SAILENT FEATURES OF CONSTITUTION: WELFARE STATE AND SECULAR STATE

WELFARE STATE


The Indian Constitution has been conceived and drafted in the mid-twentieth
century when the concept of social welfare state is the rule of the day. The
Constitution is thus pervaded with the modern outlook regarding the objectives
and functions of the state. It embodies a distinct philosophy of government, and
explicitly declares that India will be organised as a social welfare state, i.e., a
state which renders social services to the people and promotes their general
welfare. In the formulations and declarations of the social objectives contained
in the Preamble, one can clearly discern the impact of the modern political
philosophy which regards the state as an organ to secure the good and welfare
of the people.
This concept of a welfare state is further strengthened by the Directive Principles
of State Policy which set out the economic, social and political goals of the
Indian Constitutional system. These directives confer certain non-justiciable
rights on the people, and place the government under an obligation to achieve
and maximise social welfare and basic social values like education, employment,
health, etc.
In consonance with the modern beliefs of man, the Indian Constitution sets up
a machinery to achieve the goal of economic democracy along with political democracy,
for the latter would be meaningless without the former in a poor country
like India.

SECULAR STATE


India is a country of religions. There exist multifarious religious groups in
the country but, in spite of this, the Constitution stands for a secular state of
India.
The word ‘secular’ was not present originally in the Preamble. It was added
thereto by the 42nd Constitutional Amendment in 1976. What was implicit in
the Constitution until then became explicit. Even before 1976, the concept of
secularism was very much embedded in the Indian constitutional jurisprudence as
many court cases of this era would testify.


The concept of “secularism” is difficult to define and has not thus been defined
in the Constitution. Secularism has been inserted in the Preamble by reason
of the Constitution (Forty-second Amendment) Act, 1976. The object of insertion
was to spell out expressly the high ideas of secularism and the compulsive need
to maintain the integrity of the nation which are subjected to considerable
stresses and strains, and vested interests have been trying to promote their selfish
ends to the great detriment of the public good. The concept is based on certain
postulates. Thus, there is no official religion in India. There is no state recognized
church or religion. Several fundamental rights guarantee freedom of
worship and religion as well as outlaw discrimination on the ground of religion

and, thus, by implication prohibit the establishment of a theocratic state. The
state does not identify itself with, or favour, any particular religion. The state is
enjoined to treat all religions and religious sects equally. No one is disabled to
hold any office on the ground of religion. There is only one electoral roll on
which are borne the names of all qualified voters.


The essential basis of the Indian Constitution is that all citizens are equal,
and that the religion of a citizen is irrelevant in the matter of his enjoyment of
Fundamental Rights. The Constitution ensures equal freedom for all religions
and provides that the religion of the citizen has nothing to do in socio-economic
matters. “Though the Indian Constitution is secular and does not interfere with
religious freedom, it does not allow religion to impinge adversely on the secular
rights of citizens or the power of the state to regulate socio-economic relations.”
The Supreme Court has declared secularism as the basic feature of the Indian
Constitution. The Court has further declared that secularism is a part of
fundamental law and an unalienable segment of the basic structure of the
country’s political system. It has explained that secularism is not to be confused
with communal or religious concepts of an individual or a group of persons.

It means that the State should have no religion of its own and no one
could proclaim to make the State have one such or endeavour to create a
theocratic State. Persons belonging to different religions live throughout the
length and breadth of the country. Each person, whatever be his religion, must
get an assurance from the State that he has the protection of law freely to profess,
practise and propagate his religion and freedom of conscience. Otherwise,
the rule of law will become replaced by individual perceptions of one’s
own presumptions of good social order. Religion cannot be mixed with secular
activities of the State and fundamentalism of any kind cannot be permitted
to masquerade as political philosophies to the detriment of the larger interest
of society and basic requirement of a Welfare State. The Court noted disturbing
trends. It noted that lately, vested interests fanning religious fundamentalism
of all kinds, and vying with each other, are attempting to subject
the Constitutional machineries of the State

SALIENT FEATURES OF THE INDIAN CONSTITUTION: SOCIALIST STATE


The word “socialist” was not there originally in the Preamble. It was added to
the Preamble by the 42nd Amendment of the Constitution in 1976. Thus, the
concept of “socialism” has been made explicit and India’s commitment to this
ideal has been underlined and strengthened.


The term “socialist” has not been defined in the Constitution. It does not however envisage doctrinaire socialism in the sense of insistence on state ownership as a matter of policy. It does not mean total exclusion of private enterprise and complete state ownership of material resources of the Nation. In India, there has always been emphasis on mixed economy, i.e., along with a public sector, the private sector also has a role to play. The government accepts
the policy of mixed economy where both public and private sectors co-exist side by side. However, the private enterprises has so far been rigorously controlled by the government, but signs are appearing on the horizon that in future the private enterprise is going to play a much more important economic role than it has
played so far.


The Supreme Court has in a number of decisions referred to the concept of socialism
and has used this concept along with the Directive Principles of State
Policy to assess and evaluate economic legislation. The Court has derived the
concept of social justice and of an economically egalitarian society from the concept
of socialism. According to the Supreme Court, “the principal aim of socialism
is to eliminate inequality of income and status and standards of life, and to
provide a decent standard of life to the working people.”
Democratic socialism aims to end poverty, ignorance, disease and inequality
of opportunity. Socialistic concept of society should be implemented in the true
spirit of the Constitution.

In Samatha v. State of Andhra Pradesh, the Supreme
Court has stated while defining socialism : “Establishment of the egalitarian
social order through rule of law is the basic structure of the Constitution.”

