T Meaning of the Constitution Law and Constitutionalism Contents. 1.1. Introduction ... 1.2. Meaning of Co co 1.3. Meaning of Constitutionalism 12 1.4. Difference Between Constitution and Gonstitutionalism. 13 1.5 RefeFONCES..nrnininnnnninnintinnnnininiinninnininininnninnnnnnnninnnnsnesnnn 11.1 Introduction > ‘The concepts of constitution and constitutionalism refer tothe legal framework of a country. > While the constitution is often defined as the supreme law of country constitutionalism is a ‘system of governance under which the power of the governments limited by the rule of law. > Constitutionalism recognizes the need for limiting the concentration of power in order to protect the rights of groups and individuals. » In such a system, the power of the Government can be limited by the constitution and by the provisions and regulations contained init but by other measures and norms. » In order to understand the five concepts as well as their similarities and differences, it is important to understand their history and evolution > The idea of the constitution has changed significantly compare, to the first examples seen in ancient Greece, while the concept of constitutionalism has grow! around the principle that the authority ofthe government is derived from and limited by a set of rules and laws. 1.2 Meaning of Constitution > The definition ofthe constitution is quite complex and he significantly evolved during the last two centuries. > According to the Westem conception, the constitution is the document that contains the basic ‘and fundamental law of the nation, setting out the organization of the Government and the principles of the society > Yet, although many countries have a wtitten constitution, we continue to see the phenomenon of living constitution in many parts of the world. As society change, so do laws and regulations, » Furthermore, in some cases, there is no single document that defines al aspects of the state, but rather several different documents and agreements that define the power of the government and provide @ comprehensive although not unitary legal framework, Constitution has also been defined as: + Basicnorm (or law) of the state + System of intege $n and organization of norms and laws; and* Organization of the government. > The Constitution provides the foundation of the government, structuring the political organization and guaranteeing individual and collective rights and freedoms. 1.3 Meaning of Constitutionalism > Constitutionalism is a system of governance in which the power of the government is limited by laws. checks and balances. in order to reconcile authority with individual and collective freedoms. » The principle of constitutionalism must be understood in opposition to non-constitutionalism. a system in which the government uses its powers in an arbitrary fashion. without respecting the citizen's rights.> The idea of constitutionalism (and of the constitution) is strictly linked with the progress and spread of democracies. > In monarchic, totalitarian and dictatorial sr sreins there is generally no constitution or, if it exists it is not respected. Individual and collective rights are often disregarded in dictatorial regimes, and the government cannot be held accountable as there is no legal document that defines its limits > The concept of constitutionalism has evolved during the last few centuries thanks to political changes and the progress of democratic ideals. 1.4 Difference Between Constitution and Constitutionalism > The main difference between constitution and constitutionalism lies in the fact that the constitution is generally a written document, created by the government (often with the participation of the civil society), while constitutionalism is a principle and a system of governance that respects the rule of law and limits the power of the Government. > Most modem constitutions were written years ago, but laws and norms had already been evolving and mutating for centuries, and continue todo so. » The constitution (and laws in general) is a living entity that should adapt to the changing features of the modern world and of modem societies Filing to adopt the constitution without losing ts core principles and values - may lead to an obsolete and unadapted governance system. > The concepts of constitution and constitutionalism are strictly linked, but the second is much more than just the respect and enforcement of the national constitution (as the term might suggest) > The creation of a constitution isthe result of years of progress and evolution, bu, in some cases like in Japan, the constitution can be imposed by invading or opposing forces, and may not embody the key values and principles that characterize a society. > Building on the differences outlined in the previous section, we can identify, a few other aspects ‘that differentiate the constitution and constitutionalism.History of Indian Constitution Contents 2.1 Introduction 23 2.2 Indian System of Administration ....ssnnsnnnnnnnn 23 23. Regulating Act of 1773 23 24 Pitts India Act of 1784. 24 OS CRRA RIND eat sae 24 26 Charter Act of 1833, 24 27 Charter Act of 1853 24 28 Goverment of india Act of 1858... snsnnnsnnnnnnnnnn 28 29° Indian Councils Act of 1861 28 2.10 India Gouncits Act of 1892 28 2.11 Indian Council Act of 1908... a 2.12 Goverment of India Act Of 1919 ssn 26 2.13 Goverment of india Act of 1935. 26 2.14 Indian independence Act of 1947 272.1. Introduction > The British company known as English East India Company came to India in 1600 AD as traders. > The Company has exclusive rights to trade in India, in the year 1765, the East India Company obtained Diwani (Rights over revenue and civil justice) af Bengal, Bihar, and Orissa, » After the Sepoy mutiny in the year 1858, the British crown assumed direct responsibility forthe govemance of India. It continued up to August 15, 1947, after India is a free India. (India got independence). » Before 1947, India was divided into two main entities. + British India which consisted of 11 provinces; and + The Princely states ruled by indian princes under subsidiary aliance policy. > The two entities merged together to form the Indian Union, but many of the legacy systems in British india fe fllowed even now. > The historical underpinnings and evolution of the Indian Constitution can be traced to many regulations and acts passed before Indian Independence. 2.2 Indian System of Administration Indian democracy is @ Parliamentary form of democracy witere the executive is responsible to the Parliament ‘The Parliament has two houses: + Loksabha; and + Rajya Sabha > Also, the type of governance is federal, ie, there is separate executive and legislature at Center and States. > We also have self-governance at local government levels. > allthese systems owe their legacy to the British administration. > Let us see the historical background of the Indian Constitution and its development over the years2.3 Regulating Act of 1773 >» Regulating Act of 1773 was the first step taken by the British Parliament to control and regulate the affairs of the East India Company in India. It designated the Governor of Bengal (Fort William) as the Governor-General (of Bengal). Warren Hastings became the first Governor-General of Bengal. Executive Council of the Governor-General was established (four members). There was no separate legislative council. It subordinated the Governors of Bombay and Madras to the Governor-General of Bengal.