Polity Day 2: Preamble and Silent Features

13-06-2019 12:06

Preamble

Preamble refers to the introduction or preface of the constitution. It contains the summary or essence of the constitution. It sets out the philosophy on which the political system rests or in other words, it clearly establishes the main objectives on which the Indian constitutional structure was crafted.

The Preamble of the Indian constitution is based on the “Objectives Resolution” drafted and moved by Pandit Nehru, and adopted by constituent assembly.

On December 1946, Pandit Nehru moved the historic “Objectives Resolution” in the Assembly. These objectives laid down the fundamentals and philosophy of our constitution. 

Objective Resolutions moved by Pandit Nehru is produced here:

  1. This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution; 

2. WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and

3. WHEREIN the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous Units, together with residuary powers and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting there from; and

4. WHEREIN all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and

5. WHEREIN shall be guaranteed and secured to all the people of India justice, social economic and political : equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and

6. WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and

7.WHEREBY shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations; and

8. This ancient land attains its rightful and honoured placed in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind.

So, was the objectives resolution being adopted as part of our constitution No: It was an input that provided the general framework within which the constituent assembly framed the constitution. This general framework was retained as the Preamble in the Constitution of India

The Resolution was unanimously adopted by the assembly on January 22, 1947. It influenced the shaping of the constitution through all its subsequent stages.

In the words of Pandit Nehru, the resolution was “something more than a resolution. It is a declaration, a firm resolve, a pledge, an undertaking and for all of us a dedication.”

Though, by itself, Preamble is not enforceable in the Court of law, it states the objects which the Constitution seeks to establish and promote. It even aids the legal interpretation of the Constitution where the language is found to be ambiguous

Please memorize the Preamble. It would come in handy to quote it in answers if required

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR ,DEMOCRATIC, REPUBLIC and to secure 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.

So, what does the Preamble provide? It provides for

Source of authority of the constitution- Preamble declares that the constitution derives its authority from the people of India.

Nature of the Indian state- Preamble declares India to be of a sovereign, socialist, secular, democratic and republican polity.

Objectives of the constitution- it specifies justice, liberty, equality and fraternity as the objectives.

Date of adoption of constitution- it mentions November 26, 1949 as the date.

Certain key words that appear in the preamble are explained here:

Sovereign- this word implies that India is an independent state, not subject to the control of any other state or external power. It means that it has the power to legislate on any subject. There is no authority above it and it is free to conduct its own affairs.

The Constitution of India is not a gift of the British Parliament. It is ordained by the people of sovereign constituent assembly which was competent to determine the political future of the country. The words, “WE, THE PEOPLE OF INDIA,……… ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.” thus declares the ultimate sovereignty of the people of India and that the Constitution rests on their authority.

Sovereignty not inconsistent with membership of the Commonwealth: On and from 26th January 1950, when the Constitution came into force, the Crown of England ceased to have any legal authority over India. Though India declared herself sovereign and republic she did not cut all ties with the British commonwealth. India adhered to the Commonwealth, without acknowledging the allegiance to the Crown.

This decision of India has converted the “British Commonwealth- a relic of imperialism” into a free association of independent nations under the name of the ‘Commonwealth of Nations.’ This historic decision took place at the Prime Ministers’ Conference at London on April 27, 1949, where our Prime Minister Pandit Nehru declared that, “her becoming a sovereign independent Republic, India will continue her full membership of the Commonwealth of Nations and her acceptance of the King as the symbol of Head of the Commonwealth i.e the free association of the independent nations”.

It is to be noted that this declaration is extra legal and there is no mention of it in the Constitution of India. It is a voluntary declaration and indicates a free association and no obligation. It clearly accepts the Crown of England only as the symbolic head of the Commonwealth, and having no claim to the allegiance (duty) of the citizens of India.

It is also made clear that even if the King or Queen visits India, he or she will have no precedence over the President of India. Again, although India as a member of Commonwealth has a right to be represented on conferences, but the decisions at Commonwealth conferences, treaty with the foreign power or declaration of war by any member will not be binding on her without her express consent. 