The Court has laid emphasis on social justice so as to attain substantial degree
of social, economic and political equality. Social justice and equality are complimentary
to each other.
Another idea propounded by the Court is that socialism means distributive
justice so as to bring about the distribution of material resources of the community
so as to subserve the common good.
By reading the word ‘socialist’ in the Preamble with the Fundamental Rights
contained in Arts. 14 and 16, the Supreme Court has deduced the Fundamental
Right to equal pay for equal work and compassionate appointment.

SALIENT FEATURES OF THE INDIAN CONSTITUTION: PREAMBLE

Unlike the Constitutions of Australia, Canada or the U.S.A., the Constitution
of India has an elaborate Preamble. The purpose of the Preamble is to clarify who
has made the Constitution, what is its source, what is the ultimate sanction behind
it; what is the nature of the polity which is sought to be established by the
Constitution and what are its goals and objectives?


The Preamble does not grant any power but it gives a direction and purpose to
the Constitution. It outlines the objectives of the whole Constitution. The Preamble
contains the fundamentals of the Constitution. It serves several important
purposes, as for example:


(1) It contains the enacting clause which brings the Constitution into
force.
(2) It declares the great rights and freedoms which the people of India
intended to secure to all its citizens.
(3) It declares the basic type of government and polity which is sought to
be established in the country.
(4) It throws light on the source of the Constitution, viz. the People of India.


The words in the Preamble, “We the people of India…in our Constituent Assembly…
do hereby adopt, enact and give to ourselves this Constitution”, propound
the theory that the ‘sovereignty’ lies in the people, that the Constitution,
emanates from them; that the ultimate source for the validity of, and the sanction
behind the Constitution is the will of the people; that the Constitution has not
been imposed on them by any external authority, but is the handiwork of the Indians
themselves.


Thus, the source of the Constitution are the people themselves from whom the
Constitution derives its ultimate sanction. This assertion affirms the republican
and democratic character of the Indian polity and the sovereignty of the people.
The People of India thus constitute the sovereign political body who hold the ultimate
power and who conduct the government of the country through their
elected representatives.
The claim that the People of India have given to themselves the Constitution
is in line with similar claims made in several other democratic Constitutions,
such as those of the U.S.A., Ireland, etc.

As regards the nature of the Indian Polity, the Preamble to the Constitution declares
India to be a ‘Sovereign Socialist Secular Democratic Republic’. The term
‘Sovereign’ denotes that India is subject to no external authority and that the state
has power to legislate on any subject in conformity with constitutional limitations.
The term ‘democratic’ signifies that India has a responsible and parliamentary form
of government which is accountable to an elected legislature. The Supreme Court has
declared ‘democracy’ as the basic feature of the Constitution. The term ‘Republic’
denotes that the head of the state is not a hereditary monarch, but an elected functionary.
As to the grand objectives and socio-economic goals to achieve which the Indian
Polity has been established, these are stated in the Preamble. These are: to
secure to all its citizens social, economic and political justice; liberty of thought,
expression, belief, faith and worship; equality of status and opportunity, and to
promote among them fraternity so as to secure the dignity of the individual and
the unity and integrity of the Nation.
Emphasizing upon the significance of the three concepts of liberty, equality
and fraternity used in the Preamble, Dr. Ambedkar observed in his closing speech
in the Constituent Assembly on November 25, 1949 : “The principles of liberty,
equality and fraternity are not to be treated as separate items in a trinity. They
form a union of trinity in the sense that to divorce one from the other is to defeat
the very purpose of democracy. Liberty cannot be divorced from equality, equality
cannot be divorced from liberty. Nor can liberty and equality be divorced
from fraternity. Without equality liberty would produce the supremacy of the few
over the many. Equality without liberty, would kill individual initiative”.
The Supreme Court has emphasized that the words “fraternity assuring the
dignity of the individual” have “a special relevance in the Indian context” because
of the social backwardness of certain sections of the community who had
in the past been looked down upon.
To give a concrete shape to these aspirations, the Constitution has a Chapter
on Fundamental Rights which guarantee certain rights to the people, such as,
freedom of the person, freedom of speech, freedom of religion, etc.
According to the Supreme Court, “The Constitution envisions to establish an
egalitarian social order rendering to every citizen, social, economic and political
justice in a social and economic democracy of the Bharat Republic.” The Constitution
thus ensures economic democracy along with political democracy.
The goals and objectives of the Indian Polity as stated in the Preamble are
sought to be further clarified, strengthened and concretized through the Directive
Principles of State Policy.

The Preamble lays emphasis on the principle of equality which is basic to the
Indian Constitution. The principle of equality is a basic feature or structure of the
Constitution which means that even a constitutional amendment offending the
basic structure of the Constitution is ultra vires. A legislature cannot transgress
this basic feature of the Constitution while making a law.

SALIENT FEATURES OF THE INDIAN CONSTITUTION: WRITTEN CONSTITUTION

India’s Constitution is a lengthy, elaborate and detailed document. Originally
it consisted of 395 Articles arranged under 22 Parts and eight Schedules. Today,
after many amendments, it has 441 Articles and 12 Schedules. It is probably the
longest of the organic laws now extant in the world.

Several reasons contributed to its prolixity.

First, the Constitution deals with
the organization and structure not only of the Central Government but also of the
States.

Secondly, in a federal Constitution, Centre-State relationship is a matter
of crucial importance. While other federal Constitutions have only skeletal provisions
on this matter, the Indian Constitution has detailed norms.

Thirdly, the
Constitution has reduced to writing many unwritten conventions of the British
Constitution, as for example, the principle of collective responsibility of the
Ministers, parliamentary procedure, etc.

