Fundamental Rights in India

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'Part III Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violation of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of thejudiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, colour or gender. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. The six fundamental rights recognised by the constitution are:[1]
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1) Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles. 2) Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases. 3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;

4) Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes. 5) Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice. 6) Right to constitutional remedies for enforcement of Fundamental Rights. Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions. Right to property was originally a fundamental right, but is now a legal right.

Contents
[hide]

1 Genesis 2 Significance and characteristics 3 Right to equality 4 Right to freedom 5 Right against exploitation 6 Right to freedom of religion 7 Cultural and educational rights 8 Right to life 9 Right to constitutional remedies 10 Critical analysis 11 Amendments
o o

11.1 Right to property 11.2 Right to education

12 See also 13 References 14 Footnotes

[edit]Genesis

See also: Indian independence movement The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights (1689), the United States Bill of Rights(approved on 17 September 1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified on 26 August 1789).[2]Under the educational system of British Raj, students were exposed to ideas of democracy, human rights and European political history. The Indian student community in England was further inspired by the workings of parliamentary democracy and Britishers political parties. In 1919, the Rowlatt Act gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout the country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population. In 1928, the Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defence of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom.[3] Committing themselves to socialism in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges. When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India, composing of elected representatives under the presidency of Rajendra Prasad. While members of Congress composed of a large majority, Congress leaders appointed persons from diverse political backgrounds to responsibilities of developing the constitution and national laws.[4] Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees responsible for different subjects. A notable development during that period having significant effect on the Indian constitution took place on 10 December 1948 when the United Nations General Assembly adopted the Universal

Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions. The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949) prepared by the Drafting Committee.

[edit]Significance

and characteristics

The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognised and protected by the State.[5] According to them, "democracy" is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights.[6]

Rights

Theoretical distinctions

Claim rights and liberty rights Individual and group rights Natural and legal rights Negative and positive rights Human rights

Civil and political

Economic, social and cultural

Three generations Rights by claimant

Animals

Authors

Children

Fathers Fetuses

Humans

Indigenes

Kings

LGBT Men

Minorities

Mothers

Plants

Students Women

Workers

Youth

Other groups of rights

Civil liberties

Digital

Linguistic

Reproductive

V

All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "Public interest litigation".[7] In some cases, High Court judges have acted on their own on the basis of newspaper reports. These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasise on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including non-resident Indian citizens.[8] The right to equality in matters of public employment cannot be conferred to overseas citizens of India.[9] Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals.[10] For instance, the Constitution abolishes untouchability and also prohibits begar. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled[11] that all provisions of the Constitution, including fundamental rights can be amended. However, the Parliament cannot alter the basic structure of the constitution. Features such as secularism and democracy fall under this category. Since the fundamental rights can only be altered by a constitutional amendment, their inclusion is a check not only on theexecutive branch, but also on the Parliament and state legislatures.[12]

A state of national emergency has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws which go against the rights given in Article 19. Also, the President may by order suspend the right to move court for the enforcement of other rights as well.

[edit]Right

to equality

Right to equality is an important right provided for in Articles 14, 15, 16, 17 and 18 of the constitution. It is the principal foundation of all other rights and liberties, and guarantees the following:

Equality before law: Article 14 of the constitution guarantees that all citizens shall be equally protected by the laws of the country. It means that the State[5] cannot discriminate any of the Indian citizens on the basis of their caste, creed, colour, sex, gender, religion or place of birth.[13]

Social equality and equal access to public areas: Article 15 of the constitution states that no person shall be discriminated on the basis of caste, colour, language etc. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes.[14]

Equality in matters of public employment: Article 16 of the constitution lays down that the State cannot discriminate against anyone in the matters of employment. All citizens can apply for government jobs. There are some exceptions. The Parliament may enact a law stating that certain jobs can only be filled by applicants who are domiciled in the area. 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 in the services under the State to bring up the weaker sections of the society. Also, there a law may be passed which requires that the holder of an office of any religious institution shall also be a person professing that particular religion.[15] According to the Citizenship (Amendment) Bill, 2003, this right shall not be conferred to Overseas citizens of India.[9]

Abolition of untouchability: Article 17 of the constitution abolishes the practice of untouchability. Practice of untouchability is an offence and anyone doing so is punishable by law.[16] TheUntouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well.

Abolition of Titles: Article 18 of the constitution prohibits the State from conferring any titles. Citizens of India cannot accept titles from a foreign State.[17] 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 India. The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition".[18] The Supreme Court, on 15 December 1995, upheld the validity of such awards.

[edit]Right

to freedom

The Constitution of India contains the right to freedom, given[19] in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.It is a cluster of four main laws. The right to freedom in Article 19 guarantees the following six freedoms: [20]

Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.

Freedom to assemble peacefully without arms, on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India.

Freedom to form associations or unions on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India.

Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics.

Freedom to reside and settle in any part of the territory of India which is also subject to reasonable restrictions by the State in the interest of the general public or for the protection of thescheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion.[21] Article 370 restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir.[22]

Freedom to practice any profession or to carry on any occupation, trade or business on which the State may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practising any profession or carrying on any trade.

The constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced:

Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it. Moreover, no person accused of any offence shall be compelled to be a witness against himself. "Compulsion" in this article refers to what in law is called "Duress" (injury, beating or unlawful imprisonment to make a person do something that he does not want to do). This article is known as a safeguard against self incrimination. The other principle enshrined in this article is known as the principle of double jeopardy, that is, no person can be convicted twice for the same offence, which has been derived from Anglo Saxon law. This principle was first established in the Magna Carta.[23]

Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law.[24] This means that a person's life and personal liberty can only be disputed if that person has committed a crime. However, the right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence. (Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code, under which people attempting suicide could face prosecution and prison terms of up to one year.[25] In 1996 however another Supreme Court ruling nullified the earlier one.[26]) "Personal liberty" includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under "personal liberty" in Article 21.[27]

In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made the right to primary education part of the right to freedom, stating that the State would provide free and compulsory education to children from six to fourteen years of age.[28] Six years after an amendment was made in the Indian Constitution, the union cabinet cleared the Right to Education Bill in 2008. It is now soon to be tabled in Parliament for approval before it makes a fundamental right of every child to get free and compulsory education.[29]

Rights of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also an arrested citizen has to be brought before the

nearest magistrate within 24 hours. The rights of a person arrested under ordinary circumstances are not available to an enemy alien. They are also not available to persons detained under the Preventive Detention Act. Under preventive detention, the government can imprison a person for a maximum of three months. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. After three months such a case is brought before an advisory board for review.[30] The constitution also imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India. In the interest of morality and public order, the government can also impose restrictions. However, the right to life and personal liberty cannot be suspended. The six freedoms are also automatically suspended or have restrictions imposed on them during a state of emergency.

[edit]Right

against exploitation

Child labour and Begar is prohibited under Right against exploitation.

The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and Begar (forced labour),[31] and abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour is considered a gross violation of the spirit and provisions of the constitution.[32] Begar, practised in the past by landlords, has been declared a crime and is punishable by law. Trafficking in humans for the purpose of slave trade or prostitution is also prohibited by law. An exception is made in employment without payment for compulsory services for public purposes. Compulsory military conscription is covered by this provision.[31]

[edit]Right

to freedom of religion

Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice.

Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health.[33] No person shall be compelled to pay taxes for the promotion of a particular religion.[34] A State run institution cannot impart education that is pro-religion.[35] Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.[36]

[edit]Cultural

and educational rights

The Flag of India

As India is a country of many languages, religions, and cultures, the Constitution provides special measures, in Articles 29 and 30, to protect the rights of the minorities. Any community which has a language and a script of its own has the right to conserve and develop it. No citizen can be discriminated against for admission in State or State aided institutions.[37] All minorities, religious or linguistic, can set up their own educational institutions to preserve and develop their own culture. In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution.[38] But the right to administer does not mean that the State cannot interfere in case of maladministration. In a precedent-setting judgment in 1980, the Supreme Court held that the State can certainly take regulatory measures to promote the efficiency and excellence of educational standards. It can also issue guidelines for ensuring the security of the services of the teachers or other employees of the institution. In another landmark judgement delivered on 31 October 2002, the Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could only be through a common entrance test conducted by State or a university. Even an unaided minority institution ought not to ignore the merit of the students for admission.

[edit]Right

to life

In recent judgement Supreme Court of India extended scope of right to life which was mentioned earlier.

[edit]Right

to constitutional remedies

Right to constitutional remedies empowers the citizens to move a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. When a national or state emergency is declared, this right is suspended by the central government.[39]

[edit]Critical

analysis

The fundamental rights have been revised for many reasons. Political groups have demanded that the right to work, the right to economic assistance in case of unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity, [40] though these provisions have been enshrined in the Directive Principles of state policy.[41] The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticised for failing to check the sanctioning of powers often deemed "excessive".[40]There is also the provision of preventive detention and suspension of fundamental rights in times of Emergency. The provisions of acts like the Maintenance of Internal Security Act (MISA) and theNational Security Act (NSA) are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil rights.[40] The phrases "security of State", "public order" and "morality" are of wide implication. People of alternate sexuality are criminalized in India with prison term up to 10 years. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation.[40] The freedom to assemble peacably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods.[42][43] "Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more legitimate.[40] Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution. More than 16.5 million children are employed and working in India.[44] India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians worldwide. [45] The right to equality in matters regarding public employment shall not be conferred to overseas citizens of India, according to the Citizenship (Amendment) Bill, 2003.[9]

[edit]Amendments

Changes to the fundamental rights require a constitutional amendment which has to be passed by a special majority of both houses of Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting should not be less than the simple majority of the house whether the Lok Sabha or Rajya Sabha. The right to education at elementary level has been made one of the fundamental rights under the Eighty-Sixth Amendment of 2002.[28]

[edit]Right

to property

The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes. The provisions relating to the right to property were changed a number of times. The Forty-Forth Amendment of 1978 deleted the right to property from the list of fundamental rights[46] A new provision, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.[40] The liberalisation of the economy and the government's initiative to set up special economic zones has led to many protests by farmers and have led to calls for the reinstatement of the fundamental right to private property.[47] The Supreme Court has sent a notice to the government questioning why the right should not be brought back but in 2010 the court rejected the PIL[48] As in 2007 the supreme court unanimously said that the fundamental rights are a basic structure of the constitution and cannot be removed or diluted on that time.

[edit]Right

to education

Article 21A On 1 April 2010, India joined a group of few countries in the world, with a historic law making education a fundamental right of every child coming into force.[49] Making elementary education an entitlement for children in the 614 age group, the Right of Children to Free and Compulsory Education Act will directly benefit children who do not go to school at present. Prime Minister Manmohan Singh announced the operationalisation of the Act. Children, who had either dropped out of schools or never been to any educational institution, will get elementary education as it will be binding on the part of the local and State governments to ensure that all children in the 614 age group get

schooling. As per the Act, private educational institutions should reserve 25 per cent seats for children from the weaker sections of society. The Centre and the States have agreed to share the financial burden in the ratio of 55:45, while the Finance Commission has given Rs.250 billion to the States for implementing the Act. The Centre has approved an outlay of Rs.150 billion for 20102011. The school management committee or the local authority will identify the drop-outs or out-of-school children aged above six and admit them in classes appropriate to their age after giving special training.

Directive Principles in India

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The Directive Principles of State Policy are guidelines to the central and state governments of India, to be kept in mind while framing laws and policies. These provisions, contained in Part IV of the Constitution of India, are not enforceable by any court, but the principles laid down therein are considered fundamental in the governance of the country, making it the duty of the State[1] to apply these principles in making laws to establish a just society in the country. The principles have been inspired by the Directive Principles given in the Constitution of Ireland and also by the principles of Gandhism; and relate to social justice, economic welfare, foreign policy, and legal and administrative matters. Directive Principles are classified under the following categories: Gandhian, economic and socialistic, political and administrative, justice and legal, environmental, protection of monuments and peace and security.[2]

Contents

1 History 2 Characteristics 3 Directives 4 Implementation 5 Amendments 6 See also 7 Notes 8 References

[edit] History
See also: Indian independence movement The concept of Directive Principles of State Policy was borrowed from the Irish Constitution. The makers of the Constitution of India were influenced by the Irish nationalist movement. Hence, the Directive Principles of the Indian constitution have been greatly influenced by the Directive Principles of State Policy.[3] The idea of such policies "can be traced to the Declaration of the Rights of Man proclaimed by Revolutionary France and the Declaration of Independence by the American Colonies."[4] The Indian constitution was also influenced by the United Nations Universal Declaration of Human Rights. In 1919, the Rowlatt Acts gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout the country, demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in the Irish Constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population. In 1928, the Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defense

of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom.[5] Committing themselves to socialism in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges. When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India, composing of elected representatives under the presidency of Dr. Rajendra Prasad. While members of Congress composed of a large majority, Congress leaders appointed persons from diverse political backgrounds to responsibilities of developing the constitution and national laws.[6] Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees responsible for different subjects. A notable development during that period having significant effect on the Indian constitution took place on 10 December 1948 when the United NationsGeneral Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions. Both the Fundamental Rights and the Directive Principles of State Policy were included in the I Draft Constitution (February 1948), the II Draft Constitution (17 October 1948) and the III and final Draft Constitution (26 November 1949), being prepared by the Drafting Committee.

[edit] Characteristics
DPSPs aim to create social and economic conditions under which the citizens can lead a good life. They also aim to establish social and economic democracy through awelfare state. They act as a check on the government, theorized as a yardstick in the hands of the people to measure the performance of the government and vote it out of power if it does not fulfill the promises made during the elections. The Directive Principles are non-justiciable rights of the people. Article 31-C, inserted by the 25th Amendment Act of 1971 seeks to upgrade the Directive Principles.[7] If laws are made to give effect to the Directive Principles over Fundamental Rights, they shall not be invalid on the grounds that they take away the Fundamental Rights. In case of a conflict between Fundamental Rights and DPSP's, if the DPSP aims at promoting larger interest of the society, the courts shall have to uphold the case in favour of the DPSP.[8] The Directive Principles, though not justiciable, are fundamental in the governance of the country. It shall be the duty of the State[1] to apply these principles

in making laws.[9] Besides, all executive agencies should also be guided by these principles. Even the judiciary has to keep them in mind in deciding cases.[10][11]