Hence this voluntary association of India with the Commonwealth does not affect her sovereignty to any extent and it would be open to India to cut off the association at any time she finds it not to be honorable or useful. As Pandit Nehru explained-

 “It is an agreement by free will, to be terminated by free will”

The great nobility with which India took this decision was to contribute ‘to the promotion of world peace’. Thus though India declares her sovereignty to manage her own affairs, the Constitution does not support isolationism or Jingoism. Indian sovereignty is consistent with the concept of ‘one world’ international peace and amity. 

Socialist- this term was newly added to the Preamble by the 42nd Amendment act 1976. Though it was explicitly added the Constitution had a socialist content in the form of certain Directive Principles of state policy. Congress party in 1955 in Avadi session had adopted a resolution to have a “socialistic pattern of society.”

India has a democratic pattern of socialism and not a communistic socialism. Democratic socialism favors “mixed economy” where both public and private sectors co-exist side by side.

The term ‘Socialism’ has been inserted to spell out expressly the high ideals of socialism. It is to be noted that the ‘socialism’ envisaged by the Constitution is not the usual scheme of state socialism which involves nationalization of sectors and abolition of private property. As the then Prime Minister Indira Gandhi explained- “We have always said that we have our own brand of socialism. We will nationalize the sectors where we feel the necessity. Just Nationalization is not our type of socialism.”

Though the word ‘Socialism’ is vague, our Supreme court has observed that the principal aim of Socialism is to eliminate inequality of income and status and to provide decent standard of life to the working people.

Secular- the term “Secular” was too added by the 42nd Amendment act 1976. It means that the state protects all the religions equally and does not itself uphold any religion as the State religion.

Secularism is a part of the basic structure of the Constitution. There is no provision in the Constitution making any religion the ‘established Church’. The fundamental right relating to ‘freedom of religion’ guarantees to each individual freedom to profess, practice and propagate religion.

This itself is one of the glowing achievements of Indian democracy when her neighbors such as Pakistan , Bangladesh, Sri Lanka and Burma, uphold particular religions as State religions.

Democratic- as a form of government, we have a representative democracy wherein the representatives elected by the people exercise the supreme power and thus carry on the government and make the laws.

Universal adult franchise, periodic elections, rule of law, independence of judiciary, absence of discrimination is the manifestations of the democratic character of Indian polity.

As a form of government, the democracy which is envisaged is a representative democracy, and in our constitution there are no agencies of direct control by the people such as ‘referendum’ or ‘initiative’. The people of India have the right to exercise their sovereignty through a Parliament at the Centre and Legislature at State which is to be elected through universal adult franchise.

Also known as Parliamentary democracy it envisages, (i) representation of the people, (ii) responsible government and (iii) accountability of the Council of Ministers to the legislature. 

The term “democratic” used in Preamble is not only confined to “political democracy” but also includes social and economic democracy. The democratic republic stands for good of all the people and is embodied in the concept of a ‘Welfare state’ which inspires the Directive Principles of State Policy (DPSP). We will look at DPSP in detail in the future.

The economic justice assured by the Preamble can hardly be achieved if the democracy were only confined to political democracy. As Dr.Radhakrishnan has put it- “Poor people who wander about, find no work, no wages and starve, whose lives are a continual round of sore affliction and pinching poverty, cannot be proud of the Constitution or its law.”

According to Dr.B.R.Ambedkar social democracy means a way of life which recognizes liberty, equality and fraternity which are not to be treated as separate items. 

Economic democracy means equality and spread of good things of life to others and removal of gross inequalities.

The State in a democratic society derives its strength from the cooperative and dispassionate will of its free and equal citizens. Social and economic democracy is the foundation on which political democracy would be a way of life in the Indian Polity.

Republic- the term “republic” indicates that India has an elected head called the President. He is indirectly elected for a period of 5 years. 

The Preamble declares that the source of all authority under the constitution is the people of India and there is no subordination to any external authority.

A republic also means two more things in Indian polity-

One vesting of political sovereignty in the people and not in single individual like king.

 Second, the absence of any privileged class and hence all pubic offices including President being opened to every citizen without discrimination. 

Justice- Preamble embraces “justice” in three distinct forms- social, economic and political.