Fourthly, there exist various communities and groups in India. To remove
mutual distrust among them, it was felt necessary to include in the Constitution
detailed provisions on Fundamental Rights, safeguards to minorities, Scheduled
Tribes, Scheduled Castes and Backward Classes.

Fifthly, to ensure that the future India be based on the concept of social welfare,
the Constitution includes Directive Principles of State Policy.

Lastly, the Constitution contains not only the fundamental principles of governance
but also many administrative details such as the provisions regarding citizenship,
official language, government services, electoral machinery, etc.

In other Constitutions,
these matters are usually left to be regulated by the ordinary law of the
land. The framers of the Indian Constitution, however, felt that unless these provisions
were contained in the Constitution, the smooth and efficient working of the
Constitution and the democratic process in the country might be jeopardized.
The form of administration has a close relation with the form of the Constitution,
and the former must be appropriate to, and in the same sense as, the latter. It
is quite possible to pervert the Constitutional mechanism without changing its
form by merely changing the form of the administration and making it inconsistent
with, and opposed to, the spirit of the Constitution. Since India was emerging
as an independent country after a long spell of foreign rule, the country lacked
democratic values. The Constitution-makers, therefore, thought it prudent not to
take unnecessary risks, and incorporate in the Constitution itself the form of administration
as well, instead of leaving it to the legislature, so that the whole
mechanism may become viable.
It would, however, be wrong to suppose that the Indian Constitution with all
its prolixity finally settles all problems of government. It leaves a number of
matters to be taken care of by ordinary legislation. It also provides scope, though
not so much as in Britain, for the growth and development of conventions.


Thus, the relationship between the President or the State Governor and his Council
of Ministers, the concept of ministerial responsibility for acts of the officials,
the relationship between the Prime Minister or the Chief Minister in a State and
his Council of Ministers, the appointment of a State Governor, dissolution of the
Lok Sabha or of a State Legislative Assembly by the President or the Governor
respectively, the relations between the President and the Governor, are some of the
matters which are left to be evolved by conventions.


It is not correct to assume that the conventions of the British Constitution would operate suo motu in India wherever relevant and applicable. In course of time, some of these conventions have been questioned, and new conventions are in the process of emergence. This is mainly because most of the conventions of the British Constitution have been evolved in the context of a two-party system, while in India, a multiparty system is evolving. More will be said on this subject in later pages.

SALIENT FEATURES OF THE INDIAN CONSTITUTION: MODERN CONSTITUTION



The fact that the Indian Constitution was drafted in the mid-twentieth century gave an advantage to its makers in so far as they could take cognizance of the various constitutional processes operating in different countries of the world and thus draw upon a rich fund of human experience, wisdom, heritage and traditions in the area of governmental process in order to fashion a system suited to the political, social and economic conditions in India. In the end result, the Indian Constitution has turned out to be a very interesting and unique document. One could discern in it the impact of several Constitutions. As for instance, the Indian Federalism is influenced by the American, Canadian and Australian Federalism. Fundamental Rights in India owe a great deal to the American Bill of Rights; the process of Constitutional amendment adopted in India is a modified version of the American system.


The influence of the British Constitutional Law, theories and practices on the
Indian Constitution is quite pervasive. As for example, the parliamentary form of
government in India closely follows the British model in substance; the system of
prerogative writs which plays a crucial role in protecting peoples’ legal rights and
ensuring judicial control over administrative action is Britain’s contribution to
India. Australia’s experiences have been especially useful for ordering the Centre-
State financial relationship, and for promoting the concept of freedom of trade
and commerce in the country. Inspiration has come from the Irish Constitution in
the shaping of the Directive Principles of State Policy.
The Government of India Act, 1935, which preceded the Indian Constitution,
has furnished not only administrative details, but also the verbatim language of
many provisions of the Constitution.
It will, however, be wrong to suppose that the Indian Constitution is just a carbon
copy of other Constitutions and contains nothing new and original. While
adopting some of the principles and institutions developed in other democratic
and federal countries, it yet strikes new paths, new approaches and patterns, in
several directions. It makes bold departures in many respects from the established
Constitutional norms and introduces many innovations. For example, in the area
of Centre-State relationship, with a view to achieve the twin objectives of promoting
the unity of India and reducing rigidity inherent in a federal system, the
Indian Constitution makes several provisions which are original in conception as
nothing parallel to these is to be found in any other federal Constitution and, to
this extent, it makes a distinct contribution to the development of theories and
practices of federalism in general.

RULE OF LAW



A few words may be said here about the concept of Rule of Law as other ideas
and concepts relating to Constitutionalism will be discussed in due course in the
following pages.
The doctrine of Rule of Law is ascribed to DICEY whose writing in 1885 on
the British Constitution included the following three distinct though kindered
ideas in Rule of Law:


(i) Absence of Arbitrary Power : No man is above law. No man is punishable
except for a distinct breach of law established in an ordinary
legal manner before ordinary courts. The government cannot punish
any one merely by its own fiat. Persons in authority in Britain do not
enjoy wide, arbitrary or discretionary powers. Dicey asserted that
wherever there is discretion there is room for arbitrariness.


(ii) Equality before Law : Every man, whatever his rank or condition, is subject
to the ordinary law and jurisdiction of the ordinary courts. No man is
above law.


(iii) Individual Liberties : The general principles of the British Constitution,
and especially the liberties of the individual, are judge-made, i.e.,
these are the result of judicial decisions determining the rights of private
persons in particular cases brought before the courts from time to
time.


