100 Indian Government and Politics Reviewing the Indian Constitution 101

senior leaders of the party since the alliance gained absolute

majority in the Lok Sabha in the 1999 General Elections. The views
of the Government were articulated by Union Home Minister L.
K. Advani. He announced in his address to the Federation of
Indian Chambers of Commerce and Industry on November 21

6 that the Government had decided to initiate 'far-reaching reforms

in the administration, judiciary and the internal security system'
to evolve an 'effective state' which could be an inspiring instrument
of change in the economic sphere and simultaneously bring about
REVIEWING THE INDIAN rapid social development. Stung by their loss of confidence in the
CONSTITUTION 12th Lok Sabha by a single vote, the NDA (the BJP in particular)
has also included constitutional amendment for a fIxed five year
term for the Lok Sabha and the State Legislative Assemblies in
BACKGROUND the NDA Manifesto.

A constitution is a fundamental document. It is a document The party and its intellectual campaign brigade are vigorously
which defines the position and power of the three organs of the campaigning for it by highlighting the 'dangers' of instability. The
state-the Executive, the Legislature and the Judiciary. It also defines fact that simultaneously with the desire for appointing a CRC to
the powers of the Executive and the Legislature as against the 'review', the Constitution, the party leadership began announcing
citizens. In fact, the purpose of a constitution is not merely to desired changes in the Constitution indicated the party's
create the organs of the State but also to limit their authority, preconceived agenda for the proposed CRC. It is true that certain
because if no limitation is imposed upon the authority of the aspects of the Indian Constitution and constitutional practices-call
organs, there will be tyranny and oppression. Naturally such a for a healthy democratic debate and if possible, a review. However,
fundamental document as a constitution should-not undergo too what makes the intentions of the votaries of the CRC a suspect
frequent and easy changes as that would undermine the confidence is that political misuse of several constitutional provisions over
of the citizens in the abiding nature of the constitution. the years and the resolve to stop such misuse has not found a place
in their discourse. Further, several rules and practices could be
However, it should be understand at the same time that a set right without a constitutional amendment. They have neither
constitution is a dynamic document. It should grow with a growing been discussed nor are they on the agenda.
nation and should suit the changing needs and circumstances of
a growing and changing people. Sometimes under the impact of The President and the Prime Minister, the two highest
new powerful social and economic forces, the pattern of constitutional authorities, differed sharply on the question of
government wil1 require major changes. If the constitution stands reviewing the Constitution, with Mr. K R. Naryanan coming out
as a stumbling block to such desirable changes, it may, under strongly against any move that sought to replace the present-day
extreme pressure, be destroyed. A constitution as such cannot parliamentary form of government with a presidential system.
have any claim to permanence; nor should it, because it has been Addressing a distinguished gathering at a celebratory function of
adopted and has been working ever since, claim absolute sanctity. 50 years of the Indian Constitution, the President re-emphasised
the Constituent Assembly's preference for more responsibility
The BJP-Ied National Democratic Alliance Government has and accountability over stability. Stressing that India's variety
been vocal1y pressing for constitutional review since its last reign. diversity, population and problems needs a body politic vent for
The NDA Government's resolve has been expressed by all the
102 Indian Government and Politics Reviewing the Indian Constitution 103

discontent to prevent major explosions in society, Mr. Narayanan Panchayati Raj Institutions. The Commission also identified the
maintained that "the parliamentary system provides this vent enlargement of the Fundamental Rights in part III of the
more than a system which prefers stability to responsibility and Constitution by specific incorporation of freedom of the media,
accountability." right to compulsory elementary education, right to privacy and
Reacting to the Prime Minister's decision to set up a commission right to information, effective enforcement of the Directive
to review the Constitution, which would among other things, look Principles of State Policy in part IV and Fundamental Duties in
at the acute need for stability both at the centre and in the states, part IV A of the Constitution, as well as fiscal and monetary
the President observed, "Today when there is so much talk about policies, size of government and of government expenditure,
revising the Constitution or even writing a new constitution, we efficacy of public audit mechanisms as areas of immediate concern.
have to consider whether it is the Constitution that has failed us The Commission decided to invite public suggestions
or whether it is 'we' who have failed the Constitution." The Prime regarding the areas that it should review. It also initiated to prepare
Minister had justified the setting up of a review commission on consultation paper on each of these areas and a questionnaire was
the grounds that there was need for political stability and there also circulated to political parties, constitutional and statutory
was the "pressing challenges faced by modern India of increasing commissions including the National Commission for Scheduled
the pace of development. Justifying the move, Mr. Vajpayee Castes and Scheduled Tribes, National Commission for Minorities,
maintained that "even in the mightiest fort one has to repair the National Human Rights Commission and the National
parapet from time to time, one has to clean the moat and check Commission for Women. The review commission January 27,
the banisters. The same is true about our Constitution". However, 2000, in the Central Hall of Parliament at a function to mark the
he answered that the basic structure and the core ideals of the Golden Jubilee of India having become a Republic.
Constitution would remain inviolate, when the Government's The Constitution has been in operation for the last 54 years.
commission to review the Constitution was set up. A review of the aspects of Union-State relations was made by the
The Constitution Review Panel, met for the first time on Commission on Centre-State Relations (1983-1987). Much has
March 23 in New Delhi. The Panel classified that it was to review happened since then in the realm of Union-State relations. In the
the working of the Constitutional and not to rewrite it. The meeting- wake of social, economic and political developments over the
was chaired by Mr. Justice M. N. Venkatachalaiah and attended years, new trends, tensions and issues have arisen. 'Consensus
by all 10 members. and cooperation' which is a pre-requisite for smooth functioning
The Commission would examine the working of the present of the political system is threatened by politics of confrontation.
provisions of the Constitution and the applicable laws and practice In this perspective, after mature consideration, the NDA
and consider how better to achieve the objective. The areas of Government of the Centre with great foresight and wisdom called
immediate contemporary concern identified by the Commission for a fresh comprehensive review of the Constitution, in all spheres.
for examination during its meeting include: Strengthening the The NDA's Election Manifesto contained a two-line reference to
institutions of parliamentary democracy and their, accountability, its plan to "appoint a commission to review the Constitution not
including the "grave and persisting menace of unprincipled only in the light of experiences and developments since 1996 but,
defections; working of Article 356 and the appointment and indeed, of the entire post-in-dependence period, and to make
removal of governors; Constitution and the pace of socio-economic suitable recommendations." The President's address to the first-
change and development including promotion of literacy, session of Parliament on October 25 (1999) reiterated this resolve-
employment generation, social security and poverty alleviation, to meet "the challenges of the next century." In both the cases, two
decentralisation and devolution of powers, and strengthening o ideas were specifically mentioned to have a fixed (five-year) term
104 Indian Government and Politics Reviewing the Indian Constitution 105

'for the Lok Sabha and State Assemblies and to replace the present personal liberty by governmental power. This problem assume
system of no-confidence motion, with a "constructive vote into- extreme difficulty only under a democratic system of government.
confidence." For, the success or failure of a democracy depends largely on the
If the purpose of the ruling combine or the Government were extent to which civil liberties are enjoyed by the citizens in general.
conformed to making these two (or such) changes, would it be A democracy aims at the maximum development of the individual's
necessary to moot the idea of setting up a commission for a review personality; and the personality of the individual is inseparably
of the Constitution? Obviously, it has in mind major, substantive bound with his liberty. Only a free society can ensure the all-
changes which could not be effected through the amendment round progress of its members which ultimately helps the
process. The first BJP led Government, too envisaged a deep, fresh advancement of human welfare. Therefore, every democracy pays
look at the Constitution. This was how the point was conveyed special attention to securing this bare objective to the maximum
through the President's 'address to Parliament on March 25, 1998. extent without, at the same time, endangering the security of the
"Fifty years after independence, the time has come to rejuvenate State itself. A common device that is adopted by most of them for
our institutions so that they are strong enough to meet the this purpose is to incorporate a list of fundamental rights in their
challenges of the future..The Government proposes to do so as constitutions and guarantee them from violation by executive and
well as appoint a commission to review the Constitution and legislative authorities.
make recommendations so that anomalous experiences of the past
Why Guaranteed Rights?
are not repeated in the future."
What is the purpose of guaranteed fundamental rights? Their
Appointment of The National Commission to Review the
very purpose is to withdraw certain subjects from the changing
Working of the Constitution On February 13, 2000 the Union
pattern of political controversy, to place them beyond the reach
Government announced the setting up of a 11 member
of a majority in a legislature and officials in the government and
Constitution.
to establish them as legal principles to be applied by the courts.
For, if the danger of personal rule by despotic rulers has more or
FUNDAMENTAL RIGHTS
less disappeared as a result of representative institutions coming
General Nature into their own, that from legislative interference has
The conflict between man and the State is as old as human correspondingly increased because of the high-handed manner in
history. Although attempts have been made for centuries to 'bring which majorities might manage affairs in the legislature. A
about a proper adjustment between the competing claims of the dominant group of legislators could pass any discriminatory or
State and the individual, the solution seems to be still far off. This unjust legislation and prejudice the interests of considerable
is primarily because of the dynamic nature of human society sections of the people. This meant in reality the substitution of one
where old values, ideas and forces constantly yield place to new kind of tyranny by another, replacement of personal rule of the
ones. It is obvious that if individuals are allowed to' have absolute monarch by the tyranny of illegislative majority. One's right to
freedom of speech and action, the result would be chaos, ruin and life, liberty and property, to free speech and free expression,
anarchy. On the other hand, if the State has absolute power to freedom of worship and assembly, and other fundamental rights
determine the extent of personal liberty, the result would be are not subjects to be submitted to vote. They should not depend
tyranny. Hence, the eternal problem that faced statesmen and on the outcome of elections.
political scientists was how to make a fitting adjustment between When legislatures were prohibited form encroaching upon
individual independence and social control, the need for protecting certain rights through constitutional safeguards, the protection of
personal liberty against governmental power and that of limiting
106 Indian Government and Politics Reviewing the Indian Constitution 107

these rights was achieved against the arbitrary conduct of both rendering the imprisonment of thousands of persons illegal, the
the executive and the legislature. When an independent judiciary Governor-General promulgated another Ordinance in identical
was made the guardian of these rights by the Constitution itself, terms the very next day! Hundreds of cases were brought before
the process of the protection of fundamental rights was complete the various High Courts seeking protection from wanton conduct
and the enjoyment of these rights by all irrespective of wealth or on the part of the executive, but the courts could not help, for there
social status, race or religious belief, was fully ensured. Herein lies was no constitutional guarantee under which they could act. A
the importance of fundamental rights. The United States has led decade of the working of the Constitution Act of 1935 amply
many countries in this respect. Today, the idea of a list of written demonstrated the imperative necessity of incorporating list of
rights as an integral part of a new Constitution has been generally fundamental rights in the Constitution of independent India.
accepted. Even the British do not seriously contest the wisdom of As a result, the British Cabinet Mission agreed upon the
this arrangement and are prepared to concede is value at least to necessity of the incorporation of a separate chapter of fundamental
a limited extent. rights in the future Constitution of India.
The Indian Demand for Fundamental Rights
RIGHTS GIVEN TO INDIAN CITIZENS BY THE
The idea of incorporating a list of fundamental rights in a new CONSTITUTION RIGHT TO EQUALITY (ARTS. 14, 15, 16, 17
Constitution of India had excited the imagination of almost all AND 18)
political thinkers and constitutionalists in India from the time the.
Article14 declares that "the State shall not deny to any person
idea of the transfer of power from Britain to Indian hands had
equality before the law or equal protection of the laws within the
taken shape. The American Bill of Rights had a tremendous impact
territory of India".
on Indian thinking on this subject. The Indian National Congress,
the Liberals, moderates of all shades and the religious. minorities The phrase "equality before the law" occurs in almost all
like the Muslims, the Christians and the Sikhs, all considered it written constitutions that guarantee fundamental rights. Equality
not only desirable but essential, both for the protection of the before the law is an expression of English Common Law while
rights of minorities and for infusing confidence in the majority "equal protection of laws" owes its origin to the American
Community. The British Government, however, never agreed with Constitution. Both the phrases aim to establish what is called the
this idea and, therefore, none of the Constitution Acts passed by equality to status and of opportunity" as embodied in the Preamble
the British Parliament contained any fundamental rights. of the Constitution. While equality before the law is a somewhat
negative concept implying the absence of any special privilege in
The absence of guaranteed fundamental rights showed how
favour of any individual and the equal subjection of all classes to
free the Government of India was to do whatever it liked however
the Ordinary law, equal protection of laws is a more positive
illegal it was. During the war years, civil liberties lost all their
positive concept employing equality of treatment under equal
meaning in India and the Courts including the Federal Court of
circumstances. Thus, Article 14 stands for the establishment of a
India found it impossible to safeguard them. A series of Ordinances
situation under which there is complete absence of any arbitrary
by the Governor-General replaced legislative enactments in this
discrimination by the laws themselves or in their administration.
field. Special courts were set up to try persons for all types of
political activities. Such courts ignored even, in the provisions of In its struggle for social and political freedom mankind has
the Code of..Criminal Procedure. The decisions were placed beyond always tried to move towards the ideal of equality for all. The urge
any review by High Courts. When the Federal Court declared the for ('quality and liberty has been the motive force of many
Ordinance which established these courts invalid, thereby revolutions. The charter of the United Nations records the
determination of the member nations to reaffirm their faith in the
108 Indian Government and Politics Reviewing the Indian Constitution 109