[edit] Directives
The directive principles ensure that the State[1] shall strive to promote the welfare of the people by promoting a social order in which social, economic and political justice is informed in all institutions of life. Also, the State shall work towards reducing economic inequality as well as inequalities in status and opportunities, not only among individuals, but also among groups of people residing in different areas or engaged in different vocations.[12] The State shall aim for securing right to an adequate means of livelihood for all citizens, both men and women as well as equal pay for equal work for both men and women. The State should work to prevent concentration of wealth and means of production in a few hands, and try to ensure that ownership and control of the material resources is distributed to best serve the common good. Child abuse and exploitation of workers should be prevented. Children should be allowed to develop in a healthy manner and should be protected against exploitation and against moral and material abandonment.[13] The State shall provide free legal aid to ensure that equal opportunities for securing justice is ensured to all, and is not denied by reason of economic or other disabilities.[14] The State shall also work for organisation of village panchayats and help enable them to function as units of self-government.[15] The State shall endeavour to provide the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, within the limits of economic capacity,[16] as well as provide for just and humane conditions of work and maternity relief.[17] The State should also ensure living wage and proper working conditions for workers, with full enjoyment of leisure and social and cultural activities. Also, the promotion of cottage industries in rural areas is one of the obligations of the State.[18] The State shall take steps to promote their participation in management of industrial undertakings.[19] Also, the State shall endeavour to secure a uniform civil code for all citizens,[20] and provide free and compulsory education to all children till they attain the age of 14 years.[21] This directive regarding education of children was added by the 86th Amendment Act, 2002.[22] It should and work for the economic and educational upliftment of scheduled castes, scheduled tribes and other weaker sections of the society.[23] The directive principles commit the State to raise the level of nutrition and the standard of living and to improve public health, particularly by prohibiting

intoxicating drinks and drugs injurious to health except for medicinal purposes.[24] It should also organise agriculture and animal husbandry on modern and scientific lines by improving breeds and prohibiting slaughter of cows, calves, other milch and draught cattle[25][26] It should protect and improve the environment and safeguard the forests and wild life of the country.[27] This directive, regarding protection of forests and wildlife was added by the 42nd Amendment Act, 1976.[28] Protection of monuments, places and objects of historic and artistic interest and national importance against destruction and damage,[29] and separation of judiciary from executive in public services[30] are also the obligations of the State as laid down in the directive principles. Finally, the directive principles, in Article 51 ensure that the State shall strive for the promotion and maintenance of international peace and security, just and honourable relations between nations, respect for international law and treaty obligations, as well as settlement of international disputes by arbitration.[31]

[edit] Implementation
The State has made many efforts to implement the Directive Principles. The Programme of Universalisation of Elementary Education and the five-year plans has been accorded the highest priority in order to provide freeeducation to all children up to the age of 14 years. The 86th constitutional amendment of 2002 inserted a new article, Article 21-A, into the Constitution, that seeks to provide free and compulsory education to all children aged 6 to 14 years.[22] Welfare schemes for the weaker sections are being implemented both by the Central and state governments. These include programmes such as boys' and girls' hostels for scheduled castes' orscheduled tribes' students.[32] The year 1990-1991 was declared as the "Year of Social Justice" in the memory of B.R. Ambedkar.[33] The government provides free textbooks to students belonging to scheduled castes or scheduled tribes pursuing medicine and engineering courses. During 2002-2003, a sum of Rs. 4.77 crore was released for this purpose.[34] In order that scheduled castes and scheduled tribes are protected from atrocities, the Government enacted the The Prevention of Atrocities Act, which provided severe punishments for such atrocities.[35] Several Land Reform Acts were enacted to provide ownership rights to poor farmers.[36] Up to September 2001, more than 20,000,000 acres (80,000 km) of land had been distributed to scheduled castes, scheduled tribes and the landless poor. The thrust of banking policy in India has been to improve banking facilities in the rural areas.[37] The Minimum Wages Act of 1948 empowers government to fix minimum wages for employees engaged in various employments.[38] The Consumer Protection Act of 1986 provides for the better protection of consumers. The act is intended to provide simple, speedy and inexpensive redressal to the consumers' grievances, award

relief and compensation wherever appropriate to the consumer.[citation needed] The Equal Remuneration Act of 1976, provides for equal pay for equal work for both men and women.[39] TheSampoorna Grameen Rozgar Yojana was launched in 2001 to attain the objective of gainful employment for the rural poor. The programme was implemented through the Panchayati Raj institutions.[40] Panchayati Raj now covers almost all states and Union territories.[41] One-third of the total number of seats have been reserved for women in Panchayats at every level; in the case of Bihar, half the seats have been reserved for women.[42][43] Legal aid at the expense of the State has been made compulsory in all cases pertaining to criminal law, if the accused is too poor to engage a lawyer.[14] Judiciary has been separated from the executive in all the states and Union territories except Jammu and Kashmir and Nagaland.[30][34] India's Foreign Policy has also to some degree been influenced by the DPSPs. India has in the past condemned all acts of aggression and has also supported the United Nations peace-keeping activities. By 2004, theIndian Army had participated in 37 UN peace-keeping operations. India played a key role in the passing of a UN resolution in 2003, which envisaged better cooperation between the Security Council and the troop-contributing countries.[44] India has also been in favour of nuclear disarmament.[34]

[edit] Amendments
Changes in Directive Principles require a Constitutional amendment which has to be passed by a special majority of both houses of the Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting should not be less than the simple majority of the house whether the Lok Sabha or Rajya Sabha.

Article 31-C, inserted into the Directive Principles of State Policy by the 25th Amendment Act of 1971 seeks to upgrade the DPSPs.[45] If laws are made to give effect to the Directive Principles over Fundamental Rights, they shall not be invalid on the grounds that they take away the Fundamental Rights.[8] Article 45, which ensures Provision for free and compulsory education for children,[21] was added by the 86th Amendment Act, 2002.[22] Article 48-A, which ensures Protection and improvement of environment and safeguarding of forests and wild life,[27] was added by the 42nd Amendment Act, 1976.[28]

[edit] See also

undamental Rights, Directive Principles and Fundamental Duties of India

From Wikipedia, the free encyclopedia

The Preamble (original text, i.e. before the 42nd Amendment) of the Constitution of India India's fundamental and supreme law
The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State.[note 1] These sections comprise a constitutional bill of rights for government policymaking and the behavior and conduct of citizens. These sections are considered vital elements of the constitution, which was developed between 1947 and 1949 by the Constituent Assembly of India. The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste, creed or sex. They are enforceable by the courts, subject to specific restrictions. The Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles on which

they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing laws. The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties, set out in Part IVA of the Constitution (under a constitutional amendment) concern individuals and the nation. Like the Directive Principles, they are not legally enforceable.

Contents
[hide]

1 History 2 Fundamental Rights

o o o o o o

2.1 Right to Equality 2.2 Right to Freedom 2.3 Right against Exploitation 2.4 Right to Freedom of Religion 2.5 Cultural and Educational Rights 2.6 Right to constitutional remedies

3 Directive Principles of State Policy 4 Fundamental Duties 5 Criticism and analysis 6 Relationship between the Fundamental Rights, Directive Principles and Fundamental Duties 7 See also 8 Notes 9 Footnotes 10 References 11 Further reading 12 External links