DICEY asserted that the above-mentioned features existed in the British Constitution. The British Constitution is judge-made and the rights of the individual form part of, and pervade, the Constitution. The rights of the individuals are part of the Constitution because these are secured by the courts. The British Constitutional Law is not the source, but the consequence, of the rights of the individuals as defined by the courts.
DICEY was thinking of the common law freedoms, such as, personal liberty, freedom of speech, public meeting, etc. What DICEY was saying was that certain Constitutions proclaim rights but do not provide adequate means to enforce those rights. In the British Constitution, on the other hand, there is inseparable connection between the means of enforcing a right and the right to be enforced.
Referring in particular to the Habeas Corpus Act, DICEY said that it was “worth a hundred Constitutional articles guaranteeing individual liberty.” DICEY however accepted that there was rule of law in the U.S.A., because there the
rights declared in the Constitution could be enforced, and the Constitution gave legal security to the rights declared.
The third principle is peculiar to Britain. In many modern written Constitutions, the basic rights of the people are guaranteed in the Constitution itself. This is regarded as a better guarantee for these rights and even in Britain there exists at present strong opinion that basic rights should be guaranteed. DICEY’S thesis has been criticized by many from various angles but, the basic tenet expressed by him is that power is derived from, and is to be exercised according to law.

In substance, DICEY’S emphasis, on the whole, in his enunciation
of Rule of Law is on the absence of arbitrary power, and discretionary power,
equality before Law, and legal protection to certain basic human rights, and these
ideas remain relevant and significant in every democratic country even to-day.
It is also true that dictated by the needs of practical government, a number of
exceptions have been engrafted on these ideas in modern democratic countries,
e.g., there is a universal growth of broad discretionary powers of the administration;
administrative tribunals have grown; the institution of preventive detention
has become the normal feature in many democratic countries. Nevertheless,
the basic ideas are worth preserving and promoting.
The concept of Rule of Law has been discussed in several international forums.
The effort being made is to give it a socio-legal-economic content and a
supranational complexion.
Rule of Law has no fixed or articulate connotation though the Indian courts refer
to this phrase time and again. The broad emphasis of Rule of Law is on absence
of any center of unlimited or arbitrary power in the country, on proper
structuration and control of power, absence of arbitrariness in the government.
Government intervention in many daily activities of the citizens is on the increase
creating a possibility of arbitrariness in State action. Rule of Law is useful as a
counter to this situation, because the basic emphasis of Rule of Law is on exclusion
of arbitrariness, lawlessness and unreasonableness on the part of the government.

Constitutionalism



Besides the concept of the Constitution, there is also the all-important concept of ‘Constitutionalism’. Modern political thought draws a distinction between ‘Constitutionalism’ and ‘Constitution’. A country may have the ‘Constitution’ but not necessarily ‘Constitutionalism’. For example, a country with a dictatorship, where the dictator’s word is law, can be said to have a ‘Constitution’ but not ‘Constitutionalism’. The underlying difference between the two concepts is that a Constitution ought not merely to confer powers on the various organs of the government, but also seek to restrain those powers. Constitutionalism recognizes the need for the government but insists upon limitations being placed upon governmental powers. Constitutionalism envisages checks and balances and putting the powers of the legislature and the executive under some restraints and not making them uncontrolled and arbitrary.


Unlimited powers jeopardize the freedom of the people. As has been well said:
power corrupts and absolute power corrupts absolutely. If the Constitution confers
unrestrained power on either the legislature or the executive, it might lead to
an authoritarian, oppressive government. Therefore, to preserve the basic freedoms
of the individual, and to maintain his dignity and personality, the Constitution
should be permeated with ‘Constitutionalism’; it should have some in-built
restrictions on the powers conferred by it on governmental organs.
‘Constitutionalism’ connotes in essence limited government or a limitation on
government. Constitutionalism is the antithesis of arbitrary powers. ‘Constitutionalism’
recognizes the need for a government with powers but at the same time
insists that limitations be placed on those powers. The antithesis of Constitutionalism
is despotism. Unlimited power may lead to an authoritarian, oppressive,
government that jeopardizes the freedoms of the people. Only when the Constitution
of a country seeks to decentralize power instead of concentrating it at
one point, and also imposes other restraints and limitations thereon, does a country
have not only ‘constitution’ but also ‘constitutionalism’.
‘Constitutions spring from a belief in limited government. According to
SCHWARTZ, in the U.S.A., the word Constitution means “a written organic instrument,
under which governmental powers are both conferred and circumscribed”.
He emphasizes that “this stress upon grant and limitation of authority is
fundamental”. As PROFESSOR VILE has remarked:
“Western institutional theorists have concerned themselves with the problems
of ensuring that the exercise of governmental power, which is essential to
the realization of the values of their societies should be controlled in order that
it should not itself be destructive of the values it was intended to promote.”
The idea of Constitutionalism is not new. It is embedded deeply in human
thought. Many natural law philosophers have promoted this idea through their writings.

Some of these philosophers are: ACQUINAS, PAINE, LOCKE, GROTIUS AND
ROUSSEAU. The Magna Carta (1215) strengthened the traditional view that law is
supreme. As observed by ARTHUR SUTHERLAND, “The Great Charter was obviously
a cherished standard, a welcome assurance that people could set some limitation on
the arbitrary power of the king.”
A written Constitution, an independent judiciary with powers of judicial review,
the doctrine of rule of law and separation of powers, free elections to legislature,
accountable and transparent democratic government, Fundamental Rights of the
people, federalism, decentralization of power are some of the principles and norms
which promote Constitutionalism in a country.

Constitution of india

Rules are important whether in sports or life. A game of cricket or football can’t be played without rules.

A game with no rules in force will finally end in chaos and disturbance. So is true with the society and the country as well.