equal rights of men and women. Indeed, real and effective as for example, the abolition of untouchability, and its practice in
democracy cannot be achieved unless equality in all spheres is any form by anyone being made an offence. Altogether, Article
realised in a full measure. However, complete equality among 14 lays down an important fundamental right which has to be
men and women in all spheres of life is a distant ideal to be closely and vigilantly guarded.
realised only by the march of humanity along the long and difficult There is a related matter that deserves consideration here. The
path of economic, social and political progress. right to-equality and equal protection of laws loses its reality if
The Constitution and laws of a country can at best assure to all the citi7.ens do not have equal facilities of access to the courts
its citizens only a limited measure of equality. The framers of the for the protection of their fundamental rights. The fact that these
Indian Constitution were fully conscious of this. This is why while rights are guaranteed in the Constitution does not make them real
they gave political and legal equality the status of a fundamental unless legal assistance is available for all on reasonable terms.
right, economic and social equality was largely left within the There cannot be any real equality in the right "to sue and be sued
scope of Directive Principles of State Policy. unless the poorer sections of the community" have equal access
The Right to Equality affords protection not only against to courts as the richer sections. There is evidence that this point
discriminatory laws passed by-legislatures but also prevents is widely appreciated in the country as a whole and the
arbitrary discretion being vested in the executive. In the modern Government of India in particular and that is why steps are now
State, the executive is armed with vast powers, in the matter of being taken to establish a system of legal aid to those who cannot
enforcing by-laws, rules and regulations as well as in the afford the prohibitive legal cost that prevails in all parts of the
performance of a number of other functions. The equality clause country.
prevents such power being exercised in a discriminatory manner.
Prohibition of Discrimination on certain grounds (Art. 15)
For example, the issue of licences regulating various trades and
business activities cannot be left to the unqualified discretion of Not content with a mere general declaration of the right to
the licensing authority. The law regulating such activities should equality, and fully conscious of the types of discrimination
lay down the principles under which the licensing authority has prevalent in the country, the framers went a step further Article
to act in the grant of these licences. 15, which is more illustrative in character than introducing anything
substantially new. Yet, there is one striking feature in if which
Article 14 prevents discriminatory practices only by the State
brings within its scope, although in a limited way, the actions of
and not by individuals. For instance, if a private employer like
private individuals. According to the Article, "the State shall not
the owner of a private business concern discriminates in choosing
discriminate against any citizen on grounds only of religion, race,
his employees or treats his employees unequally, the person
caste, sex, place of birth or any of them. Further, on the basis of
discriminated against will have no judicial remedy. One might
any of these grounds a citizen cannot be denied access to shops,
ask here, why should the Constitution not extend the scope of this
public restaurants or the use of wells, tanks, bathing ghats, roads
right to private individuals also. There is good reason for not
and places of public resort maintained wholly or partly out of
doing so. For, such extension to individual action may result in
State funds or dedicated to the use of the general public".
serious interference with the liberty of the individual and, in the
process, fundamental rights themselves may become meaningless. Interpreting the scope of the Article, the Supreme Court held
After all, real democracy can be achieved only by a proper balance that "it is plain that the fundamental right conferred by Article
between the freedom of the individual and the restrictions imposed 15(I) is conferred on a citizen as an individual and is a guarantee
on him in the interests of the community. Yet, even individual against his being subjected to discrimination in the matter of
action in certain spheres has been restricted by the Constitution, rights, privileges and immunities pertaining to him as a citizen
110 Indian Government and Politics Reviewing the Indian Constitution 111

generally." In another decision the Court rejected the plea that State; thereby the universality of Indian citizenship is emphasised.
residence in the State was equivalent to place of birth and held In the next section, the general principle is explained in detail.
that these are two distinct conceptions with different connotations According to this, the State is prohibited from showing any
both in law and in fact, and when Article 15(I) prohibits discrimination against any citizen on grounds of religion, caste,
discrimination based on the place of birth, it cannot be read as race, sex, descent, place of birth or residence. The next clauses are
prohibiting discrimination based on residence. Residence as a in the nature of exceptions. According to the first, residence
qualification for certain purposes such as employment may not qualifications may be made necessary in the case of appointments
be classed with discrimination based on caste and place of birth. under the State for particular positions. But instead of leaving it
The significance of the Article is that it is a guarantee against every to individual States to make any rules they like in this regard, the
form of discrimination by the State on the basis of religion, race, power is vested in Parliament to prescribe the requirement as to
caste, or sex. It also strikes at the root of provincialism by prohibiting residence with in the State. This is intended to make the qualifying
discrimination based upon one's place of birth. It also goes well test uniform throughout India.
with the ideal of a single citizenship which the Constitution
The second exception is in favour of reservation of positions
establishes for the entire country. By including within its scope
in public employment for any backward class of citizens. This is
certain discriminatory actions of private individuals, the Article
meant to help those who have had very little share so far in public
anticipates Article 17, which abolishes untouchability and facilitates
employment. The determination of a backward community is a
the removal of discriminatory practices indulged in by the higher
matter that is left to each State. Government. The third exception
castes against the lower castes and helps in a substantial measure
seeks to take out of the scope of the general principle the
the progress of social equality.
management of the affairs of any religious or denominational
Article I5 has, however, two notable exceptions in its institution under any special law providing for the same.
application. The first of these permits the State to make special
provision for the benefit of women and children. The second Although Article 16 guarantees equality of opportunity in
allows the State to make any special provision for the advancement matters of public employment for all citizens and is expected to
of any socially and educationally backward classes of citizens or provide a bulwark against considerations of caste, community
for the Schedule castes and the Schedule Tribes. The special and religion, the result so far has been far from satisfactory. This
treatment meted out to women and children is in the larger and has been fully brought out in judicial decision as well as reports
the long-range interest of the community itself. It also recognises and findings. The States Reorganisation Commission observed:
the social customs and background of the country as a whole. The Recruitment to the services is a prolific source of discontent
second exception was not in the original Constitution but was among linguistic minorities. The main complaint is that a number
later on added to it as a result of the First Amendment of the of States confine entry to their services to permanent residents of
Constitution in 1951. the State, 'permanent residents' being defined in varying ways.
These domicile tests, it is contended have been so devised as to
Equality of Opportunity in Matters of Public Employment (Art. exclude the minority groups from the services.
16)
"The residence required under these rules varies from three
Article16 guarantees equality of opportunity in matters of years in certain cases to fifteen years. These rules are, strictly
public employment. In the first part of the Article, the general rule speaking, in contravention of "Article 16(1) of the Constitution.
is laid down that there shall be equal opportunity for all citizens, They have apparently been allowed to continue in terms of Article
wherever they are living, in matters of employment under the 36(b) pending a genera] review of the position."
112 Indian Government and Politics Reviewing the Indian Constitution 113

Abolition of domicile tests for eligibility to State services is ail untouchable, was entrusted with the task of ftaming the
sought in anew Act that has been passed by Parliament seven Constitution which embodies this Article and which dealt the
years after the inauguration of the Constitution. The measure; the death-blow to this pernicious social custom. That person was no
Public Employment (Requirement as to Residence) Act, ]957, seeks other than Dr. B.R. Ambedkar, the Chairman of the Drafting
to repeal all existing domiciliary laws in the country which Committee of the Constitution.
prescribe a period of residence within a particular State or Union With the. Epic fast of Mahatma Gandhi in 1932 in protest
territory. against the "communal award" by which the. Scheduled Castes
were to be given a separate electorate; a vigorous movement
The Abolition of Untouchability (Art. 17)
against untouchability was launched on a national basis. Solemn
Article 17 abolishes "untouchability", and its practice in any pledges were taken by many members of the Indian' National
form is made an offence punishable under the law. No article in Congress and others that untouchability would no longer find any
the Constitution was adopted with such unanimity and so great asylum in the country. The movement brought forth smile good
an acclamation and enthusiasm as this article. It was the only one results. Many temples were thrown open, and the rigors of
which had the special distinction of having been adopted with untouchability had become a thing of the past at least in the urban
cries of "Mahatma Gandhi Ki Jai". Some critics of the Constitution centers of the country; But the evil of untouchability still lingered
ask the question: "What is the right that is created by this article?" in many forms and in many parts of the country. Speaking on the
It is true that is does not create any special privileges for anyone. Untouchability Offences Bill, which was passed into an Act in
Yet, it is a great fundamental right, a charter of deliverance to one- 1955, the then Home Minister of India G.B. Pant said:
sixth of the Indian population from perpetual subjugation and
"This cancer of untouchability has entered into the very vitals
despair, from perpetual humiliation and disgrace. We have already
of our society. It is not only a blot on the Hindu religion, but it
seen, while discussing the nature of fundamental rights, that a
has created intolerance, sectionalism and fissiparous tendencies.
right is a remedy against a disability. The abolition of untouchability
Many of the evils that we find in our society today are traceable
becomes a right in that sense. The custom of untouchability had
to this heinous monstrosity. It was really strange that Hindus with
not only thrown millions of the Indian population into abysmal
their sublime philosophy and their merciful kind-heartedness even
gloom and despair, shame and disgrace, but it had also eaten into
towards insects should have been party to such intolerable
the very vitals of the nation. There could be no better sign of the
dwarfing of manhood. Yet, untouchability has been there for
determination to eradicate the evil than incorporating this Article
centuries and who have now to atone for the idea of untouchability
into the chapter on Fundamental Rights in the Constitution.
is entirely repugnant to the structure, spirit and provisions of the
It may not be inappropriate in this context to recall what Constitution. "
Gandhi feelingly said on one occasion on the subject. He said: "I
The Untouchability Offences Act came into force in June 1955.
do not want to be re-born, but in am re-born, I wish that I would
In one sense it may be said to be an expansion of Article 15 of
be re-born as a Harijan, as an untouchable, so that I may lead a
he Constitution. The Act intended to make the enforcement of any
continuous struggle against the oppression and indignities that
disability against the Scheduled Castes illegal. It provided that
have been heaped upon these classes of people." Again, it may
when the victim is a member of a Scheduled Caste, the commission
not be inappropriate to recall here that it was an irony of tate that
of the forbidden act should be presumed to have been done on
a man who was driven nom one school to another, who was
the ground of untouchability. It has laid down that whatever is
forced to take his lessons outside the classroom and who was
open to the general public or to Hindus generally should be
thrown out of the hotels in the dead of night, all because he was
equally open to members of the Scheduled Castes also. Thus, for
114 Indian Government and Politics Reviewing the Indian Constitution 115

example, no shop may refuse to sell and no person may refuse democratic, there is no room for some individuals to hold titles
to render any service to any person on the ground of untouchability. thus creating artificial distinctions among members of the same
Every person is entitled to such services on the terms on which society. Both the American and the French revolutions had
they may be obtained in the ordinary course of business by any denounced recognition of titles and the consequent creation of a
other person. Any refusal on that ground entails cancellation of hierarchy of aristocracy as an antidemocratic practice as early as
any license required in respect of such profession. Any act, which the eighteenth century. A democracy should not create titles and
interferes in any manner with the exercise of such rights by any glories. In India, the practice of the British Government conferring
person, was made an offence punishable with imprisonment for a number of titles every year mostly on their political supporters
six months or a fine upto Rs. 500 or both. A subsequent offence and Government officers, had already created a peculiar class of
is punishable with both imprisonment and fine. All offences under nobility among the people. It was difficult, on principle, for
the Act are cognisable and may be compounded with leave of the independent India to recognize and accept these titles apart from
Court. The Untouchability Offences Act was amended in 1976 considerations of the merit of those who held them. Article 18,every
making its penal clauses more stringent. The Act has been also citizen in the same measure. A member of the public services,
renamed. as the Protection of Civil Rights Act. One significant although he is a citizen, cannot claim the right to the extent that
new provision of the Act is that a person convicted of an a private citizen can. Being a Government servant, he is bound
untouchability offence will be disqualified for contesting the by his service rules and he cannot challenge his service rules on
elections. It was for the first time that such a provision became the ground that they stand in his way of fully enjoying the right
a law in the history of elections in India. to form associations. This has been made clear by the Supreme
In spite of the constitutional provisions, the operation of the Court in Balakotiah VS. The Union of India.
Untouchability. Offences Act and judicial pronouncements, India
The Right to Free Movement and to Residence [Art. /9 (/) (d) and
cannot yet claim to have noted out the evil of untouchability
(e) and /9 (5)]
completely. In the fight against social evils, legislation is only one
of many weapons. To adopt an article in the Constitution against The right to move freely throughout the territory of India, to
untouchability and make it a fundamental right, or pass an Act reside and settle in any part of it is guaranteed under sub-clauses
of Parliament making its practice an offence, and then expect (d) and (e) respectively of clause (I) of Article 19. The importance
overnight to have a society devoid of this centuries-old evil, would of the freedom of movement and residence cannot be exaggerated.
be too optimistic. There is no room for complacency in spite of In fact, the enjoyment of the freedoms guaranteed under the other
the existence of these enactments. Legislation is a poor remedy rights depends largely on the freedom of movement unhampered
for prejudices. The battle against every form of untouchability and and uncircumscribed. The State's power to place reasonable
social discrimination has to be carried to the hearts and minds of restrictions of these freedoms is limited to two: the interests of the
prejudiced people through mass contact, the mustering of public general public and the protection of the interests of any Scheduled
opinion and social action. Simultaneously, there must be a vigilant Tribe. For instance, it is in the interests of the general public to
watch over offenders with a view to punishing every aggressive restrict the free movement of a person suffering from a contagious
manifestation of caste discrimination. disease. Similarly, the Scheduled Tribes form separate communities
by themselves, backward and unsophisticated, with separate
The Abolition of Titles (Art. 18) cultural and property interests.
In the creation of a society, which seeks to establish political, Although, complete segregation of the Tribal people in the
social and economic equality and thereby aspires to become truly name of their separate culture and general backwardness is wrong
116 Indian Government and Politics Reviewing the Indian Constitution 117

and against the ultimate aim of complete national integration, (1) To freedom of speech and expression;
certain safe-guards as are envisaged here seem to be justified. (2) To assemble peaceably and without arms;
Otherwise, the Tribal people may become easy victims of
(3) To form associations or unions;
exploitation at the hands of their more '~civilized", shrewd and
designing brethren. Hence there are various pro-visions disabling (4) To move freely throughout the territory of India;
them from alienating their own properties except under special (5) To reside and settle in any part of the territory of India;
conditions. In their own interest and for their benefit, laws may and
be made restricting the ordinary rights of citizens to go and settle (6) To practice any profession, or to carry on any occupation,
in particular areas inhabited by the Tribal people or acquire trade or business.
property in them. The reference to the interests ofthe Scheduled
It is impossible to exaggerate the importance of these freedoms
Tribes makes it clear that the free movement spoken of in the
in any democratic society. Indeed, the very test of a democratic
clause relates not to general rights of locomotion but to the
society is the extent to which the citizens enjoy these freedoms
particular right of shifting or moving from one part of the Indian
in general. These freedoms, as a whole, constitute the liberty of
territory to another, without any sort of discriminatory barriers.
the individual, and liberty is one of the most essential ingredients
The Freedom of Profession, Occupation, Trade or Business [Art. of human happiness and progress. The most important among the
/9 (I) (g) and /9 (6)] inalienable rights of man, according to the
Article 19 (1) (g) guarantees the freedom to practice any Declaration of American Independence, are "Life, Liberty and
profession, or to carry on any occupation, trade or business. A the Pursuit or' happiness". The Preamble. of almost every
doubt was expressed in the Constituent Assembly whether these Constitution declares the same, in one form or another as Its
were fundamental rights at all. Perhaps the only other Constitutions objectives. The Preamble of the Constitution of the United States,
which have given them the Status of fundamental rights are those for instance, declares that one of its objects is "to secure the blessings
of Ireland and Switzerland. It seems that the framers of the Indian of liberty to ourselves and to our posterity'. The Preamble of the
Constitution had been influenced by the complex social system Indian Constitution too proclaims that one of its objectives is to
that prevailed in India, in seeking to guarantee rights such as secure Liberty--"Liberty of thought, expression, belief, faith and
these. It has been a bane of India's social life that professions were worship"
inherited rather than acquired. A society dominated by caste, and The Articles dealing with the Rights to Freedom embodied in
professions based upon caste or religion, have little to offer for the Constitution are the product of a compromise of two extremes.
the building up of a community enlivened by social Having achieved political freedom only recently, the urge to
exercise 'unfettered right to freedom was very much there. At the
THE RIGHT TO FREEDOM (ART. 19) same time, there was also the realization that the State that had
Personal Liberty is the most fundamental of fundamental been brought into existence was an infant State and.if the newly-
rights. Articles 19 to 22 deal with the different aspects of this basic won freedom was to be guaranteed by a stable political order, it
right. Taken together, these four articles from a charter of personal depended on the continued existence of that infant State which
liberties, which provides the backbone of the chapter on had yet to pass through many troubles. Therefore, the State should
Fundamental Rights. Of these, Article 19 is the most important be preserved even if that entailed the abridgement to some extent
and it may rightly be called the key-article embodying the "basic of the rights guaranteed. The Drafting Committee, therefore, chose
freedoms" under the Constitution, guaranteed to all citizens. These the golden mean of providing a proper enumeration of those
are the right: rights that are considered essential for the individual and at the
118 Indian Government and Politics Reviewing the Indian Constitution 119