Social justice denotes the equal treatment to all citizens irrespective of their caste, color, race, religion, gender and so on. It is a comprehensive form to remove social imbalance by law harmonizing the rival claims or the interests of different sections in the social structure by means of which it would be possible to build up a welfare state.

Economic justice denotes non-discrimination between people on the basis of economic factors like wealth, income and property. The banishment of poverty by the multiplication of the national wealth and resources and an equitable distribution amongst all who contribute towards its production to promote economic justice.

Political justice implies that all the citizens should have equal political rights, equal access to political offices and equal voice in the government. Political justice held out in Preamble, it is essential that every citizen of India, irrespective of his proprietary or educational qualifications, should be allowed to participate in the political system. 

The ideal of justice- social, economic and political- has been taken from the Russian Revolution (1917).

Liberty- The Preamble secures to all citizens the liberty of thought, expression, belief, faith and worship, through their fundamental rights. 

Liberty is very essential for the successful functioning of the Indian Democratic system. Democracy cannot be established unless certain minimal rights, which are essential for a free and civilized existence, are assured to every member of the community.

But Liberty should be coupled with social restraint i.e liberty should be enjoyed within the limitations meaning it is indeed not a license to do what one likes

Equality- the term equality means the absence of special privileges to any section of the society, and the provision of adequate opportunities for all the individuals without any discrimination. 

Provisions such as equality before the law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, equality of opportunity in matters of public employment, abolition of untouchability, and abolition of titles under fundamental rights ensure civic equality.

The Directive Principles of State Policy secures to men and women equal right to an adequate means of livelihood and equal pay for work.

In addition to civic equality the Constitution seeks to achieve political equality by providing foe universal adult franchise and by reiterating that no person shall be either excluded from the general electoral roll or allowed in a special electoral roll, only on the ground of his religion, race, caste or sex.

Fraternity- it means a sense of brotherhood. Constitution promotes this feeling by the system of single citizenship. Democracy would rather be hollow if it fails to generate the feeling of brotherhood amongst all sections of the people.

The Preamble declares that fraternity has to assure two things- the dignity of an individual and the unity and integrity of the nation. The word integrity was added to the Preamble by the 42nd Amendment act 1976.

The ideals of liberty, equality and fraternity have been taken from French Revolution.

Dignity of an individual A fraternity cannot, however be installed unless the dignity of each of its members is maintained. The Preamble therefore says that the State will assure the dignity of the Individual. The Constitution seeks to achieve this by guaranteeing equal fundamental rights to each individual.

Significance of the Preamble

The preamble embodies the basic philosophy and fundamental values- political, moral and religious-on which the constitution is declared.

It contains the grand and noble vision of our constituent assembly, and reflects the dreams and aspirations of the founding fathers of the constitution.

The Preamble of the Constitution of India is one of the best of its kind ever drafted. Both in ideas and expression it is a unique one. It embodies the spirit of the constitution to build up an independent nation which will ensure the triumph of justice, liberty, equality and fraternity.

One of the members of the Constituent Assembly (Pundit Thakur Das Bhargav) rose to poetic heights when he said, “The Preamble is the most precious part of the Constitution. It is the soul of the Constitution. It is a key to the Constitution. It is a jewel set in the Constitution.”

According to K.M.Munshi the Preamble is the “horoscope of our sovereign democratic republic”

Preamble as a part of the constitution: One of the controversies about the Preamble is as to whether it is a part of the Constitution or not.

The conventional view which is supported by the political philosophers is that the preamble ios not a part of the constitution, because if the Preamble were to be dropped the constitution would continue to function. This was reflected in Berubari Union case. In Berubari Union case (1960), the Supreme court said that the Preamble shows the general purpose behind several provisions in the constitution, and is thus a key to the minds of the makers of the constitution.

Further, it has limited application and can be resorted to where there is any ambiguity in the statute. If the terms used in the Constitution are ambiguous or capable of two meanings in interpreting them some assistance may be taken from the objectives enshrined in the Constitution and the construction which fits the Preamble may be preferred.

But in Kesavananda Bharati’s case (1973), the Supreme Court rejected the above view and held that the Preamble is the part of Constitution.

