘police state.’
• Non-Justiciability:
  • Not legally enforceable by courts.
  • Government isn’t compelled to implement them.
  • Despite non-justiciability, Article 37 emphasizes their fundamental role in governance.
• Judicial Role:
  • Courts can’t force implementation but consider them while assessing laws.
  • If a law aligns with Directive Principles, it may be deemed ‘reasonable’ under constitutional scrutiny (Article 14 or 19).

Classification of the Directive Principles

The Constitution does not contain any classification of Directive Principles. However, based on their content and direction, they can be classified into three broad categories, viz, socialistic, Gandhian and liberal-intellectual.

Socialistic Principles

Reflects socialist principles, aiming for a democratic socialist state. Focuses on social and economic justice, steering towards a welfare state.

• Article 38: Promotes people’s welfare, striving for a just social, economic, and political order.
• Article 39: Ensures citizens’ right to adequate livelihood, fair distribution of resources, and prevention of wealth concentration.
• Article 39A: Promotes equal justice and provides free legal aid to the poor.
• Article 41: Guarantees the right to work, education, and public assistance during unemployment, old age, sickness, and disability.
• Article 42: Provides just and humane working conditions and maternity relief.
• Article 43: Secures a living wage, decent standard of life, and cultural opportunities for workers.
• Article 43A: Encourages worker participation in industrial management.
• Article 47: Aims to improve public health, raise nutrition levels, and enhance people’s standard of living.

Fundamental Duties

1. Swaran Singh Committee Recommendations

In 1976, the Congress Party established the Sardar Swaran Singh Committee to discuss fundamental duties, prompted by the internal emergency (1975-1977). 

The committee recommended adding a separate chapter on fundamental duties in the Constitution, emphasizing that citizens should be aware of both their rights and responsibilities.

The Congress Government accepted these suggestions and introduced the 42nd Constitutional Amendment Act in 1976. This amendment created a new part, Part IVA, in the Constitution, featuring only one Article, namely Article 51A. For the first time, this article specified a code of ten fundamental duties for citizens. 

The ruling Congress party acknowledged the historical oversight of not including fundamental duties in the Constitution and asserted that they were rectifying this.

While the Swaran Singh Committee proposed incorporating eight fundamental duties, the 42nd Constitutional Amendment Act (1976) eventually included ten Fundamental Duties. Notably, some recommendations of the Committee were not adopted by the Congress Party and, therefore, not included in the Constitution. These recommendations included:

1. Allowing the Parliament to determine penalties or punishments for non-compliance with or refusal to observe any of the duties.
2. Stating that no law imposing such penalties or punishments could be challenged in any court on the grounds of violating Fundamental Rights or conflicting with any other provision of the Constitution.
3. Specifying the duty to pay taxes as a Fundamental Duty of citizens.

2. List of Fundamental Duties (Article 51A)

According to Article 51 A, it shall be the duty of every citizen of India: 

The characteristics of Fundamental Duties can be summarized as follows:

1. They encompass both moral and civic duties. For instance, holding noble ideals from the freedom struggle is a moral obligation, while respecting the Constitution, National Flag, and National Anthem is a civic duty.

2. Fundamental Duties reflect values ingrained in Indian tradition, mythology, religions, and practices. Essentially, they codify tasks integral to the Indian way of life.

3. Unlike some Fundamental Rights applicable to all, whether citizens or foreigners, Fundamental Duties are specific to citizens and do not extend to foreigners.

4. Similar to Directive Principles, Fundamental Duties are non-justiciable. Courts cannot directly enforce them, and there’s no legal sanction for violations. However, Parliament has the freedom to enforce them through appropriate legislation.

4. Criticism of Fundamental Duties

Critics have raised several concerns about the Fundamental Duties outlined in Part IVA of the Constitution:

1. The list of duties is incomplete, omitting important responsibilities such as voting, tax payment, and family planning. The Swaran Singh Committee even recommended including the duty to pay taxes.

2. Some duties are unclear and challenging for the common man to understand. Phrases like ‘noble ideals,’ ‘composite culture,’ and ‘scientific temper’ can be interpreted differently.

3. Critics view these duties as a set of moral principles since they are non-justiciable. Interestingly, the Swaran Singh Committee suggested penalties for not fulfilling Fundamental Duties.