“The Supreme Court was established at Fort William (Calcutta) as the Apex Courtin the year 1774, It prohibited servants of the company from engaging in any private trade or accepting bribes from the natives Court of Directors (the governing body of the company) should report its revenue. 2.4 Pitt's India Act of 1784 ‘The commercial and political functions of the company separated. ‘The Court of Directors managed the commercial activities while the Board of Control managed political affairs. Ithas reduced the strength ofthe Governor General's council to three members. Itplaced the indian affairs under the direct control ofthe British Government. ‘The company's territories in India were called ‘the British possession in India Governor's councils were established in Madras and Bombay. 2.5 Charter Act of 1813 ‘The East India Company Act 1813, also known as the Charles Act 1813, was an Act of the Parliament of the United Kingdom which renewed the charter issued to the British East India ‘Company and continued the Company's rule in india ‘The Company/s monopoly over Indian trade terminated. 2.6 Charter Act of 1833 Governor-General (of Bengal) became as the Governor-General of India, “The first Governor-General of India was Lord Willam Bentick ‘This was the final step towards centralization in British India ‘The beginning of a Central legislature for India as the Act also took away legislative powers of Bombay and Madras provinces.2.8 Government of India Act of 1858 > The rule of the Company was replaced by the rule ofthe Crown in India > The powers. of the British Crown were to be exercised by the Secretary of State for India. He ‘serves assisted by the Council of India having 15 members. > He was vested with complete authority and control aver the Indian administration through the Viceroy as his agent. > The Governor-General was made the Viceroy of > Lord Canning was the first Viceroy of india > itabolished the Board of Control and Court of Directors. 2.9 Indian Councils Act of 1861 > Itintroduced forthe first time indian representation in the institutions like Viceroys executive and legislative council (non-official). 3 indians entered the Legislative Council > Legislative Councils were established in the Center and provinces. > It provided that the Viceroy's Executive Council should have some Indians as the unofficial ‘members while transacting the legislative businesses. > Itaccorded statutory recognition to the portfolio system, > Initisted the process of decentralization by restoring the legislative powers to the Bombay and the Madras Provinces. 2.10 India Councils Act of 1892 > Introduced indirect elections (nomination). > Enlarged the size ofthe Legislative Councils. > Enlarged the functions of the Legislative Councils and gave them the power of discussing the Budget and addressing questions to the Executive.2.11 Indian Council Act of 1909 ’ This Act is also known as the Morley- Minto Reforms. Elections, mainly indirect, were affirmed for all levels of society. The elected Indians were also enabled to debate budgetary and complementary matters and table resolutions. Itchanged the name of the Central Legislative Council to the Imperial Legislative Council The member of the Central Legislative Council was increased to 60 from 16. Introduced a system of communal representation for Muslims by accepting the concept of ‘separate electorate. The first time, Indians were given place in Viceroys Executive Council. (Satyendra Prasad Sinha, as the law member)2.12Government of India Act of 1919 This Act is also known as the Montague-Chelmsford Reforms. ‘The Central subjects were demarcated and separated from those. of the Provincial subjects. The scheme of dual governance, ‘Dyarchy, was introduced in the Provincial subjects (ie, there were two classes of administrators Executive councilors and ministers). Under the dyarchy system, the provincial subjects were divided into two parts - transferred and reserved. On reserved subjects, Governor was not responsible for the Legislative council The Governor was the executive head of the province. The Governor was in charge of the reserved list along with his executive councilors. The subjects under this list were law and order, inrigation, finance, land revenue, et. The Ministers were in charge of subjects under the transferred list. The subjects included were education, local government, health, excise, industry public works, religious endawments, etc. ‘The Ministers were responsible for the people who elected them through the legislature. ‘These Ministers were nominated from among the elected members of the Legislative Council ‘The executive councilors were not responsible to the legislature, unlike the Ministers, ‘The secretary of state and the Governor-General could interfere in matters under the reserved list but this interference was restricted for the transferred list The Act introduced, forthe first time, bicameralism at the center. Legislative Assembly with 140 members and Legislative council with 60 members. A system of direct elections was introduced. ‘The Act also required that the three of the six members of the viceroy's Executive council (other than commander-in chief were to be indians. Provided for the establishment of a public service commission.2.13 Government of India Act of 1935 > ‘The Act provided for the establishment of an All-India Federation consisting of the Provinces and the princely States as units, though the envisaged federation never came into being, Three Lists: The Act divided the powers between the center and the units into items of three lists, namely the Federal List, the Provincial List, and the Concurrent List. The Federal List for the center consisted of 59 items, the provincial List for the provinces consisted of 54 items and the concurrent List for both consisted of 36 items ‘The residuary powers were interested in the Governor-General The Act abolished the Dyarchy in the provinces and introduced Provincial Autonomy. It provided for the adoption of Dyarchy at the Centre. It introduced bicameralism in 6 out of the 11 provinces. At the State level, the equivalent of the Lok Sabha is the Vidhan Sabha (Legislative Assembly), and that of the Rajya Sabha is the Vidhan Parishad (Legislative Council))» These six Provinces were Assam, Bengal, Bombay, Bihar, Madras and the United Province. > AFFederal Court was established at Delhi for the resolution of disputes between provinces and also between the center and the provinces. ithas Chief Justice and not more than 6 judges. » The Secretary of State for India would instead have a team of advisors. > This Act introduced direct elections in india forthe first time, About 10% of the whole population ‘acquired voting rights. > Sindh was carved out of Bombay Presidency. > Burma was severed off from India, » Aden was also separated from India and made into a Crown colony. » The British Parliament retained its supremacy over the Indian legislatures both provincial and federal > AFederal Railway Authority was set up to control Indian railways. > The Reserve Bank of India was established as per this Act. > The Act was a milestone in the development ofa responsible constitutional government in India. > The Government of india Act 1935 was replaced by the Constitution of india after independence. 