Indian Cons and Polity

7/28/2019 Indian Cons and Polity

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History of Indian Administrative SystemHistory of Indian Administrative system reveals that an organised system of governance was inplace right from ancient times when monarchy was the main form of Government. Throughout

the long course of its development, there have been two factors that were a constant in

administration- the basic units of the villages and the co-ordination between centralisation and

de-centralisation.

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History of Indian administration traces its earliest known

form to the monarchical system. Since the earliest times, the

monarchical system was used in public administration in theexecution of governmental functions. In the long history of

Indian administration, a number of administrative

organisations rose and fell. However, there are two basicfeatures of the Indian administrative system which continued

right down the ages- the importance of the villages as a

primary unit and co-ordination between the two oppositetrends of centralisation and decentralisation. To put it in a

nutshell the present administration is a developed form of the

old administrative system.

Abundant sources are available to get a clear picture of the

history of Indian administrative system. A lot of information

regarding the organisation and functions of Indian

administration is obtained from Vedic literature, Buddhisttreatises, Jain literatures, Dharmasastras, Indian Puranas,

Ramayana, Mahabharata,Manu Smriti, Sukra Niti andArthashastra.

The powers of administering the states were centralisedin the hands of the king during the ancient period in

India. During the Vedic period the king was assisted in

his work by many officers. He was surrounded by a circle

of his friends and principal officers. There is a referenceregarding this in the two epics of Ramayana and

Mahabharata. A similar reference is also to be found in

Manu Smriti and Sukra Niti. In Kautilya`s Arthashastra isobtained a detailed account about the offices of the state

for the first time in the history of India. By this time

administrative system was fully developed. Thus thedevelopment of the ancient Indian administration had

reached its peak during the reigns ofChandragupta

Mauryaand Ashoka. Mauryan administrative institutions

were further developed during the period of the Guptas.Their period witnessed multifarious activities in the field

of excellent administration.

The decentralisation process had started in ancient India. As a result of this, empires were

divided into provinces, provinces into districts and districts into urban and rural centres fromadministrative angle. During the ancient period state administration was divided into numerous

departments. In Vedic times the number of such departments was limited. Gradually, the number

of such departments increased and their jurisdiction extended. For this we get many referencescan be obtained from Vedic literatures and subsequent sources. In ancient Indian administration

there is also found a description of the principles of public administration. Thus, the principle of

hierarchy had been given a practical shape and seeds of co-ordination were present between
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different departments. Such a full-fledged administrative system existed in the reigns of

Chandragupta Maurya and Ashoka. Great emphasis was placed on observation and inspection

along with the principle of hierarchy.

Like the present day personnel system mention is made in ancient administration system of the

recruitment, qualifications, salaries, leave, pension etc., of government employees. At that timemerit, efficiency and being a member of the elite group were given special emphasis. During the

time there existed the organisation of a central office where all the government records were

kept. This was like the secretariat of the government, in which various government functionaries,including officers worked. Mention of such an office is found in Mauryan times and Chola

kingdom. The king appointed personal secretary as well. In brief, the main function of the central

office was the control and inspection of provincial, regional and local government.

In brief, it can be said that the present Indian administration is the result of a rich legacy and

continuity. It is true to say that the steps of its evolution are someway or the other connected with

the past. However, the existing administrative system in India may be said to be the contribution

of the British government.

Government of IndiaGovernment of India is a parliamentary form of Government and follows the democratic

structure.

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Centre for Social Studies

Food Safety and Standards

Authority of India (FSSAI)Commission for Scientific

and Technical Terminology

Controller of DefenceAccounts

Customs Film and Television Instituteof India

Indian Government Mint Indian Academy of Sciences

Inland Waterways Authority

of India

Institute for Defence Studiesand Analyses

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OrganisationNational Anti-Doping

AgencyNational Assessment and

Accreditation Council

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Communal Harmony

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Empowerment of Persons

with Multiple Disabilities

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Small and Medium

Enterprises

National Institute for theMentally Handicapped

National Institute ofAgricultural Marketing

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Research

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Cooperation and ChildDevelopment

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AffairsNational Investigation

AgencyNational Stock Exchange of

India

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Development AgencyPrasar Bharati Technology Information

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IndiaWildlife Institute of India

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Microwave Electronics

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Repatriates Co-operative

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India has adopted parliamentary

system of government which is

based on universal adult franchise.The Government of India is of a

democratic form which means it is

a government `by the people, for

the people and of the people`. Inthis parliamentary system of

government, parliament is

supreme and there is fusion ofExecutive and Legislative powers.

The President is the constitutional

head of the Executive. All theexecutive powers are exercised by
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the Council of Ministers with the Prime Minister as head. After independence, the whole

political scenario changed with the Congress in Power. The Constitution of India being the

supreme law of the land came into force on 26 January 1950. The preamble of the Constitutiondefines India to be a sovereign, socialist, secular, democratic republic. The parliamentary system

of India is a replica of the Westminster-style. The first general election was held under the

Constitution during 1951-52.

Parliament occupies a prominent position in the structure of the Government of India. It is the

representative institution of the people. It is through the Parliament, the sovereign will of thepeople finds expression. Article 79 of the Constitution of India states that there shall be a

Parliament for the union and the government will be responsible to legislature and the legislature

is in turn responsible to the people who are the ultimate sovereign. The composition of the

parliament consists of the president and the two Houses- the Lok Sabha or the House of theParliament and the Rajya Sabha or the council of States. The continuation of a President or the

Head of the State in the Parliamentary form of government symbolises its true character. The

President though does not participate in the discussions of the two Houses, yet he exercises

several powers and performs important functions. The president of India is elected by anElectoral College consisting of the elected members of the two Houses of the parliament and the

Legislative Assemblies of the state.

The Rajya Sabha which is another essential part of the parliament consists of not more than 250

members. Of these, 233 members represent states and union territories and 12 members arenominated by the President. Members to the Rajya Sabha are elected by the elected members of

Legislative Assemblies of the concerned states. The Rajya Sabha is not subject to dissolution in

contrast to the Lok Sabha and one third of its members retire every second year. However, in the

Indian Polity, the Lok Sabha is composed of representatives of the people chosen by directelection on the basis of universal adult franchise. As present, the Lok Sabha consists of 545

members with two members nominated by the President to represent the Anglo-Indian

Community. The term of the Lok Sabha is for five years and gets dissolved under circumstanceof failure of the leading party to prove clear majority or a no-confidence motion.