It observed that the Preamble is of extreme importance and the Constitution should be read and interpreted in the light of grand and noble vision expressed in the Preamble.

It is to be noted that the Preamble was enacted by the Constituent Assembly after the rest of the Constitution was already enacted. The reason was to ensure that the Preamble was in conformity with the Constitution.

Thus the current opinion held by the Supreme court that the Preamble is a part of the Constitution is in consonance with the opinion of the founding fathers of the Constitution.

The Preamble is neither a source of power to legislature nor a prohibition upon the powers of the legislature. Preamble is non-justiciable, that is, its provisions are not enforceable in courts of law.

Amendability of the Preamble 

 This question was raised for the first time before the Supreme Court in the historic case of Kesavanada Bharati Vs State of Kerala. In that case the Attorney-General argued that by virtue of the amending power in Article 368 even the Preamble can be amended. It was said that since the Preamble was a part of the Constitution it could be amended like any other provisions of the Constitution.

It was urged that the Preamble contains the basic elements or the fundamental features of our Constitution. Consequently, amending power cannot be used so as to destroy or damage these basic features mentioned in the Preamble.

The Supreme court however held that since the Preamble is the part of the Constitution. It can be amended but subject to this condition that the “basic feature” in the Preamble cannot be amended. In other words, the court held that the basic elements or the fundamental features of the constitution as mentioned in the Preamble cannot be altered by an amendment under Article 368.

In the recent S.R.Bommai case, 1993 regarding the dismissal of three BJP Governments in MP, Rajasthan, and Himachal Pradesh, Justice Ramaswamy said, “the Preamble of the Constitution is the integral part of the Constitution. Democratic form of government federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution”.

The Preamble has been amended only once so far, in 1976, by the 42nd Amendment Act, which added three words- Socialist, Secular ND Integrity- to the Preamble. This amendment was held to be valid.

But the question arises as to why Preamble was amended when it is a basic feature. By the 42nd amendment, the Preamble was amended to include ‘Socialist’, ‘Secular’, and ‘integrity’ as it was assumed that these amendments are clarifying and qualifying in nature. They are already implicit in the Preamble.

Conclusion:

Combining the ideals of political, social and economic democracy with that of equality and fraternity, the Preamble seeks to establish what Mahatma Gandhi described as “the India of My Dreams” , –

 “…..an India, in which the poorest shall feel that it is their country in whose making they have an effective voice,… an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of intoxicating drinks and drugs. Women will enjoy the same rights as men.”

Ernest Baker has reproduced our Preamble at the opening of his book on Social and Political Theory, observing the Preamble to the constitution of India states,

 “in a brief and pithy form the argument of much of the book, and it may accordingly serve as key-note”.

 

Salient Features of our Constitution

In the year 1949, when the Constitution of the India was adopted, it contained a Preamble, 22 Parts with 395 Articles and 8 Schedules.

Presently, it consists of a Preamble, 26 Parts with 465 Articles and 12 Schedules.

The various amendments carried out since 1951 have deleted about 20 Articles and Part (VII) and added about 85 Articles, four Parts(IVA,IXA,IXB,XIVA) and four Schedules (9,10,11 and 12)