same time putting such checks on them as will ensure the security "The phrase 'reasonable restriction' connotes that the limitation
of the State. They thought that the working of these rights depended impose upon a person in enjoyment of a right should not be
on the genius of the Indian people, on how they developed their arbitrary or on an excessive nature beyond what is required in the
ideas of liberty which at the time.of the drafting of the Constitution" interest of the public. Legislation which arbitrarily or excessively
were in a rather undeveloped state. invades the right cannot be said to contain the quality of
As it stands now, there are eight-restrictions on the freedom reasonableness, and unless it &strikes a proper balance between
of speech and expression. These are in respect of the sovereignty the freedom guaranteed and the social control permitted under
and integrity of India, the security of the State, friendly relations Article 19 it must be held to be wanting in reasonableness.
with foreign States, public order, decency or morality, contempt
Freedom of the Press
of court, defamation, and incitement to violence. As it was passed
originally by the Constituent Assembly, the restrictions were fewer There had been much criticism, both within Constituent
and confined only to "libel, slander, defamation, contempt of Assembly and outside, of the omission of a specific reference to
court, any matter which offends 'against decency or morality, or freedom of the Press and the failure to guarantee it along with
which undermines the security of, or tends to overthrow the the freedom of speech. The omission was considered a serious
State." These were modified into their present form as a result of lapse on the part of the Drafting Committee by the protagonists
the First Amendment of the Constitution, 1951, necessitated by of a "Free Press" as a separate right.
the decision of the Supreme Court in Romesh Thapar vs. The State Nevertheless, the Drafting Committee did not think it
of Madras. The Court held in this case that, unless a law restricting necessary to incorporate a separate right of this nature in the
freedom of speech and expression were directed solely against the chapter on Fundamental Rights.
undermining of the security of the State or its overthrow, the law Speaking on behalf of the Committee, Ambedkar said that the
could not be held a reasonable restriction though it sought to Press was merely another way of denoting an individual or a
impose a restraint for the maintenance of public order. citizen. "The Press has no special rights which are not to be given
On the basis of this interpretation of the Supreme Court, some or which are not to be exercised by the citizen in his individual
of the High Courts gave decisions to the effect that even incitement capacity. The editor of a Press or the manager of the Press are all
to individual murder or promoting disaffection among classes citizens and, therefore, when they choose to write in newspapers,
could not be restricted under the permissive limits set in Article they are merely exercising their right of expression and in my
19(2). This was indeed a drawback which required rectification. judgment, therefore, no special mention is necessary of the freedom
The First Amendment of the Constitution made the necessary of the Press at all."
provision to obviate this difficulty by including "public order" The word "expression" that is used in Article 19 (1)(a) in
along with other grounds for restricting the freedom of speech addition to "speech" is comprehensive enough to cover the Press.
and expression. The Sixteenth Amendment further added In fact, the lack of a specific mention of the Press. in the Constitution
"Sovereignty and integrity of India". Thus, the scope of restriction created no difficulty when the Supreme Court. was called upon
under the present provision is broader than what it was under to protect the freedom of the Press in Romesh Thapar's case.
the original version. Yet. in every case the judiciary gets a chance Further, modern science and technology have invented and are
to test the validity>of the executive action or legislative enactment still inventing and bringing into use many forms of expression
against its reasonableness. In fact, the word "reasonable" is the life through which communication of ideas is facilitated. The radio,
and soul of the entire Article. Interpreting the meanifig of this the cinema, the telephone and television are a few important
word the Supreme Court said: examples of these new forms. Some of these may become in the
120 Indian Government and Politics Reviewing the Indian Constitution 121

course of time even more powerful. and important media of association or union for an illegal purpose. Nor can there be an
expression than the Press itself. So, there seems to be no justification association to further immorality.
to single out any of them or mentioning all of the existing dominant The right to form associations or unions, however, is not
forms in the Constitution. As such detailed mention would not available to every citizen in the same measure. A member of the
serve any purpose, which is not served by the word "expression". public services, although he is a citizen, cannot claim the right to
Hence the criticism of the Constitution for not including the the extent that a private citizen can. Being a Government servant,
"Freedom of the Press" as a separate right can hardly be justified. he is bound by his service rules and he cannot challenge his
service rules on the ground that they stand in his way of fully
The Right of Assembly [Art. 19 (1)(b) and 19 (3)]
enjoying the right to form associations.
One of the basic protections of free speech is the right of free
assembly. In fact, freedom of assembly and freedom of speech go The Right to Free Movement and to Residence [Art. /9 (/) (d) and
hand in hand. The' framers of the Constitution knew that the right (e) and /9 (5)]
to peaceably assemble for public debate and discussion, for political The right to move freely throughout the territory of India, to
activities and such other purposes was essential to make the reside and settle in any part of it is guaranteed under sub-clauses
Freedom of speech and expression real. Hence the constitutional (d) and (e) respectively of clause (I) of Article 19. The importance
guarantee to assemble peaceably and without arms. of the freedom of movement and residence cannot be exaggerated.
The right to assembly can be restricted only in the interest of In fact, the enjoyment of the freedoms guaranteed under the other
public order and the restrictions ought to be reasonable. rights depends largely on the freedom of movement unhampered
and uncircumscribed. The State's power to place reasonable
The Right to form Associations or Unions [Art. 19 (J) (c) and 19 restrictions of these freedoms is limited to two: the interests of the
(4)] general public and the protection of the interests of any Scheduled
The right guaranteed to form associations or unions is more Tribe. For instance, it is in the interests of the general public to
or less a charter for all working people in this country. Trade restrict the free movement of a person suffering from a contagious
union activity was not only discouraged by most of the Western disease. Similarly, the Scheduled Tribes form separate communities
countries until comparatively recently, but in many countries it by themselves, backward and unsophisticated, with separate
was even looked upon as an anti-social and anti-State activity. cultural and property interests.
Workers had to undergo great suffering before they could obtain Although, complete segregation of the Tribal people in the
the elementary rights that vitally affected their existence as a name of their separate culture and general backwardness is wrong
separate group or class in society. It was only in. the twentieth and against the ultimate aim of complete national integration,
century, particularly after the end of the First World War, that any certain safe-guards as are envisaged here seem to be justified.
significant measure was undertaken to ensure the legitimate rights Otherwise, the Tribal people may become easy victims of
of workers through labor and industrial legislation. To make these exploitation at the hands of their more 'civilized", shrewd and
rights fundamental and embody them as such in the Constitution designing brethren. Hence there are various pro-visions disabling
was indeed a much bolder step forward. Fully recognizing the them from alienating their own properties except under special
trend of the times, the Constitution of India has made the workers' conditions. In their own interest and for their benefit, laws may
right to form unions a fundamental one. be made restricting the ordinary rights of citizens to go and settle
The right to form associations or unions can be restricted only in particular areas inhabited by the Tribal people or acquire
in the interests of public order of morality. There can be no property in them. The reference to the interests of the Scheduled
122 Indian Government and Politics Reviewing the Indian Constitution 123

Tribes makes it clear that the free movement spoken of in the increasing State activity that. is bound to take place in a welfare
clause relates not to general rights of locomotion but to the State but, at the same time, to give the individual maximum
particular right of shifting or moving from one part of the Indian protection from high-handed executive actions or discriminatory
territory to another, without any sort of discriminatory barriers. legislative enactments. Whenever the action of the State was in
the interest of the general public, even if it involved the restriction
The Freedom of Profession, Occupation, Trade or Business [Art. of the individual's freedom of action in the economic sphere, the
/9 (I) (g) and /9 (6)] Courts did not seem hesitant to support it. This was the main
Article 19 (1) (g) guarantees the freedom to practice any reason that impelled them to uphold many legislative enactments
profession, or to carry on any occupation, trade or business. A of nationalization of public utilities such as road transport,
doubt was expressed in the Constituent Assembly whether these electricity, etc., even before the First Amendment had made a
were fundamental rights at all. Perhaps the only other Constitutions special provision in support of such State actions and the
which have given them the Status of fundamental rights are those consequent expansion of the economic and commercial activities
of Ireland and Switzerland. It seems that the framers of the Indian of the State.
Constitution had been influenced by the complex social system
that prevailed in India, in seeking to guarantee rights such as Protection in Respect of Conviction for Offences (Art. 2U).
these. It has been a bane of India's social life that professions were Article 20 affords protection against arbitrary and. excessive~
inherited rather than acquired. punishment to any person who commits an offence. There are
A society dominated by caste, and professions based upon four such guaranteed protections: (1) A person can be convicted
caste or religion, have little to offer for the building up of a of an offence only if he has violated a law in force at the time when
community enlivened by social mobility and dynamism. Such a he is alleged to have committed the offence; (2) No person can
society is often intolerant to persons who change the traditional be subjected to a greater penalty than what might have been given
profession of their ancestors and is eager to maintain a petrified to him under the law that was prevalent when he committed the
social order. A constitutional guarantee of the right to take up the offence; (3) No person can be prosecuted and punished for the
profession, calling, trade or business of one's choice is indeed a same offence more than once; (4) No person accused of an offence
significant aid to the building up of a dynamic and democratic can be compelled to be a witness against himself.
society. The framers of the Constitution have done well to The Draft Constitution did not contain the term "prosecuted"
incorporate these rights in the chapter on Fundamental Rights in the clause prohibiting double punishment. It was pointed out
and have thereby helped the evolution of truly democratic society. in the Constituent Assembly that such a word was necessary
The State's power to restrict the enjoyment of these freedoms is because punishment here meant only that which was given by a
limited to the making of any law imposing reasonable restrictions court of law. Departmental punishment would not be taken as
in the interests of the general public in so far as it relates to (a) "punishment" in the sense in which the word is used in the
the prescribing of professional or technical qualifications necessary Constitution. Nor would any punishment given in a: court of law
for practicing any profession or carrying of any occupation, trade preclude departmental action leading to punishment for the same
or business or (b) the carrying on by the State or by a corporation offence committed by the same official. This means that the
owned or controlled by the State, of any trade, business, industry Government against an official despite the sentence of a court of
or service. law may take disciplinary action and such action will not infringe
As a whole, the tendency of the judiciary with regard to the the right guaranteed under this Article. 'Taken together, these
freedom of profession has been not to block in any way the provisions guard against retrospective application of a punitive
124 Indian Government and Politics Reviewing the Indian Constitution 125

law and double punishment for the same offence. These are, custody only with his authority. All these rights are without any
indeed, guarantees of great importance, which establish "the qualifications and are, therefore, in absolute terms.
primacy of law over the passions of man." There are, however, two exceptions to the universal application
of the rights guaranteed under the first two clauses of Article 22.
Prottion of Life and Personal Liberty (Art. 21)
These relate to
Article 21 is one of the shortest in the Constitution over which
(1) any person who is for the time being an enemy alien; or
there took place one of the longest and most thorough-going
discussions in the Constituent Assembly. It enacts that "no person (2) any person who is arrested or detained under any law
shall be deprived of his life, or personal liberty except according providing for preventive detention.
to procedure established by law." The Article as it stands now is The first exception was accepted by the Constituent Assembly
a revised version of what it originally was in the Draft Constitution, without any opposition as it embodied a sound principle. For
according 'to which "no person 'was to be deprived of his life or instance, if India were at war with another country, considerations
liberty wit how due process of law". The Drafting Committee gave of national security may demand the arrest and detention of
two reasons for this change. First, the word "liberty" should be person who is the citizen of the enemy country. He may not be
qualified by the word "personal" in order to avoid the possibility given the rights guaranteed under Article 22 (I) and (2). But no
of too wide an interpretation, which might include even the such easy justification is available for the second exception, which
freedom already dealt with under Article 19. Secondly, the provides for preventive detention even during normal times.
expression "procedure established by law" is more definite and Discussion on this clause in the Constituent Assembly was stormy
such a provision finds place in the same context in the Japanese and acrimonious.
Constitution of 1946. Ambedkar, however, pointed out the safeguards provided in
The key word in Article 21 is "law". What does it mean, law the Constitution to mitigate the rigors of an apparently absolute
enacted by a competent legislative body, or fundamental or natural power of preventive detention permitted under Article 22 (3).
law? This was the question that confronted the Supreme Court First, every case of preventive detention must be authorized
soon after the inauguration of the Constitution. by law. It cannot be at the will of the executive.
There have been numerous other decisions of the Supreme Secondly, no law of preventive detention shall normally
Court where the Court has emphasized and re-emphasized its authorize the detention of a person for a longer period than three
liberal outlook on the question of protection of life and personal months.
liberty. The following may specifically pointed out.
Thirdly, every case of preventive detention for a period longer
That imprisonment of a poor person for non-payment of debts than three months must be placed before an Advisory Board
amounted to deprivation of his personal liberty. composed of persons qualified for appointment as Judges of High
Protection against Arrest and Detention (Art. 22) Court. Such cases must be placed before the Board within the
three months period. The continued detention after three months
Article 22 guarantees three rights. First, it guarantees the right should be only on the basis of a favorable opinion by the Board.
of every person who is arrested to be informed of the cause of his The only exception to this provision is when Parliament prescribes
arrest; secondly, his right to consult, and to be defended by a by law the circumstances under which a person may be kept in
lawyer of his choice. Thirdly, every person arrested and detained detention beyond three months even without the opinion of the
in custody shall be produced before the nearest Magistrate within Advisory Board.
a period of twenty-four hours and shall be kept in continued
126 Indian Government and Politics Reviewing the Indian Constitution 127