[edit]History
See also: Indian independence movement and Constituent Assembly of India The Fundamental Rights and Directive Principles had their origins in the Indian independence movement, which strove to achieve the values of liberty and social welfare as the goals of an independent Indian state.[1] The development of constitutional rights in India was inspired by historical documents such as England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.[2] The

demand for civil liberties formed an important part of the Indian independence movement, with one of the objectives of the Indian National Congress (INC) being to end discrimination between the British rulers and their Indian subjects. This demand was explicitly mentioned in resolutions adopted by the INC between 1917 and 1919.[3] The demands articulated in these resolutions included granting to Indians the rights to equality before law, free speech, trial by juries composed at least half of Indian members, political power, and equal terms for bearing arms as British citizens.[4] The experiences of the First World War, the unsatisfactory Montague-Chelmsford reforms of 1919, and the rise to prominence of M. K. Gandhi in the Indian independence movement marked a change in the attitude of its leaders towards articulating demands for civil rights. The focus shifted from demanding equality of status between Indians and the British to assuring liberty for all Indians.[5] The Commonwealth of India Bill, drafted by Annie Beasant in 1925, specifically included demands for seven fundamental rights individual liberty, freedom of conscience, free expression of opinion, freedom of assembly, non-discrimination on the ground of sex, free elementary education and free use of public spaces.[6] In 1927, the INC resolved to set up a committee to draft a "Swaraj Constitution" for India based on a declaration of rights that would provide safeguards against oppression. The 11-member committee, led by Motilal Nehru, was constituted in 1928. Its report made a number of recommendations, including proposing guaranteed fundamental rights to all Indians. These rights resembled those of the American Constitution and those adopted by post-war European countries, and several of them were adopted from the 1925 Bill. Several of these provisions were later replicated in various parts of the Indian Constitution, including the Fundamental Rights and Directive Principles. [7] In 1931, the Indian National Congress, at its Karachi session, adopted a resolution committing itself to the defence of civil rights and economic freedom, with the stated objectives of putting an end to exploitation, providing social security and implementing land reforms. Other new rights proposed by the resolution were the prohibition of State titles, universal adult franchise, abolition of capital punishment and freedom of movement.[8] Drafted by Jawaharlal Nehru, the resolution, which later formed the basis for some of the Directive Principles, placed the primary responsibility of carrying out social reform on the State, and marked the increasing influence of socialism and Gandhian philosophy on the independence movement.[9] The final phase of the Independence movement saw a reiteration of the socialist principles of the 1930s, along with an increased focus on minority rights which had become an issue of major political concern by then which were published in the Sapru Report in 1945. The report, apart from stressing on protecting the rights of minorities, also sought to prescribe a "standard of conduct for the legislatures, government and the courts". [10] During the final stages of the [British Raj], the 1946 Cabinet Mission to India proposed a Constituent Assembly to draft a Constitution for India as part of the process of transfer of power.[11] The Constituent Assembly of India, composed of indirectly elected representatives from the British provinces and Princely states, commenced its proceedings in December 1946, and completed drafting the Constitution of India by November 1949.[12] According to the Cabinet Mission plan, the Assembly was to have an Advisory Committee to advise it

on the nature and extent of fundamental rights, protection of minorities and administration of tribal areas. Accordingly, the Advisory Committee was constituted in January 1947 with 64 members, and from among these a twelve-member sub-committee on Fundamental Rights was appointed under the chairmanship of J.B. Kripalani in February 1947.[13] The sub-committee drafted the Fundamental Rights and submitted its report to the Committee by April 1947, and later that month the Committee placed it before the Assembly, which debated and discussed the rights over the course of the following year, adopting the drafts of most of them by December 1948.[14] The drafting of the Fundamental Rights was influenced by the adoption of the Universal Declaration of Human Rights by the U.N. General Assembly and the activities of the United Nations Human Rights Commission,[15] as well as decisions of the U.S. Supreme Court in interpreting the Bill of Rights in the American Constitution.[16] The Directive Principles, which were also drafted by the sub-committee on Fundamental Rights, expounded the socialist precepts of the Indian independence movement, and were inspired by similar principles contained in the Irish Constitution.[17] The Fundamental Duties were later added to the Constitution by the 42nd Amendment in 1976.[18]

[edit]Fundamental

Rights

Main article: Fundamental Rights in India The Fundamental Rights, embodied in Part III of the Constitution, guarantee civil rights to all Indians, and prevent the State from encroaching on individual liberty while simultaneously placing upon it an obligation to protect the citizens' rights from encroachment by society.[19] Seven fundamental rights were originally provided by the Constitution right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies.[20] However, the right to property was removed from Part III of the Constitution by the 44th Amendment in 1978.[21][note 2] The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles based on equality of all members of society.[22] They act as limitations on the powers of the legislature and executive, under Article 13,[note 3] and in case of any violation of these rights the Supreme Court of India and the High Courts of the states have the power to declare such legislative or executive action as unconstitutional and void.[23] These rights are largely enforceable against the State, which as per the wide definition provided in Article 12, includes not only the legislative and executive wings of the federal and state governments, but also local administrative authorities and other agencies and institutions which discharge public functions or are of a governmental character.[24] However, there are certain rights such as those in Articles 15, 17, 18, 23, 24 that are also available against private individuals.[25] Further, certain Fundamental Rights including those under Articles 14, 20, 21, 25 apply to persons of any nationality upon Indian soil, while others such as those under Articles 15, 16, 19, 30 are applicable only tocitizens of India.[26][27]

Rights

Theoretical distinctions

Claim rights and liberty rights Individual and group rights Natural and legal rights Negative and positive rights Human rights

Civil and political

Economic, social and cultural

Three generations Rights by claimant

Animals

Authors

Children

Fathers Fetuses

Humans

Indigenes

Kings

LGBT Men

Minorities

Mothers

Plants

Students Women

Workers

Youth

Other groups of rights

Civil liberties

Digital

Linguistic

Reproductive

V

The Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of public interest.[24] In theKesavananda Bharati v. State of Kerala case in 1973,[note 4] the Supreme Court, overruling a previous decision of 1967, held that the Fundamental Rights could be amended, subject to judicial review in case such an amendment violated the basic structure of the Constitution.[28] The Fundamental Rights can be enhanced, removed or otherwise altered through a constitutional amendment, passed by a two-

thirds majority of each House of Parliament.[29] The imposition of a state of emergency may lead to a temporary suspension any of the Fundamental Rights, excluding Articles 20 and 21, by order of the President. [30] The President may, by order, suspend the right to constitutional remedies as well, thereby barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and 21, during the period of the emergency.[31] Parliament may also restrict the application of the Fundamental Rights to members of the Indian Armed Forces and the police, in order to ensure proper discharge of their duties and the maintenance of discipline, by a law made under Article 33.[32]

[edit]Right

to Equality

The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles 1416, which collectively encompass the general principles of equality before law and non-discrimination,[33] and Articles 17 18 which collectively further the philosophy of social equality.[34] Article 14 guarantees equality before law as well as equal protection of the law to all persons within the territory of India.[note 5] This includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances.[35] The latter permits the State to classify persons for legitimate purposes, provided there is a reasonable basis for the same, meaning that the classification is required to be non-arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as have a rational relation to the object sought to be achieved by the classification.[36] Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex, place of birth, or any of them. This right can be enforced against the State as well as private individuals, with regard to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds.[37] However, the State is not precluded from making special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled Castes and Scheduled Tribes. This exception has been provided since the classes of people mentioned therein are considered deprived and in need of special protection.[38] Article 16 guarantees equality of opportunity in matters of public employment and prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or any of them. It creates exceptions for the implementation of measures of affirmative action for the benefit of any backward class of citizens in order to ensure adequate representation in public service, as well as reservation of an office of any religious institution for a person professing that particular religion.[39] The practice of untouchability has been declared an offence punishable by law under Article 17, and the Protection of Civil Rights Act, 1955 has been enacted by the Parliament to further this objective.[34] Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state. Thus, Indian aristocratic titles and titles of nobility conferred by the British have been abolished. However, awards such as the Bharat Ratna have been held to be valid by the

Supreme Court on the ground that they are merely decorations and cannot be used by the recipient as a title.[40][41]