Article 74 (1) of the Constitution provides that there shall be a Council of Ministers headed bythe Prime Minister to aid and advise the President who shall, in exercise of his functions, act in

accordance with such advice. India is a bicameral parliament consisting of the Lok Sabha (House

of the People) and the Rajya Sabha (Council of States). The Council of Ministers is collectively

responsible to the Lok Sabha, the House of the People. The Council of Ministers comprisesCabinet Ministers, Minister of States and Deputy Ministers. It is the Prime Minister who

communicates all decisions of the Council of Ministers relating to administration of affairs of the

Union and proposals for legislation to the President. Each department has an officer designatedas secretary to the Government of India to advise Ministers on policy matters and general

administration. The Cabinet Secretariat has important coordinating role in making decision at

highest level and operates under direction of Prime Minister.

Government of India has certain departments that carry on their duties under the supervision of

several ministries. The Central Ministry is part of the Executive branch of Government India.

Depending on the federal character of the political system of India, Indian Government


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Departments are divided into Central government departments and State Government

department. The central ministry work independently and the State governments work under the

supervision of the Central Government. There are certain departments including Departments ofAgriculture, Home Affairs, Commerce and Industry, External Affairs, Corporate Affairs,

Defence, Information and Broadcasting, Civil Aviation, Human Resource Development,

Railways, Environment and Forests, Finance and Company Affairs, Health and Family Welfare,Heavy Industries and Public Enterprises, Petroleum and Natural Gas, Power, Labour, Tourism,

Women and Child Development, Youth Affairs and Sports and several others constitute the

Indian Government Departments. These departments work for public welfare.

The ministers of these government bodies are chosen through general election India at an interval

of every five years. But the bureaucrats and other officials are appointed through competitive

exams that are held throughout India. Examinations such as IAS, IPS, IFS, UPSC and otherexams are held annually across the nation. Moreover, it is through the Government of India, the

defence of the country is ensured. The Supreme Command of the Armed Forces is invested in

the President and the responsibility for national defence vests in the Cabinet. The Ministry of

Defence performs the work assigned. Defence Minister or the Raksha Mantri is the head of theMinistry of DefenceJan

29

STRUCTURE AND FEATURES OF INDIAN CONSTITUTIONS

Abstract:

After understanding the legacies of freedom movement and legacies of colonial

rule, now in this chapter we will read the concept of constitution and structure and

features of Indian constitution. Here we will read about the preamble of Indian

constitution, its philosophy and significance, nature and features of Indian

constitution, structure of the constitution and also will read about Fundamental

Rights, Directive Principles of State Policies and Fundamental Duties. This Chapter

will give us an idea about the constitution, its nature and structure.

Contents:

v Introduction

v Preamble of the constitution

v Nature and features of Indian Constitution

v Structure of the Constitution

v Fundamental Rights:

v Directive Principles of State Policies


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v Fundamental Duties

v Conclusion

Introduction:

In the previous chapter we have learned about the origin and evolution of Indian

constitution. Our understanding about the colonial legacy and legacy of freedom

movement has already given us an image of Indian constitution. There we also

learned about the sources of Indian constitution. But what is the actual structure of

our constitution? Is there any philosophy who guides the constitution? Does our

constitution care about the people? Can we see any features which guide thegovernment? As a citizen of the country what are our responsibility and duty? All

these questions are not cleared in the previous chapter. To know those queries, in

this chapter we will understand the nature and feature of Indian Constitution and its

structure. But before studying about these lets earn a brief idea about the concept

of constitution and also about the Indian constitution.

About constitution:

The constitution is a set of elementary principles or established precedents to

govern a state. It is a written or unwritten document constitute of rules and

principles. It puts down the basic framework of a political system to govern.

Constitution of a country lays down the basic structure of the political system under

which its people are to be governed (Kashyap, 2011; 1). We can define it as a set of

fundamental law of a country which ordains the fundamentals of its polity and on

the altar of which all other laws and executive act of the state are to be tested. It is

a living organism of functioning institutions (Kashyap, 2011; 2). The constitution

establishes the main organs of the state-the legislature, executive and judiciary. It

defines their power and responsibilities and regulates their relationships. The

constitution of a country represents the vision and values of its founding fathers and

is based on the social, political and economic ethos and faith and aspirations of the

people. In the earlier chapter and in the next few chapters we will see principles and

structure that compose Indian Constitution.

Indian constitution:


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The Constitution of India was as we have already come to know in the earlier

chapter, was adopted in 26th January 1950. This date was chosen to commemorate

the 1930s declaration of independence and since 1950 India celebrates the

adoption of the constitution on 26 January each year as Republic Day. It is a writtenconstitution. In the time of adoption, the constitution of India had a preamble, 22

parts, 395 articles and 8 schedules. But due to a number of amendments in last 60

years the tally of schedule and articles increased. The Constitution, in its current

form, consists of a Preamble, 22 Parts containing 450 Articles, 12 Schedules, 2

Appendixes (Wikipedia). We will read about these schedules and parts in the later

part of this chapter. It declares India to be a sovereign, socialist, secular,

democratic republic, assuring its citizens justice, equality and liberty and promotes

fraternity among them.

When we were reading about the concept of Constitution, we discussed

about organs of the state-the legislature, executive and judiciary. Indianconstitution also deals these areas. The constitution of India provides for

distribution of powers between the union and the state where powers of the

Parliament and State Legislatures are distributed in three list- Union, State and

Concurrent list. The constitution of India is amendable and so far there has been

more than 110 amendment bills are introduced in the parliament and out of that 95

amendments were made so far. We will understand about the nature and structure

of Indian constitution in the following parts of the chapter.

Preamble of the constitution:

The Preamble of a constitution is the embodiment of the fundamental values and

philosophy on which the constitution is based. When we read a book or a novel,

often read the preface, where the author lays the brief ideas about the book. The

preamble of a constitution is like that preface to the constitution which lists the

basic features of the constitution. It is the introductory statement of the

constitution.