4. Critics argue that incorporating these duties into the Constitution was unnecessary, as people would naturally perform them without constitutional inclusion.

5. Critics believe that placing Fundamental Duties in Part IVA diminishes their importance. They suggest adding them after Part III to align them with Fundamental Rights.

5. Significance of Fundamental Duties

Despite criticisms, fundamental duties are vital for the following reasons:

• Reminder of Responsibilities: They remind citizens to be conscious of duties alongside their rights.

• Warning Against Anti-national Activities: Act as a warning against activities like flag burning.

• Inspiration and Discipline: Inspire discipline and commitment, making citizens active participants in national goals.

• Legal Significance: Aid courts in determining the constitutionality of laws, as seen in cases like Mohan Kumar Singhania (1991) and Ramlila Maidan Incident (2012).

• Enforceability by Law: Parliament can impose penalties for non-compliance.

Leaders like R. Gokhale and Indira Gandhi justified their inclusion, with Gandhi emphasizing the democratic balance between rights and duties. Despite initial opposition, the Janata Government did not annul them, indicating a consensus on their necessity. 

One more duty was added in 2002 through the 86th Amendment Act.

CH10. Amendment of the Constitution

The Constitution of India, like others, allows for amendments to adapt to changing conditions. Unlike the flexibility in Britain or the rigidity in the USA, India’s Constitution is a synthesis of both. Article 368 outlines the parliamentary powers to amend the Constitution through addition, variation, or repeal. However, amendments cannot touch the ‘basic structure,’ a concept established by the Supreme Court in the Kesavananda Bharati case (1973). This makes the Indian Constitution neither entirely flexible nor rigid but strikes a balance between the two.

Procedure for Amendment

1. Initiation of Amendment:
   • Only Parliament can initiate a Constitution amendment.
   • The process begins with a bill introduced in either House of Parliament.
2. Introduction and Approval:
   • The bill can be introduced by a minister or a private member.
   • No prior permission from the President is needed.
   • It must be approved by a special majority in each House:
     • A majority of the total members of the House.
     • A two-thirds majority of members present and voting.
3. Separate Approval:
   • Each House must pass the bill separately.
   • No provision for a joint sitting if there’s a disagreement.
4. Ratification by States (if applicable):
   • If amending federal provisions, it needs ratification by half of the states.
   • Ratification requires a simple majority in state legislatures.
5. Assent by the President:
   • After approval by Parliament and states (if needed), the bill goes to the President.
   • The President must give assent; no withholding or sending it back.
6. Becoming an Act:
   • Once the President assents, the bill becomes a constitutional amendment act.
   • The Constitution is amended accordingly.

Types of Amendments 

Article 368 of the Indian Constitution outlines three ways to amend its provisions:

1. Amendment by Simple Majority of Parliament:
   • This applies to certain provisions and involves a simple majority of the members of each House present and voting.
   • This process is similar to the ordinary legislative process.
   • Not considered amendments for the purposes of Article 368.
2. Amendment by Special Majority of Parliament:
   • Requires a special majority, which includes a majority of the total membership of each House and a two-thirds majority of members present and voting.
   • Applicable to Fundamental Rights, Directive Principles of State Policy, and provisions not covered by the first and third categories.
3. Amendment by Special Majority of Parliament and Ratification by States:
   • Pertains to provisions related to the federal structure of the country.
   • Involves a special majority in Parliament and the consent of at least half of the state legislatures by a simple majority.
   • No time limit for states to provide their consent.
   • Relevant for matters such as the election of the President, distribution of legislative powers, and specific councils.

By Simple Majority of Parliament

Several provisions in the Constitution can be amended by a simple majority of both Houses of Parliament, and this process is not governed by Article 368. These provisions include:

1. Admission or establishment of new states.
2. Formation of new states and alteration of areas, boundaries, or names of existing states.
3. Abolition or creation of legislative councils in states.
4. Second Schedule – Emoluments, allowances, privileges, etc., of the President, governors, Speakers, judges, etc.
5. Quorum in Parliament.
6. Salaries and allowances of members of Parliament.
7. Rules of procedure in Parliament.
8. Privileges of Parliament, its members, and its committees.
9. Use of the English language in Parliament.
10. Number of puisne judges in the Supreme Court.
11. Conferment of more jurisdiction on the Supreme Court.
12. Use of the official language.
13. Citizenship – acquisition and termination.
14. Elections to Parliament and state legislatures.
15. Delimitation of constituencies.
16. Union territories.
17. Fifth Schedule – Administration of scheduled areas and scheduled tribes.
18. Sixth Schedule – Administration of tribal areas.