Fourthly, no person who is detained under any preventive For a period of two decades--from 1950 to 1970--a
detention law can be detained indefinitely. There shall always be Parliamentary enactment on preventive detention had continued
a maximum period of detention which Parliament is required to to exist in the country. The Preventive Detention Act of 1950 was
prescribe by law. amended seven time!!, each time for a period of three years, thus
Fifthly, in cases which are required to be placed before the extending it up to 31 st December 1969. It was not further extended,
Advisory Board, the procedure to be followed by the Board shall hence since then there has been
be laid down by Parliament. no preventive detention law for the country as a whole. Some
Sixthly, when a person is detained under a law of preventive of the States, however, passed laws on preventive detention in
detention, the detaining authority shall communicate to him the 1970. In 1971 Parliament passed a modified version of the old
grounds 'on which the order has been made. It should also afford Preventive Detention Act under the title Maintenance of Internal
him the earliest opportunity of making a representation against Security Act (MISA) which continued to exist until 1978 when it
the order. was abolished. In 1980 however, a modified version of MISA was
passed under the title of National Security Act which was upheld
The greatest safeguard, according to Ambedkar, is that
as constitutional by the Supreme Court in 1981.
preventive detention takes place only under the law. It cannot be
at the will of the executive. It is also necessary to make a distinction A similar Act passed by Parliament subsequently in the wake
between different categories of cases. There may be cases of of terrorist activities in Punjab is known as Terrorist and Disruptive
detention where the circum-stances are so serious and the Activities (Prevention) Act (TADA)and has been in operation
consequence so dangerous that it would not even be desirable to enabling the Executive to take into custody and preventive
permit the members of the Board to know the facts regarding the detention of persons suspected of terrorist activities.
detention of any particular individual.
THE RIGHT AGAINST EXPLOITATION (ARTS. 23 AND 24)
The disclosure of such facts may be too dangerous to the
security of the State or its very existence. But even here there are Articles 23 and 24 deal with the right against exploitation.
two mitigating circumstances. First, such cases will be defined by Art.icle 23 which prohibits traffic in human beings and begar and
Parliament. They are not to be arbitrarily decided by the executive. similar forms of forced labour is comparable to the Thirteenth
Secondly, in every case there shall be. a maximum period of Amendment of the American Constitution abolishing slavery or
detention prescribed by law. involuntary servitude. At the time of the adoption of the
Constitution there was hardly anything like slavery or the
The First Preventive Detention Act was passed by Parliament widespread practice of forced labour in any part of India. The
in 1950. The validity of the Act was soon challenged before the National Freedom movement, since the twenties of this century,
Supreme Court in Gopalan vs. the State of Madras. The case was had been Ii rallying force against such practices. However, there
heard by six Judges of the Court and each of the Judges wrote were many areas of the country where the "untouchables" were
a separate opinion. Each has examined in general the scope of being exploited in several ways by the higher castes and richer
fundamental rights under the Constitution besides analyzing in classes. For example, in parts of Rajasthan in Western India, which
detail the content of personal liberty. By a 4: 2 majority, the Court was in pre-Independence days a cluster of Princely States, there
up held the Act except section 14 of the Act which was unanimously existed a practice under which labourers who worked for a
declared invalid. The invalidity of this section, however, did not particular landlord could not leave him to seek employment
affect the rest of the Act as: it could be severed from the remaining elsewhere without his permission. Very often this restriction was
provisions. so severe and the labourer's dependence on" the "master" was so
128 Indian Government and Politics Reviewing the Indian Constitution 129

absolute that he was just a slave in reality. The local laws had all children in the country up to the age of 14 years. This comes
supported such practices. of the realisation that children should prepare during this period
Evils like the Devadasi system under which women were for the task of the future as useful and responsible citizens.
dedicated in the name of religion, to Hindu deities, idols, objects Employment of children is an-uncivilised and even unhuman
of worship, temples and other religious institutions, and under practice. It is exploitation. It stunts their growth, corrupts their
which, instead of living a life of dedication, self-renunciation and morals and often drives them to delinquency. Naturally, it must
piety; they were the life-long victims of lust and immorality, had be prohibited and incentives to divert them from employment
been prevalent in certain parts of southern and western India. should be provided.
Vestiges of such evil customs and practices were still there in In spite of the existence of several laws which seek to provide
many parts of the country. The Constitution-makers were eager protection of the right against exploitation, there still remain in
to proclaim a war against them through the Constitution as these many parts of the country many forms of exploitation that come
practices would have no place in the new political and social within the scope of this right. The efforts so far made by the State
concept that was emerging with the advent of independence." The in this direction are marked by timidity rather than determination.
ideal of "one man, one vote, one value",-equality before law and There is an under-current of indifference even in the law-enforcing
equal protection of laws, freedom of profession and the right to officials with respect to these rights. Many of them think, for
move freely through out the country-all these would have no instance, that attempts to close down brothels altogether are fore-
meaning if "one man" was subjugated by "another man" and one's doomed to failure. Society must awaken to the full realisation that
life was at the mercy of another. begar and immoraI 'traffic are the products of poverty and neglect.
. Although any form of forced labour is an offence punishable A Committee appointed some years ago by the Central Social
under law just as untouchability is an offence, this constitutional Welfare Board to go into all aspects of immoral traffic reported
guarantee is only against private individuals and organisations. that the question of exploitation of women and girls generally, is
An important exception is made in favour of the State which may so closely linked up with prostitution that it is not possible to
impose compulsory service for public purposes. Compulsory suggest measures to wipe out the one without taking into
military service, or compulsory work for nation-building consideration the other. The question cannot be considered except
programmes may provide examples of such service. The State in the context of national progress, full employment, economic
may for instance, pass a law by which it may compel every advancement, social justice and the general raising of the standard
university graduate to spend six months in villages immediately of living of all sections of the people. Nevertheless, the adoption
after leaving the university, on literacy work or other social service of preventive measures would reduce the incidence of these evil
among the village people. Such a law, however, should not make practices. For this, it is necessary for the State to pursue a more
any discrimination on grounds of religion, caste or class, or any vigorous policy.
of them.
THE RIGHT TO FREEDOM OF RELIGION (ARTS. 25 TO 28)
Prohibition of Child Labour
It is a paradox that while almost every religion stands for and.
According to Article 24, no child below the age of 14 years preaches the universal brotherhood of man, religion has been a
shall be employed to work in any factory or mine or engaged in, constant source of conflict in human history. India has been most
any other hazardous employment. This Article is intimately related unfortunate in this respect, particularly during the last thousand
to a Directive Principle of State Policy which calls upon the State years of her history. The British did not desist from exploiting this
to enforce universal compulsory and free Primary Education to situation for their own advantage and to continue their rule in
130 Indian Government and Politics Reviewing the Indian Constitution 131

India as along as they could. We saw in the earlier part of this Religious Freedom and the Secular State
discussion how religion shattered the unity of the nation and how It was argued on the floor of the Assembly that the religious
the country was partitioned on a religious basis. Yet the problem freedom guaranteed under the Constitution was opposed to the
of religious minorities in independent India was not solved and concept of a secular State which the Constitution aimed to establish.
remained as difficult as ever. Despite the creation of Pakistan, This proposition was successfully challenged by several prominent
there were more than forty million.Muslims in India scattered members including those of the Drafting Committee. Some of the
allover the country. observations made in this context deserve reproduction in original
There were, in addition, some ten million Christians, five Thus the distinguishing features of a secular democracy as
million Sikhs and considerable' numbers of Parsees, Jains, contemplated by the Constitution of India are: (1) that the State
Buddhists and Jews. Those who professed the Hindu religion will not identify itself with or be controlled by any religion; (2)
formed an overwhelming majority, some 85 per cent of the total that while the State guarantees to everyone the right to profess
population. If they chose to act together as a religious group in whatever religion one chooses to follow (which includes also the
representative institutions, they could pass any law they liked and right to be an agnostic or an atheist), it will not accord any
have absolute control over the governmental machinery in all its preferential treatment to any of them; (3) that no discrimination
activities. The slightest tendency towards such an attitude would will be shown by the State against any person on account of his
have undermined' the confidence of the religious minorities, and religion or faith; and (4) that the right of every citizen, subject to
democracy in India might have become a label without meaning, any general condition, to enter any office under the State will be
a form without substance.. equal to that of his fellow-citizens. Political equality which entitles
The idea of guaranteed fundamental rights itself was a device any Indian citizen to seek the highest office under the State is the
directed towards the avoidance of such a contingency. The right heart and soul of secularism as envisaged by the Constitution. It
to freedom of speech and expression, and the right to form secures the conditions of creating a fraternity of the Indian people
associations and unions are also rights which guarantee religious which assures both the dignity of the individual and the unity of
speech and expression and the right to form religious associations the nation.
and unions. But the Constituent Assembly was not satisfied with
such provisions alone in its bid to infuse complete confidence in Freedom of Conscience, etc.
the religious minorities. It went a step further and adopted a Article 25(1) enacts that all persons are equally entitled to
separate group of articles dealing solely with the right to freedom freedom of conscience and the right freely to profess, practise and
of religion. propagate religion. The wording of the article has been largely
The freedoms provided In Articles 25, 26. 27 and are conceived based upon the judicial interpretation of freedom of religion in
in most generous terms to the complete satisfaction of religious the United States.
minorities. They were in fact the result of an agreement with the Interpreting the scope of religious freedom as guaranteed
minorities, almost unanimously arrived at in the Minorities under the First Amendment, the American Supreme Court held:
Committee constituted by the Constituent Assembly. Such "Freedom of religious belief and to act in the exercise of such belief
unanimity created an atmosphere of harmony and confidence cannot override the interests of peace, order or morals of the
in the majority community. Further these provisions society and to that extent the freedom of religion is subject to the
embodied in detail one Constitution declared in the Preamble: "to control of the State." This is in conformity with the modern idea
secure to all its citizens liberty of thought, expression, belief, faith that anything may not, in the name of religion, have the unrestricted
and worship". right to practise or propagate itself.
132 Indian Government and Politics Reviewing the Indian Constitution 133

Yet in its zeal to uphold the right of religious enthusiasts, the other communities to emulate them and propagte other religions
Court has on occasions gone to the fantastic limit of approving as well The different communities may well... propagate their
actions such as ringing door bells and disturbing householders, religion and what it stands for. It is not to be understood that
accosting passers-by and insulting them in their religious beliefs, when one propagates his religion he should cry down ether
soliciting funds even in an intimidating manner and "peddling religions. It is not the spirit of any religion to, cry down another-
doctrinal wares in the streets." These decisions of the Court show religion. Therefore, this is absolutely necessary and essential.
how essential it is for the text of the Constitution to give a positive
The Court has, however, held that the right to propagate
lead to the Courts by specifically laying down as clearly as possible
religion does not include any right to forcible conversions as these
the permissive limits to which legislation. regulating the practice
may disturb public order. In the Anand Margi case, the right to
and propagation of religion can go. The idea of laying down such
perform 'tandav' dance with lethal weapons and human skulls in
restrictions finds today wide acceptance.
a public processions was held not to be an essential religious
The framers of the Indian Constitution accepted this idea and practice and banning of the procession in the interest of 'public'
made it a part of Article 25(1) by placing three restrictions to the order and morality was considered a reasonable restriction.
freedom of religion, namely, public order, morality and health. Similarly, cows laughter on backrid was held not to be an essential
The full implications of these qualifications have not yet been practice of Islam and could therefore, be prohibited by law in the
discovered. Naturally, they will have to grow with the growing interest of Public order?
social and moral conscience of the people as well as authoritative
Article 26 is. in fact, a corollary to Article 25 and guarantees
judicial pronouncements. The State is also permitted to regulate
the freedom to manage religious affairs. According to this, every
economic, financial, political or other secular activities which may
religious denomination is given the right (a) to establish and
be associated with religious practice. Further, it may also provide
maintain institutions for religious and charitable purposes; (b) to
for social welfare and reforms such as of the throwing open of
manage its own affairs in matters of religion; (c) to own and
Hindu religious institutions of a public character to all classes and
acquire movable and immovable property; and (d) to administer
sections of Hindus.
such property in accordance with law. Article 27 provides an
The word "propagate" does not find a place in any other additional protection to religious activity by exempting funds
Constitution where it deals with religious freedom. A few members appropriated towards the promotion or maintenance of any
of the Constituent Assembly were vehemently opposed to the particular religion from the payment of taxes.
inclusion of this term as they thought that it might be perilous
However, the right of a religious denomination to manage its
to guarantee it and might freely be used for the purpose of
own affairs in matters of religion is subject to any law protected
wholesale conversion.
by Article 25. (2) (b) throwing open a Hindu public temple to all
Advocatinig the inclusion of the word "propagate", another classes and sections of Hindus. The object of this provision is to
member observed: remove a potent cause of disunion and inequality among the
"It is generally understood that the word propagate is intended various casts of the Hindus. It is indeed a corollary to the abolition
only for the Christian community. But I think it is absolutely of untouchability.
necessary, in the present context of circumstances, that we must A provision that is similar to the above is that which deals
educate our people on religious tenets and doctrines. So far as with social reform. A secular State which gives protection to all
my experience goes, the Christian community has not religions equally is by no means bound to protect every kind of
transgressed their limits of legitimate propagation of religious human activity under the guise of religion. There are religions
views, and on the whole, they have done well indeed. It is for
134 Indian Government and Politics Reviewing the Indian Constitution 135

which bring under their own cloak every human activity and it freedom and an extension to certain specific aspects of that right,
would be absurd to suggest that a secular State should protect like the freedom to maintain separate educational institutions,
'them all. Here again, Indian conditions, especially the degradation. etc., already referred to. One special feature of these provisions,
of certain social institutions such as caste have had their particular however, is that the term "minority" has been given a wide
impact in the minds of the fathers of the Constitution. As Ambedkar connotation. Here a minority is recognised as such not only on
explained in the Constituent Assembly, the conception of religion the basis of religion but also on language, script or culture. The
in India is so vast that it covers every aspect of life from birth to importance of the provision will be evident in view of the existence
death. If the State were to accept this conception of religion, the of over a dozen well developed languages as well as undeveloped
country would come to a standstill in regard to reforms. At the ones within the territory of India.
same time, no sensible State, in the name of social reform, would Interpreting the scope of Article 29, the Bombay High Court
interfere with the essence of any religion. held that it embodied two importent principles:
"One is the right of the citizen to select any educational.
CULTURAL AND EDUCATIONAL RIGHTS (ARTS. 29 AND
Institution maintained by the State and receiving aid out of
30)
State funds. The State cannot tell a citizen, 'you shall go to this
Under Articles 29 and 30, certain cultural and educational school which I maintain and not to the other'. Here we find
rights are guaranteed. Section (I) of Article 29 guarantees the right reproduced the right of the parent to control the education of
of any section of the citizen residing in any part of the country the child."
having a distinct language, script or culture of its own, to conserve
the same. Section (2) prohibits any discrimination based only on The scope of Article 29(2) came up for detailed interpretation
religion, race, caste, language or any of them in the matter of before the Supreme Court in two cases, both of which were appeals
admission to State or State-aided educational institutions. Section from decisions of the Madras High Court, relating to admission
(I) of Article 30 provides that "all minorities, whether based on to educational institutions maintained by the State. After analysing
religion or language, shall have the right to establish and administer the facts in detail the Court said:
educational institutions of their choice". According to Section (2) "It will be noticed that while clause (1) protects the language,
the State shall not, in granting aid to educational institutions, script or culture of a section' of the citizens, clause (2) guarantees
discriminate against any educational institution on the ground the fundamental right of an individual citizen. The right to get
that it is under the management of a minority, whether based on admission into any educational institution of the kind mentioned
religion or language. in clause (2) is a right which an individual citizen has as a
citizen and not as a member of any community or class of
These. provisions are unique in their thoroughness. There is
citizens. This right is not to be denied to the citizen on grounds
nothing comparable to these in the Bill of Rights of the American
only of religion, race, caste, language or any of them. If a citizen
Constitution. When provisions under Articles 29 and 30 are
who seeks admission into any such educational institution has
considered along with other provisions in the chapter on
not the requisite academic qualifications and is denied admission
Fundamental Rights and elsewhere in the Constitution
on that ground, certainly he cannot be hard to complain of an
safeguarding the rights of religious, linguistic and racial minorities
infraction of his fundamental right under this Article. But, on
it will become clear that the purpose of these provisions is to
the other hand, if he has the academic qualifications but is
reassure the minorities that certain special interests of theirs which
refused admission only on grounds of religion, race, caste,
they cherish as fundamental to their life are safe under the
language or any of them, then there is a clear breach of his
Constitution. These are in conformity with the right to religious
fundamental right."
136 Indian Government and Politics Reviewing the Indian Constitution 137