Text Box: KM MUNSHI IMAGE Constitution of India also has a preamble. The

preamble in Indian Constitution specifies the nature of Indian state and the

constitution. The preamble is based on Jawahar Lal Nehrus objective Resolution,about which we have read in the previous chapter of this book. K. M Munshi has

termed the preamble as Political Horoscope and Earnest Barker says it as Key to

the constitution. The preamble is a part of the constitution but is not justifiable. But

it bears a great significance to the constitution. We can say the Preamble as the

foundation stone of the constitution. The preamble renders it easy to understand

the real intensions of the framers of the constitution. The preamble of Indian

Constitutions say-


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WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India

into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all

its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the

Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do

HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

When the Preamble of the constitution was adopted, the words socialist, secular and

integrity was not there in the Preamble. These words were added to the Preambleby the 42nd Amendment in 1976.

The Preamble is the supreme or fundamental constitutional values in which the

founding fathers believed, which they wanted to foster among the people of the

republic. The Preamble indicates the source from which the constitution derives its

authority and also states the objects which the Constitution seeks to establish and

promote (Basu, 2011:21).

Philosophy and salient features of the preamble:

The words used in the constitution are some of the noblest words and embody the

highest values that human ingenuity and experience have been able to devise thus

far. These words bear the philosophy of the Preamble and the constitution. Let us

analyze the meaning of various terms used in the preamble. We also can say these

as the salient features of the preamble.

Sovereign: The Preamble of Indian Constitution declares India to be sovereign. It

implies that India is a sovereign state, free to conduct its internal and external

affairs as it deems desirable. The constitution does not contain any specific

provision in regard to the sovereign powers. It is only ascertained in the preamble.

The preamble accepts the principle of popular sovereignty. The preamble begins by

the words We the people of India which testify that people are the ultimate


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source of all authority. The preamble of the Constitution of United State also begins

with We the people of the but with a different meaning.

Socialist: We know that the term socialist was added in the Preamble by the Forty

Second Amendment. Though the term socialist was included, the term does not

mean the State Socialism that is ownership of all means of production and

distribution by the State but it means reducing the inequalities between rich and

poor. This term is also to refer socialist pattern of society; which was adopted as a

goal of Indian state by the Congress in its Avadi session in 1955. The term socialist

state means that India is a democratic socialist state and committed to socio-

economic justice, that is to be secure by the state through the democratic process

and organized planning. However, the term has not been defined by the

constitution.

Secular: The term Secular was also added in the 42nd Amendment. Ever since

the inauguration of the constitution the citizens of India have enjoyed complete

religious freedom. When we will read the Fundamental Rights we will find how they

promote secularism. Though India behaved as a secular state but it was not

described so in the Preamble. The deficiency has been removed by the above

addition. The term Secularism means equal respect and equal protection of all

religions by government. This secularism is distinct from the negative concept ofsecularism held in western traditions, that is, separation of religion and politics.

Democratic: We found that the Preamble declared India to be a Democratic State.

It means that in India, the administration is carried on by the elected representative

of the people. The Constitution has introduced the system of Universal Adult

franchise. The people of India enjoy all those rights which are available in a

democratic country. The constitution lays down the system of Parliamentary

Democracy. The term Democratic in the Preamble is used to represent the

philosophy of democracy that the constitution has.

Republic: By republic we mean that in India, the highest executive authority shallbe vested in a person directly or indirectly elected by the people. The President,

Vice-President of India and Members of Rajya Sabha are elected indirectly by the

people, while the Prime Minister and the other members of the Lok Sabha are

directly elected by the people. This implies that India cannot have monarchical or

feudal type of government. The Republic in the Preamble has both positive and


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Negative meaning. Negatively, it means that India is not ruled by monarch and

positively means that it has an elected head for a fixed term.

Justice: Justice in the Preamble implies that the government will try to promote

the welfare of all section of the people of India. We find three types of justice

political, economic and social, in the Preamble. We can see that to provide politicaljustice the constitution has introduced Universal Adult Franchise. In economic

sphere justice is to be provided by raising the living standard of the people. To

provide social justice, all citizens are treated equally irrespective of their status in

society as a result of their birth, race, caste, religion, sex, title etc. The preamble

places Justice higher than the other principles of Liberty, Equality and Fraternity

(Kashyap, 2011; 73).

Liberty: The Preamble declares liberty to be the second cardinal objective to be

secured by the Indian State. The Preamble by liberty does not mean mere absence

of restraint. It is also positive concept, where we find liberty of thought expression,

belief, faith and worship as the objective to be secured to all the people. TheFundamental Rights are designed to secure this objective.

Text Box: Example of MGNREGA where both men and women earn equal wage,

based on equality Equality: The Preamble of Indian Constitution makes equality as

the third objective of the constitution. It promises equality of opportunity and

status. And it has legal, social, political and economic aspects. It says that all

citizens are equal before law and enjoy equal protection of the laws of the land.

There cannot be any discrimination on the ground of primordial factors like religion,

race, caste, sex etc.

Fraternity: With a view to promote the spirit of brotherhood among the people

and to ensure proper dignity of the individual, the Constitution has paid attention to

fraternity. To promote this the constitution imposed certain fundamental duties on

the citizens of India. Fraternity is expected to preserve and promote the dignity of

the individuals life. The Preamble also says that in order to safeguard the dignity of

the individual, we need to build the nation and protect its unity and integrity and

this is through the spirit of common brotherhood and fraternity.

Constitutional Significance of the Preamble:

In the beginning of the chapter we read that Constitution of India has 22 parts. The

preamble is not one out of those. But many a time many people believe it as a part,


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due to its constitutional significance. The preamble has helped us in different time

to in understanding the constitution. We can see the following constitutional

significance of the constitution-

1. The Preamble helps us in understanding the constitutional arrangements in

clear terms. If any section of the constitution is not clear than we may understandthat with the help of philosophy of the preamble.

2. The words of the Preamble highlight some of the fundamental values and

guiding principles on which the Constitution of India is based. It serves as a guiding

light for the Constitution and judges interpret the Constitution in its light

3. The Supreme Court of India, in a majority of decisions, has held that the

preamble constitute the basic structure of the Indian Constitution, which cannot be

amended.

4. The Preamble signifies by its very beginning that the actual power lies in the

hand of people, not in government agencies.