These amendments require a simple majority, meaning more members voting in favor than against, without the need for a special majority or the involvement of state legislatures.

By Special Majority of Parliament

• Special Majority Needed: To change most parts of the Constitution, a special majority is required in Parliament. This means more than half of all members in both the Lok Sabha and Rajya Sabha need to agree. Also, two-thirds of the members present and voting must support the change.
• Total Membership Matters: When we say ‘total membership,’ it means all the members in the House, regardless of whether some seats are empty or members are absent.
• Special Majority at Third Reading: Technically, this special majority is mainly needed when the Parliament votes on the proposed changes for the third and final time. However, as a precaution, this requirement is applied to all significant stages of the process, as mentioned in the rules of the Houses.
• Categories of Provisions: The Constitution has different types of rules. The ones that can be changed this way include:
  (i) Fundamental Rights: These are important rights granted to citizens.
  (ii) Directive Principles of State Policy: These are guidelines for the government to create laws and
  (iii) Other Provisions: Anything not covered by the first two categories can also be amended using this special majority.

In simple terms, changing these parts of the Constitution needs a big agreement from the Parliament members, ensuring that the process is thorough and widely supported.

By Special Majority of Parliament and Consent of States

• Federal Structure Amendments: Changes to parts of the Constitution related to the federal structure (how power is divided between the central government and states) need a special majority in Parliament and the approval of half of the state legislatures.
• Consent from States: For these changes, if at least half of the states agree, the process is considered complete. It doesn’t matter if some states don’t give their opinion. There’s no time limit for states to decide.
• Amendable Provisions Include:
  • Election of the President: The rules about how the President is elected.
  • Executive Power: How much authority the Union (central government) and states have.
  • Supreme Court and High Courts: Rules regarding these important courts.
  • Legislative Powers: How the power to make laws is divided between the Union and states.
  • Goods and Services Tax (GST) Council: The body that decides on GST matters.
  • Seventh Schedule Lists: Lists categorizing subjects for legislation.
  • Representation of States: How states are represented in Parliament.
  • Parliament’s Power to Amend the Constitution: Procedures outlined in Article 368 itself. 

Criticism of the Amendment Procedure

Critics have criticised the amendment procedure of the Constitution on the following grounds:

• No Special Body for Amendments: Unlike the USA, India doesn’t have a special body like a Constitutional Convention. The power to amend the Constitution is mainly with the Parliament, and sometimes with state legislatures.
• Parliament Initiates Amendments: Only Parliament can start the process of amending the Constitution. State legislatures can’t propose changes, except in one case related to legislative councils.
• Amendment Power of Parliament: Most of the Constitution can be amended by Parliament alone, either with a special majority or a simple majority. In some cases, the consent of half of the state legislatures is needed, not three-fourths as in the USA.
• No Time Frame for State Consent: The Constitution doesn’t set a time limit for state legislatures to approve or reject an amendment. It also doesn’t clarify if states can change their approval.
• No Joint Sitting for Amendments: If there’s a disagreement in passing a constitutional amendment, there’s no provision for a joint sitting of both Houses of Parliament, unlike in the case of ordinary bills.
• Amendment Process Similar to Legislation: Except for the special majority, the process of amending the Constitution is similar to passing regular bills in Parliament.
• Sketchy Amendment Provisions: The details about the amendment procedure are not very clear, leaving room for legal interpretation. This might lead to matters being taken to the judiciary.
• Balancing Flexibility and Rigidity: Despite some drawbacks, the amendment process strikes a balance between flexibility and rigidity. It’s not so flexible that it can be changed easily by ruling parties, nor is it so rigid that it can’t adapt to changing needs.
• Facile Procedure for Amendments: The Constitution provides a relatively easy process for amending itself, allowing changes to meet evolving needs. This approach is different from some other countries like Canada, the USA, or Australia.

In simpler terms, while India’s amendment process may have some complexities, it allows for necessary changes without being too rigid or too flexible. The aim is to balance stability with the ability to adapt to the nation’s growth and changing circumstances.

