AN OVERVIEW OF CONSTITUTION OF INDIA


Author

Disha Dey, Surendranath Law College, West Bengal


Constitutional Law refers to the body of law which contains several rules and regulations, powers and structures of the organs of government namely legislature, executive and judiciary as well as the basic rights and duties of the citizens.

The constitution of India is the supreme law of India. It is written and detailed document which was enacted by the constitution assembly of India. It took the assembly 2 years, 11 months and 17 days to write and enact the constitution. It consists of 395 articles divided into 22 parts with 12 schedules and 97 constitutional amendments. It was adopted by the constituent assembly of India on 26 November 1949 and became fully operational on 26 January 1950.

The constitution of India opens with a preamble which lays down the nature of Indian state and objectives committed to secure. The preamble refers to five cardinal features of India. It states India to be Sovereign, Socialist, Secular, Democratic, Republic.

Indian constitution: a constitution drawn from several sources

Made in mid-20th century, the Constitution of India embodies the best features of a number of constitutions of the world. Several sources have been used to weave the constitutional provisions. The sources are as follows:

  1. National liberation movement
  2. The constituent assembly and its information
  3. The government of India act, 1935
  4. Foreign constitutions
  5. Judicial decisions
  6. Conventions
  7. Views of constitutional jurists and experts.

The essential features of the constitution of India are as follows:

  1. Written and detailed constitution: Indian constitution is a written and detailed document. Jennings describes it as “the largest written constitution in the world.”
  • Preamble of the Constitution: Preamble is a key to the constitution. It declares India to be a Sovereign, Socialist, Secular, Democratic and Republic state committed to ensure equality, justice and liberty for the people. Initially preamble was not regarded as a part of the Constitution but since the Supreme Court judgment in the Kesvananda Bharati case, it was accepted as a part of the constitution.

KESVANANDA BHARATI VS. STATE OF KERALA

Kesvananda Bharati case was a landmark decision by the Supreme Court which reframes the Constitution of India. Swami Kesvananda Bharati challenged the Kerala government’s attempts, under two state land reform acts, to impose restrictions on the management of its property.

A noted Indian jurist, Nanabhoy Palkhivala, convinced Swami into filing his petition under Article 26, which deals with the freedom to manage religious affairs. Even though the hearings consumed five months, the outcome would profoundly affect India’s democratic processes. The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th amendments.

  • India is a Sovereign, Socialist, Secular, Democratic, Republic.
  • India is a union of states.
  • Fundamental rights (Arts 14-32)
  • Right to constitutional remedies
  • The National Human Rights Commission (NHRC) State Human Rights Commission and Protection of Human Rights of the people.
  • Fundamental duties of the citizens: By the 42nd amendment 1976, the Constitution under the part IV A-Article 51A enumerates the following duties of the citizen of India.
  • Respect the constitution, national flag and national anthem.
  • Uphold the sovereignty, unity and integrity of India.
  • Cherish the noble ideals of the freedom struggle.
  • Preserve the rich heritage of the nation’s composite culture.
  • Safeguard public property.
  • Promote common brotherhood of all the people of India.
  • To provide education to children is the fundamental duty of their parents have been added to the list, by the 86th amendment.
  • Directive Principles of State Policy. Part IV (Articles 36-51)
  • Single citizenship
  • Independence of judiciary
  • Special provisions relating to schedule cast and schedule tribes

ARTICLE 12 OF THE CONSTITUTION

Part III of the Constitution begins with Article 12 which provides an extended significance on the term “state”. It states that

“Definition in this part, unless the context otherwise requires, the state includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

In the case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, a 9-judge bench of the Supreme Court held that a judicial decision pronounced by a judge of competent jurisdiction in or in relation to a matter brought before him for adjudication cannot affect the fundamental rights of the citizens since what the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more.  

ARTICLE 13 OF THE CONSTITUTION                       

Article 13 of the Indian Constitution States that:

“Laws inconsistent with or in derogation of the fundamental rights

(1)  All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void

(2)  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

(3)  In this article, unless the context otherwise requires law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality.”

Fundamental rights of the people of India

Part III of the Constitution of India grants and guarantees fundamental rights to its citizens.  