The 26 parts of the Indian Constitution

PARTSSUBJECTSARTICLES
PART ITHE UNION AND ITS TERRITORY1-4
PART IICITIZENSHIP5-11
PART IIIFUNDAMENTAL RIGHTS12-35 
PART IVDIRECTIVE PRINCIPLES OF STATE POLICY36-51
PART IVAFUNDAMENTAL DUTIES51A
PART VTHE UNION52-151
PART VITHE STATES152-237
PART VIITHE STATES IN PART B OF THE FIRST SCHEDULE238 
PART VIIITHE UNION TERRITORIES239-242
PART IXPANCHAYATS243-243o
PART IXAMUNICIPALITIES243p-243zg
PART IXBTHE CO-OPERATIVE SOCIETIES243zh-243zt
PART XTHE SCHEDULED AND TRIBAL AREAS244-244A
PART XIRELATIONS BETWEEN THE UNION AND THE STATES245-263
PART XIIFINANCE, PROPERTY, CONTRACTS AND SUITS264-300A
PART XIIITRADE,COMMERCE AND INTERCOURSE WITHIN THE TERRITORY OF INDIA301-307
PART XIVSERVICES UNDER THE UNION AND THE STATES308-323
PART XIVATRIBUNALS323A-323B
PART XVELECTIONS324-329A
PART XVISPECIAL PROVISIONS RELATING TO CERTAIN CLASSES330-342
PART XVIIOFFICIAL LANGUAGE343-351
PART XVIIIEMERGENCY PROVISIONS352-360
PART XIXMISCELLANEOUS 361-367
PART XXAMENDMENT OF THE CONSTITUTION368
PART XXITEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS 369-392
PART XXIISHORT TITLE,COMMENCEMENT,AUTHORITATIVE TEXT IN HINDI AND REPEALS393-395
Note:Part VII (dealing with Part-B states) was deleted by the 7th Amendment Act (1956),Both Part IV-A and Part XIV-A were added by 42nd Amendment Act (1976),Part IX-A was added by the 74th Amendment Act (1992) andPart IX-B was added by the 97th Amendment Act (2011).

Schedules of the Constitution at a glance

NumbersSubjectArticles
First ScheduleNames of the States and their territorial jurisdiction.Names of the Union Territories and their extent.1 and 4
Second Schedule

Provisions relating to the emoluments, allowances, privileges and so on of:

The President of India

The Governors of States

The Speaker and the Deputy Speaker of the Lok Sabha

The Chairman and the Deputy Chairman of the Rajya Sabha

The Speaker and the Deputy Speaker of the Legislative Assembly in the states

The Chairman and the Deputy Chairman of the Legislative Council of the states

The Judges of the Supreme Court

The Judges of the High Courts

The Comptroller and Auditor-General of India

59,65,75,97,125,148,158,164,186 & 221
Third Schedule

Forms of Oaths or Affirmations for:

The Union Ministers

The candidates for election to the Parliament

The members of Parliament

The Judges of the Supreme Court

The Comptroller and Auditor-General of India

The State ministers

The candidates for election to the state legislature

The members of the State legislature

The Judges of the High Courts

75,84,99,124,146,173,188 and 219
Fourth ScheduleAllocation of seats in Rajya Sabha to the states and the union territories4 and 80
Fifth ScheduleProvisions relating to the administration and control of scheduled areas and scheduled tribes.244
Sixth ScheduleProvisions relating to the administration of tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram.244 and 275
Seventh ScheduleDivision of powers between the Union and the States in terms of List I (Union List), List II (State List) and List III (Concurrent List).Presently, the Union List contains 100 subjects (originally 97), the State list contains 61 subjects (originally 66) and the Concurrent list contains 52 subjects (originally 47).246
Eight ScheduleLanguages recognized by the Constitution.Originally, it had 14 languages but presently there are 22 languages.They are : Assamese, Bengali, Bodo, Dogri, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Maithili, Malayalam, Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Santhali, Sindhi, Tamil, Telugu and Urdu.Sindhi was added by the 21st Amendment Act of 1967; Konkani, Manipuri and Nepali were added by the 71st Amendment Act of 1992; and Bodo, Dogri, Maithili and Santhali were added by the 92nd Amendment Act of 2003.344 and 351
Ninth ScheduleActs and Regulations (originally 13 but presently 282) of the state legislatures dealing with land reforms and abolition of the Zamindari system and of the Parliament dealing with the other matters. This schedule was added by the 1st Amendment (1951) to protect the laws included in it from judicial scrutiny on the ground of violation of fundamental rights. However, in 2007, the Supreme Court ruled that the laws included in this schedule after April 24, 1973, are now open to judicial review.31-B
Tenth ScheduleProvision relating to disqualification of the members of Parliament and State Legislatures on the ground of defection. This schedule was added by the 52nd Amendment Act of 1985, also known as Anti-Defection Law.102 and 191
Eleventh ScheduleSpecifies the powers, authority and responsibilities of Panchayats. It has 29 matters. This schedule was added by the 73rd Amendment Act of 1992.243-G
Twelfth ScheduleSpecifies the powers, authority and responsibilities of Municipalities. It has 18 matters. This schedule was added by the 74th Amendment Act of 1992.243-W

Our constitution is said to be a “borrowed constitution”.