A country also needs to be governed by definite rules, that all of its citizens and government institutions must follow, to maintain order and discipline.

There has to be a definite way in which democratic elections are conducted; the powers of the judiciary, executive, and the legislative; powers vested in states and union; fundamental privileges are given to the citizens, etc all are defined in the constitution.

When the Indian Constitution did come into effect?

What had been the Dominion of India became the Republic of India after the constitution came into effect. It replaced the Government of India Act 1935 as the principal governing document of the country.

Dr. Babasaheb Ambedkar, the Chairman of the constitution drafting committee, presented the draft constitution to the then President of India, Dr. Rajendra Prasad on 25th November 1949, subsequently it was adopted by the constituent assembly on 26th November.

The constitution of India came into force on the day when the final session of the constituent assembly was held on 26th January 1950.

Salient Features of Indian Constitution

The constitution of India has several salient or distinguishing features that separate it from the leagues of other constitutions around the world. The most distinguished and significant salient features of the Indian constitution are defined as under.

Longest handwritten constitution

The constitution of India is one of the lengthiest and most detailed constitutions of the world. The English version of the constitution has 117,369 words contained in 444 articles in 22 parts, 12 schedules, and 115 amendments as of 2020.

The lengthiness of the Indian constitution was necessitated by the diversity of India. The constitution became larger in order to accommodate several demographic differences of the state of India.

Parliamentary form of government

The constitution of India stipulates a bicameral legislature, that is, the power and authority are shared between two separate houses, in this case, Lok Sabha and Rajya Sabha.Opposite of bicameral is a unicameral legislature where only one house is present. In a bicameral setup debates and discussions play an important role in the passage of a bill.

A rigid and flexible constitution

The constitution of India is neither completely rigid nor flexible. A constitution is said to be rigid when it is difficult to make amendments, like the constitution of the United States.On the contrary, the constitution of India has been amended 103 times since it came into force, but all the amendments have to pass through definite tests and mandatory requirements.

The constitution of India is therefore considered a perfect blend of rigidity and flexibility.

The preamble to the constitution.

The preamble of the Indian constitution is its introductory paragraph that declares the constitution’ss fundamental philosophy and purpose.

It declares India to be a sovereign, socialist, secular, and democratic republic. It also states some objectives like, securing justice, liberty, and equality to all the citizens and promoting fraternity in order to maintain national unity and integrity.

Quasi-federal constitution

The constitution of India is quasi-federal because it combines the features of both the federal government and the unitary government.

The Supreme Court of India has also stated that India has a federal structure with a strong bias towards the center.

Federal features of the constitution are – supreme law, a bicameral legislature, dual government policy, a written constitution, a rigid constitution, independent judiciary, and revenue sharing.

On the other hand, unitary features of the constitution are – single constitution applicable to the union and states, unequal representation of states in the Rajya Sabha, the unequal division of power between the center and states, states depend on center, non-rigid constitution, unified judicial system and proclamation of emergency.

Fundamental rights and duties

The constitution of India describes the fundamental rights and duties of all the citizens of India irrespective of the states, region, religion, or ethnicity.

The seven fundamental rights provided by the constitution to every citizen are – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies.

Fundamental duties are enshrined in the constitution to promote integrity. Some of the important fundamental duties are to uphold the sovereignty and unity of India, to preserve rich heritage, to safeguard public property, etc.

Directive principles of state policy

The directive principles of state policy are contained in Part IV of the Indian constitution. These are the sets of instructions meant for the states.

Basically, they constitute the instructions to the legislature and the executive that are mandatory to be followed whenever the state frames new legislation.

Adult suffrage

Adult suffrage means that any Indian citizen irrespective of gender, caste, or any other difference, has a right to vote to elect the government, provided that he or she is above 18 years of age.

This right is guaranteed by Article 326 of the constitution. Initially, the age of voting was 21 years but after the 61st amendment also called the Constitution Act 1988, it was amended to 18 years. However, the right to vote doesn’t apply to non-citizens, persons with unsound minds, or criminals.

Independent judiciary

The constitution of India has several provisions to ensure that the judiciary remains unbiased and independent.The Supreme Court of India acts as the caretaker of the constitution and ensures that its provisions are followed.Also, the courts at the state and district levels are out of the influence of bureaucracy or political governments.High courts in states directly function under the Supreme Court.

Secular State

The term ‘Secular’ in the constitution was added by the 42nd amendment in the Preamble.It was included to promote peace and harmony among different religious groups of India. Every citizen of India is free to follow the religion of his/her choice and it is obligatory for the government to ensure that his/her rights and privileges are protected.

Single Citizenship

Part II of the constitution from Article 5 to Article 11 deals with citizenship. According to it, all the citizens of India enjoy equal rights and privileges across the complete territory of India.In whatever state or Union Territory of India you may travel, you will enjoy similar rights and privileges as enjoyed in your home state.

Importance of Indian Constitution

The constitution is the supreme law that governs the country. The three pillars of democracy – the executive, the legislature, and the judiciary, functions as per the provisions provided in the constitution.

It guarantees the fundamental rights and duties of the citizens and ensures that India remains a secular state, which is important considering its religious and cultural diversity.

Without the constitution, the whole democratic setup would just crumble and rights and privileges could not be exercised.India is one of the world’s most successful democracies today because its people and the government religiously follow every word of the constitution.

Conclusion

At the core of the constitution is an idea to generate an equal and civilized society that is governed by principles and definite rules.

Like every game has its rule book, similarly, the constitution of India is also the rule book that dictates all the rules, regulations, powers, and privileges to effectively govern the country.