2.14 Indian Independence Act of 1947 > Lord Mountbatten became the frst Governor-General of independent india > Jawaharlal Nehru was swom in as the first Prime Minister of India, » Muhammad All Jinnah became the first Governor-General of Pakistan. > The Act ended the British rule and declared India as an independent and sovereign state from ‘August 15, 1947, > Itprovided forthe partition ofthe country into India and Pakistan, > The office of Viceroy was abolished and provided for the Governor-General for each dominion (india and Pakistan) appointed by the kingThe Act empowered the constituent assemblies to frame and adopt any constitution. The Indian Independence Act granted freedom to the princely states either to join India or Pakistan or to remain independent. An idea for a Constituent Assembly of India was proposed in 1934 by M. N. Roy, a pioneer of the Communist movement in India and an advocate of radical democracy. Itbecame an official demand of the Indian National Congress in 1935. The constituent assembly constituted in November 7946 under the scheme formulated by the Cabinet Mission plan. The Constituent Assembly met for the first time in New Delhi on 9 December 1946 in the Constitution Hall which is now known as the Central Hall of Parliament House.Salient Features and Characteristics of the Constitution of India Contents 38.1 Introduction. eran preisnnl {92 (COIN isi annie dveitcmatcnnaau saad. 33. Selfmade and Enacted Constitution sn pve 8. 3.4 Preamble of the Constitution ....00nnnsmsnn snnnnsnnninsnnnne 8 9.5 India is a Democratic Socialist State 33 2.6 India i a Secular State. 33 7 India isa Democratic State 33 38 India is a RepUbIie.ounsnssnnsnnsnnnnninnnnninninnnni onan 88 89 lindia ee UN ON ccasetancatniincnci centro 33 3.10. Amixture of Federalism and Unitarianism, = “34 2.17 Amixtuee of Rigidity and Flexibility, 34 2.12. Fundamental Rights 35 2.13 ASources of the Constitution ata Glance. a73.1 Introduction > The constitution of India is @ unique constitution It is the largest written liberal democratic, Constitution of the world » It provides for a mixture of federalism and unitarianism, and flexibility with rigidity. Since its inauguration on 26th January 1950, the Constitution of India has been successfully quiding the path and progress of India. The salient features of the Constitution of India can be discussed as follows: 3.2. Constitution > The Constitution is a wholly written document that incorporates the constitutional law of India It was fully debated and duly enacted by the Constitution Assembly of India, Ittook the Assembly 2 years, Il months and 18 days to write and enact the Constitution. indian Constitution is avery detailed constitution. > Iteonsists of 448 Articles divided into 25 Parts with 12 Schedules. tis a constitution of both ‘the Centre and states of the Indian Union It is indeed much bigger than the US Constitution which has only 7 Articles and the French Constitution with its 89 Articles 3.3. Self-made and Enacted Constitution > Indian Constitution is @ constitution made by the people of India acting through their duly elected, and representative body'the Constituent Assembly that was organized in December 1946. > Its fist session was held on 9" December 1946, > Itpassed the Objectives Resolution on 22" January 1947. » Thereafter, it initiated the process of constitution-making in the right earnest and was in a Position to finally pass and adopt the constitution on 26" November 1949, > The constitution became fully operational with effect from 26" January 1950.3.4 The Preamble of the Constitution > The Preamble to the Constitution of India is a well-drafted document which states the philosophy of the Constitution > It declares India to be a Sovereign Socialist Secular Democratic Republic and a Welfare State ‘committed to secure justice, liberty and equality for the people and for promoting fraternity, dignity the individual, and unity and integrity of the nation. » The Preamble is the key to the Constitution It states in nutshell the nature of the Indian state and the objectives it is committed to secure for the people.3.5 India is a Democratic Socialist State > Although right from the beginning the Indian constitution fully reflected the spirit of emocratic socialism, it was onlin 1976 thatthe Preamble was amended to include the term ‘Socialism. > Itisnow regarded asa prime feature of he indian state > India is committed to secure social, economic and political justice for its entire people by ‘ending all forms of exploitation and by securing equitable distribution of income, resources ‘and wealth. » This is to be secured by peaceful, constitutional and democratic means. 3.6 India is a Secular State > India gives special status to no religion. » This makes it different from theocratic states lke the Islamic Republic of Pakistan or other Islamic countries. » Further, indian secularism guarantees equal freedom to all religions. » The Constitution grants the Right to Religious Freedom to all the citizens. 3.7 India is a Democratic State » The Constitution of india provides for a democratic system. The authority of the government ‘ests upon the sovereignty of the people > People enjoy equal political rights. > On the basis of these rights, the people freely participate in the process of politics. They elect their government, > Free fair and regular elections are held for electing governments, > Forall its activities, the government of inci is responsible before the people. » The people can change their government through elections.3.8 India is a Republic > The Preamble declares India to be a Republic. » India is not ruled by a monarch or a nominated head of State. » India has an elected head of State (President of India) who wields power for a fixed term of 5 years, > After every 5 years, the people of India indirectly elect their President. 3.9 India is a Union of States > Article | of the Constitution declares, that ‘India that is Bharat is a Union of States.> The term ‘Union of State’ chows two important facts: ‘+ That indian Union isnot the result of voluntary agreement among sovereign states; and ‘+ That states of India do not enjoy the right to secede from the Union. Indian Union has now 28 States and 7 Union Territories. 3.10A mixture of Federalism and Unitarianism > While describing india as a Union of States, the Constitution provides for a federal structure with a unitary spin. > Scholars describe India as a ‘Quasi-Federation’ or asa federation with a unitary bias, or even aa Unitarian federation. Like a federation, the Constitution of india provides for © Lwrote rigid and supreme constitution, ++ Independent judiciary wth the power to decide center-state disputes and + Dual administration ie. central and state administrations. However, by providing @ very strong center, a commen constitution, single citizenship, emergency provisions, eammen lection commission, common all India services, etc. the Constitution clearly reflects its unitary spirit. > India is a federation with some Unitarian features. » This mixture of federalism-Unitarianism has been done keeping in view both the pluralistic nature of society and the presence of regional diversities, as well as due to the need for securing unity and integrity ofthe nation. 3.11A Mixture of Rigidity and Flexibility > The Constitution of indias rigid in parts, > Some of its provisions can be amended in a difficult way while others can be amended very easily > In some cases, the Union Parliament can amend some parts of the Constitution by passing 2 simple law.