5. The Preamble lays down the most important national goals such as socialism,

secularism and national integration etc. Every citizen and the government must try

to achieve these goals.

6. If we look at different amendments that have been taken up after the adoption

of constitution we will find that many of these are based on the preamble. For

example we can say about the amendments of reservation policies for weaker

sections of the society. This is based on the philosophy of social justice mentioned

in the Preamble.

When we will read the next few chapters, we will be able to better understand the

significance of the Preamble. The next parts of this book will remind us the

relevance of the Preamble and its philosophy in Indian Constitution.

The Preamble is a part of the constitution:

So far, in this book, we have read that preamble is a part of the constitution

but not among the 22 parts of it. We also read that many people do not believe it as

a part of the constitution. The Supreme Court of India, while giving its opinion on

the presidential Reference on the transfer of the Berubari Union and the exchange

of Enclaves, accepted that Preamble is not a part of the Constitution. However, later

on, it reversed its judgment in Keshavananda Bharati Case and held that Preamble

is a part of the Constitution. The Parliament also has accepted it as a part of the


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Constitution. As such, the Preamble is now regarded as a sacred and basic part of

the Constitution. The Preamble defines the basic structure of the Constitution and it

itself a part of the basic structure. The next few parts of this book are based on this

Preamble. Let us read the salient features of Indian constitution, which also reflects

the philosophy of the Preamble.

Nature and features of Indian Constitution:

So far, we have collected some basic ideas about the Indian Constitution.

The Constitution has impact of legacies, Constituent Assembly Debates and of other

known constitutions. As the Constitution has borrowed many ideas from some

known constitution, it is called as borrowed constitution. Due to this we find theconstitution a very comprehensive document. The nature of the Indian Constitution

is unique in many ways. It cannot be fitted in any particular model of constitution as

it is both-rigid and flexible, federal and unitary, presidential and parliamentary. The

constitution has many outstanding features which distinguishes it from other

Constitutions. We can find the following salient features of the Constitution of India:

1. Written Constitution: The constitution of India is a wholly written and detailed

document. At the time of adoption, the constitution of India had a preamble, 22

parts, 395 articles and 8 schedules. Jennings describes it as the largest written

constitution in the word. The constitution of India included not only the

Constitution of the Union but also of the States. It has incorporated several uniquefeatures like-Fundamental rights and Duties, The Directive Principles of State

Policies, Emergency Provision, Language Provision etc, which made it quite lengthy.

All these made the largest written constitution.

2. Rigid and Flexible Constitution: On the ground of the amending procedure

being difficult or easy, we can say Indian constitution as combination of both rigid

and flexible. There are three methods of amending Indian Constitution. When we

will look at the amendment procedures of Indian constitution, we will see that the

Constitution is flexible in the sense that most of its parts can be amended by simple

majority in the Houses of Parliament. It is rigid as other some provisions can be

amended by the House of Parliament by special two third majorities of the members

present and voting and majority of the total membership in each House. It is rigid in

the third method also as in few provisions, in addition to a special majority in the

two Houses of Parliament, ratification of not less than one half of the state is

required. This mixture of amendment procedures make the Constitution both rigid

and flexible


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3. Sovereign, Socialist, Secular, Democratic, Republic Constitution: We have

already read about these values in the Preamble of Indian Constitution. These

values reflect the characteristics of Indian Constitution. As we have read about

these in detail, let us switch to other features of the constitution.

4. Drawn from Different Sources: Another unique feature of the IndianConstitution is that it was prepared after ransacking all the known constitution of

the world. We already read in the first chapter that apart from the legacies and

Constituent Assembly debates, the fathers of constitution are also influenced by

Constitution of US, UK, USSR, Canada, Australia, and Ireland etc. Many features of

the Constitution are adopted from those. It is so, our constitution is a borrowed

Constitution.

5. Fundamental Rights: The Constitution of India, under its part III from Article 12

to 35, grants and guarantees Fundamental Rights to its citizens. These rights are

enforceable in the Courts. Originally, the Constitution had seven Fundamental

Rights, but after the 44th Amendment in 1979, it decreased to six. Our Constitutionpresents a balance between the rights of the individual on the one hand and the

interest of the society and the needs of the security of the state on the other

(Kashyap, 2011; 52-53).

6. Fundamental Duties: Fundamental Duties are another important feature of

Indian Constitution. The Constitution, in its part IVA- Article 51 A enumerates the

Fundamental Duties of Indian Citizens. It lays down eleven duties for all the citizen

of India. These Fundamental Duties are not enforceable in the Courts.

7. Directive Principles of State Policy: Directive Principles of State Policy is one

of the most striking features of Indian Constitution. These are instructions to thegovernments- both Union and State, for securing socio-economic developments

through its policies. Though these are not enforceable by the courts, the

government shall apply these in making laws.

8. Single Citizenship: Despite of the federal structure, for building an integrated

Indian fraternity and a united nation, India has single Citizenship system. The

Constitution provides all citizens uniform rights and freedom. This is also an

important feature of Indian Constitution.

9. Parliamentary Government: The Constitution of India provides for a

Parliamentary system of government. In India, President is nominal head of the

state and Prime Minister is the real head. These feature is neither similar to the

British nor to the US Constitution.

10. Bi-cameral Union Parliament: The Indian Constitution of India provides for a

Bicameral legislature at the Union level. It has two Houses- the Lok Sabha and the


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Rajya Sabha. The Lok Sabha is lower House and the Rajya Sabha is upper House of

the parliament. Of the two, Lok Sabha is more powerful than the Rajya Sabha. This

bi-cameral legislature is also an important feature of Indian Constitution.

11. Federation with strong Centre: Though we cannot find the term federation in

the Constitution of India, but it is of federal nature. K C Where describes India as aquasi federal constitution. The constitution distributes the power in three lists-

Union, Concurrent and State lists. However, it provides a strong centre, which

seems to be a unitary feature. This mixture of both Federalism and Unitarianism is a

feature of Indian Constitution.

12. Independent Judiciary: The Constitution of India establishes an independent

judiciary. The judiciary is not under the control of Executive and Legislature and

empower with the power of judicial review, judicial Activism etc. the High Courts

and Supreme Court form a single integrated judicial structure and enjoy the

jurisdiction over Union, State, Civil, and Criminal laws.