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BR Ambedkar: Social Justice


The contribution of Dr B.R. Ambedkar in Indian Democracy is not to be forgotten. As a Chairman of the Constitutional Committee, he gave a shape to our country of a complete Sovereign, Democratic, Republic based on an adult franchise. In the Constitution of free India all the citizens have been guaranteed social, political and economic equalities.

Baba Saheb BR Ambedkar’s name is written in gold letters throughout Indian history as the creator of social justice. Not only was he the creator of the constitution, but also the creator of social justice and the messiah of the oppressed. If Mahatma Gandhi gave us the direction and lesson of morality, then Baba Saheb shaped the social aspect without exploitation. It had, in the truest sense of the word, a democratic and antiquated goal. He spent his whole life promoting the poor, exploited untouchables. and classes with problems.
It has been a gloomy historic fact of Indian society that lower castes have been exploited and subjugated upon by the upper castes and for that reason the lower castes have mostly also been the lower classes economically and vice versa.

During the freedom movement there were many leaders and movements throughout India. The most protruding voice of and for the lower castes bad emerged in the person of B.R. Ambedkar who came from the untouchable Mahar caste in what is today Maharashtra. Even today Ambedkar is a hugely influential symbol who is followed by many political forces throughout the length and breadth of India. Ambedkar’s aim in his own words was to get justice for the ‘last, the lost and the least and he emerged as a sort of revolutionary leader of India’s Hindu untouchable and other castes. His intention was to fight for their equality and seek better-quality living conditions for them and reach education among them and get suitable representation for them in elected bodies and in government services.


During the freedom struggle. Ambedkar’s emphasis on issues related to social justice forced the leaders of the national movement to take these up as part of the agenda associated with the main demand for unshackling the country from the chains of colonialism. Ambedkar was a highly educated person with great academic accomplishments and a lawyer by training. His views on social justice are to be found in his books and speeches.
His most important works are Annihilation of Caste (1936). Who were the Shudras (1946) and The Untouchables (1948). Also, his writings like What Congress and Gandhi have done to the Untouchables. He put forward vivid well researched attacks on the exploitative Hindu caste system chiefly with respect to how untouchables were treated and struggled all his life to secure legal and constitutional safeguards for their rights. It is stimulating in spite of the fact that he had attacked Gandhi’s Congress Party’s views and attitudes on the caste system quite harshly and in a scathing manner in
his writings, despite of that Gandhiji suggested Ambedkar’s name to head the committee to draft the Constitution.


Ambedkar in his work “Who Were the Shudras?” questioned the whole Hindu social order and tried to create a theory that the Shudras were not a separate varna or caste but were originally Kshatriyas who in a struggle with Brahmins were manipulated out of the kshatriya caste by the Brahmins and were deprived of the sacred thread.
He proposed a hypothesis that the untouchables were originally disciples of Buddha and were Buddhists but the Hindus led by the Brahmins to try to undermine Buddhist influence and stop its spread put the untouchables in a corner and started branding them untouchables. He believed the root of all lack of social justice in India was the caste system that created the environment for exploitation of man by man- of the Shudras and untouchables by
the brahmins and other higher castes. He believed that democracy cannot be achieved in India without first establishing social justice through the annihilation of the caste. Hence, he took a position that contradicted both the position of Congress and Gandhiji, who first wanted political reform and independence from the British colonial government, and the socialists and Marxists who wanted economic equality also established themselves first.

article 21

The Constitution speaks that no person of the state shall be destitute of the right to life and personal library. The right to life was protected by the law under the fundamental right. No restrictions were on the citizen of the country, everyone has the right to life under the Constitution. The human rights provided people’s good life under the right to life and personal library. If was restricted to enjoy his freedom by some unlawful action of government the he have rights to investigate against the action.

The most important part of the constitution was fundamental rights and in it elaborates exploitation of human rights as written in the other constitution of the world. The provision constitution provided a broad declaration of fundamental rights which is necessary for the full development of personality of individual. The aimed of these fundamental rights is to establish such law to welfare of the citizen. The purpose of establishing the fundamental rights is to protect the rights and liberties of the peoples. Human development is moral basic principles that explain the standard of human and it protect their natural and legal rights.

 Article 21 [1]now safeguard the right to life and personal liberty of citizens and not only from managerial action but from the parliamentary action also.

If two conditions compiled then a person can be deprived of his life and personal liberty:-

  1. There must be a law.
  2. There must be a procedure prescribed by law, provided that the procedure is just fair and reasonable.    

Article 21[2] held to the heart of the constitution. It’s give a different way of protecting the fundamental right of life. Without the fundamental right to life we cannot live as human being and included all those aspects of life. The rights of life makes the life meaningful, complete, and worth living. The right to life and personal liberty makes the citizens life to live freely without any interference of the government. There are many fundamental rights which was making to the development or to increasing the living standard of citizens. This right was not conflict to the fullest things of humans but with the judicial action.

 In the place of the rule of man, a human being has established the rule of law of constitution to protect the right of life and liberty of citizens. The state has been very inception to protect and safeguard of such fundamental rights. These rights was accepted and adopted by the citizen of the state for development of their living life. The right to life and liberty find its place in Article 3[3] of human right that speaks “everyone has the right to life, liberty, and security of person”.

Under Article 21 of the constitution of India interoperated the right to life and personal liberty of citizens in Maneka Gandhi’s[4] case has explain all the perception of the right to life.

For the development of human personality it is necessary to benefit the right to life and liberty. In the democratic state it id the basic human right. The right to life and personal liberty of citizen is a back-bone of the human rights. Every citizen has a right to live freely and enjoy their freedom as there fundamental right. In the state without the laws and legal rights person cannot enjoy their freedom because in the modern era the humans was not honor each other’s action and interfere in there human rights and violate them.