> In some cases, the Union Parliament can amend some parts of the Constitution by passing a simple law. > Article 368, of the Constitution, provides for two special methods of amendment: Most of the provisions of the Constitution can be amended by the Union Parliament by passing an Amendment Bill by a majority of total membership and 2/3" majority of members present and voting in each of its two Houses. + For the amendment of some specified parts, a very rigid method has been provided. Under it, first, the Union Parliament passes the Amendment Bill by a majority of total membership and 2/3" majority of members present and voting in each house. and then it goes to the State Legislatures for ratification. The Amendment gets passed only when it is approved by not less than one-half of the several states of the Union. » Thus, the Constitution of India is partly rigid and partly flexible.3.12 Fundamental Rights > Under its Part Ill (Articles 12 to 35), the Constitution of India grants and guarantees Fundamental Rights tots citizens. > Itis called the Indian Bill of Rights. Initial, 7 Fundemental Rights were ranted but after the deletion ofthe Right to Property from the list of Fundamental Rights (44”Amendment Act 1979) their number came down to six ‘The Six Fundamental Rights are: Right to Equality - Articles 14-18 > Itprovides for Equality before Law, End of Discrimination, Equality of Opportunity, Abolition of luntouchabilty and Abolition of Tiles. Right to Freedom - Articles 19-22 > incorporates six fundamental freedoms ' freedoms of speech and expression, freedom to move freely in India, *+ freedom of residence in any part, and ‘+ freedom of adopting any profession or trade or occupation. ‘+ freedom to form associations, ‘freedom to assemble peaceably without arms, > Itensures personal freedom and protection in respect of conviction for certain offenses. > The Constitution lays down thatthe freedom of ife and liberty > cannot be limited or denied except in accordance with the procedure > established by law. » Now, under article 21A Right to Education forthe children between the ages of 6-14 years has been granted. > Article 22 guarantees protection against arbitrary arrest and detention.> Article 22 guarantees protection against arbitrary arrest and detention. Right against Exploitation - Articles 23 & 24 » This Fundamental Right prohibits the sale and purchase of human beings, forced labor (beggar) and the employment of children in hazardous jobs and factories. Right to Freedom of Religion - Articles 23-28 > The grant of this right involves the freedom of conscience, religion, and worship. > Any person can follow any religion. It gives all religions the freedom to establish and maintain their religious institutions. » No person can be compelled to pay any tax for the propagation of an,v religion, > The State cannot levy a tax for any religion and the constitution prohibits the imparting of religious instructions in schools and colleges. ‘Cultural and Educational Rights - Articles 29-30> Under this category, the Constitution guarantees the rights of the minorities to maintain and This fundamental right isthe sours entire Bill rights. >It provides forthe enforcement and protection of Fundamental Rights by the Courts > Itempowers the Supreme court and High courts to issue writs for the enforcement of these rights. Fundamental Duties ‘According to Article 61 Ait shall be the duty of every citizen of India 1. to abide by the Constitution and respect its ideals and institutions, the National Flag and the National anthem, ‘to cherish and follow the noble ideas that inspired the national struggle for freedom, to uphold and protect the sovereignty, unity, and integrity of India; to defend the country and tender national eervice when called upon to do £0; ‘to promote harmony and the spirit of comman brotherhood amongst all the people of india ‘transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women, 66. to value and preserve the rich heritage ofthe country’s composite culture; 7. to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures; 8. to develop the scientific temper, humanism and the spirit of inquiry and reform, 9. 10 safeguard public property and to abjure violence; 10.0 strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievernent, and 11.10 provide opportunities for education to his child or ward between the age of six and fourteen fears, This duty was added by the 86th Constitutional Amendment Aet, 2002.Emergency Provision » » » Article 352 Announcement of a national emergency Article 356 Provisions for the occasion of the failure of the constitutional system of states Article 360 Provisions regarding the financial crisis Emergency provisions are provided under Articles 352 to 360 of Part Vil of the Indian Constitution. The provision of this crisis is considered a distinctive feature of the Indian Constitution. Because it can protect the country. The central government has unique powers intimes of crisis.3.13A Sources of the Constitution at a Glance Table 3.1- Constitution Source US Constitution Fundamental rights, independence of the judiciary, judicial review, impeachment of the President, removal of Supreme Court and high court judges and post of vice-president. Irish Constitution Directive Principles of State Policy, the nomination of members to Ralya Sabha and ‘method of election of the president. Australian Constitution Concurrent List, freedom of trade, commerce and intercourse, and a joint sitting ofthe two Houses of Parliament. ‘Suspension of Fundamental Rights during Weimar Constitution of Germany Emergency. Soviet Constitution Fundamental duties and the ideal of justice (eocia, economic and poitical) in. the (USSR, now Russia) Preamble The French Constitution Republic and the French Constitution ideals of liberty, equality, and fraternity inthe Preamble, South African Constitution Procedure for amendment of the Constitution and election of members of Relya Sabha, Japanese constitution Japanese Constitution Procedure established byLaw.Fundamental Rights Contents 41 42 43 44 45 46 a7 48 Fundamental Rights... Right to Equality . ight to Freedom. Right against Exploitation Right to Freedom of Religion Cultural and Educational Rights. 43 44 44 Article-32 Right to Constitutional Remedies Features of Fundamental Rights..4.1 Fundamental Rights > The Fundamental Rights are defined as the basic human rights of all citizens, > These rights, defined in part Ill of the Constitution, applied imespective of race, place of birth, religion, caste, creed, or gender. > They are enforceable by the courts, subject to specific restrictions as necessary for the protection of public interest. > Originally the constitution provided for seven Fundamental Rights viz. + Right to equality (Article 14-18) + Right to freedom (Article 19-22) + Right against exploitation (Article 23-24) + Right to freedom of religion (Articles 2518) + Cultural & educational rights (Articles 29.30) + Right to Property (Article 31) Removed from the constitution, + Right to constitutional remedies (Article 32) > But Right to property was removed from the list of the Fundamental Rights by the 44" constitution Amendment Act, 1978 and after amendment, it was made a legal ight. > Atpresent, there are only six Fundamental Rights. They are described below in brie. 4.2 Right to Equality > Right to Equality is the first fundamental right, which brought the end of untouchabilit. > This right stands for the principle of equality before the law es well as social equality and ‘supports the