[edit]Right

to Freedom

The Right to Freedom is covered in Articles 1922, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six freedoms in the nature of civil rights, which are available only to citizens of India.[42][[43]] These include the freedom of speech and expression, freedom of assembly, freedom of association without arms, freedom of movement throughout the territory of India,freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may imposed on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to the freedom sought to be restricted, and include national security, public order, decency and morality, contempt of court, incitement to offences, and defamation. The State is also empowered, in the interests of the general public to nationalise any trade, industry or service to the exclusion of the citizens.[44] The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20 22.[45] The scope of these articles, particularly with respect to the doctrine of due process, was heavily debated by the Constituent Assembly. It was argued, especially by Benegal Narsing Rau, that the incorporation of such a clause would hamper social legislation and cause procedural difficulties in maintaining order, and therefore it ought to be excluded from the Constitution altogether.[46] The Constituent Assembly in 1948 eventually omitted the phrase "due process" in favour of "procedure established by law".[47] As a result, Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law,[note 6] was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable, [48] and effectively reading due process into Article 21.[49] In the same case, the Supreme Court also ruled that "life" under Article 21 meant more than a mere "animal existence"; it would include the right to live with human dignity and all other aspects which made life "meaningful, complete and worth living".[50] Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, clean environment, good health, speedy trial and humanitarian treatment while imprisoned. [51] The right to education at elementary level has been made one of the Fundamental Rights under Article 21A by the 86th Constitutional amendment of 2002.[52] Article 20 provides protection from conviction for offences in certain respects, including the rights against ex post facto laws, double jeopardy and freedom from self-incrimination.[53] Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer

of one's own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate.[54] The Constitution also authorises the State to make laws providing forpreventive detention, subject to certain other safeguards present in Article 22.[55] The provisions pertaining to preventive detention were discussed with skepticism and misgivings by the Constituent Assembly, and were reluctantly approved after a few amendments in 1949.[56] Article 22 provides that when a person is detained under any law of preventive detention, the State can detain such person without trial for only three months, and any detention for a longer period must be authorised by an Advisory Board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity.[57]

[edit]Right

against Exploitation

Child labor and Begar is prohibited under the Right against Exploitation.
The Right against Exploitation, contained in Articles 2324, lays down certain provisions to prevent exploitation of the weaker sections of the society by individuals or the State.[58] Article 23 provides prohibits human trafficking, making it an offence punishable by law, and also prohibits forced labour or any act of compelling a person to work without wages where he was legally entitled not to work or to receive remuneration for it. However, it permits the State to impose compulsory service for public purposes, including conscription and community service.[59][60] The Bonded Labour system (Abolition) Act, 1976, has been enacted by Parliament to give effect to this Article.[61] Article 24 prohibits the employment of children below the age of 14 years in factories, mines and other hazardous jobs. Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986, providing regulations for the abolition of, and penalties for employing, child labour, as well as provisions for rehabilitation of former child labourers.[62]

[edit]Right

to Freedom of Religion

See also: Secularism in India Any person can change their religion according to their wish no person can force a person to change his/her religion. The Right to Freedom of Religion, covered in Articles 2528, provides religious freedom to all citizens and ensures a secular State in India. According to the Constitution, there is no official State religion, and the State is required to treat all religions impartially and neutrally.[63] Article 25 guarantees all persons the freedom

of conscience and the right to preach, practice and propagate any religion of their choice. This right is, however, subject to public order, morality and health, and the power of the State to take measures for social welfare and reform.[64] The right to propagate, however, does not include the right to convert another individual, since it would amount to an infringement of the other's right to freedom of conscience. [65] Article 26 guarantees allreligious denominations and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with law. These provisions do not derogate from the State's power to acquire property belonging to a religious denomination.[66]The State is also empowered to regulate any economic, political or other secular activity associated with religious practice.[63] Article 27 guarantees that no person can be compelled to pay taxes for the promotion of any particular religion or religious institution.[67] Article 28 prohibits religious instruction in a wholly State-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian's) consent.[63]

[edit]Cultural

and Educational Rights

See also: Right of Children to Free and Compulsory Education Act Every person has the right to get education no person can discriminate against going to school.The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect the rights of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination.[68] Article 29 grants any section of citizens having a distinct language, script culture of its own, the right to conserve and develop the same, and thus safeguards the rights of minorities by preventing the State from imposing any external culture on them.[68][69] It also prohibits discrimination against any citizen for admission into any educational institutions maintained or aided by the State, on the grounds only of religion, race, caste, language or any of them. However, this is subject to reservation of a reasonable number of seats by the State for socially and educationally backward classes, as well as reservation of up to 50 percent of seats in any educational institution run by a minority community for citizens belonging to that community.[70] Article 30 confers upon all religious and linguistic minorities the right to set up and administer educational institutions of their choice in order to preserve and develop their own culture, and prohibits the State, while granting aid, from discriminating against any institution on the basis of the fact that it is administered by a religious or cultural minority.[69] The term "minority", while not defined in the Constitution, has been interpreted by the Supreme Court to mean any community which numerically forms less than 50% of the population of the state in which it seeks to avail the right under Article 30. In order to claim the right, it is essential that the educational institution must have been established as well as administered by a religious or linguistic minority. Further, the right under Article 30 can be availed of even if the educational institution established does not confine itself to the teaching of the religion or language of the minority concerned, or a majority of students in

that institution do not belong to such minority.[71] This right is subject to the power of the State to impose reasonable regulations regarding educational standards, conditions of service of employees, fee structure, and the utilisation of any aid granted by it.[72]

[edit]Right

to constitutional remedies

Right to constitutional remedies empowers the citizens to move to a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. When a national or state emergency is declared, this right is suspended by the central government.[73]

[edit]Directive

Principles of State Policy

Main article: Directive Principles in India The Directive Principles of State Policy, embodied in Part IV of the Constitution, are directions given to the State to guide the establishment of an economic and social democracy, as proposed by the Preamble.[74] They set forth the humanitarian and socialist instructions that were the aim of social revolution envisaged in India by the Constituent Assembly.[75] The State is expected to keep these principles in mind while framing laws and policies, even though they are non-justiciable in nature. The Directive Principles may be classified under the following categories: ideals that the State ought to strive towards achieving; directions for the exercise of legislative and executive power; and rights of the citizens which the State must aim towards securing.[74] Despite being non-justiciable, the Directive Principles act as a check on the State; theorised as a yardstick in the hands of the electorate and the opposition to measure the performance of a government at the time of an election.[76] Article 37, while stating that the Directive Principles are not enforceable in any court of law, declares them to be "fundamental to the governance of the country" and imposes an obligation on the State to apply them in matters of legislation.[77] Thus, they serve to emphasise the welfare state model of the Constitution and emphasise the positive duty of the State to promote the welfare of the people by affirming social, economic and political justice, as well as to fight income inequality and ensure individual dignity, as mandated by Article 38.[78][79] s, in order to ensure equitable distribution of land resources.[80] Article 39 lays down certain principles of policy to be followed by the State, including providing an adequate means of livelihood for all citizens, equal pay for equal work for men and women, proper working conditions, reduction of the concentration of wealth and means of production from the hands of a few, and distribution of community resources to "subserve the common good".[81]These clauses highlight the Constitutional objectives of building an egalitarian social order and establishing a welfare state, by bringing about a social revolution