On behalf of the State it was contended that Article 46 charged "After the commencement of this Act, the establishment of a
the State with promoting, with special care, the educational and new school or the opening of a new class in any private school
special interests of the weaker sections of the people and, in shall be subject to the provisions of this Act and the rules made
particular, of the Scheduled Castes and Scheduled Tribes and thereunder and any school or higher class established or opened
with protecting them from social injustice and all forms of otherwise than in accordance with such provisions shall not be
exploitation. But the Court rejected this argument on the ground entitled to be recognised by the Government".
that this was a Directive Principle-a non-justiciable right-and it
The educational institutions established or administered by
could not over-ride a Fundamental Right which was justiciable.
the minorities in exercise of the rights conferred by Article 30(1),
It was the duty f the Court to enforce a Fundamental Right.
the Chief Justice said, might be classified into three categories: (1)
With the passing of the Forty-second Amendment of the those which did not seek either aid or recognition from the State;
Constitution this argument of the Court has lost much of its force. (2) those which, wanted aid; and (3) those which wanted only
According to the Amendment where there is a conflict between recognition but not aid. In regard to educational institutions in the
a Fundamental Right and Directive Principle, Parliament may by first category, he held that by Clause 38 of.' the Bill, they were
law give precedence to the Directive Principle. prima facie outside the purview of the Bill As regards the second
Article 30 is a charter of educational rights. It guarantees in category, the Chief Justice said that they had to subdivide it into
absolute terms the right of linguistic and religious minorities to two classes, namely:.
establish and administer educational institutions of their choice (1) those which were by the Constitution itself expressly made
and, at the same time, claim grants-in-aid without any eligible for-receiving grants; and
discrimination based upon religion or language. The fact that the (2) those which were not entitled to such grant, but
Constitution does not impose any express restriction in the scope nevertheless seek to get aid.
of the enjoyment of this right, unlike most of the rights included
The Chief Justice observed that the Anglo-Indian education
in the chapter on Fundamental Rights, shows that the framers
institutions established prior to 1948 used to receive grants from
intended to make its scope unfettered. This does not, however,
the Government of those days. Article 337 of the Constitution
mean that the. State cannot impose reasonable restrictions of a
preserved this bounty for a period of ten years. The Anglo-Indian
regulatory character for maintaining standards of education. This
educational institutions in Kerala had, before the passing of the
point has been made abundantly clear in judicial pronouncements.
Bill, been receiving grants from the Madras State and also the
The scope of Article 30 was interpreted at length by the Travancore-Cochin State. After the formation of Kerala too the
Supreme Court in a reference made to it by the President. The bounty continued. In the circumstances, the amount received by
subject of the reference was the constitutional validity of certain the Anglo-Indian institutions as grant under Article 337 should
provisions of the Kerala Education Bill, 1957, which was submitted be construed as aid within the meaning of the Bill and educational
to the President for his assent. institutions in receipt of such grants payable under Article 337
The Bill has been the cause of agitation in the State of Kerala should accordingly be regarded as aided schools.
ever since its introduction in the State Assembly in 1957, and those Referring to the argument that no conditions could be imposed
who opposed it contended that it violated the fundamental rights in regard to the administration of institutions run by minorities,
guaranteed under the Constitution, espe-cially those under Article the Chief Justice said the right to administer could not obviously
3D, In a six to one decision, the Court held that'. clause 3(5) of include the right to maladminister. It stood to reason that the
the Bill was invalid. The clause read as follows:' constitutional right to administer an educational institution of
138 Indian Government and Politics Reviewing the Indian Constitution 139

their choice did not necessarily militate against the claim of the It is thus that the genius of India has been able to find universality
State to insist that in order to grant aid the State might prescribe in diversity by assimilating the best of all creeds and cultures."
reasonable regulations to ensure the excellence of the institutions There were several other decisions of the Supreme Court
to be aided. since 1959 interpreting the scope of Article 29 and 30.
In regard to educational institutions of minorities which sought These decisions lead us to the following conclusions:
only recognition, but not aid from the State, the Chief Justice said
that without recognition, the educational institutions established Articles 29 and 30 create two separate rights although it is
or to be established by minority communities could not fulfill the possible that they may meet, in a given case.
real object of their choice. The right to-establish educational Whether a particular community is a minority or not is to be
institutions of their choice should, therefore, mean the right to judged on the basis of the entire population of the area to which
establish real institutions which would effectively serve the needs the particular legislation applies.
of their community and the scholars who attended such A minority can effectively conserve it s script, language and
institutions. To deny recognition to educational institutions except culture by and through the establishment and maintenance of
on terms tantamount to the surrender of their constitutional right educational institutions of its choice.
to administer educational institutions of their choice was in truth The language of Article 29 (2) is wide and unqualified and
and effect to deprive them of their right under Article 30 (1). covers all citizens whether they belong to the majority or minority
"We the people of India," the Chief Justice-said, "had given groups.
unto ourselves the Constitution which is not for any particular The right of getting admission to an educational institution
community or section but for all. Its provisions are intended to is a right which an individual citizen has as a citizen and not as
protect all, minority as well as majority communities. There can a: member of a community or class of citizens. Hence this right
be no manner of doubt that our Constitution has guaranteed cannot be denied to citizens on grounds only of religion, race,
certain cherished rights of the minorities concerned their language, caste, language or any of them.
culture and religion. These concessions must have been made to
In the case of a minority based on religion or language, the
them for good and valid reasons.
right to impart instruction in their own institutions to the children
"So long as the Constitution stands as it is and is not altered, of their community in their own language must be protected. In
it is, we conceive, the duty of this Court to uphold the such a case, the power of the State to determine the medium of
fundamental rights and thereby honour the sacred obligations instruction must yield to the fundamental right of the minority
to the minority communities who are of our own. Throughout to the extent it is necessary to give effect to' the right.
the ages endless inundations of men of diverse creeds, cultures
The words establish and administer in Article 30 (1) must be
and races-Aryans and non-Aryans, Dravidians and Chinese,
read conjunctively and if done so the minority is entitled to the
Sythians, Huns, Pathans andMughals--have come to this ancient
right to administer an educational institution provided the said
limd from distant regions and climes. India has welcomed them
institution has been established by the minority and not otherwise.
all. They have met and gathered, given and taken and got
mingled, merged and lost in one body. India's traditions have The protection implied in Articles 29 and 30 applies not only
thus been epitomised in the noble 'lines: 'None shall be turned/ to educational institutions established after the commencement of
away from the shores of this vast see of humanity that is India' the Constitution but also to those established before it.
(Tagore). Indeed India has sent out to the world her message The rights of the minorities, however cannot be absolute.
of goodwill enshrined and proclaimed in our national anthem. They must be subject to restrictions in the interest of education
140 Indian Government and Politics Reviewing the Indian Constitution 141

as well as in pursuance of socio-economic objectives embodied in has been interpreted by the Supreme Court to mean a group of
the Constitution. The purpose of these rights was not to create people who are in a numerical minority in a State as a whole as
vested interests in separateness of minorities but to maintain their distinguished from any particular area or region thereof (vide
individuality as well as distinct identity of their language and Kerala Education Bill-Supra).
culture. But the preservation of such distinctiveness should not Taking the rights guaranteed under religious, educational
result in the minorities remaining isolated from the mainstream and cultural fields as a whole, it will be noted that these are
of national life. As the nation makes progress, the barriers that couched in the most comprehensive language, and the maximum
divide citizens into majority and minority compartments should possible freedom is guaranteed to the minorities, religious and
gradually disappear and the tradition-bound, rigid society in India linguistic. The special significance of these provisions is that while
should become transformed into a composite, dynamic and the impact of other rights in Part III of the Constitution is on the
progressive society cherishing common national ideals and people of India as a whole, irrespective of religion, caste, race or
aspirations. Educational and cultural institutions should be-come language, that ot1hese rights is only on the minorities. The
the agents of such change rather than perpetuating narrow barriers democratic basis of the Constitution would' be lost if the' minorities
between citizen and citizen. were not given adequate protection to preserve their religious
Article 30 has been criticised, among other things, that the beliefs, and institutions of education and culture. The Constitution
right to establish and administer educational institutions of their may then be branded as an instrument for the furtherance of the
choice available to the minorities is denied to the majority majority community and the language of the majority. Naturally,
community. resentment against such a position would manifest all over the
Also since the term minority has not been defined in the country, as religious minorities live in all States of India and
Constitution fully where and there are advantages in belonging linguistic minorities total not less than 500 million. Moreover,
to the minority, groups within the majority Hindu Community such a position would have discredited the foundation of the
have started claiming minority status. The Arya Samaj in Punjab national movement against foreign rule, in which every religious
and the Ramakrishna Mission in Bengal are prominent examples. and linguistic minority in India was represented and solemn
They claim that they are not Hindus but represent independent promises had been made by representative of the majority
minority religions groups. It is possible that such demands from community to safeguard the legitimate interests of the minorities
other groups in future might make the religions minority problem against all forms of tyranny in a free India.
more complex. Article 29, enunciates the Fundamental Right of
any section of citizens residing anywhere in India to conserve its THE RIGHT TO PROPERTY (ARTS. 31, 31-A, 31-B, 31-C AND
distinct language, script or culture. 31-D)

No citizen can be denied admission to any educational One of the Articles that experienced the greatest difficulty in
institution maintained or aided by the state on grounds of language getting into shape in the Constituent Assembly was that which
or religion. dealt with the right to property under Article 31. But the form in
which it was originally adopted and included in the Constitution
Article 350-A inserted by the Seventh Amendment of 1953 was not destined to last long enough to justify the prolonged and
provides for local authorities in every State endeavouring to extend even protracted discussions that preceded its adoption. That is
adequate facilities for instruction in the mother tongue at the why, of all the rights included in the chapter on Fundamental
primary stage of education to children belonging to linguistic Rights and indeed of all provisions of the Constitution, the right
minority groups and for the President issuing necessary directions to property has been the one which was subjected to the largest
to any State in this connection. The term 'linguistic minority group'
142 Indian Government and Politics Reviewing the Indian Constitution 143

number of Amendments. The First Amendment, Fourth (3) No such law as is referred to in clause (2) made by the
Amendment, Seventeenth Amendment, Twenty-fifth Amendment, legislature of a State shall have effect unless such law, having been
Forty-second Amendment, Forty-third Amendment and finally reserved for the consideration of the President has received his
the Forty-fourth Amendment have all tried to modify the right assent.
in some form or other. Although these provisions have no great significance today,
It shows on the one hand the complex nature of the right itself it is important to remember that they and the earlier provisions
and on the other the difficulty of the State to find a satisfactory had provided a "rich source of litigation so long as they remained
balance between the individual's right to property and its social in the Constitution. The Constituent Assembly in adopting the
control under laws made by the State. The result has been the original provisions and the Parliament which found it necessary
latest Amendment which proved to be an anti-climax by removing to amend these provisions several times, felt that in the absence
the right to property from the status which it enjoyed as a of such provisions it would be impossible to solve the conflicts
Fundamental Right. As it existed at the time of its abolition, right involved in the right of the individual town property and the duty
to property consisted of the following main provisions: of the n State to enter the economic field with a view to bringing
31. (1) No person shall be deprived of his property save by about badly needed reforms. In fact, these provisions sought to
authority of law. reconcile the competing claims of the right of the individual to
property and the duty of the State to acquire private property for
(2) No property shall be compulsorily acquired or' requisitioned
public purpose or general welfare. It seems that the original
save for a public purpose and save by authority of a law which
objectives of these provisions were difficult to be realised in view
provides for acquisition or requisitioning of the property for an
of the unending and complex litigation and therefore it was felt
amount which may be fixed by such law or which may be
that the best course would be to abolish them altogether leaving
determined in accordance with such principles and given in such
a few provisions to save some existing laws.
manner as may be specified in such law; and no such law shall
be called in question in any court on the ground that the amount These provisions are as follows:
so fixed or determined is not adequate or that the whole or any "31-a Saving of laws providing for acquisition of estates, etc.-
part of such amount is to be given otherwise than in cash: (1) Not withstanding anything contained in Article 13, no law
Provided that in making any law providing for the compulsory providing for
acquisition of any property of an educational institution established (a) the acquisition by the State of any estate or of any rights
and administered by a minority referred to in clause (1) of Article therein or the extinguishment or modification of any such
30, the State shall ensure that the amount fixed by or determined rights, or
under such. law for the acquisition of such property is such as (b) the taking over the management of any property by the
would not restrict or abrogate the right guaranteed under that State for a limited period either in the public interest or
clause,. in order to secure the proper management of the property,
(2-A) Where a law does not provide for the transfer of the or
ownership of right to possession of any property to the State or (c) the amalgamation of two or more corporations either in
to a corporation owned or controlled by the State, it shall not be the public interest or in order to secure the proper
deemed to provide for,the compulsory acquisition or requisitioning management of any of the corporations, or
of property, not withstanding that it deprives any person of his (d) the extinguishments or modification of any rights of
property. managing agents, secretaries and treasures, managing
144 Indian Government and Politics Reviewing the Indian Constitution 145