CH11. Basic Structure of the Constitution

The Basic structure doctrine is a legal doctrine, according to which, the constitution of a sovereign state has certain provisions in it that are most essential in the functioning of the state and thus the Legislature of state cannot erase these provisions.

• The theory of the basic structure of the Indian Constitution has had a significant and enduring impact on its evolution.
• Origin: The theory in itself is an example of a living constitution.
  • The Constitution does not explicitly reference this theory. 
  • It has emerged from judicial interpretation. 
  • Therefore, the judiciary and its interpretation have effectively altered the Constitution without undergoing a formal amendment process.
  • The term ‘basic structure’ was first introduced by M.K. Nambiar and other counsels during their arguments for the petitioners in the Golaknath case (1967), but it was only in 1973 that the concept surfaced in the text of the Supreme Court’s verdict in Kesavananda Bharati Case 1973.

Evolution of the Basic Structure Doctrine in India: Key Supreme Court Cases and Constitutional Amendments

Amendments under Article 368 & Basic Structure Doctrine in the Present Context

• Under Article 368, Parliament can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution. 
• The Supreme Court has not yet provided a definitive definition or clarification regarding what constitutes the ‘basic structure’ of the Constitution.

Impact of the Basic Structure Doctrine on Indian Jurisprudence

The Judiciary advanced this theory in the famous case of Kesavananda Bharati (1973). This judgment has contributed to the development of the Constitution in the following manners:

• Limitation on Power of Parliament:  It has set specific limits to Parliament’s power to amend the Constitution.
• Upholding Constitutional Integrity: It says that no amendment can the basic structure of the Constitution.
• Powers of Parliament Within Constitutional Limits: It allows Parliament to amend any and all parts of the Constitution (within this limitation); 
• Final Authority of the Judiciary: It establishes the Judiciary as the ultimate arbiter in determining whether an amendment violates the basic structure and in defining what constitutes the basic structure.
• Core Values of Constitution: The apex court held that some features of the Constitution lay at its core and required much more than the usual procedures to change them.
• Recognition by All: In the past four decades, this decision has governed all interpretations of the Constitution and all institutions in the country have accepted the theory of basic structure.

Basic Structure Doctrine in India: Evaluating Criticisms and Upholding Constitutional Integrity

• No Constitutional Basis: It is not defined in the constitution nor in any statute and amounts to rewriting of the constitution without amendment procedure.
• Encroachment of Power: It is an illegitimate infringement of the judiciary on principle of majority rule. It grants unelected judges the authority to limit the actions of a democratically elected legislature.
• Undemocratic: It goes against democracy, majoritarianism and popular sovereignty.
  • Democracy mandates that the final say on all issues concerning society must be left to the majority of the people, acting through their elected representatives 
• No Definition: Judiciary also has not defined what constitutes basic structure. It has been decided by the judiciary on a case to case basis and hence it  is a matter of subjectivity.
• Supreme Control: Translates judiciary into third decisive chamber of parliament.

Significance of the Basic Structure Doctrine: Constitutional Sovereignty, Core Values and the Role of Judiciary

• Constitutional Sovereignty: India adheres to a model of constitutional sovereignty, imposing constraints on regular legislative authority.
• Modern Politics is Questionable: The degree of representation and public support political parties in power enjoy in modern democracies is questionable (Defection ,Money power, Criminalisation of politics etc)
• Core Values of Constitution: Even in a democracy, there are certain decisions which, in principle, must not be left to the majority.(Like independence of judiciary, separation of powers, article 368 itself, Fundamental rights)
• The Judiciary ought to Serve as the Ultimate Authority: : As the ultimate interpreter and protector of the constitution, the Judiciary would use this doctrine carefully, with a very high standard set.
  • The 99th CAA 2015 of NJAC was struck down on grounds of violation of the basic structure of the constitution, as this act allows  the executive to encroach on the power of Judiciary which is against the separation power.
• Ultimate Counter-Majoritarian: According to Professor Sathe, the basic structure doctrine is essentially the “ultimate counter-majoritarian” check upon democracy”.
  • It defines democracy itself as separate from majoritarianism, it means the deciding authority must be of a non-majoritarian character and so, cannot be the Parliament.
• It seeks to preserve constitutional principles envisioned by founding fathers like (Value like Democratic, Secular, Republic, Unity, Integrity etc)

World Examples

• The SC of Bangladesh applied the same doctrine in 1989 to the Bangla constitution.
• Article 79 (3) of the Basic Law of Germany also addresses certain fundamental principles that are not subject to amendment.