assisted by the State, and have been used to support the nationalisation of mineral resources as well as public utilities.[82] Further, several legislations pertaining to agrarian reform and land tenure have been enacted by the federal and state governments, in order to ensure equitable distribution of land resources. [80] Articles 4143 mandate the State to endeavour to secure to all citizens the right to work, a living wage, social security, maternity relief, and a decent standard of living.[83] These provisions aim at establishing a socialist state as envisaged in the Preamble.[84] Article 43 also places upon the State the responsibility of promoting cottage industries, and the federal government has, in furtherance of this, established several Boards for the promotion of khadi, handlooms etc., in coordination with the state governments.[85] Article 39A requires the State to provide free legal aid to ensure that opportunities for securing justice are available to all citizens irrespective of economic or other disabilities.[86] Article 43A mandates the State to work towards securing the participation of workers in the management of industries.[84] The State, under Article 46, is also mandated to promote the interests of and work for the economic uplift of the scheduled castes and scheduled tribes and protect them from discrimination and exploitation. Several enactments, including two Constitutional amendments, have been passed to give effect to this provision.[87] Article 44 encourages the State to secure a uniform civil code for all citizens, by eliminating discrepancies between various personal laws currently in force in the country. However, this has remained a "dead letter" despite numerous reminders from the Supreme Court to implement the provision.[88] Article 45 originally mandated the State to provide free and compulsory education to children between the ages of six and fourteen years,[89] but after the 86th Amendment in 2002, this has been converted into a Fundamental Right and replaced by an obligation upon the State to secure childhood care to all children below the age of six. [52] Article 47 commits the State to raise the standard of living and improve public health, and prohibit the consumption of intoxicatingdrinks and drugs injurious to health.[90] As a consequence, partial or total prohibition has been introduced in several states, but financial constraints have prevented its full-fledged application.[91]The State is also mandated by Article 48 to organise agriculture and animal husbandry on modern and scientific lines by improving breeds and prohibiting slaughter of cattle.[92] Article 48A mandates the State to protect the environment and safeguard the forests and wildlife of the country, while Article 49 places an obligation upon the State to ensure the preservation of monuments and objects of national importance.[93] Article 50 requires the State to ensure the separation of judiciary from executive in public services, in order to ensure judicial independence, and federal legislation has been enacted to achieve this objective.[94][95] The State, according to Article 51, must also strive for the promotion of international peace and security, and Parliament has been empowered under Article 253 to make laws giving effect to international treaties.[96]

[edit]Fundamental

Duties

Any act of disrespect towards theIndian National Flag is illegal.

The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran SinghCommittee that was constituted by the government earlier that year.[18][97] Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which added a duty on every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of six and fourteen years.[52] The other Fundamental Duties obligate all citizens to respect the national symbols of India, including the Constitution, to cherish its heritage, preserve its composite culture and assist in its defense. They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life.[98] Citizens are morally obligated by the Constitution to perform these duties. However, like the Directive Principles, these are non-justifiable, without any legal sanction in case of their violation or non-compliance.[97][99] There is reference to such duties in international instruments such as theUniversal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian Constitution into conformity with these treaties. [97]

[edit]Criticism

and analysis

Fewer children are now unemployed in hazardous environments, but their employment in non-hazardous jobs, prevalently as domestic help, violates the spirit of the constitution in the eyes of many critics and human rights advocates. More than 16.5 million children are in employment.[100] India was ranked 88 out of 159 countries in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians.[101] The year 19901991 was declared as the "Year of Social Justice" in the memory of B.R. Ambedkar.[102] The government provides free textbooks to students belonging to scheduled castes and tribes pursuing medicine and engineering courses. During 20022003, a sum of Rs. 4.77 crore (47.7 million) was released for this purpose.[103] In order to protect scheduled castes and tribes from discrimination, the government enacted the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, prescribing severe punishments for such actions.[104] The Minimum Wages Act of 1948 empowers government to fix minimum wages for people working across the economic spectrum.[105] The Consumer Protection Act of 1986 provides for the better protection of consumers.

The Equal Remuneration Act of 1976 provides for equal pay for equal work for both men and women.[106] The Sampoorna Grameen Rozgar Yojana (Universal Rural Employment Programme) was launched in 2001 to attain the objective of providing gainful employment for the rural poor. The programme was implemented through the Panchayati Raj institutions.[107] A system of elected village councils, known as Panchayati Raj covers almost all states and territories of India.[108] One-third of the total number of seats have been reserved for women in Panchayats at every level; and in the case of Bihar, half the seats have been reserved for women.[109][110] The judiciary has been separated from the executive "in all the states and territories except Jammu and Kashmir and Nagaland."[103] India's foreign policy has been influenced by the Directive Principles. India supported the United Nations in peacekeeping activities, with theIndian Army having participated in 37 UN peace-keeping operations.[111] The implementation of a uniform civil code for all citizens has not been achieved owing to widespread opposition from various religious groups and political parties. The Shah Bano case (198586) provoked a political firestorm in India when the Supreme Court ruled that Shah Bano, a Muslim woman who had been divorced by her husband in 1978 was entitled to receive alimony from her former husband under Indian law applicable for all Indian women. This decision evoked outrage in the Muslim community, which sought the application of the Muslim personal law and in response the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 overturning the Supreme Court's verdict.[112] This act provoked further outrage, as jurists, critics and politicians alleged that the fundamental right of equality for all citizens irrespective of religion or gender was being jettisoned to preserve the interests of distinct religious communities. The verdict and the legislation remain a source of heated debate, with many citing the issue as a prime example of the poor implementation of Fundamental Rights.[112]

[edit]Relationship

between the Fundamental Rights, Directive Principles and Fundamental Duties

The Directive Principles have been used to uphold the Constitutional validity of legislations in case of a conflict with the Fundamental Rights. Article 31C, added by the 25th Amendment in 1971, provided that any law made to give effect to the Directive Principles in Article 39(b)(c) would not be invalid on the grounds that they derogated from the Fundamental Rights conferred by Articles 14, 19 and 31. The application of this article was sought to be extended to all the Directive Principles by the 42nd Amendment in 1976, but the Supreme Court struck down the extension as void on the ground that it violated the basic structure of the Constitution. [113] The Fundamental Rights and Directive Principles have also been used together in forming the basis of legislation for social welfare.[114] The Supreme Court, after the judgment in the Kesavananda Bharati case, has adopted the view of the Fundamental Rights and Directive Principles being complementary to each other, each supplementing the other's role in aiming at the same goal of establishing a welfare state by means of social revolution.[115] Similarly, the Supreme Court has used the Fundamental Duties to uphold the Constitutional

validity of statutes which seeks to promote the objects laid out in the Fundamental Duties. [116] These Duties have also been held to be obligatory for all citizens, subject to the State enforcing the same by means of a valid law.[98] The Supreme Court has also issued directions to the State in this regard, with a view towards making the provisions effective and enabling a citizens to properly perform their duties.[116]

[edit]See

also

Fundamental Rights in India Writs in Indian law Human rights in India Constitutional economics Rule according to higher law

[edit]Notes

Republic of India

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Local and state govt.[show]

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V

1. ^ According to Articles 12 and 36, the term State, for the purposes of the chapters on Fundamental Rights and Directive Principles, includes all authorities within the territory of India. It includes the Government of India, the Parliament of India, the Government and legislature of the states of India. It also includes all local or other authorities such as Municipal Corporations, Municipal Boards, District Boards, Panchayats etc. To avoid confusion with the term states, the administrative divisions,State (encompassing all the authorities in India) has been capitalized and the term state is in lowercase. 2. ^ The right to property is still a Constitutionally recognised right, but is now contained outside the Part on Fundamental Rights, in Article 300A which states: No person shall be deprived of his property save by authority of law. 3. ^ According to Article 13, The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. The term law has been defined to include not only legislation made by Parliament and the legislatures of the states, but also ordinances, rules, regulations, bye laws, notifications, or customs having the force of law. 4. ^ His Holiness Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461. This was popularly known as the Fundamental Rights Case. 5. ^ Article 14 states:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 6. ^ Article 21 states: No person shall be deprived of his life or personal liberty except according to procedure established by law.