directors, directors or managers of corporations, or of any (b) the expression 'right' in relation to an estate, shall include
voting rights of shareholders thereof, or any rights vesting in a proprietor, sub-proprietor,
(e) the extinguishments of modification of any rights accruing underproprietor, tenure-holder, ryot, under-ryot or other
by virtue of any agreement, lease or licence for the purpose intermediary and any rights or privileges in respect of
of searching for, or mining, any mineral oil, or the land revenue.
premature termination or cancellation" of any such 31-B. Validation of certain Acts and Regulations.-
agreement, lease or licence shall be deemed to be void on Without prejudice to the generality of the provisions contained
the ground that it is inconsistent with, or takes away or in Article 31-.A, none of the Acts and Regulations specified in the
abridges any of the rights conferred by Article 14 or Article Ninth Schedule nor any of the provisions thereof shall be deemed
19: to be void, or ever to have become void, on the ground that such
Provided that where such law is a law made by the legislature Act, Regulation or provision is inconsistent with, or takes away
of a State, the provisions of this Article shall not apply thereto or abridges any of the rights conferred by, any provisions of this
unless such law, having been reserved for the consideration of the Part, and notwithstanding any judgment, decree or order of any
President, has received his assent: court or tribunal to the contrary each of the said Acts and
Provided further that where any law makes any provision for Regulations shall, subject to the power of any competent legislature
the acquisition by the State of any estate and where any land to repeal or amend it, continue in force.
comprise therein is held by a person under his personal cultivation, Article 30-c Saving of laws giving effect to certain Directive
it shall not be lawful for the State to acquire any portion of such Principles.-Notwithstanding anything contained in Article 13, no
land as is within the ceiling limit applicable to him under any law law giving effect to the policy of State towards securing all or any
for the time being in force or any building or structure standing of the principles laid down in Part IV shall be deemed to be void
thereon or appurtenant thereto, unless the law relating to the on the ground that it is inconsistent with, or takes away or abridges
acquisition of such land, building or structure, provides for any of the rights conferred by Article 14 or Article 19 and no law
payment of compensation at a rate which shall not be less than containing a declaration that it is for giving effect to such policy
the market value thereof. shall be called in question in any court on the ground that it does
(2) In this article, not give effect to such policy:.
(a) the expression 'estate', shall, in relation to any local area,
THE RIGHT TO CONSTITUTIONAL REMEDIES (ARTS. 32
have the same meaning as that expression or its local
AND 32-A)
equivalent has in the existing law relating to land tenures
in force in that area and shall also include A declaration of fundamental rights is meaningless unless
there is an effective machinery for the enforcement of the rights.
(i) any jagir, inam or muafi or other similar grant and in
Hence the framers of the Constitution were in favour of adopting
the-State of Tamil Nadu and Kerala, any janmam right;
special provisions guaranteeing the right to constitutional remedies.
(ii) any land held under ryotwari settlement;- This, again, is in tune with the nature in general of the various
(iii) any land held or let for purposes of agriculture or for provisions embodied in the chapter on Fundamental Rights.
purposes ancillary thereto, including waste land, forest Article 32 has four sections. The first section is general in
land, land for pasture or sites or buildings and other scope and says that "the right to move the Supreme Court by
structures occupied by cultivators of land, agricultural appropriate proceedings for the enforcement of the rights conferred
labourers and village artisans;
146 Indian Government and Politics Reviewing the Indian Constitution 147

by this Part is guaranteed". The second section deals, in more A NOTE ON WRITS
specific terms, with the power of the Supreme Court to issue writs Habeas-corpus
including writs in the nature of habeas-corpus, mandamus,
Habeas-corpus is a Latin term,which literally means "you
prohibition, quo warranto and certiorari for the enforcement of
may have the body". Under the law of England, as a result of long
any of the rights. The third section empowers Parliament to confer
usage, the term came to signify a prerogative writ, a remedy with
the power of issuing Writs or orders on any other court without
which a person unlawfully detained sought to be set at liberty.
prejudice to the power of the Supreme Court in this respect. So
It is mentioned as early as the fourteenth century in England and
far,' Parliament has not passed any law conferring the power of
was formalised in the Habeas-corpus Act of 1679. The privilege
issuing writs on any courts. The last section deals with the
of the use of this writ was regarded as a foundation of human
conditions under which this right can be suspended.
freedom and the British citizen insisted upon this privilege
As the guardian of Fundamental rights the Supreme Court wherever he went whether for business or colonisation. This is
has two types of jurisdiction, original and appellate. Under its how it found place 10 the Constitution of the United States when
original jurisdiction, any person who complains that his the British colonieo;: in America won their independence and
fundamental rights have been violated within the territory of established a new State under that Constitution.
India, may move the Supreme Court seeking an appropriate
In India, under the Constitution, the power to issue a writ of
remedy. The fact that he may have a remedy in any of the High
habeas-corpus is vested only in the Supreme Court and the High
Courts does not preclude him from going directly to the Supreme
Courts. The writ is a direction of the Court to a person who is
Court. We have already seen under Article 32(4) that the Right
detaining another, commanding him to bring the body of the
to Constitutional Remedies may be suspended under certain
person in his custody at a specified time to a specified place for
circumstances. These circumstances are dealt with in detail in the
a specified purpose.
chapter on Emergency Provisions of the Constitution. Chiefly,
these emergencies are three: External aggression, internal A writ of habeas-corpus has only one purpose: To set at liberty
disturbance and breakdown of constitutional machinery in the a person who is confined without legal justification: to secure
States. Under such conditions the President of India is empowered release from confinement of a person unlawfully detained. The
to proclaim an emergency. During the period of emergency he writ does not punish the wrongdoer. If the detention is proved
may by order declare that the right to move any Court for the unlawful, the person who secures liberty through the writ may
enforcement of any fundamental right shall remain suspended up proceed against the wrongdoer in any appropriate. manner. The
to' a maximum period of the existence of the emergency (Art. 359). writ is issued not only against authorities of the State but "also
Every such order should be placed before each House of Parliament to private individuals or organisations if necessary,
as soon as possible.
Mandamus
Until 1976 the Supreme Court had power to consider the
The Latin word mandamus means "we order". The writ of
constitutional validity of any State law in any proceedings initiated
mandamus is an order of the High Court or the Supreme Court
under Article 32. But this power was taken away by the Forty-
commanding a person or a body to do that which it is his, of its,
second Amendment (1976). As a result the Supreme Court could
duty to do. Usually, it is an order directing the performance of
consider the constitutional validity of any State law only if the
ministerial acts. A ministerial act is one which a person or body
constitutional validity of any Central law was also an issue in such
is obliged by law to perform under given circumstances. For
proceedings. The Forty-third Amendment (1978) however has
instance, a Licensing officer is obliged to issue a licence to an
restored the original position.
applicant if the latter fulfils all the conditions laid down for the
148 Indian Government and Politics Reviewing the Indian Constitution 149

issue of such licence. Similarly, an appointing authority should "(i) Whenever any body of persons having legal authority to
issue a letter of appointment to a candidate if all the formalities determine questions affecting the right of subjects and having the
of selection are over and if the candidate is declared fit for the duty to act judicially, act in excess of their legal authority, a writ
appointment. But despite the fulfilment of such conditions, if the to certiorari lies. It does not lie to remove an order merely ministerial
officer or the authority concerned refuses or fails to issue the or to remove or cancel executive or administrative acts. (ii) For
appointment letter, the aggrieved person has a right to seek the this purpose, the term judicial does not necessarily mean acts of
remedy through a writ of mandamus. a Judge or legal tribunal sitting for the determination of matters
There are three essentail conditions for the issue of a writ of of law, but for the purpose of this question a judicial act seems
mandamus. First, the applicant must show that he has a real and to be an act done by competent authority, upon consideration of
special interest in the subject matter and 11 specific legal right to facts and circumstances, and imposing liability or affecting the
enforce. Secondly, he must show that there resides in him a legal rights of others."
right to the performance sought, and finally, that there is no other Often a writ of certiorari is sought along with prohibition, so
equally effective, convenient and beneficial remedy. that not merely may an invalid act be reviewed by a superior court
(certiorari), but its operation may also be restrained (prohibition).
Prohibition While prohibition and certiorari are so intimately related to each
A writ of prohibition is issued primarily to prevent an inferior other. Prohibition is the converse of mandamus. The former is
court from exceeding its jurisdiction, or acting contrary to the rule invoked to prevent a court or other authority from doing something
of natural justice, for example, to restrain a Judge from hearing which it has not the power to do while the latter is called in aid
a case in which he is personally interested. The term "inferior to require it to do something which it is bound to do.
courts" comprehends special tribunals, commissions, magistrates
and officers who exercise judicial powers, affecting the property Quo Warranto
or rights of the citizen and act in a summary way or in a new The writ of quo. warranto. is a common law process of great
course different from the common law. It is well established that antiquity. According to this, the High Courts or the Supreme
the writ lies only against a body exercising public functions of a Court may grant an injunction to restrain a person from acting
judicial or quasi-judicial character and cannot in the nature of in an office to which he is not entitled and may also declare the
things be utilised to restrain legislative powers The writ of office to be vacant. What the Court has to consider in an application
prohibition is the counterpart of the writ to certio.rari which too for a writ of QUO. warranto. is whether there has been usurpation
is issued against the action of an inferior court. of an office of a public nature and an office substantive in character,
i.e., an office independent in title. It is a remedy given by law at
Certiorari the discretion of the Court and is not issued as" a matter of course.
Certiorari is an ancient prerogative writ which orders the An application for the issue of a writ of quo warranto is
removal of a suit from an inferior court to a superior court. It may maintainable only in respect of offices of public nature which are
be used before a trial to prevent an excess or abuse of jurisdiction the creation of statute and not against private institutions. In the
and to remove the case for trial to a higher court. It is invoked case of domestic tribunals the order of the tribunal will not be
also after trial to quash an order which has been without jurisdiction disturbed unless it is attacked on the ground of bona fides or vires.
or in defiance of the rules of natural justice. Thus, it has been held that a member of a Legislative Assembly
Speaking on the scope of the writ, the Supreme Court, in the has every right to know by what authority the Speaker of the body
State of Bombay VS. Advani held: functions as such, if he bona fide thinks that the Speaker holds
150 Indian Government and Politics Reviewing the Indian Constitution 151

his office without authority and the application for a writ of quo and proclamations, of more recent date, that have influenced the
warranto is maintainable framers even more. Mention has already been made of the Irish
Constitution. The Constitution Act of India (1935) itself provided
DIRECTIVE PRINCIPLES OF STATE POLICY AND "for Instruments of Instructions" which were a fruitful idea.
FUNDAMENTAL DUTIES Ambedkar provides a clue to this in the following passage:
The Directive Principles of State Policy ''The Directive Principles are like the Instruments of Instructions
Part IV of the Constitution dealing with the "Directive which were issued to the Governor-general and the Governors
Principles of State Policy" provides one of the most novel and of the colonies, and to those of India by the British Government
striking features of modern constitutional government. The framers under the 1935 Government of India Act. What is called Directive
of the Constitution were in this respect influenced most by the Principles is merely another name for the Instruments of
Constitution of the Irish Republic, which embodies a chapter on Instructions. The only difference is that they are instructions
"Directive Principles of Social Policy". The Irish themselves had, to the legislature and the executive. Whoever captures power
however taken the idea, from the Constitution of the Republican will not be free to do what he likes with it. In the exercise of
Spain which was the first ever to incorporate such principles as it he will have to respect these instruments of instructions,
part of a Constitution.. But the idea of such principles can be which are called Directive Principles. He cannot ignore them."
traced to the Declaration of the Rights of Man and Citizen But there were other influences too. The Charter of the United
proclaimed by Revolutionary France and the Declaration of Nations as well as the Universal Human Rights Charter influenced
Independence by the American colonies. The influence of these the 'Constitution makers. The discussions on the Charter of Human
declarations was so profound on millions of people In Europe and Rights were in progress during the same period as the Constituent
America that they inspired organised efforts, on the one"" hand, Assembly was deliberating upon the Constitution. It would
to overthrow all forms of political tyranny, and, on the other, to however be wrong to suppose that the various principles embodied
compel the State to take positive measures for the removal of in this chapter are mere foreign borrowings or adaptations of
many antisocial practices which had been considered as normal principles of recent Western Political of Social Philosophy. In fact,
in those days. a number of these principles are entirely Indian, particularly those
In more recent times, thinkers on political and social reforms, which formed an integral pat of the very foundations of the
who did not agree with the Marxian approach for the removal of National Movement. Provisions dealing with village panchayats,
the ills and evils of modern society, advocated such principles to cottage industries, prohibition, protection against cow slaughter,
be made the guiding force of State activity. The ideas of Jeremy Scheduled Castes, Schedules Tribes and other socially and
Bentham, the political and social stand of the Liberal and Radical educationally backward classes, are all formally and essentially
Parties of Western Europe, the major principles of Fabian Socialism Indian and some of these were cherished ideas for the recognition
and, to some extent, those of Guild Socialism, are all akin to much of which Gandhiji had striven throughout his life.
of what is embodied in this Part of the Constitution. Sir Ivor As the title itself indicates, the principles embodied in this
Jennings claims that the ghosts of Sidney and Beatrice Webb stalk chapter are directives to the various governments and government
through the pages of the entire text and this Part of the Constitution agencies (including even village panchayats) to be followed as
expresses Fabian Socialism without the word "socialism", "for fundamental if the governance of the country. It shall be the duty
only the nationalisation of the means of production, distribution of the State to apply these principles in making laws. Thus, they
and exchange is missing." But this would be to give an exaggerated place an ideal before the legislators of India while they: frame new
importance to the Fabian influence, for one finds other documents legislation for the country's administration. They lay down a code
152 Indian Government and Politics Reviewing the Indian Constitution 153