nor-discrimination of people on any basis. > This right also states that every Indian citizen is equal in front of the law and prohibits discrimination on the grounds only of religion, race, caste, sex. place of birth, or any other ‘grounds.Article 14 is available to any person including legal persons viz. statutory corporation, companies, etc. Article 14 is taken from the concept of equal protection of laws from the Constitution of the USA. Under Article 15 (3) &. (4), the Government can make special provisions for women and children and for a group of citizens who are economically and socially backward. Article 16 says that there shall be equality of opportunity for all citizens in matters relating to ‘employment or appointment to any office under the State. Article 18 says that no title, not being a military or academic distinction, shall be conferred by the State. No citizen of India shall accept any title from any Foreign State. ‘The awards, Bharat Ratna, Padma Vibhuhan, Padma Bhushan and Padma Shri, called as the National Awards would not amount to the title within the meaning of Article 184.3. Right to Freedom > The right to freedom includes Articles on freedom of speech, expression, and assembly and is ‘one of the most important of the Fundamental Rights » There are six frames under which freedom is made available to Indian citizens under Article 19. It says that ll citizens shall have the right: + to freedom of speech and expression. + to assemble peacefully and without arms. + to form associations or unions. + tomove freely throughout the teritry of India. *+ to practice any profession orto carry an any occupation trade or business. > In addition to the three main rights of speech, expression, and assembly, this fundamental right also provides freedom of association, profession, movement throughout the territory of our ‘country and freedom to reside and settle in any part of India, > Article 21A provides that that State shall provide free and compulsory education to all children of the age of 6-14 years, > Article 22 deals with protection against Arrest and detention in certain cases. 4.4 Right against Exploitation > Article 23 deals with the prohibition of trafic in human beings and forced labor. > Article 24 deals with the prohibition of employment of children in factories, et. > These rights help to prevent exploitation of the weaker section of different sectors by the state, ‘organizations as well as individuals, > Forced labor, working without labor, human trafficking, child labor, and other ilegal and ethically unjust acts are prohibited by this Fundamental Right. > The Bonded Labour System (Abolition) Act.1976 was enacted by the incian pariament in support ofthis base right.4.5 Right to Freedom of Religion > India is a secular country and the right to freedom of religion to all its citizens ensures that all states treat all the religions neutrally. » Every Indian citizen has religious freedom and can follow any religion of their choice. » Right to freedom of religion also promotes a right to preach, practice and propagate any religion of their choice and guarantees freedom of conscience to all Indian citizens. 4.6 Cultural and Educational Rights » The cultural and educational rights include the right to education and helps to conserve various heritages of minorities and protect them from discrimination.> This fundamental right safeguards the minorities and prohibits discrimination against any citizen {for admission into any educational institutions based on religion, race caste or language, subject 10 reservations in the State 1» This Fundamental Right also allows minorities to set up and administer educational institutions to preserve their heritage. 4.7 Article-32 Right to Constitutional Remedies > Right to Constitutional Remedies allows indian citizens to approach the Supreme Court or High Court to protect their fundamental rights. > Apperson has the right to move to the Supreme Court or high court if his fundamental right is violated. For this purpose, application in writing known as the writ is made. > Writ means a legal document in writing, > Following are types of the wrt Writ of Habeas Corpus > Habeas corpus means ‘to have a body. > Writ of habeas corpus is made when a person is detained.or arrested without proper justification, Writ of Mandamus » "Mandamus means "command or order’ > It is command issued by the Supreme Court or High Court to any person, corporation, inferior court, public authority or Government who has to perforn statutory duty but who fails to do so. Writ of Prohibition > Here prohibition command is issued by Supreme Court or High Court to an inferior court or ‘Tribunal to refrain from doing something which it is about to do, > Itis based on the principle that prevention is better than cure. Writ of Certiorari > Certiorari means "tobe certified’ of "to be more fully informed of.» It can be issued by the Supreme Court or High Court to the inferior court or any authority, whenever any authority of the court. Writ of Quo Waranto > Quo-warranto means "what is your authority"? > This writ prevents a person from continuing in public office who has wrongfully usurped the office. > The Supreme Court has rights to protect the fundamental rights of citizens even against private bodies, and can also award compensation to the affected individuals. 4.8 Features of Fundamental Rights » The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land.‘They are ‘fundamental’ also in the sense that they are most essential for the all-ound {development (material, mora, intellectual and spiritual) ofthe individuals. “The Fundamental Rights are enshrined in Part Il ofthe constitution from Article 12t0.38. The Fundamental Rights are meant for promoting the idea of poltical democracy. ‘Some Fundamental Rights are available only to citizens, Others are available to all including foreigners or legal persons like corporations or companies, ete, ‘They are not absolute but qualified. The State can impose reasonable restrictions on them (balance between individual liberty and social control). Courts can decide whether such restrictions are reasonable or not. Most of them are available against the arbitrary action of the State, with a few exceptions lke ‘those against the State's action and against the action of private individuals When the rights that are available against the State's action only are violated by the private Individuals, there are no constitutional remedies but only ordinary legal remedies. ‘Some of Fundamental Rights are negative in character as they place limitations on the authority of the State, while others are positive as they confer certain privileges on the persons. ‘They ae justiciabe, allowing persons to move the Courts for ther enforcement on the violation, ‘They are defended and guaranteed by the Supreme Court. ‘They are not permanent and so the Parliament can curtail or repeal them but only by a constitutional amendment act without affecting he basic structure’ ofthe Constitution, ‘They can be suspended during the operation of 3 National Emergency except the rights ‘guaranteed by Articles 20 and 21 “The six rights guaranteed by Article 19 can be euspended only when the emergency ie declared ‘on the grounds of war or external aggression (|e. external emergency) and not on the ground of armed rebelion (Le. internal emergency) “Their scope of operation is limited by Article 314 (saving of laws providing for the acquisition of ‘estates, eto), Article 318 (validation of certain acts and regulations included in the 9" schedule) ‘and Aaticle 31C (saving of lans giving effect to certain dtective principles).Right to Equality Under Article -14 Contents 5.1 Introduction 3 52 5.2. Article 14 - Equality Before The Law. 2. 