So to get the solution of this problems man established some certain law which was found in the constitution. The right to life and personal liberty was the most precious fundamental right among all the human rights. The reason for this when the peoples attentive towards their right to life then there life become meaningful.


[1]Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

 

Article Three of the United States Constitution establishes the judicial branch of the federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congress.

[4]1978 AIR 597, 1978 SCR (2) 621

LEGISLATIVE AND JUDICIAL ATTEMPTS TO BURY THE BASIC STRUCTURE DOCTRINE

Introduction:

The doctrine of basic structure is not defined in the constitution of India. The term has evolved as a result of various judicial decisions by the years. The Basic Structure Doctrine of Constitution of India states that the parliament can neither destroy nor alter the basic structure of the Indian constitution. The doctrine is applicable only to the constitutional amendments.

The basic features of the Constitution are:

  1. Supremacy of the constitution.
  2. Republican and democratic form of government.
  3. Secular character of the constitution.
  4. Federal character of the constitution.
  5. Separation of power.
  6. Unity and Sovereignty of India.
  7. Individual freedom.

                                                                                                                                                      Within their respective jurisdictions, the Parliament and the state legislatures are entitled to make suitable laws for the sake of people. The Bills regarding amendment of Constitution can only be passed by the Parliament itself. But the power is absolute and limited to some aspect. The Supreme Court of India holds the power to declare any law which it considers inconsistent with the Constitution invalid. In other words if any bill is passed by the Parliament which does not follows the ideals of the Constitution will be held invalid and void by the Supreme court. This doctrine has been laid by the Supreme Court to ensure and preserve the will of the Constitution and the ideology behind it. Hence, the Parliament cannot destroy or alter the basic structure of the Constitution. 

Evolution of the Basic Structure Doctrine:

The term Basic structure Doctrine has evolved through various decisions of the Supreme Court on the powers of parliament and judiciary. There was a dilemma between Article 13 and Article 368, the question raised was which of the Article had an overriding effect on the other.

Shankari Prasad vs. Union of India[1] (1951)

In this case, the First amendment was challenged on the ground that it is in violation to the Part-III of the constitution. Therefore, it was suggested that it should be considered invalid and void. The Supreme Court held that the Article 368 of the Constitution states, ‘the Parliament has the power to amend any part of the constitution including fundamental rights.’

In Sajjan Singh Vs State of Rajasthan[2] case in 1965 the Court gave the same ruling.

Golak Nath vs State of Punjab[3]

In this case in 1967, the Supreme Court held that the Parliament is not empowered to amend Part III of the constitution as the fundamental rights are immutable. The Supreme Court overruled its earlier decision.  According to the Supreme Court ruling, Article 368 lays down the procedure to amend the constitution, that does not give absolute powers to the parliament and to amend any part of the constitution.

The 24th Constitution Amendment Act

In 1971, the Parliament passed the 24th Constitution amendment act. The act gave absolute power to the parliament, in order to make any changes in the constitution and also the fundamental rights. It also made it obligatory for the President to give his assent on all the Constitution Amendment bills sent to him. This move was executed evidently in the favor of Smt. Indira Gandhi and her government.

Kesavananda Bharti vs. State of Kerala[4]

In this case, the Supreme Court upheld the validity of the 24th Constitution Amendment Act and reviewed its decision in the Golaknath case. The Supreme Court held that the Parliament has power to amend any provision of the constitution but the basic structure of the constitution is to be maintained as it is. But the Apex Court has not provided any clear definition for the term basic structure. It held that the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”.

Attempts to bury the Basic Structure Doctrine:   Many politicians, experts and ministers were against the basic structure defined by the earlier cases. This led to challenges against the verdict of the court. In 1975, the Supreme Court reaffirmed the concept of Basic Structure Doctrine. This happened when the victory of Prime Minister Indira Gandhi in the elections was upheld by the Allahabad High Court on the grounds of electoral malpractice. Justice Krishna Iyer granted a stay allowing Indira Gandhi to work as the Prime Minister on the condition that she would not draw salary and speak or vote until the case was decided. But, while the court was hearing the case, the parliament passed the Thirty- ninth amendment o the constitution. This amendment removed the authority of the Supreme Court to handle cases with regard to elections of President, Prime Minister and the speaker of Lok Sabha.  Instead a body will be constituted for resolving such disputes. The aim of the bill was evidently to benefit Smt. Indira Gandhi. Some amendments were also made to the Representation of Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with

the Election Laws Amendment Act, 1975. The mala fide intention of the government to save the face of Indira Gandhi in case the Court passed a verdict against them was proved by the hurry in which the Thirty-ninth amendment was passed. The bill was introduced on 7th of August, passed by the Lok Sabha the same day, and Rajya Sabha the next day, the President passed it giving his assent 2 days later and it was gazetted on 10th August. The counsel for the opposing party challenging Indira Gandhi argued that the amendment violated the basic structure of Constitution and hence should be held unconstitutional.  It affected the power of judicial review and the basic features including conducting of free and fair elections. They also argued that the Parliament is not empowered to decide if the election were valid or not stating the incompetency to use its constituent power to hold an election that was declared void by the High court. The court upheld the amended laws, striking down the law which restricted the power of judiciary to adjudicate the situation. The judges grudgingly accepted the Parliaments power to pass overriding laws.