Basic Structure Doctrine: Components Revealed Through Judicial Pronouncements

• Kesavananda Bharati Case
  • Chief Justice Sikri, CJI:
    • Supremacy of the Constitution
    • Republican and democratic form of government
    • Secular character of the Constitution
    • Separation of powers between the legislature, executive and the judiciary
    • Federal character of the Constitution
• Justices Shelat, J. and Grover, J.:
  • The directive to establish a welfare state is outlined in the Directive Principles of State Policy.
  • Unity and integrity of the nation
  • Sovereignty of the country
• Justices Hegde, J. and Mukherjea, J.:
  • Democratic character of the polity
  • Unity of the country
  • Essential features of the individual freedoms secured to citizens
  • Mandate to build a welfare state Unity and integrity of the nation
• Justice Jaganmohan Reddy, J.:
  • Equality of status and the opportunity
  • Sovereign democratic republic
  • Justice: social, economic and political
  • Liberty of thought, expression, belief, faith and worship
• Indira Nehru Gandhi v. Raj Narain, 1975:
  • Justice H.R. Khanna:
    • Democracy is a basic feature of the Constitution, ensuring free and fair elections.
  • Justice K.K. Thomas :
    • power of judicial review is an essential feature.
• Justice Y.V. Chandrachud:
  • Sovereign democratic republic status
  • Equality of status and opportunity of an individual
  • Secularism and freedom of conscience and religion
  • Government of laws and not of men i.e. the rule of law
• Nachane, Ashwini Shivram v. State of Maharashtra, 1998:
  • The doctrine of equality enshrined in Art.14 of the Constitution, which is the basis of the Rule of Law, is the basic feature of the Constitution.
• Raghunath Rao v. Union of India case, 1993:
  • The unity and integrity of the nation and Parliamentary system.
• Bommai v. Union of India, 1994, and R.C. Poudyal v. Union of India, 1994:
  • Secularism and “Democracy and Federalism are essential features of our Constitution and are part of its basic structure.”
• Sampath Kumar v. Union of India (1987), L.Chandrakumar v. Union of India (1997), Waman Rao v. Union of India(1981), Subhesh Sharma v. Union of India (1991), Minerva Mills v.Union of India(1980):
  • “Judicial review is a part of the basic constitutional structure and one of the basic features of the essential Indian Constitutional Policy.”
  • Various provisions in the Constitution, including Articles 32, 136, 226, and 227, ensure judicial review of legislation and administrative actions.
• Kihoto hollohan Vs. Zachillhu, 1992:
  • Democracy is part of the basic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy.
• Chandra Kumar v. Union of India (1997):
  • Chief Justice Sikri
    • 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
  • The unity and integrity of India
  • The sovereignty of the country
  • 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
• In a Plethora of Various Other Cases:
  • The independence of the judiciary is a basic feature of the Constitution, as it is indispensable (sine qua non) for democracy.

Judicious Application of the Basic Structure Doctrine

• Expansion of Incorporated Rights: The evolution of the Constitution’s basic structure since its inception in the 1970s is unquestionable, with a continual expansion of incorporated rights over the years by the judicial proceedings
• Judicial Oversight: This transformation is the culmination of extensive court oversight of fundamental rights and the constitutional framework.
  • The doctrine, which restrains the influence of evolving societal concerns, stands as a judicious and well-advised safeguard.
• Safeguarding Constitutional Integrity: However, it is essential to recognize the limits of this doctrine.
  •  While it serves as a guardian of constitutional integrity, it should not be employed to contest regular legislation which would potentially undermine the very foundations of the Constitution itself.
• Potential Dangers: Applying the basic structure theory to assess the constitutionality of ordinary legislation might well be akin to a destructive force, jeopardizing the fundamental structure of our Constitution. 
• Judicious Application: As we reflect on the development of this constitutional doctrine, it becomes clear that its application, while invaluable in preserving fundamental principles, must be judiciously and precisely exercised to maintain the delicate balance of our constitutional system.