53 5.4 55 56 Article 15 - Social Equality and Equal Access to Public Areas Article 16 - Equality In Matters of Public Employment... Article 17 - Abolition of Untouchability Article 18 - Abolition of Titles. . . . 555.1 Introduction >» The right to equality is embodied in 2 series of articles from Article 14 to 18 of the Constitution of India. » Article 14 contains the principle of rule of law and Articles 18, 16, 17 and 18 contain the application ofthis principle. >» The Preamble tothe Constitution of India provides for equality of status and opportunity. >» Equality forms part of the basic structure ofthe Constitution of India, 5.2. Article 14 - Equality Before The Law > Article 14 of the Constitution guarantees that all people shall be equally protected by the laus of, ‘the country. > itmeans that the State will treat people in the same circumstances alike. > This Article also means that individuals, whether citizens of India or otherwise shall be treated ifecentl ifthe circumstances are different. > There are two expressions used in Article 14 + equality before the law. and + equal protection ofthe laws. » Bot these expressions sound similar but have different connotations, > The expression ‘equality before the law’ has its origin in the English Common Law. > Itmeens that amongst equals law shall be equal and shall be equally administered. > The expression equal protection of laws has its source in the US. Constitution. > Equality before the law is @ negative concept and equal protection of the laws is @ positive ‘concept. » The doctrine of equality before the raw is equally operative against the legislature itself. > ifthe legislature dares to enact an enactment inconsistent with any provisions of Fundamental Rights, the courts are competent enough to pronounce it unconstitutional.Equal protection of the laws means the right to equal treatment in similar circumstances, both in privileges conferred and liabilities imposed. Both the rule of procedure ad the substantive raw come under the purview of Article 14. Equal protection requires affirmative action by the State towards unequal by providing them facilities and opportunities. Article 14 applies to any person including any company, association, citizen, non-citizens, natural persons as well as legal persons. The rule does not prevent certain classes of persons from being subject to. special rules. For example, Article 361 is an exception to the rule of law. It provides that the president of the Governors or the Rajpramukhs shall not be answerable to any court for the exercise and performance of the powers and duties of the office.This is because of, the reason. that Article 14 does not imply that the same laws should apply to all persons or that every law must have universal application because all persons are not, by nature, attainment or circumstances, in the same position This Article prohibits class legislation which makes improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected but it permits reasonable classification for the purpose of achieving specific ends. For classification to be reasonable, two conditions must be fulfilled: + The classification must be based on an intelligible differentia which distinguishes persons cr things that are grouped together from others left out of the group. + The differentia must have a rational relation with the object sought to be achieved by the act It means that there must be some nexus between the differentia and the object so that the classification does not appear arbitrary or discriminatory What Article 14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not a paraphrase of Article 14 nor isit the objective or end of that Article. It Is merely a judicial formula for determining whether the legislative or executive action in ‘question is arbitrary and therefore the constitutional denial of equality. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread that runs through the whole of the fabric of the Constitution. In Menaka Gandhi's case, the court had opined that Article 14 was not to be equated with the principle of classification. It was primarily a guarantee against arbitrariness in State action and the doctrine of classification was evolved only as a subsidiary rule for testing or determining whether a particular State action was arbitrary or not5.3 Article 15 - Social Equality and Equal Access to Public Areas > Article 15 of the constitution states that no person shall be discriminated on the basis of religion, race, caste, sex or place of birth. > Every person shall have equal access to public places like public parks, museums, wells, bathing ghats, etc. > However, the state may make any special provision for women and children. > As per Article 15(4), special provisions may be made for the advancements of any socially or educationally backward crass or Scheduled Castes or Scheduled Tribes. > For the purpose of Article 15 (4), backwardness must be both social and educational and caste cannot be made the sole or dominant test for determining the backwardness of a class of citizens. > It was held that order under Article 15(4) need not be in the form of legislation, it can also be in the form of an executive order. > Speaking generally and in a broad way, a special provision should be less than 50yo- The actual percentage must depend upon the relevant prevailing circumstances in each case5.4 Article 16 - Equality In Matters of Public Employment ‘Antcle 16 of the Constitution lays down that the State cannot discriminate against anyone in the matters of public employment. Allcitizens can apply for government jobs, however, there are some exceptions, However, this does not prevent the State from laying down the requisite qualifications for recruitment in government services. It also prohibits discrimination by the State in relation to employment or appointment to any office under the State on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. [Article 16 allows the State to reserve seats in favor of backward classes of citizens which according to State are not adequately represented in the services under the State. This may be ‘meant for posts that require knowledge of the locality and language of the area, The State may also reserve posts for members of backward classes, scheduled castes or scheduled tribes which are not adequately represented inthe services under the State to bring up the weaker sections ofthe society ‘Also, there a law may be passed that requires that the holder of an office of any religious institution shall also be a person professing that particular religion. According to the Citizenship (Amendment) Bil, 2003, this right shall not be conferred to overseas citizens of India, In the landmark case of Indra Sawhney v Union of India also known as the Mandal Commission Case, the Supreme Court dealt with various aspects ofthe complex issue of reservation and gave uta very thoughtful judgment. Some of the key aspects of the judament are + Acreamy layer must be excluded from Backward Classes. + Aticle 16(4) is not an exception to Article 16(1), but an independent clause. Article 16(2) is exhaustive ofthe subject of reservation in favor of backward classes, though