[edit]Footnotes

Constitution of India
From Wikipedia, the free encyclopedia
The Constitution of India is the Supreme Law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest[1]written constitution of any sovereign country in the world, containing 448 [Note 1] articles in 22 parts, 12 schedules and 118 amendments. Besides the English version, there is an official Hindi translation. Dr B.R. Ambedkar is widely regarded as the father of the Indian Constitution. The Constitution was adopted by the Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950.[2] The date 26 January was chosen to commemorate the Purna Swaraj declaration of independence of 1930. With its adoption, the Union of India officially became the modern and contemporary Republic of India and it replaced the Government of India Act 1935 as the country's fundamental governing document. To ensure constitutionalautochthony, the constitutional framers inserted Article 395 in the constitution and by this Article the Indian Independence Act, 1947 was repealed.[3] The Constitution declares India to be
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India

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a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavours to promote fraternity among them.[4] The words "socialist" and "secular" were added to the definition in 1976 by constitutional amendment(mini constitution).[5]India celebrates the adoption of the constitution on 26 January each year as Republic Day.[6]

Contents
[hide]

1 Background
o o o

1.1 Government of India Act 1935 1.2 The Cabinet Mission Plan 1.3 Indian Independence Act 1947 2.1 Drafting 3.1 Parts 3.2 Schedules 4.1 Federal Structure 4.2 Parliamentary Democracy 4.3 Independent Judiciary

2 Constituent Assembly
o

3 Structure
o o

4 System of government
o o o

5 Changing the constitution 6 Judicial review of laws 7 See also 8 Notes 9 References 10 Biography 11 External links

[edit]Background
Main article: Indian independence movement The major portion of the Indian subcontinent was under British colonial rule from 1757 to 1947. The impact of economic, political and social exploitation during this period helped the gradual rise of the Indian independence movement to gain independence from foreign rule. The movement culminated in the formation of the Dominion

of India on 15 August 1947, along with the Dominion of Pakistan. The Constitution of India was adopted on 26 November 1949 and came into effect on 26 January 1950, proclaiming India to be a sovereign, democratic republic. It contained the founding principles of the law of the land which would govern India after its independence from British rule. On the day the constitution came into effect, India ceased to be a dominion of the British Crown. The Indian constitution is the world's longest constitution. At the time of commencement, the constitution had 395 articles in 22 parts and 8 schedules. It consists of almost 80,000 words and took 2 years 11 months and 18 days to build. In the United Kingdom the office of the Secretary of State for India was the authority through whom Parliament exercised its rule (along with the Council of India), and established the office ofViceroy of India (along with an Executive Council in India, consisting of high officials of the British Government). The Indian Councils Act 1861 provided for a Legislative Council consisting of the members of the Executive council and non-official members. The Indian Councils Act 1892 established provincial legislatures and increased the powers of the Legislative Council. Although these Acts increased the representation of Indians in the government, their power still remained limited. The Indian Councils Act 1909 and the Government of India Act 1919 further expanded participation of Indians in the government.

[edit]Government

of India Act 1935

Main article: Government of India Act 1935 The provisions of the Government of India Act 1935, though never implemented fully, had a great impact on the Constitution of India. Many key features of the constitution are directly taken from this Act. The federal structure of government, provincial autonomy, a bicameral central legislature consisting of a federal assembly and a Council of States and the separation of legislative powers between the centre and states are some of the provisions of the Act which are present in the Constitution of India.

[edit]The

Cabinet Mission Plan

Main article: 1946 Cabinet Mission to India In 1946, British Prime Minister Clement Attlee formulated a cabinet mission to India to discuss and finalize plans for the transfer of power from the British Raj to Indian leadership as well as provide India with independence under Dominion status in the Commonwealth of Nations.[7][8] The Mission discussed the framework of the constitution and laid down in some detail the procedure to be followed by the constitution drafting body. Elections for the 296 seats assigned to the British Indian provinces were completed by August 1946. The Constituent Assembly of India first met and began work on 26 November 1946. The mission consisted of Lord Pethick-Lawrence, the Secretary of State for India, Sir Stafford Cripps, President of the Board of Trade, and A. V. Alexander, the First Lord of the Admiralty. However, Lord Wavell, the Viceroy of India, did not participate. it is most important democracy in the world.

[edit]Indian

Independence Act 1947

Main article: Indian Independence Act 1947 The Indian Independence Act, passed by the British Parliament on 18 July 1947, divided British India into two new independent states, India and Pakistan, which were to be dominions under theCommonwealth of Nations until they had each finished drafting and enacted a new constitution. The Constituent Assembly was divided into two for the separate states, with each new Assembly having sovereign powers transferred to it for the respective dominion. The Act also terminated British suzerainty over the princely states, each of which was left to decide whether to accede to one or other of the new dominions or to continue as independent states in their own right. However, in most cases the states were so dependent on central institutions that they were widely expected to accede to a dominion. When the Constitution of India came into force on 26 January 1950, it repealed the Indian Independence Act. India ceased to be a dominion of the British Crown and became a sovereign democratic republic. 26 November 1949 is also known as National Law Day.

[edit]Constituent

Assembly

Main article: Constituent Assembly of India The Constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies.[9] Dr B.R. Ambedkar, Sanjay Phakey, Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Kanaiyalal Munshi, Purushottam Mavalankar, Sandipkumar Patel, Maulana Abul Kalam Azad, Shyama Prasad Mukherjee, Nalini Ranjan Ghosh, and Balwantrai Mehta were some important figures in the Assembly. There were more than 30 members of the scheduled classes. Frank Anthony represented the Anglo-Indian community, and the Parsis were represented by H. P. Modi. The Chairman of the Minorities Committee was Harendra Coomar Mookerjee, a distinguished Christian who represented all Christians other than Anglo-Indians. Ari Bahadur Gururng represented the Gorkha Community. Prominent jurists like Alladi Krishnaswamy Iyer, Benegal Narsing Rau and K. M. Munshi, Ganesh Mavlankarwere also members of the Assembly. Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh, Rajkumari Amrit Kaur and Vijayalakshmi Pandit were important women members.

Dr. Bhimrao Ramji Ambedkar is hailed as the prime architect of Indian Constitution
The first temporary 2-day president of the Constituent Assembly was Dr Sachidanand Sinha. Later, Rajendra Prasad was elected president of the Constituent Assembly.[9] The members of the Constituent Assembly met for the first time on 9 December 1946.[9]

[edit]Drafting This section needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (November 2012)
On the 14 August 1947 meeting of the Assembly, a proposal for forming various committees was presented. Such committees included a Committee on Fundamental Rights, the Union Powers Committee and Union Constitution Committee. On 29 August 1947, the Drafting Committee was appointed, with Dr B. R. Ambedkar as the Chairman along with six other members assisted by a constitutional advisor. These members were Pandit Govind Ballabh Pant Kanaiyalal Maneklal Munshi (K M Munshi, Ex- Home Minister, Bombay), Alladi Krishnaswamy Iyer (Ex- Advocate General, Madras State), N Gopalaswami Ayengar (ExPrime Minister, J&K and later member of Nehru Cabinet), B L Mitter (Ex-Advocate General, India), Md. Saadullah(Ex- Chief Minister of Assam, Muslim League member) and D P Khaitan (Scion of Khaitan Business family and a renowned lawyer). The constitutional advisor was Sir Benegal Narsing Rau (who became First Indian Judge in International Court of Justice, 195054). Later B L Mitter resigned and was replaced by Madhav Rao (Legal Advisor of Maharaja of Vadodara). Owing to death of D P Khaitan, T T Krishnamachari was chosen to be included in the drafting committee. A Draft Constitution was prepared by the committee and submitted to the Assembly on 4 November 1947. Draft constitution was debated and over 2000