of conduct for the administrators of India while they discharge The State shall secure that the operation of the legal system
their responsibilities as agents of the sovereign power of the nation. promotes justice, on a basis of equal opportunity, and
In short, the Directive Principles enshrine the fundamentals for shall in particular provide tree legal aid, by suitable
the realisation of which the State in India stands. They guide the legislation or schemes or in any other way, to ensure that
path which will lead the people of India to achieve the noble opportunities for securing justice are not denied to any
ideals which the Preamble of the Constitution proclaims: Justice, citizen by reasons of economic or other disabilities (Article
social, economic and political; Liberty, Equality and Fraternity. It 39-A).
is this realisation that impelled a member in the Constituent (3) To organise village panchayats as units of self-government
Assembly to demand the placing of this chapter immediately after (Art. 40) (4) To secure the right to work, (Art. 40) and
the Preamble in order to give it "greater sanctity" than others. public assistance in cases of undeserved want, such as
There was also a suggestion to change the title of the chapter to unemployment, old age, sickness, etc. (Art. 41).
"Fundamental Principles of State".
(5) To secure just and humane conditions of work and
There are sixteen articles of the Constitution, form 36 to 51, maternity relief (Art. 42).
that deal with the Directive Principles. These cover a wide range
of State activity embracing economic, social, legal, educational (6) To secure work, a living wage, a decent standard of life,
and international problems. The most important of these are the leisure and social and cultural opportunities people, and
following: in particular to promote cottage industries (Art. 43).
(1) The State shall strive to secure and protect a social order, (7) The State shall take steps, by suitable legislation or in any
which stand for the welfare of the people. In particular, other way, to secure the participation of workers in the
it shall strive to minimise the inequalities in income, and management of undertakings, establishments or other
endeavour to eliminate inequalities in status, facilities and organisations engaged in any industry (Art. 43-A).
opportunities, not only amongst individuals but also (8) To secure a uniform civil code applicable to the entire
amongst groups of people residing in different areas or country (Art. 44).
engaged in different vocations [Art. 32 (2)]. (9) To provide, within ten years from the commencement of
(2) In particular, the State shall direct its policy towards the Constitution, tree and compulsory education to all
securing adequate means of livelihood to all citizens; (b) children up to the age of 14 years (Art. 45). By a
a proper distribution of the material resources of the constitutional Amendment in 2002, this Directive Principle,
community for the common good; (c) the prevention of has been made a Fundamental Right..
concentration of wealth to the common detriment; (d) (10) To promote with special care the educational and economic
equal pay for equal work for both men and women; (e) interests of the weaker sections of the people, especially
the protection of the strength and health of workers and the Scheduled Castes and Tribes (Art. 46). "
avoiding circumstances which force citizens to enter
(11) To secure the improvement of public health and the
avocations unsuited to their age or strength; and (f) that
children are given opportunities and facilities to be prohibition of intoxicating drinks and drugs (Art. 47).
developed in a healthy manner and in conditions of (12) To organise agriculture and animal husbandry on 'scientific
freedom and dignity and the protection of childhood and lines and preserve and improve the breeds and prohibit
youth against exploitation of moral and material the slaughter of cows, calves and other milch and draught
abandonment (Art. 39). cattle (Art. 48).
154 Indian Government and Politics Reviewing the Indian Constitution 155

(13) The State shall endeavour to protect and improve the these principles is a question that deserves an answer in this
environment and to safeguard the forests and wild life of context. It may be stated in general that the achievements of the
the country (Art. 48-A). last five decades have not yet made the country a welfare State.
(14) To protect all monuments of historic interest and national Nevertheless, no impartial observer can miss the direction towards
importance (Art. 49). which it is moving, if not fast, at least at a reasonable pace.
(15) To bring about the separation of the judiciary from the The effort of the State to translate the Directive Principles into
executive (Art. 50). reality are concentrated primarily in the national Five-Year Plan,
the first of which was Initiated soon after the inaguration of the
(16) To endeavour to secure (a) the promotion of international
Constitution. The central objective of public policy and national
peace and security; (b) the maintenance of just and
endeavour as evinced through these plans has been the promotion
honourable relations between nations; and (c) the
of rapid and balanced economic development which will raise
settlement of international disputes by arbitration (Art.
living standards and open out to the people new opportunities
51).
for a richer and more varied life. Such development is intended
Taken together, these principles lay down the foundations on to expand the community's productive power and to provide the
which a new democratic India will be built up. They represent environment in which there is scope for the expression and
the minimum of the ambitions and aspirations cherished by the application of diverse faculties and urges. It follows therefore, that
people of India, set as a goal to be realised in a reasonable period the pattern of development must be related to the basic objective
of time. Indeed, when the State in India translates these principles which the Constitution has kept in view. These objectives are
into reality, she can justly claim to be a "welfare State". defined and explained from time to time in order that they may
In the words of Justice K.S. Hegde if the Supreme Court: 'The guide the State in planning as well as ensure their conformity with
purpose of the Fundamental Rights is to create an egalitarian the Directive Principles. The basic objectives may be summed up
society. to free all citizens from coercion or restriction by society in the phrase" socialist pattern of society". What it stands for is
and to make liberty available to all. The purpose of Directive explained by the Second Five-Year Plan in the following terms:
Principles is to fix certain social and economic goals for immediate "Essentially this means that the basic criterion for determining
attainment by bringing about a non-violent social revolution. the lines of advance must not be private profit but social gain,
Through such a social revolution the Constitution seeks to fulfil and that the pattern of development and the structure of socio-
the basic needs of the common man and to change the structure economic relations should be so planned that they result not
of our society. It aims at making the Indian masses free in the only in appreciable increases in national income and employment,
positive sense." but also in greater equality in incomes and wealth. Major
The decisions of the Supreme Court, especially from the decisions regarding production, consumption and investment-
seventies onwards amply testify the positive aspects of the Directive in fact all significant socio-economic relationships-must be made
Principles. These have been held to supplement the Fundamental by agencies informed by social purpose. The benefits, of economic
Rights for achieving the objective of a welfare State. The Court development must accrue more and more to the relatively less
said from time to time that even the Fundamental Rights might privileged classes of society, and there should be a progressive
be amended by Parliament to implement the provisions embodied reduction of the concentration of incomes, wealth and economic
in the Directive Principles and such legislation may be held valid power. The problem is to create a milieu in which the small man
unless it offends any of the basic features of the Constitution.. who has so far had little opportunity of perceiving and
How far the State has moved, so far, towards the realisation of participating in the immense possibilities of growth through
156 Indian Government and Politics Reviewing the Indian Constitution 157

organised effort is enabled to put in his best in the increase of wages for equal work are being paid to both men and women in
a higher standard of life for himself and increased prosperity for almost every area of activity. The community development
the country. In the process, he rises in economic and social programme, which has been in operation in many parts of the
status... For creating the appropriate conditions, the State has country, seeks the transformation of the rural economy, particularly
to take on heavy responsibilities as the principal agency speaking the reorganisation of agriculture and animal husbandry on
for and acting on behalf of the community as a whole..." scientific lines. Besides, most of the States have passed laws
designed to prohibit the slaughter of cows, calves and other milch
The Third Five-Year Plan spells out even more explicitly the
and draught cattle. Mention has already been made of a number
meaning and implications of the Indian concept of socialist pattern.
of laws, which have been passed with a view to protecting children
It is difficult to bring within the scope of this discussion a and youth against exploitation. The Central Council of Health
detailed survey of the concrete measures the State has taken so established in 1952 deals with matters connected with health,
far and the results achieved there from. Yet, one may broadly hygiene, nutrition, etc., on a national basis. Most of the villages
indicate the trends which would help the better appreciation of in India have now their own panchayats, which form the primary
the situation for example, there has been a substantial increase in units of administration. In fact, the Constitution itself was amended
the vesting of both ownership and control of material resources in 1992 to provide for a comprehensive Panchayati Raj system
of the community in the State during the last four decades. The embracing the entire country.
great multipurpose river valley projects such as Bhakra.Nangal,
The passing of a uniform civil code is not an easy measure
Damodar Valley and Hirakud, iron and steel producing concerns
in India where adherents of every religion have their own personal
such as Bhilai, Rourkela Durgapur and Bokharo, ship-building
laws. The Hindu Code that is being passed in instalments (e.g.,
centres like Vizag and Cochin and other concerns such as. The
the Hindu Marriage Act, 1955, and the Hindu Succession Act,
Sindri-Fertilizers, Hindustan Machine Tools, Chittaranjan
1956) is a right move towards the ultimate realisation of a uniform
Locomotives, Hindustan Aircrafts and many defence-oriented
civil code for the entire country. In the field of free and compulsory
industries, which contribute substantially to the basic economic
Primary Education for children, great strides have already been
development of the country, are owned and managed by the
made. But it is now widely realised that the ten-year limit that
State. The choice in fact, is being forced on the State almost
was set in the Constitution to make such education available to
continuously and as a result the State machinery is undertaking
every child in the country was too ambitious. It seems that India
new economic functions. According to one estimate, by 977 the
will require another decade to make this principle, a practical
total investment in the public sector had risen to nearly 100,000
proposition: A number of measures have already been taken to
million rupees from a negligible figure in] 950. The corresponding
promote the educational and economic interests of the weaker
figure in 1990 was almost ten times.
sections of the people, especially the Scheduled Castes and Tribes.
It is true that the State has not yet moved very far on the road With a view to specially benefiting the backward classes of citizens
of achieving objectives such as full employment, public assistance economically, efforts are being made for the setting up more and
during old age, sickness, etc. Nevertheless, most of them have more cottage and small-scale industries and also to give liberal
found a place in the development plans. Great emphasis is now financial aid for such activities undertaken by them.
being laid on the creation of employment opportunities. Steps are
A vigorous policy of prohibition was inaugurated with the
being taken to bring into being a scheme of unemployment
adoption of the Constitution, and at least a few of the States have
insurance. A limited scheme of workmen's insurance against
achieved the goal of complete prohibition of intoxicating liquors
sickness, accident and disease is already in operation. Minimum
throughout their territory. The remaining States have made
wages are fixed in a number of spheres of employment. Equal
158 Indian Government and Politics Reviewing the Indian Constitution 159

considerable progress in this direction. The principle of the given unto themselves. If they fail in this solemn duty, then they
complete separation of the judiciary from the executive is yet to have no right to continue in office and they can be and should
be fully realised. But every State has adopted a definite programme be removed from office when the stocktaking of their work is
in this respect and according to this every year a certain number done at the end of every five years at the time of the General
of districts are being brought under the scheme. Finally, it is Election in the country.
perhaps unnecessary to detail the efforts made by India towards Since the Constitution ensures free choice by the people from
the promotion of international understanding, peace and security. amongst competing candidates with differing policies and
Suffice it to say that her contribution in this field is widely and programmes, the electorate can choose those who, in their opinion,
generously acknowledged by almost all nations of the world. are likely to transform these principles into reality. These directives,
According to Article 37, Directive Principles, though they are thus seen, constitute a kind of basic standard of national conscience
fundamental in1he governance of the country and it shall be the and those who violate its dictates do so at the risk of being ousted
duty of the State to apply these principles in making laws, are from the positions of responsibility to which they have been chosen.
expressly made non-justiciable. It means that the courts in India The agents of the State at a given time may not be answerable to
including the Supreme Court have no power to enforce them. This a court of law for their breach of these principles, but they cannot
is in contrast with the position of Fundamental rights which are escape facing a higher and, more powerful court which will at
justiciable and, therefore, enforceable by the courts of law. Thus, regular intervals do the reckoning.
while there is a judicial remedy for every violation of a There are however, two important questions that are intimately
Fundamental Right, there is none for the enforcement of Directive related to the non justiciable character of these principles and
Principles. Would this mean that these are a set of platitudes have created some confusion in the minds of those interested in
designed by clever politicians to hoodwink the credulous Indian India's Constitutional law. Of these the first deals with the attitude
masses? Is there no remedy at all if the government that is in of the president or the governor towards a bill containing provisions
power ignores and even flagrantly violates these principles, which that contravene any of these principles. One view is that since the
are of a fundamental character in the governance of the country? President, or the governor, as the case may be has taken oath to
The answer is "no" to the first and "yes" to the second. No doubt, defend and uphold the constitution, he should refuse to give
there is no direct judicial remedy, except when Parliament has assent to a Bill which violated a Directive Principle is opposed to
made special provision under Article 31-C of the Constitution. this view and characterised it as a "dangerous doctrine" and
There are however other remedies and they are reasonably contended that "the Constitution does not warrant it."
effective.
The apprehension that these principles might lead to a conflict
It must be remembered in this connection that the Constitution between the President and the Prime Minister or between the
establishes a democratic form of government, a representative Governors and the Provincial Ministers was expressed in the
government. It is also a responsible government, one that is Constituent Assembly itself. "What happens if the Prime Minister
continuously and always responsible for all its actions to the of India ignores these Instructions " There have so far been no
representatives of the people and through them to the people in such occasions for such a conflict. Yet the problem has to be faced
general. Those who are in power are there because the people of if and when it arises. The main factor that should be remembered
India, who have been guaranteed universal adult suffrage, have in this context is the system. of government which the Constitution
given them that power. They are not the masters of the people establishes-a parliamentary system under which the executive is
but their "servants". They are voted into power to translate into responsible to the legislature. So long as the executive has the
practice the provisions of the Constitution, which the people have confidence of the legislature, a Constitutional head of the State
160 Indian Government and Politics Reviewing the Indian Constitution 161

will find it difficult to go against the will of the legislature. It is particular Article in Part III. The Directive Principles of State
also relevant to remember in this context that the President is not Policy have to conform to and run subsidiary to the chapter on
directly elected by the people and hence can claim no direct Fundamental Rights. In our opinion, that is the correct way in
mandate. If at any time Parliament or a State legislature decides which the provisions found in Part III and Part IV have to be
to pass a law which contravenes a Directive Principle, there must understood."
be weighty reasons for it. And if it is the considered opinion of
It was mainly this decision of the Court that led to a
the legislature to pass such a law and if the voting on it reflects
constitutional Amendment to Article 15 in 1951,4 under which the
a substantial majority in its favour, the President will have little
State was permitted to make special provisions to protect the
justification to withhold his assent to the Bill. Perhaps the President
interests of socially and educationally backward classes. A year
could send the Bill back to Parliament for reconsideration in the
later, when the Court dealt with the Zamindari Abolition cases,
light of his objections to it.
its attitude was considerably modified. In the State of Bihar V.s.
And if Parliament passes it a second time, the President will Kameswar Singh, the Court used the Directive Principle for its
have no justification to withhold his assent. After all, Parliament guidance in determining a crucial question on which the validity
alone is competent to change even the Directive Principles by a of the Bihar Act hinged. The question was whether there was any
constitutional amendment. Moreover, however fundamental these "public purpose'; to justify the legislation which acquired
principles might be today, they can have no claim to permanent compulsorily vast lands of private owners. Answering the question,
sanctity. They cannot be considered as embodying eternal verities. Justice Mahajan said, after quoting Article 37:
As society changes in character, its needs also undergo "Now it is obvious that the concentration of big blocks of land
corresponding changes. What is considered as fundamental today in the hands of a few individuals is contrary to the principles
may become inessential and unimportant a few decades hence or on which the Constitution of India is based. The purpose of the
earlier, Under a democratic system, all these questions are first acquisition contemplated by the Act, therefore, is to do away
to be determined by the representatives of the people and finally with the concentration of big blocks of land and means of
by the people themselves. Hence, it would seem wise for the production in the hands of a few individuals and to distribute
President not to use his veto power over a Bill that is passed by the ownership and control of the material resources which come
the legislature merely on the ground that it violates a Directive in the hands of the State, so as to sub serve the common good
Principle. as best as possible."
The second question is this: where this is a conflict between
Here the Judge was guided absolutely by the Directive
a Fundamental Right and a Directive Principle, which should
Principles.
prevail? The Supreme Court answered this question, for the first
time in Champakam Dorairajan' s case (1952). Speaking for a -Justice S.R. Das substantially reproduced the same language
unanimous Court, Justice S. R. Das said: in the same case. After quoting Articles 38 and 39 of the chapter
on Directive Principles, he said:
"The Directive Principles of State Policy which by Article 3 7
are expressly made unenforceable by a court cannot override the "In the light of this new outlook, what I ask is the purpose of
provisions found in Part III which, notwithstanding other the State in adopting measures for the acquisition of Zamindaris
provisions, are expressly made enforceable by writs, orders or and the interests of intermediaries. Surely, it is to sub serve the
directions under Article 32. The chapter on Fundamental Rights common good by bringing the land which feeds and sustains
is sacrosanct and not liable to be abridged by. any legislative the community and also produced wealth by its forest, mineral
or executive act or order except to the extent provided in the and other resources, under State ownership or control. This
162 Indian Government and Politics Reviewing the Indian Constitution 163