it may not be exhaustive of the very concept of reservation. Reservation for other classes can is made under article 16(1). ‘= Reservation shall not exceed the $00/e limit. Carry forward rule is valid provided it should not result in the breach ofthe 50 %0 rule.5.5 Article 17 - Abolition of Untouchability > Article I7 of the constitution abolishes the practice of untouchabilly > The practice of untouchabilty is an offense and anyone doing so i punishable by law. > Itean be termed as one ofthe earliest efforts made in the direction of social reforms. > since the Article contemplates the practice of untouchabilty to be a punishable offense, the legislature enacted the protection of the Civil Liberties Act, 1955 previously known as the Untouchabilty (Offenses) Act, 1955 to prescribe punishment for untouchabllty and other practices connected with it > The word untouchability has not been defined either under Article 17 or the Protection of Civil Liberties Act, 1955, > The term has not been used in the Article ina literal or grammatical sense. > it actually refers to the social disabilities historically imposed on certain classes of people by reason of their birth in certain castes and would not include instigation of a social boycott by reason of the conduct of certain persons. > The record Harijan’ prime facie refers to an untouchable. > Untouchabilty is an integral part of the case system and is not based on men's rea. Men's rea ‘means guilty, mind, 5.6 Article 18 - Abolition of Titles > Article 18 of the constitution prohibits the State from conferring any ties. > Citizens of india cannot accept titles from a Foreign State > The British government had created an aristocratic class known as Rai Bahadurs and Khan Bahadurs in India * these titles were also abolished, > However, Military and academic distinctions can be conferred on the citizens of Indi > The awards of Bharat Ratna’ and Padme Vibhushan, cannot be used by the recipient as a ttle ‘and do not, accordingly, come within the constitutional prohibition, > The Supreme Court, on 15 December 1995, upheld the validity of such awards.6 Right to Certain Freedom Under Article 19 Contents 6 62 63 64 Introduction... ‘Article 19- Right to Freedom... ‘Attcle 22 - Protection Against Arrest and Detention in Certain Cases. References...6.1 Introduction The constitution of india contains the right o freedom, given in Articles 1920.21, and 22. » Criginally, Article 19 contained seven rights. ut, the right to acquite, hold and dispose of the property was deleted bythe 44% Amendment Act of 1978. > These six rights are protected against only state action and not private individuals. Moreover, these rights are available only to the citizens and to shareholders of a company but not to foreigners or legal persons lke companies or corporation, et. > The State can impose reasonable’ restrictions on the enjoyment ofthese sx rights only on the ‘grounds mentioned in Article 19 itself and not on any ather grounds, The rights to freedom are the most important fundemental ights guaranteed by the constitution of nia. It makes democracy meaningful 6.2. Article 19- Right to Freedom > As per Atle 19, the following six freedoms are guaranteed to every person ofthe country: 1. Right to freedom of speech and expression. 2, Rightto assemble peaceably and without arms, 3, Rightto form associations or unions, 4. Right to move freely throughout the terior of India, 5. Right to reside and setlein any part ofthe tetitary of ina 6. The right to practice any profession orto cary on any occupation trade or business Freedom of speech and expression Every citizen has the right to assemble peaceably and without arms. Itincludes the right to hold public meetings, demonstrations and take out processions. This freedom can be exercised only fon public land and the assembly must be peaceful and unarmed, This provision does not protect violent, disorder, riotous assembles, or one that causes a breach of public peace or one that Involves arms. This right does not include the right to strike. Every person has freedom of speech and expression > However, the State ean inflict a restition on this freedom in the interests of the sovereignty and integrity of the country, forthe security ofthe state, friendly relations wit foreign countries, public order, in relation tothe contempt of court, defamation ar incitement to an offense.Freedom to assemble » All citizens have the right to form associations or unions or co-operative societies10b. It includes the right to form political parties, companies, partnership firms, societies, clubs, organizations, trade unions or any body of persons. » It not only includes the right to start an association or union but also to continue with the association or union as such. Further, it covers the negative right of not to form or join an association or union. Freedom to form associations or unions or co-operative societies The State can enforce restrictions on such freedom in the interest of public order, morality and the sovereignty and integrity of the country. Fr dom to move, freely> Anlindian citizen has the freedom to move frely throughout the terior of India > However, the government can impose restrictions on ths right only in the Interest ofthe general public. Freedom to reside and settle citizens of Inia have the freedom to reside anywhere in the county. > However, in the interest of the general public of forthe protection of the scheduled tribes the ‘State may impose certain restrictions Freedom to practice any profession or to cary on any business occupation or trade Every person can cary any business or practice any profession provided it is not dangerous or immoral. > Also, professional or technical qualifications must be acquited before practicing any profession ‘or carying on any trade. Restriction on Right to Freedom > Its logical that equal rights for ail must mean limited rights for any. Hence, the State may impose tessonable restrictions, upon the exercise of any ofthese rights, > The freedom to assemble is subject to two restrictions. The assembly must be peaceable and the membere of assembly must not bear arms. However, the Sikhe are allowed to cary ‘Kirpan’ ‘as part of ther religious creed, > Inthe US.A. right to, bear arms isa fundamental right. india, this right is denied inthe interest ‘of public order. > The right to form associations or unions does not entite persons to enter Into criminal ‘conspiracy either agains individuals, groups or against the, state, > The right to move freely oto reside and sete in any part of India does not cover trespass into homes or restricted areas, tate also may estict this freedom to protect the aboriginal tibes. > The right to practice any profession or to carry on any occupation, trade or business Is also subject to reasonable restictions. Thus, professions o, trade of, the business must not be |harmful to the interest of the community. The State may also preseribe qualifications for a particular profession or, technical accupation. The State may itslf carry on trade or business to ‘the exclusion of etizens,» Further, during the period when the National Emergency is in operation, the President is ‘empowered to suspend the right of citizens to move the Supreme Court for the enforcement of their personal freedom. Right to Information (RT!) > Article 19(1) of the Constitution has given the fundamental status to the right to informetion in 2008. > Under this Article, every citizen