13. Adult Franchise: Universal Adult Franchise is also an important feature of the

Constitution. Based on the principle of one man one vote constitution opt for it

without any distinction. Every Citizen who is 18 years of age has the right to vote.

Earlier the age was 21. This feature makes India a truly democratic nation.

14. Emergency Provisions: We read that president is a nominal head of the state.

The president enjoys some powers and functions and among those Emergency

power is also one. This enables the executive to meet any emergency effectively.

The constitution provides three types of Emergency powers- General Emergency,

Constitutional Emergency and Financial Emergency.

15. Special Provision of Backward Class: Another feature of the Indian Constitution

is that there is reservation of seats for the backward people in the Lok Sabha and

state Assemblies. The Constitution in its Part XVI also lays down that the claims of

the Scheduled Castes and Scheduled Tribes shall be taken into consideration in

making appointment to services and posts in connection with the affairs of the

Union or of the State to uplift them.

16. Provision regarding language: The Constitution has special provisions for

defining the Language of the Union, Regional Languages, and Language of the

supreme and High Courts. In its Eight Schedule, the Constitution recognizes major

Indian Language. The tally is now 22. This is also an important feature, which we

can find in Indian constitution.

The Constitution of India is a most comprehensive and unique in many ways.

This is a large document and suitable for Indian environment. The above features


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have made the constitution different from many other constitutions of the world.

When we will read about the constitutions of different countries in later part of the

course, we will better understand how it is different from others. But, for now, we

can earn the idea about our Constitution, by reading these features. We can

understand better about it and its features in coming parts of the book.

Structure of the Constitution:

So far, we have come to know about the history and features of Indian

Constitution. But how does the constitution look like? What are the things that are

written in that large document? Is it like a book with chapters? Or it is like a report?

In the following few paragraphs, we will try to know these above questions? We will

now read about the structure of the Constitution, the order it is arranged and the

way it is designed.

The constitution, as we know starts with the preamble. It is followed by the

Parts, Schedules, and Appendixes. We know that the Constitution has at present 22

Parts and these are Part I-Union and its Territory, Part II-Citizenship, Part III-

Fundamental Duties, Part IV-Directive Policies of State Policy and Fundamental

Duties {Part IV (A)}, Part V- The Union, Part VI- The States, Part VII- States in the B

part of the First schedule(Repealed)., Part VIII- The Union Territories, Part IX-

Panchayat system and Municipalities, Part X- The scheduled and Tribal Areas, Part

XI- Relations between the Union and the States, Part XII- Finance, Property,

Contracts and Suits, Part XIII-Trade and Commerce within the territory of India, Part

XIV- Services Under the Union, the States and Tribunals, Part XV- Elections, Part XVI-

Special Provisions Relating to certain Classes, Part XVII Languages, Part XVIII-

Emergency Provisions, Part XIX Miscellaneous, Part XX- Amendment of the

Constitution, Part XXI- Temporary, Transitional and Special Provisions, Part XXII-

Short title, date of commencement, Authoritative text in Hindi and Repeals. If we

accept Preamble as a part of Indian constitution, than it will come before all the

parts and rest will follow from Part I-Union and its Territory. The individual Articles of

the Constitution are grouped together into these Parts.

After these parts, the 12 schedules of the constitution come. The schedules

are lists that categories and tabulate activity and policy of the Government. TheSchedules in the constitution are arranged in the following order.

First Schedule (Articles 1 and 4): This lists the states and territories of India,

lists any changes to their borders and the laws used to make that change.


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Second Schedule (Articles 59, 65, 75, 97, 125, 148, 158, 164, 186 and 221):

This lists the salaries of officials holding public office, judges, and Comptroller and

Auditor-General of India.

Third Schedule (Articles 75, 99, 124, 148, 164, 188 and 219): Forms of Oaths

This lists the oaths of offices for elected officials and judges.

Fourth Schedule (Articles 4 and 80): This details the allocation of seats in the

Rajya Sabha (the upper house of Parliament) per State or Union Territory.

Fifth Schedule (Article 244): This provides for the administration and control

of Scheduled Areas and Scheduled Tribes (areas and tribes needing special

protection due to disadvantageous conditions).

Sixth Schedule (Articles 244 and 275): Provisions for the administration of

tribal areas in Assam, Meghalaya, Tripura, and Mizoram.

Seventh Schedule (Article 246): The union (central government), state, andconcurrent lists of responsibilities.

Eighth Schedule (Articles 344 and 351): The official languages.

Ninth Schedule (Article 31-B): Articles mentioned here are immune from

judicial review.

Tenth Schedule (Articles 102 and 191): "Anti-defection" provisions for

Members of Parliament and Members of the State Legislatures.

Eleventh Schedule (Article 243-G): Panchayat Raj (rural local government).

Twelfth Schedule (Article 243-W): Municipalities (urban local government).

After these twelve Schedules, two Appendixes follow. These two are:

1. The Constitution (Application to Jammu and Kashmir) Order, 1954 and

2. Re-statement, with reference to the Present text of the Constitution, of the

exceptions and modifications subject to which the constitution applies to the stateof Jammu and Kashmir.

Text Box: Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic

features: sovereignty of India democratic character of the polity unity of the

country essential features of the individual freedoms secured to the citizens

mandate to build a welfare state Jaganmohan Reddy, J. stated that elements of the

basic features were to be found in the Preamble of the Constitution and the


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discuss the three parts of government, election system, amendment procedure etc.

So, in this chapter, we will not discuss about these parts. Here we will read about

the Part III, Part IV and Part IV (A) of the constitution. The reason behind discussing

these is that these parts are important part of Indian Constitution and it reflects the

philosophy of the constitution and preamble. These three parts lays down the

governing principle of Indian constitution. These three parts are also regarded aspart of basic structure of the constitution. So, let us know about these three in

details.

Fundamental Rights:

A democracy is always supported by Fundamental Rights. Indian Constitution has

also made provisions for Fundamental Rights to promote democracy in India. In the

previous chapter we have learned about the sources of Fundamental rights of ourconstitution. Here, before knowing about the Fundamental Rights ensured by

Constitution of India, let us see what is Fundamental Rights?