  1. The right to equality (Arts. 14-18)
  2. The right to freedom (Arts. 19-22)
  3. The right against exploitation (Art. 23-24)
  4. The right to freedom of religion (Arts. 25-28)
  5. Cultural and educational rights (Arts. 29-30)
  6. Right to property (Deleted from the list by 44th amendment and made a legal right under Article 300A)
  7. Right to constitutional remedies (Arts. 32)
  • RIGHT TO EQUALITY (ARTS. 14-18)

The fundamental rights of an Indian begin with the right to equality. Five rights stands incorporated in it.

  1. Equality Before Law (Art. 14)
  2. Prohibition of Discrimination (Art. 15)
  3. Equality of Opportunity (Art. 16)
  4. Abolition of Untouchability (Art. 17)
  5. Abolition of Titles (Art. 18)
  • RIGHT TO FREEDOM (ARTS. 19-22)

The following articles ensure the freedom of the people of India.

  1. Six Fundamental Freedoms (Art. 19)
  2. Protection against Arbitrary Conviction (Art. 20)
  3. Protection of life and liberty (Art. 21)

Right to education of children (Art. 21A)

  • Protection against arrest and detention (Art. 22)
  • RIGHT AGAINST EXPLOITATION (ARTS. 22-23)
  • Prohibition of traffic in human beings and forced labour (Art. 23)
  • Prohibition of employment of children (Art. 24)
  • RIGHT TO FREEDOM OF RELIGION (ARTS. 25-28)
  • Freedom of conscience and free profession, practice, propagation of religion (Art. 25)
  • Freedom to manage religious affairs (Art. 26)
  • Freedom from paying taxes for the promotion of any religion (Art. 27)
  • Freedom as to attendance in religious functions (Art. 28)
  • CULTURAL AND EDUCATIONAL RIGHTS (ARTS. 29-30)
  • Right to maintain language, script and culture (Art. 29)
  • Right to establish and administer educational institutions (Art. 30)
  • RIGHT TO CONSTITUTIONAL REMEDIES (ART. 32)

Article 32 provides certain provisions for the protection and enforcement of fundamental rights. It empowers the Supreme Court to issue writs for this purpose.

The writs include:

The Habeas Corpus: This provides remedy against wrongful detention of a person.

The mandamus: The court can order an inferior authority to do the act which falls within its jurisdiction.

The prohibition: An act which does not fall within its jurisdiction, the court can prohibit an inferior authority from doing so.

The Quo Warranto: A person can be restrained from acting in a public office to which he is not entitled, by the court.

The Certiorari: An inferior authority can be ordered by the court to transfer the matter to it for its proper consideration.  

RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND FUNDAMENTAL DUTIES

Rights and Duties always go together. These are inter-related and represent the two sides of the same coin. The fundamental rights are incorporated in part III of the constitution and constitute an unbreakable foundation of Indian democracy. Article 51 A deals with the fundamental duties of the citizens. Fundamental rights are some rights which are given to the citizens, which they should enjoy and Fundamental duties are some rules which the citizens should abide by. So both rights and duties are equally important to maintain a balance between the constitution and democracy.

EMERGENCY PROVISIONS (Part XVIII Articles 352 to 362)

The emergency provisions are vest in the President of India to deal with the emergency situations. These are generally referred to as the emergency powers of the President. Just like the Constitution of Weimer Republic (Germany), Indian constitution also contains provisions to deal with the emergency situations.

The Constitution provides the President of India, the authority to use three types of emergencies:

  1. National Emergency (Article 352)
  2. Constitutional emergency in a state (Article 356)
  3. Financial Emergency (Article 360)  

DIRECTIVE PRINCIPLES OF STATE POLICY (ARTICLE 36-51)

Part IV of the Constitution of India deals with the directive principles of state policy which provides one of the most important features of Indian Constitution. Directive principles are the kind of rules to the state for securing socio economic development through some policies. Directive principles are systematically arranged into four categories.

  1. Socialistic principles
  2. Gandhian principles
  3. Liberal principles and
  4. General principles

RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY

Fundamental rights (part III) and Directive Principles (part IV) of the constitution were designed by the Constituent Assembly to be complementary and supplementary to each other. At times both became centre of controversy in respect of their inter-relationship. Doctrine of harmonious reconstruction have been adopted which accepts the legal supremacy of the Fundamental Rights over the Directive Principles but at the same time calls for the implementation of both and not any one at the cost of other.

CONSTITUTION REGARDED AS AN IMPORTANT PART OF LAW

Constitution is the supreme law which helps in representing India as a nation to the world front. Constitution binds all the laws together in order to help the citizens maintain balance. Constitution is an integral part of law and must be respected and followed by the state.

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