But in its’ framing the best features of each of the world are being gathered and modified with a view to resist mistakes which have been exposed in their working and adapting these to the existing needs and condition of the country.

Our Constitution is being borrowed from many nations of the world, but there are several salient feature which differentiates it from the constitutions of other world.

The Preamble and its philosophy:

It is a grand declaration of the ideals and objectives which the Indian people have set before themselves and have the ambition to realize it. It is not justifiable. Its contents are inspired by the Objectives resolution of the Constituent Assembly, and constitution of other nations like France, Australia, USA ,West Germany ,Italy.

In Keshvananda Bharti case, 1973, the Judiciary took the view the Preamble was an integral part of the Constitution and ruled that the constituent power of parliament under article 368 does not enable it to alter the ‘basic’ structure of Constitution.

Written and bulkiest constitution:

Originally it contained 395 articles (divided into 22 parts) and 8 schedules. Presently it consists of about 495 articles and 12 schedules.

Factors responsible for bulkiness includes

  • (a)geographical factors like vastness and diversity of the nation,
  • (b)historical factors like the adoption of the bulk of provisions from the government of India act ,1935,
  • (c)the essence to solve peculiar problems like an entire part related to scheduled castes and tribes and the other backward classes, one part relating to emergency provision, one part relating to official languages

Single Constitution for both Union and States with the same fullness and precision except the state of Jammu and Kashmir.

Our constitutional framers have sought to incorporate the accumulated experience gathered from the working of all the known constitution and to avoid all the defects and loopholes that might have resulted in their failure at some point of time.

A Secular state: 

Ours is a secular nation. It means that our constitution does not have an official religion of its own .Certain provisions of our constitution reveals its secular character like

  • 42nd constitutional amendment added the term ‘secular’ to the Preamble.
  • The preamble secures liberty of faith, belief and worship to all citizens of India.
  • Article 15-The state shall not discriminate against any citizen on the ground of religion.
  • Article 25- All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate any religion
  • Article 26- Every religious domination or any of its section shall have the right to manage its religious affairs.
  • Article 27-No person shall be compelled to pay any taxes for the promotion of a particular religion
  • Article 28-No religious instruction shall be provided in any educational institutions maintained by the state.

Incorporation of fundamental rights and constitutional remedies:

These rights have been taken from American Constitution. Part 3 of our constitution guarantees every citizen of India six fundamental rights :

  • Article 14-18: Right to equality.
  • Article 19-22: Right to freedom.
  • Article 23-24: Right against exploitation.
  • Article 25-28: Right to freedom of religion.
  • Article 29-30: Cultural and educational right.
  • Article 32: Right to constitutional remedies.

These rights are judiciable.

Any law or executive order which offends against a fundamental right is liable to be declared void by the supreme court of India.

Supreme court can issue certain writs like Habeas corpus, Mandamus, Prohibition, Certiorari and Quo warranto for restoration of these rights.

The fundamental rights are not sacrosanct. They can be constitutionally amended by the Parliament. During events like National emergency, these rights can be suspended except the rights granted under Article 20 and 21 .

Motilal Nehru in 1928 asserted that “ Our first care could be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances.

Incorporation of Directive Principles of state policy:

These are derived from Irish Constitution.

These are contained in Part 4 of our Constitution. They are classified into three broad categories-Socialistic, Gandhian and Liberal-intellectual.

They are not justifiable but are regarded as ‘fundamental in the governance of the country’ and it shall be the duty of the state to apply these principle in making laws . They seeks to promote the ideals of social and economic democracy and consideration for the establishment of ‘ welfare state’.

Establishment of federal government (A federal system with unitary bias):

Our system of government is federal . Our constitution enables transformation of federation into a unitary state.

This uniqueness has been notified by different people.