The constitution is regarded as Fundamental law of the nation and the rights which

are incorporated here, therefore, regarded as Fundamental Rights. These rights are

generally regarded set of entitlements in the context of legal system. The rights

which are needed for all round developments of the human being are Fundamental

Rights. They ensure the fullest physical, mental and moral development of every

citizen. Fundamental Rights include the basic freedom and conditions which alone

can make life worth living. In democracy, the Fundamental Rights are considered as

basic to better and happier life of human being. They are the soul of the

constitution (Avasthi, 2004; 229). Part III of Indian Constitution, with the heading

Fundamental Rights, deals with the charter of Rights. Here the constitution includes

the basic rights which are necessary for individual to live a dignified life.

The Genesis of Fundamental Rights in India:

Text Box: According to Dr BR Ambedkar Fundamental Rights was one of the mostcriticized parts of Constitutional Assembly Debate. Source: Kashyap, 2011; 94 The

development of constitutionally guaranteed Fundamental Rights in India was

inspired by various historical events. Englands Bill of Rights in 1689, United States

Bill of Rights in 1787 and Frances Declaration of the Rights of Man in 1789 were

among those. Constitution of India Bill, 1895 made the first systematic demand for

Fundamental Rights. Thereafter, several committees were appointed and

resolutions were passed to put forth the perspectives of Indian Fundamental Rights


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(Chakrabarty and Pandey, 2008; 11). In early 1930s, before the Simon Commission

and Government of India Act of 1935, a popular demand was made for Fundamental

Rights. But Simon Commission and the Joint Parliamentary Committee had rejected

the idea of enacting declaration of Fundamental Rights on the ground that abstract

declarations are useless. However, nationalist opinion, since the time of the Nehru

Report was in favour of a Bill of Rights. The framers of the Constitution were alsoespecially influenced by the Constitution of United State, France, Irish, Japan, and

Burma and by Declaration of Human Rights by the United Nations. A Bill of Rights

was among the primary tasks for them. Therefore, Part III of the Constitution was

discussed for as many 38 days- 11 days in the Sub-Committee, 2 days in the

Advisory Committee and 25 days in Constituent Assembly. The final shape to the

fundamental rights was given by the Advisory Committee for reporting on

minorities, fundamental rights, and on the tribal and excluded areas, under the

chairmanship of Sardar Patel, which the Constituent Assembly accepted and

adopted (Chakrabarty and Pandey, 2008; 11). They include these rights from Article

to 12 to 35 of the constitution, out of which Article 12, 13, 33, 34 and 35 explains

about the applicability of the rights that are categories in the articles from 14 to 32.

Fundamental Rights in Indian constitution:

After reading about the genesis of Fundamental Rights in India Constitution, let us

see the Rights, those are incorporated in the Constitution as fundamental or basic.

In the original constitution, adopted in 1950, there were seven sets of rights,

designated as Fundamental. But, in the time of Janata Government in 1978, by

forty-fourth amendment to the constitution, the Right to Property was repealed.

Since then we, the people of India enjoy six sets of Fundamental Rights. The

constitution includes these rights from Article to 12 to 35 of the constitution, out of

which Article 12, 13, 33, 34 and 35 explains about the applicability of the rights that

are categories in the articles from 14 to 32.Let us see what are those rights in the

six categories

1. Right to Equality: Articles 14 to 18 of the constitution deals with Right to Equality.

There are several rights under this category. These rights are-

a) Equality before Law: According to Article 14 of the constitution the State shall

not deny to any person equality before the law or the equal protection of the laws

within India. The law makes no discrimination or distinction on the basis of status or

position of citizen and in like circumstances citizens get like treatment. By equality


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before law, the constitution describes the negative concepts of law means absence

of any special privilege and equal protection of the law is a more positive concept,

implying the right to equal treatment in equal circumstances.

However equality before law does not mean

absolute equality or equality among un-equals but among equals. It does notprohibit the classification of person into different groups.

b)Prohibition Against Discrimination: According to Article 15 there should not be any

discrimination against a citizen on the ground only of race, religion, caste, sex,

place of birth or any of them. No citizen shall on any of these grounds, be denied

access to shops, hotels, public restaurant, and places of public entertainment; or

the use of wells, tanks, bathing ghats, roads and places of public resort maintained

wholly or partly out of State funds or dedicated to the use of the general public.

This Article also says that nothing shall prevent the State from making any specialprovision for women, children and for the advancement of any socially and

educationally backward classes of citizens or for the Scheduled Castes and the

Scheduled Tribes.

c)Equality of Opportunity: Article 16 of the constitution provides for equality of

opportunities for all citizens in matters relating to employment or appointment to

any office under the state. Citizen shall not, on grounds only of religion, race, caste,

sex, descent, place of birth, residence or any of them, be ineligible for, or

discriminated against in respect of, any employment or office in India. Theconstitution, however, does not debar the Parliament from making any law

prescribing essential qualification in regards to a class or classes of employment to

any office. It is also laid down that this rights shall not prevent the state from

making any provision for reservation in favour of any backward class of citizen

which, is not adequately represented.

d)Abolition of Untouchability: The Article 17 of the constitution, for eradicating the

evil practice of untouchability in India, abolishes untouchability and makes its

practice in any form an offence punishable under the law.

e) Text Box: Article 18 and Bharat Ratna A question had arisen whether the

Bharat Ratna, Padma Vibhushan, Padma Bhusan and Padma Shri civilian Awards

conferred by the President on Republic Day for outstanding meritorious service

were violative of article 18 of the Constitution. Under stay order from Supreme


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Court, no awards were announced for several years. Awards have since been

resumed. The Supreme Court has held that these awards are not titles within the

meaning of article 18 and that if any awardee uses the award as a title by suffixing

or prefixing it with his or her name, he should forfeit the award (Kashyap, 2011;

117). Abolition of Titles: According to the Article 18 of the Constitution, state shall

not confer any title, not being a military or academic distinction. It also says thatCitizen of India shall not accept any title from any foreign State. Even the non-

Indians in the service of Indian State cannot accept titles from foreign State without

the permission of the President of India. This provision aims at ensuring equality for

all.