Within three days of the decision of the election case, C.J. Ray convened to review the Keshavanandan Bharti case verdict with regard to a number of land ceiling petitions. The opposing party’s counsel argued that it was an unnecessary move. The bench dissolved soon after it and people doubted the government’s indirect involvement in the issue. The National emergency was declared in 1975. Soon after the Congress party constituted a committee with Sardar Swaran Singh its chairman to review the question of amending the Constitution. Through the 42nd amendment several changes were incorporated which also included that any amendments by the Parliament in the past or in future in the constitution cannot be questioned by the court.

Minerva Mills and the Waman Rao cases[5]

In this case the owners of Minerva mills challenged the 42nd amendment in the Supreme Court. Mr. N.A. Palkhivala from the side of petitioners decided not to challenge the government’s action instead he framed the challenge to Parliament’s power to amend the Constitution. He argued that the section 55 of the amendment provided unlimited power to the Parliament. He added that Article 31 C violated the Preamble and the basic structure doctrine, hence should be declared unconstitutional. It also took away the power of judicial review.

The majority judgment (4:1) held the amendment to Article 31C unconstitutional.’ It destroyed the harmony and balance between fundamental rights and directive principles which is an essential or basic feature of the Constitution.’ In another case relating to a similar dispute involving agricultural property the apex court, held that all constitutional amendments made after the date of the Kesavananda Bharati are subject to judicial review as the same procedure as prior to the 42nd amendment.



[1] AIR. 1951 SC 458

[2] AIR 1954 Raj 301

[3] 1967 AIR 1643, 1967 SCR (2) 762

[4] 1973 4 SCC 225

[5] 1980 AIR 1789

THE THEORY OF SEPARATION OF POWER AND ITS REAL LIFE APPLICATION

The theory of separation of powers is a doctrine of administration of a state. This theory states that the different functions of the state that is, the legislature, the executive and the judiciary must be separate and independent from each other. This distinction is made with understanding that the branches of the government should not conflict with each other. In this doctrine, it is believed that no single organ of the government should hold all the powers of the government thus there should be a dilution of the powers in different organs which would lead to the smooth running of the government. This theory was given by Montesquieu who was a French judge and a political philosopher. According to him, the powers of the government should be divided into between the legislatures, executive and judiciary. The legislature deals with the law-making process of the government, the executive would deal with the enforcement of law and the judiciary was responsible for protecting and resolves the disputes of the law. During the 17th century, most of the states were ruled by the monarchs. The monarchs were the amalgamation of all the three divisions of the state in one man. All the powers were concentrated in one man and he was the state, consequently, doctrine or theory which states the separation of power was a revolutionary idea. Here Montesquieu has divided the powers between three organs of the government. The independence of the organs means that people’s liberty would be protected. This system of distribution of power makes sure that the other organs would limit the powers of each other and prevent each other from being supreme. It forms an effective arrangement of checks and balances… It means that all the organs of the government have the same level of power so they can balance each other. The structure allows the smooth functioning of the government while protecting people’s liberty.

The UNITED STATES OF AMERICA –

The first big support to this theory came from the founding fathers of the Constitution of the USA. The first 3 articles of the constitution of the United States of America establishes the 3 organs of the government, the legislative branch, the executive branch and the judiciary.

Article 1 of the constitution establishes the legislative branch. The legislative branch consists of the Congress which is responsible for the making laws in the country. Article 2 of the constitution establishes the executive branch which comprises of the President of the country. The President is responsible for the implementation of the laws made by congress. Article 3 of the constitution establishes the judicial branch which is the United States Supreme Court which preserves and interprets the laws made by the legislative branch. 

The main reason the theory was adopted into the country was because of its checks and balance system for example when the Congress makes the laws, the President has the right to veto them and the Supreme Court has the power to declare them unconstitutional. Therefore the separation of power between the three organs ensures the systematic and smooth functioning of the government and secures the people’s liberty in the state.

INDIA –

India is a constitutional democracy but it does not offer a solid differentiation of powers. Although India doesn’t follow the principle rigidly the functions of each organ is clear. Article 296 in the Indian constitution states that the executive powers rest on the President of the country and in the states, it rests on the Governors of the state. The president is assisted by the Prime Minister and his cabinet of ministers in the executive matters. The president is called as the chief executive and has blended functions. The President is authorized by the constitution to give ordinances in emergencies as his main legislative function. He can also grant, suspend and dismiss punishments or any sentence, he is performing the judicial function in appointing of the judges in the Supreme Court. This shows that there is no absolute implementation of the principle of separation of power. 

The Parliament of India is the supreme legislative body in India. The Parliament formulates the law in India. It has two houses – the council of states or The Rajya Sabha and the house of the commons or The Lok Sabha. The houses are headed by the President of India. The Supreme Court of India is the judicial branch of the three organs of the government.

 The Judiciary is vested with the power to safeguard the rights of the people as per the Constitution of India. The existence of all the checks and balances would make sure that the organs would not exceed the constitution limits The laws framed by the legislature can be repealed by the Supreme Court of India if it is found inconsistent with the Constitution on India. Parliament can impeach judges of Supreme Court and High Courts of states for their incompetence and mala fides or bad faith. The President can set aside the laws made by the legislative body if it is not under the values set by the constitution of India. These Checks and balances become preventive measures against abuse of power and corruption.

In conclusion, the theory of separation of power is a radical concept at that time is not attainable. The complete separation of powers is not desirable nor is it realistic. The government functions due to the mutual relation between the three organs of the government so complete separation would not benefit the government. The complete separation also leads to conflict and confusion. The theory’s main central idea was to protect the liberty of the people but the liberty of the people is done by protecting the fundamental rights of the people, the protection of the human rights to the citizens, independence of the judiciary and keeping the spirit of democracy.