amendments were moved over a period of two years. Finally on 26 Nov. 1949, the process was completed and Constituent assembly adopted the constitution. 284 members signed the document and the process of constitution making was complete. The architects of Indian constitution were most heavily influenced by the British model of parliamentary democracy. In addition, a number of principles were adopted from theConstitution of the United States of America, including the separation of powers among the major branches of government, the establishment of a supreme court, and the system of having a President as well as a Prime Minister. The principles adopted from Canada were Unitary government with strong center and also distribution of powers between central government and provinces along with placing residuary powers with central government.From Ireland, directive principle of state policy was adopted. From Germany the principle of suspension of fundamental rights during emergency was adopted. From Australia the idea of having of Concurrent list of shared powers was used as well and some of the terminology was utilized for the preamble. The Assembly met in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution, the 308 members of the Assembly signed two copies of the document (one each in Hindi and English) on 24 January 1950. The original Constitution of India is handwritten with beautiful calligraphy, each page beautified and decorated by artists fromShantiniketan including Beohar Rammanohar Sinha and Nandalal Bose. Two days later, on 26 January 1950, the Constitution of India became the law of all the States and territories of India. Rs. 1,00,00,000 was official estimate of expenditure on constituent assembly. The Constitution has undergone many amendments since its enactment.[10]

[edit]Structure
The Constitution, in its current form (September 2012), consists of a preamble, 22 parts containing 444
1] [Note

articles, 12 schedules, 2 appendices[11] and 97 amendments to date (latest being related to co-operative

societies added in part IX(B) in 2012).[10] Although it is federal in nature it also has a strong unitary bias.

[edit]Parts
The individual Articles of the Constitution are grouped together into the following Parts:

Preamble Part I
[12]

Union and its Territory Citizenship.

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. Part XIVA Tribunals. Part XV Elections

Part II

[13]

Part III Fundamental Rights. Part IV[14] Directive Principles of State Policy. Part IVA Fundamental Duties. Part V[15] The Union.

Part VI[16] The States. Part VII[17] States in the B part of the First schedule(Repealed). Part VIII
[18]

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

The Union Territories

Part IX[19] The Panchayats. Part IXA The Municipalities. Part IXB The Cooperative Societies Part X The scheduled and Tribal Areas Part XI Relations between the Union and the States.

[edit]Schedules
Schedules are lists in the Constitution that categorize and tabulate bureaucratic activity and policy of the Government.

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.

Second Schedule (Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3), 164(5), 186 and 221)- This lists the salaries of officials holding public office, judges, and Comptroller and Auditor General of India.

Third Schedule (Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219)Forms of Oaths This lists the oaths of offices for elected officials and judges.

Fourth Schedule (Articles 4(1) and 80(2)) This details the allocation of seats in the Rajya Sabha (the upper house of Parliament) per State or Union Territory.

Fifth Schedule (Article 244(1)) This provides for the administration and control of Scheduled Areas[Note
2]

and Scheduled Tribes[Note 3] (areas and tribes needing special protection due to disadvantageous

conditions).

Sixth Schedule (Articles 244(2) and 275(1)) Provisions for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram.

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

Eighth Schedule (Articles 344(1) and 351)The official languages. Ninth Schedule (Article 31-B) Originally Articles mentioned here were immune from judicial review on the ground that they violated fundamental rights. but in a landmark judgement in 2007, the Supreme Court

of India held in I.R. Coelho v. State of Tamil Nadu and others that laws included in the 9th schedule can be subject to judicial review if they voilated the fundamental rights guaranteed under Article 14, 15, 19, 21 or the basic structure of the Constitution {(ambiguous)}[20]

Tenth Schedule (Articles 102(2) and 191(2))"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).

[edit]System

of government

The basic form of the Union Government envisaged in the Constitution is as follows,

A democratic executive must satisfy three conditions: 1. It must be a stable executive, and 2. It must be a responsible executive. To date, both conditions have not been attained to an equal degree concurrently.[21]

[edit]Federal

Structure

Three subject lists, the Union List, the State List, and the Concurrent List, define the legislative powers of each level of government. The Union government reserves the right to make laws in areas specified on the Union List, the state governments allowed to make laws in areas specified on the State List, and laws in areas listed on the Concurrent List may be made at either a state or federal level. Issues such as foreign affairs, currency and inter state disputes are examples of topics falling under the Union list.The areas of public order, dealings with local governments,and certain types of taxes are examples of topics which are on the state lists, where Parliament is forbidden to intervene barring exceptional circumstances. Issues such as education, transportation,forests and criminal law are on the concurrent list, where both state legislatures and Parliament are able to make laws. All residuary powers are vested in the Union.

[edit]Parliamentary

Democracy

The President of India is elected by the Parliament and State Legislative Assemblies, and not directly by the people. The President is the head of state, and all the business of the Executive and Laws of the Parliament are in his/her name. However, these powers are only nominal, and the President must act only according to the advice of the Prime Minister and the Council of Ministers.

The Prime Minister and the Council of Ministers exercise their offices only as long as they enjoy a majority support in the Lok Sabha, the lower house of the Parliament, which consists of members directly elected by the people. The ministers are answerable to both the houses of the Parliament. Also, the Ministers must themselves be elected members of either the Lok-Sabha or the Rajya-Sabha, the upper house of the Parliament. Thus, the Parliament exercises control over the Executive. A similar structure is present in States, where the directly elected Legislative Assembly enjoys control over the Chief Minister and the State Council of Ministers.

[edit]Independent

Judiciary

The Judiciary of India is free of control from either the executive or the Parliament. The judiciary acts as an interpreter of the constitution, and as an intermediary in case of disputes between two States, or between a State and the Union. An act passed by the Parliament or a Legislative Assembly is subject to judicial review, and can be declared unconstitutional by the judiciary if it feels that the act violates the provisions of the Constitution.

[edit]Changing

the constitution

Main article: Amendment of the Constitution of India Amendments to the Constitution are made by the Parliament, the procedure for which is laid out in Article 368. An amendment bill must be passed by both the Houses of the Parliament by a two-thirds majority and voting. In addition to this, certain amendments which pertain to the federal nature of the Constitution must be ratified by a majority of state legislatures. As of September 2012 there have been 118 amendment bills presented in the Parliament, out of which 97 have been passed to become Amendment Acts.[22] Most of these amendments address issues dealt with by statute in other democracies. However, the Constitution is so specific in spelling out government powers that many of these issues must be addressed by constitutional amendment. As a result, the document is amended roughly twice a year. The Supreme Court has ruled in Kesavananda Bharati v. State of Kerala case that not every constitutional amendment is permissible, the amendment must respect the "basic structure" of the constitution, which is immutable. In 2000 the National Commission to Review the Working of the Constitution (NCRWC) was set up to look into updating the constitution.

[edit]Judicial

review of laws

See also: Judicial review

Judicial review is adopted in the Constitution of India from the Constitution of the United States of America (see[23]). In the Indian constitution, Judicial review is dealt with under Article 13. Judicial Review refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 states that: 1. All pre-constitutional laws, if in part or completely in conflict with the Constitution, shall have all conflicting provisions deemed ineffective until an amendment to the Constitution ends the conflict. In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Doctrine of Eclipse.[24] 2. In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void ab initio. 3. In such situations, the Supreme Court or High Court interprets the laws to decide if they are in conformity with the Constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 226 and 227 provide a constitutional basis to judicial review in India.[25]

[edit]See
India portal

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Constitutional economics Constitutionalism History of democracy List of national constitutions Magna Carta Rule according to higher law Uniform civil code of India

[edit]Notes