Thus, the constitution, from Article 14 to 18 grants right to equality to the

people of India. These rights, along with the provisions of equality, also provide

protective discrimination. These are both positive and negative.

2. Right to Freedom: The second set of Rights which we can find in our constitution

is Right to Freedom. Four Articles starting from Article 19 to 22 deals with these

rights. Let us see the rights that we can enjoy under these articles.

a) Six Fundamental Freedoms: In Article 19 of the Constitution we find six basic

freedoms of the people. These were originally seven, but 44th amendment omitted

the the right to private property and leave only six freedoms. According to Article

19 of the constitution all citizens of India shall have the right-

(i) To freedom of speech and expression;

(ii) To assemble peaceably and without arms;

(iii) To form associations or unions;

(iv) To move freely throughout the territory of India;

(v) To reside and settle in any part of the territory of India;

and

(vi) To practice any profession, or to carry on any occupation,

trade or business.

These above six freedoms constitute the backbone of the Right to Freedom. Theseare important for the enjoyment of civil and political liberty. Freedom of speech and

expression, freedom of association, freedom of assembly etc are the essential

freedom for democracy. You might have heard about Right to Information. The

Supreme Court of India has now held that Right to Information is covered by the

right to freedom of speech and expression. The are also important for personal

liberty.


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Though the article proclaimed these rights or freedom but they

are not absolute. These freedoms are subject to some reasonable restrictions. For

example, the freedom of speech can be restricted on the grounds of defamation,

security of state, friendly relations with foreign states, contempt of court, decency

or morality, incitement to an offence etc. Freedom of assembly and association can

be curtailed on grounds of public order etc. We have seen that many a time we arerestricted to move freely throughout the territory of Indi for public interest.

b) Protection against Arbitrary Conviction: According to Article 20, the

Constitution protects against the arbitrary conviction in respect of offences

committed to the people. According to the constitution any person shall be

convicted of any offence except for violation of a law in force at the time of the

commission of the Act charged as an offence, nor be subjected to any penalty

greater than that which might have been inflicted under the law in force at the time

of the commission of the offence. It also says that no person shall be prosecutedand punished for the same offence more than once and no person accused of any

offence shall be compelled to be a witness against himself.

c) Protection of life and personal liberty: Article 21 of the constitution provides

protection to the life and liberty of citizens as well as non-citizens. The Constitution

here says that no person shall be deprived of his life or personal liberty except

according to procedure established by law. It provides the right not to be subjected

to imprisonment, arrest or physical coercion in any manner without legal

justification. Here procedure established by law denotes the awarding ofpunishment in accordance with law and according to the set procedure.

d) Right to Education: We may have seen advertisements in different places

mentioning the right to education. Article 21A of the constitution deals with it. This

Article was added as a new article by the constitution by following 86th

Amendment. It provides for free and compulsory education for all children between

the age of six to fourteen years.

Text Box: AFSPA Many of you have heard about Arm Forces Special Power Act. This

act empowers the arm forces with the power of arbitrary arrest and it violates some

other rights also. In Jammu and Kashmir and North East India, where the Act is

imposed restrict the implementation of many Fundamental Rights. Due to its

negative face different section of people have been fighting either for withdrawal of

the Act or for amendment.


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e) Protection Against Arrest and Detention: Under Article 22, the constitution

provides for protection against arbitrary arrest and detention. The constitution lays

down that no person who is arrested shall be detained in custody without being

informed, as soon as may be, of the grounds for such arrest nor shall he be denied

the right to consult, and to be defended by, a legal practitioner of his choice. It also

says that Every person who is arrested and detained in custody shall be producedbefore the nearest magistrate within a period of twenty-four hours of such arrest

excluding the time necessary for the journey from the place of arrest to the court of

the magistrate and no such person shall be detained in custody beyond the that

period without the authority of a magistrate.

The constitution, however, allows the state

the power of curbing individuals freedom under some exceptional circumstances.

For example the Parliament and the legislatures have the power to pass preventive

detention acts like TADA, POTA, MISA which can enable the executive to arrest,

detain and imprison any person without trail.

Thus we in the constitution found the right to freedom from article 19 to 22. But

most of these are very limited and restricted in nature.

3. Right Against Exploitation: In Indian Constitution, Articles 23 and 24 deal with

the right against exploitation. Exploitation means misuse of services of others with

the help of force. This right aims at preventing the exploitation of the weaker

sections of the society by a person or by state. The rights available under these two

Articles are-

(i) Traffic in human beings and begar and other similar forms of

forced labour are prohibited and any contravention of this provision shall be an

offence punishable in accordance with law.

(ii) Text Box: Child in Work Many of you have seen boys and girls

below the age of 14 working in house, hotel, Dhaba etc. This is a violation of this

right. Our silence has also contributed in violating this right Nothing in this article

shall prevent the State from imposing compulsory service for public purposes, and

in imposing such service the State shall not make any discrimination on grounds

only of religion, race, caste or class or any of them.

(iii) No child below the age of fourteen years shall be employed to

work in any factory or mine or engaged in any other hazardous employment.

The parliament has enacted several laws to meet the objective set by these

rights. But many a time it is seen that these rights are not enjoyed by the citizen of

India.


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4. Right to Freedom of Religion: In the preamble we read that secularism is a

feature of Indian constitution. This secularism is ensured in the constitution by using

the Right to Freedom of Religion. It ensures the positive aspect of secularism.

Articles 25 to 28 of the constitution guarantee the right to freedom of religion to thecitizen. The four articles of the constitution says that-

a) Text Box: Popular musician AR Rahman was originally a Hindu but he adopted

and practiced Islam using the right to freedom of religion Freedom of conscience

and free profession, practice and propagation of religion: article 25 of the

constitution provides the freedom of conscience and the right to profess, practice

and propagate any religion. This means there is no state religion in India and all

religions are equal. People enjoy the right to practice any religion that he or she

likes.

b) Freedom to manage Religious Affairs: In Article 26, the constitution lays down

that every religious domination of any section has the right to establish and

maintain institutions for religious and charitable purpose, to manage its own affairs

in matters of religion, to own and acquire movable and immovable property, and to

administer such property in accordance with law.

c) Freedom as to payment of taxes for promotion of any particular religion:

Under Article 27, the constitution lays down that no person shall be compelled to

pay any taxes, the proceeds of which are specifically appropriated in payment ofexpenses for the promotion or maintenance of any particular religion or religious

denomination.

d) Freedom as to attendance at religious instruction or religious worship in

certain educational institutions: Under Article 28, the constitution lays three

important rights. These are-

(i) No religious instruction shall be provided in any educational

institution wholly maintained out of State funds.