  • K C Wheare called it – ‘quasi-federal’
  • Morris Jones – ‘bargaining federalism’
  • Granville Austin – ‘co-operative federalism’
  • Ivor Jennings – ‘federation with a centralizing tendency’

Federal features include:

  • Two government
  • Division of powers
  • Written constitution rigidity of the Constitution
  • Independent Judiciary
  • Bicameralism

Unitary features includes

  • Single Constitution
  • A strong centre
  • Single citizenship
  • Flexibility of the constitution
  • Integrated judiciary
  • Appointment of the state governors by centre
  • Emergency provision
  • All India services

The term ‘Federation’ has not been mentioned in the Constitution .But Article 1 describes India as an ‘Union of states’ which implies that Indian Federation is not the result of an agreement by the States and no states has the right to secede from the federation.

Parliamentary form of government :

The parliamentary system is also known as ‘Westminster’ model of government, cabinet government.

Constitution has established the parliamentary form of government both at the Centre and State.

This form of government is being derived from the British system of government.

Features of the parliamentary form of government :

  • Presence of nominal and executive head.
  • Majority party rule.
  • Collective responsibility of the executive to the legislature.
  • Membership of the ministers in the legislature.
  • Prime ministerial leadership.

Indian parliament is not a sovereign body like the British parliament.

Partly rigid and partly flexible Constitution:

Constitutions are classified as rigid and flexible.

American Constitution is a rigid constitution as it requires a special procedure for its amendment.

British Constitution is a flexible constitution as is can be amended in the same manner as an ordinary law.

Indian constitution is a blend of both these types.

Article 368 provides for two types of amendments:

  1. Special majority – it states that majority of not less than 2/3 of the members of each House present and voting, which again, must be the majority of the total membership of the House.
  2. Special majority with ratification from the states – Few provisions require ratification by the state legislatures and even then ratification by only 1/2 would suffice.

Single Citizenship:

All the citizens born in any state of India enjoys equal political and civil rights of citizenship all over the country.

Indian Constitution envisages a dual polity and a citizen enjoys rights at National and State level.

Judiciary supremacy and synthesis of Parliamentary Sovereignty:

The principle of judicial supremacy is taken from American constitution.

Judicial review powers of the Supreme Court of India have been narrowed down in comparison to that of in USA.

Indian Constitution contains ‘procedure established by law against ‘due process of law’ in American Constitution.

Sovereignty of parliament is associated with the British Parliament. A major portion of our Constitution can be amended by our Parliament.

Emergency provisions of the government :

Part 18 of the Constitution has contains elaborate emergency provisions.

These are taken from Government of India Act 1935.

These are meant for the safeguarding the sovereignty, unity, integrity, democratic political system and the Constitution

Our Constitution envisages three types of emergencies:

  1. National emergency (Article 352) – It is on the grounds of war or external aggression or armed rebellion.
  2. State emergency (Article 356 and 365) – Article 356 :It is emergency on the ground of failure of Constitutional machinery in the states. Article 365 : It is the emergency on failure to comply with the directions of the Centre.
  3. Financial emergency (Article 360) : It is on the grounds of the financial stability or the credit of the India.

Chapter on fundamental duties :

These are added to our Constitution in accordance with 42 amendment during the internal emergency(1975-1977) on the recommendations of Swaran Singh committee.

The 86th amendment added one more fundamental duty.

These are contained in Part 4A with only one Article ( Article 51).

They are not justifiable.

Universal Adult Franchise:

This is considered as a bold experiment in view of India large population, high poverty, social injustice, overwhelming illiteracy.

The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional amendment Act of 1988.. It is adopted as a basis of elections to Lok Sabha and State legislative assemblies.

It broadens the base of democracy, inculcates self respect and prestige in people.

Provision for autonomous organizations like

  • Election Commission of India
  • Comptroller and Auditor general of India
  • Union Public Service Commission
  • State Public service Commission

Three tier government :

73rd and 74th Amendments Act have added a three tier system of government.

73rd Amendment Act gave constitutional recognition to Panchayats and a new Part 11th and a new Schedule 11th to the Constitution

74th Amendment Act added a new Part 11th-A and a new Schedule 12th to the Constitution.

Please Join Telegram Channel at : https://t.me/Fundamentalias

Read more...
Source:
Fundamental IAS