State ownership or control over land is a necessary preliminary of a welfare State. Taken together, these principles form a charter
step towards the implementation of Directive Principles of State of economic and social democracy in India. On the one hand, they
Policy and it cannot but be a public purpose." are assurances to the people as to what they may expect, while
on the other, they are directives to the governments, Central and
The question came up again in the course of arguments in the
State, as to what policies they ought to pursue. It is unfair to the
President's Reference to the Supreme Court of the Kerala Education
people as well as inconsistent with the spirit of the Constitution
Bill (1958). The Court has no hesitation to uphold its earlier stand
to allow these principles to remain pious wishes.
in the Zamindari abolition cases, namely, that the Directive
Principles cannot be altogether ignored by it in spite of their non- Every effort should be made by the representatives of the
justiciable character. people and the agents of the government to translate them into
reality. Nothing should be allowed to stand in their way, even the
Speaking on the motion by which he introduced the Fourth
fundamental rights guaranteed to the individual. After all, the
Amendment to the Constitution in Parliament, Prime Minister
rights of the individual should not hamper the progress and
Nehru observed that where there was conflict between a
welfare of society as a whole. This is why every fundamental right
Fundamental Right and a Directive Principle, the latter should
is subject to reasonable restrictions in the interests of the general
prevail. This opinion may appear to be in direct conflict with the
public, whether such restrictions are on account of public order,
view of the Supreme Court. But on closer examination it will be
morality, decency, health or anything else. It is in this sense that
seen that the conflict is apparent rather than real. For, as far as
the Fundamental Rights are to sub serve the Directive Principles.
the Supreme Court is concerned, where there is a clear conflict
Indeed, there can be no real conflict between the two. They are
between the two, it should uphold the Fundamental Right being
intimately related to and inseparably bound up with each other.
justiciable, against the Directive Principle which is a non-justiciable
A constitution framed in the middle of the twentieth century
right. But this solution is only a judicial solution of the matter. The
could hardly do without a chapter on Directive Principles of the
courts cannot go further than that, but Parliament can. The final
type the Indian Constitution has. The establishment of a political
solution is arrived at only when the social conflict arising out of
democracy is a fundamental aim of a Constitution.
the competing claims of a justiciable and a non-justiciable right
are resolved. The guiding principle here is the superiority of the But that in itself is not enough. The sustaining forces of that
social interest over that of the individual. To facilitate the putting political democracy have to be carefully built up. The most effective
into effect of this principle, the Constitution may have to be force, which will sustain a political democracy, is the simultaneous
amended and the Directive Principle allowed to prevail. The existence of an economic democracy. Where there is no economic
Constitution was amended several times with this object in view. democracy, political democracy is bound to degenerate soon into
It should, however; be added that whenever the court is called a dictatorship. If the Fundamental Rights guarantee a political
upon to resolve a conflict between a Fundamental Right and a democracy in India, the Directive Principles ensure the eventual
Directive Principle, it is the duty of the court to resolve the conflict emergence of an economic democracy to sustain the former. Thus,
with an eye on the spirit of the Constitution and with-a view to the Directive Principles of State Policy become the greatest
harmonising differences to the extent that-is possible and feasible. guarantee for a genuine democracy in India. In the light of these
considerations, it would betray a lack of discernment to consider
The significance of Directive Principles in relation to that of
these directives as a mere political manifesto without any legal
Fundamental Rights can be determined only by making a reference
sanction, or to characterise them as vague and indefinite serving
to the object of the Constitution-makers in making these principles
no useful purpose or to dismiss them as a mere moral homily. The
an integral part of the Constitution. As has already been pointed
last four decades demonstrate that such criticism has neither
out, they represent the basic principles, which aim at the creation
164 Indian Government and Politics Reviewing the Indian Constitution 165

substance nor relevance today. Another apparently weighty will take care of itself if the present is built on solid foundations.
criticism of the Directive Principles is implied in the question It is quite unnecessary, therefore, to think of the distant future
whether it is worthwhile to insert in a Constitution of today a with reference to certain provisions of a constitutional document.
collection of political principles taken from the experience of The real importance of the Directive Principles is that they
nineteenth century England or Western Europe, and to deem contain the positive obligations of the State towards its citizens.
them to be suitable for India in the middle of the twentieth century. No one can say that these obligations are of an insignificant type,
The question whether they would be suitable for the twenty- or that even if they are fulfilled; the pattern of society in India will
first century when the Constitution is hoped to be still in operation still remain more or less the same. In fact they are revolutionary
is difficult to answer. It is probable that they may become outmoded in character and yet to be achieved in a constitutional manner.
by then. Who can predict the precise nature of the potentialities Herein lies the real value of embodying these principles as an
of an atomic or a hydrogen age? It may revolutionise the whole integral part of the Constitution. Through the Directive Principles
economic system of the present day and convert India into a land of State Policy, the Constitution of India will steer clear of the two
of plenty where all human wants in the material field are fully extremes, a proletarian dictatorship, which destroys the liberty of
satisfied. In such a state of affairs, the Directive Principles will the individual, and a capitalist oligarchy, which hampers the
indeed look not, only outmoded but even reactionary! But as far economic security of the masses
as the twentieth century is concerned, India has yet to reach in
many spheres of economic activity a standard comparable to that FUNDAMENTAL DUTIES
that existed in the nineteenth century in Western Europe. Thus, The Forty-second Amendment of the Constitution added a
even assuming that the Directive Principles reflect the nineteenth new part to the Constitution Part IV-A-incorporating ten
century political ideas of the West, their value in twentieth century fundamental duties of the citizen under Article 51-A. "What is the
India is not lost Besides, it is not quite correct to characterise these use of mere enumeration of such duties in the Constitution in the
principles as borrowings from abroad. As has been pointed out absence of suitable provisions to enforce them." It may be asked
elsewhere, there are many provisions in this chapter, which prove and it is not easy to give a very satisfactory answer. However, the
the originality of the Constitution-makers and reflect the genius intention is quite clear and that is to place before the/country a
of the Indian people. code of conduct, which the citizens are expected to follow in their
If and when the Directive Principles become outmoded, they actions and conduct. The Fundamental Duties are as follows:
can be suitably amended or altogether abolished. The process of It shall be the duty of every citizen of India :
amending these provisions is simple. But by the time such
(a) To abide by the Constitution and respect its ideals and
amendments take place, India will have benefited immensely by
institutions, the National Flag and the National Anthem;
the Directive Principles, and an economic democracy will have
sent its roots deep into the Indian soil and the present form in (b) To cherish and follow the noble ideals which inspired our
which these principles are embodied will have realised its goal. national struggle for freedom;
Moreover, these principles would have become part and parcel (c) To uphold and protect the sovereignty, unity and integrity
of the Indian heritage. Thus one can see the immense educative of India;
values of these principles. They will instil in the minds and thoughts (d) To defend the country and render national service when
of the coming generations of Indian youth the fundamental values called upon to do so;
of a stable political order and dynamic economic system. A (e) To promote harmony and the spirit of common
Constitution is primarily concerned with the present. The future brotherhood amongst all the people of India transcending
166 Indian Government and Politics Reviewing the Indian Constitution 167

religious, linguistic and regional or sectional diversities; to our citizens unless these are brought into their minds and living
renounce practice, derogatory to the dignity of women; process through teaching and education. It is the obligation of the
(f) To value and preserve the rich heritage of our composite State to educate the citizens in the matter of Fundamental Duties
culture; so that a right balance between rights and duties may emerge. In
response to the Supreme Court's notice,. the Government of India
(g) To protect and improve the natural environment including
set-up a committee to examine all aspects of operationalisation of
forests, lakes rivers and wild life, and to have compassion
Fundamental Duties for an effective inculcation of the same by
for living creatures;
the citizens
(h) To develop the scientific temper, humanism and the spirit
The terms of reference of the Committee were as follows:
of inquiry and reform;
To develop a package for teaching Fundamental Duties at
(i) To safeguard public property and to abjure violence;
primary, secondary, senior secondary and university levels.
(j) To strive towards excellence in all spheres of individual
To decide the activities as part of curriculum and co-curricular
and collective activity, so that the nation constantly rises
activities.
to higher levels of endeavour and achievement.
To review the existing programme already being implemented
In May 1998, the Supreme Court issued a notice to the
by the NCERT under the National Curricular Frame-work and
Government of India to enquire about the Government's plan to
the need for identifying additional inputs into it.
operationalise the suggestions to teach Fundamental Duties to the
citizens of the country. The Court's notice was based on a letter, To develop programme packages for pre-service/ in-service
which it received from Justice Ranganath Misra (former Chief training of teachers at various levels.
Justice of the Supreme Court) stating "all of us are experiencing To develop a separate package for the training of citizens through
to our horror degrading human behaviour in society every day. non-formal education/adult education programme/media (print,
The deterioration is gradually becoming sharper and unless this electronic, etc.)
fall is immediately arrested and a remedial measure found out
In its Interim Report submitted in 1999, the Committee has
and enforced, the situation would not improve… Fundamental
emphasised the following:
Duties have remained in the Constitution Book and have not
come out to reach even the class of people who handle the Standards in Public Life: It is the duty of every citizen to obey
Constitution." the constitutional mandate. Every holder of a public office has
superadded to his duties, as a citizen, the additional duties imposed
It had been further stated that' 'the Constitution within a
by virtue of the office she/he holds. Sensitivity of all enforcement
quarter of a century, brought about a right-oriented society. The
agencies is essential for realising the promise held out in the
Indian approach of ensuring rights through performance of one's
Constitution. It is important to draw our attention to 'The Seven
duties was totally abandoned. Article 51-A in its ten clauses covers
Principles of Public Life" contained in the First Report of the
several aspects, the lack of which has been responsible for today's
United Kingdom's Committee on Standards in Public Life-Vol. I
evil. If society becomes duty based, everyone in India should turn
by Lord Nolan-Chairman, which are reproduced below:
attention on performance of duties and through such performance
ensure and be entitled to the rights of a citizen.' Selflessness: Holders of public office should take decisions
solely in terms of the public interest. They should not do so in
As a nation-building measure, teaching Fundamental Duties
order to gain financial or other material benefits for themselves,
in every educational institution and as a measure of in-service
their family or their friends.
training everywhere is necessary as these cannot be inculcated in
168 Indian Government and Politics Reviewing the Indian Constitution 169

Integrity: Holders of public office should not place themselves Against the conceptual backdrop of such deliberations, the
under any financial or other obligation to outside individuals or Committee applied its mind to a multiplicity of issues concerning
organisations that might influence them in the performance of Fundamental Duties.
their official duties. It took stock of some of the judicial decisions relevant to
Objectivity: In carrying out public business, including making enforcement of Fundamental Duties, studied schemes or
public appointments, awarding contracts, or recommending programmes related to National Integration and Communal
individuals for rewards and benefits, holders of public office Harmony, Culture and Values, and Environment as already in
should make choices on merit. operation. It undertook analysis of school curriculum, programmes
Accountability: Holders of public office are accountable for of Non-Formal and Adult Education, as well as teacher education
their decisions and actions to the public and must submit curriculum from the standpoint of Fundamental Duties and also
themselves to whatever scrutiny is appropriate to their office. attempted ascertaining the status of Fundamental Duties in higher
and professional education.
Openness: Holders of public office should be as open as
possible about all the decisions and actions they take. They should The Committee noted that a number of judicial decisions are
give reasons for their decisions and restrict information only when available towards enforcement of several provisions of Articles
the wider public interest clearly demands. 51-A. What is needed to be operationalised is compliance of the
provisions of the various Acts. Also the educational system has
Honesty: Holders of public office have a duty to declare any
to-create proper and graded curricular inputs from early years of
private interests relating to their public duties and to take steps
education to the higher and professional levels of education
to resolve any conflicts arising in a way that protects the public
interest. There is no finality in these efforts but a continuance of
endeavour in achieving the objectives related to the values
Leadership: Holders of public office should promote and
underlying the constitutional provisions. They require a constant
support these principles by leadership and example.
reminder to the citizen to continue to strive towards display of
National Policy on Education 1986/1992: A significant better and better citizenship behaviour so necessary for a patriotic
exhortation in the National Policy on Education (1986) with fervour. These aspects are to be nurtured through educational
modifications undertaken in 1992 incorporates the basic spirit of programmes, through informal, non-formal, formal and media
Article 51-A and reads thus: "The National System of Education interventions.
will be based on a national curricular framework which contains
Although the Fundamental Duties like the Directive Principles
a common core along with other components that are flexible. The
of State Policy cannot be enforced by the judiciary, the Courts can
common core will include the history of India's freedom movement,
certainly take them into consideration while interpreting a law
the constitutional obligations and other contents essential to nurture
which is amenable to more than one interpretation. For example,
national identity.
Article 51 A (g) regarding protection of environment has come up
These elements will cut across subject areas and will be before the High Courts and the Supreme Court again and again,
designed to promote values such as India's common cultural and the Courts have been responding positively in the interest of
heritage, egalitarianism, democracy and secularism, equality of environmental protection.
the sexes, protection of the environment, removal of social barriers,
observance of the small family norm and inculcation of the scientific
temper. All educational programmes will be carried on in strict
conformity with secular value."