(ii) However, it does not apply to an educational institution which is

administered by the State but has been established under any endowment or trust

which requires that religious instruction shall be imparted in such institution.

(iii) No person attending any educational institution can be forced to

participate in a religious worship that may be conducted in the institution.


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This right has certain qualifications. Exercised of this right is subject to public order,

morality and health.

5. Cultural and educational rights: We know that India is a country with many

languages, religions and cultures. The constitution, by cultural and educational

rights provides measures to protect these. Article 29 and 30 of Indian constitution

provide that minority shall have the right to conserve its own language, script,

literature and culture. The idea of incorporating the culture and the educational

rights in the Constitution is to enable the minorities to conserve their culture. The

Constitution guarantees these rights by laying down that-

a) Right to maintain Language, Script and Culture: Under the Article 29 of the

constitution of India it lays down that any section of the citizens residing in India or

any part thereof having a distinct language, script or culture of its own shall have

the right to conserve the same. The Article also lays that citizens shall not be

denied admission into any educational institution maintained by the State or

receiving aid out of State funds on grounds only of religion, race, caste, language or

any of them.

b) Right of minorities to establish and administer educational institutions: Article

30 of the Constitution admits that all minorities, irrespective of religion or language,

shall have the right to establish and administer educational institutions of their

choice. According to the Article in making any law providing for the compulsory

acquisition of any property of an educational institution established and

administered by a minority, the State shall ensure that the amount fixed by or

determined under such law for the acquisition of such property is such as would not

restrict or abrogate the right guaranteed. The State shall not also, in granting aid to

educational institutions, discriminate against any educational institution on the

ground that it is under the management of a minority, whether based on religion or

language.

These rights granted under these Article tries to promote culture and education

both minorities and majorities of the society in homogeneous way. Based on the

philosophy we found in the preamble, these rights ensure every citizens right to

equal and uniform behavior of the state toward its citizens culture.

6. Right to Constitutional Remedies: Article 32 of the Constitution of India provides

for the enforcement of rights to constitutional remedies. As we know that rights in

order to be meaningful must be enforceable and backed by remedies in case of

violation. Our constitution therefore not only guarantees certain fundamental rights


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but under this article providing the right to constitutional remedies also guarantees

the right to move to the Supreme Court for its enforcement. The Constitution, by

this article ensures that-

(i) The right to move the Supreme Court by appropriate

proceedings for the enforcement of the fundamental rights.

(ii) The Supreme Court shall have power to issue directions or orders

or writs like habeas corpus, mandamus, prohibition, quo warranto and certiorari,

whichever may be appropriate, for the enforcement of any of these rights.

(iii) Without prejudice to the powers conferred on the Supreme Court,

the Parliament may by law empower any other court to exercise within the local

limits of its jurisdiction all or any of the powers exercisable by the Supreme Court

for fundamental rights.

(iv) This article also says that the right guaranteed by this article shall

not be suspended except as otherwise provided for by this Constitution.

According to this Article a citizen can move to the Supreme Court for getting his

fundamental rights.

Text Box: Features of Fundamental Rights We can find the followings as features of

Fundamental Rights of Indian Constitution: 1. Elaborative and comprehensive

Fundamental Rights. 2. Special Rights for the minorities. 3. Both negative and

positive rights. 4. Some Rights are for both Citizen and others and some are only for

citizens. 5. Fundamental Rights are not absolute. 6. Constitution also looks atenforcement of the Fundamental Rights. 7. Parliament has the power to amend

Fundamental Rights. 8. Provision for suspension of Fundamental Rights. 9.

Constitutional superiority of the Fundamental Rights. 10. Fundamental Rights apply

not only to the state and its agencies but also to private individuals and

organizations. These six are the fundamental rights guaranteed in part III of the

constitution. While looking at these rights we can see that some of them are

available for all persons and some of them can be claimed only by the Indian

Citizens. For examples- equality before law and equal protection of all laws,

protection in respect of conviction for offences, protection of life and personal

liberty, free and compulsory education for children of 6-14 years, protection against

arrest and detention in certain cases, freedom of religion are for all irrespective

their citizenship. On the other hand non discrimination on the ground of religion,

race, caste, sex etc. equal opportunity in public employment, freedom of speech,

expression are only for citizen of India.

Features and Significance of Fundamental Rights:


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Justice Gajendragadkar described, narrating the significance of Fundamental Rights

as the very foundation and cornerstone of the democratic way of life ushered in

India by the constitution. It represents the basic values cherished by the people of

this country. These were included in the constitution because they are essential forthe development of every individual and to preserve human dignity. The democracy

will not have any meaning without these rights.

The Fundamental Rights guaranteed under the constitution not only

protects but also prevent gross violation of human rights. These rights emphasize

on the fundamental unity of India by guaranteeing to all citizens the access and use

of the same facilities, irrespective of background.

We already know that some fundamental rights apply for persons of any nationality

and others are available only to the citizens of India. This indicates us how these are

so important that even a non citizen must enjoy it. We know that some rights are

positive and some are negative. Fundamental rights primarily protect individuals

from any arbitrary state actions, but as some are negative they are enforceable

against individuals. For example abolition of Untouchability and prohibition of begar

by the constitution check both on state action as well as the action of private

individuals. You may have heard about Kasab, who was arrested in Mumbai. He was

a non Indian citizen and he was arrested for his unlawful activity. India had not

punished or killed him without a trial as the constitution in Fundamental Rights does

not permit that. This implies the significance of these rights.

Directive Principles of State Policy:

After knowing about the Fundamental Rights, it is also important for us to know

about the guiding principles that are available in the Constitution to direct the state.

Dr. BR Ambedkar said about the Directive Principles of State Policies as the Novel

feature of the Constitution. But what we understand by Directive Principles of

State Policies? What is its significance in the constitution? Where these principles

are recorded? What is the History of this Direc

Documents

Indian Cons and Polity