has freedom of speech and expression, > Alco, he or she has the right to know how the government works, what roles does itplay and what are its functions, 6.3 Article 22 - Protection Against Arrest and Detention in Certain Cases >» Article 22 gives protection against arrest and detention in certain cases. > Constitute provide following safeguards against arbitrary arrest. ‘+ Information or ground of arrest should be -provided ‘Right to consult and to be defended by a legal practitioner of his choice. ‘A person should be made to present before Magistrate within 24 hours of arrest + A person shall not be detained beyond a period of 24 hours without authority of Magistrate, > Above safeguards are nat available: + Toalien enemy * When a person s arrested and detained under'preventive detention. Preventive detention ‘means the detention of a person without trial > Safeguards against preventive detention: + Aperson cannot be detained for more than 3 months, + Detaining authority should communicate the reason for detention, + Detained persons should be given the opportunity of representing against the order.7 Scope of the Right to Life and Personal Liberty Under Article 21 Contents 7.1. Atticle 21- Protection of Life and Personal Liberty... oo sons TD 7.2 Meaning and Concept of The Right to Life. 72 7.8 References. 737.1 Article 21- Protection of Life and Personal Liberty > ‘This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws. Article 21 of the constitution gives the Right to , personal liberty, and Right to die with dignity. ‘A person's personal liberty should not be'deprived except as per law and after following, the procedure laid down by law. Term ‘personal liberty’ does not limit to the only body or prison It includes + Right to sleep + Right to travel foreign + Right to bail and legal helP + Right against the use of the third-degree method by police. Article 21 can only be claimed when a person is deprived of his ‘life’ or personal liberty by the State as defined in Article 12 Violation of the right by private individuals is not within the preview of Article 21 Article 21 secures two rights: ight to life, and + Right to personal liberty The Article prohibits the deprivation of the above rights except according to @ procedure established by law. Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner the right to reside and settle in India.Be Meaning and Concept of The Right to Life Everyone has the right to life, liberty and the security of person., The right to life is undoubtedly the most fundamental of all rights. ‘Life! as mentioned under Article 21 signifies not merely living or the physical act of breathing. It has @ much more profound meaning that signifies the : Right to live with human dignity; Right to livelihood; Right to health, Right to pollution-free air; and Right to live a quality life. Right to go abroad; Right to privacy; Right against solitary confinement: Right against delayed execution;= Right to shelter; + Right against custodial death; = Right against public hanging; and anything and everything that fulfils the eriteria for a dignified if. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation. ‘As human rights can only attach to riving beings, one might expect the right to life itself to be in ‘some sense primary since none of the other rights would have any value or utility without it ‘There would have been no Fundamental Rights worth mentioning if Article 21 had been Interpreted in its original sense, ‘ticle 21 of the constitution of india, 1950 provides that.No person shall be deprived of his life or personal liberty except according to procedure established by lav.’ ‘Life, in Article 21 of the constitution is not merely the physical act of breathing. It does not indicate mere animal ‘existence or continued drudgery through life It has a much wider meaning which includes the right to live with human dignity, right to livelihood, right to health, ight to pollution fee alr, etc. ‘The right to life is fundamental to our very existence without which we cannot live as a human being and includes all those aspects of life, which go to make a man's life meaningful, complete, ‘and worth living, under Article 21, so many rights have found shelter, growth, and nourishment. ‘Thus, the bare necessities minimum and basic requirements that are essential and unavoidable {or a person is the core concept of the right to life. Jn Sunil Batra v. Delhi Administration, the Supreme Court reiterated with the approval of the above observations and held that the right to life, including the right to lead a heathy life so as to enjoy all faculties of the human body in their prime conditions. It would even include the right to protection of a person's tradition, culture, heritage and all that ives meaning to a man's life. I includes the right to live in peace, to sleep in peace and the right to repose and health,8 Fundamenta Duties and its Legal Status Contents. 8.1. Introduction . 82 82 82 8.2 Article $14 - Fundamental Duties... 8.3. Legal Status of Fundamental Duties. 8A. References a38.1. Introduction > PartV ofthe indian constitution deals with Fundamental Duties, » As of now, there are 11 Fundamental Duties. > Originally, the Constitution of Inia did not contain these duties. Fundamental Duties revere added by 42" and 86% Constitutional Amendment Acts > Fundamental Duties are applicable only to citzens and nat othe aliens. > India has borrowed the concept of Fundamental Duties from the USSR » Citizens are morally obligeted by the Constitution to perform these duties. However, ike the Directive Principles, these are unjustifiable, without any legal sanction n case of thet violation or ‘non-compliance. 8.2 Article 51A - Fundamental Duties > It shall be the duty of every citizen of ina 1. to abide by the Constitution and respect its ideals and institons, the National Flag and the National anther: te cherish and fellow the noble ideals which inepited our national struggle for freedom; touphold and protect the sovereignty, unity and integrity of india, to defend the county and render national service when called upen to do so, to promote harmony and the spirit of common brothethcod amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory othe dignity of women; to value and preserve therich heritage of our composite culture; 2. te protect and improve the natural envionment including forests, lakes vers, and widife, and to hhave compassion for living creatures; 8. todevelop the scentifc temper, humanism and te spit of inquiry and reform; 9. to safequard public property and to abjure violence; 10.to stve towards excellence inal spheres of individual and collective activity s0 that the nation ‘constantly rises to higher levels of endeavor and achievement. 11 t provide opportunities for education by the parent the guardian, to his cil, ora ward between the age of 6-14 years asthe case may be8.3 Legal Status of Fundamental Duties » The Fundamental Duties have been incorporated into the constitution to remind every citizen that they should not only be conscious of their rights but also of their duties. » The Fundamental Rights in Part Ill, the Directive Principles of State Policy in Part IV and the Fundamental Duties in Part IV forms a compendium and have to be read together. > Itis true that there is no legal sanction provided for violation or non-performance of Fundamental Duties. > There is neither specific provision for enforceability nor any specific prohibition