JERUSALEM COLLEGE OF ENGINEERING JNC1861 INDIAN CONSTITUTION

UNIT I INTRODUCTION TO INDIAN CONSTITUTION

Constitution meaning of the term, Indian Constitution- Sources and constitutional history,
FeaturesCitizenship, Preamble, Fundamental Rights and Duties, Directive Principles of State
Policy.

INTRODUCTION

Indian Constitution is the lengthiest written constitution in the world. This constitution has been in
operation for over years. This shows the strength of the Indian democracy and the faith of the people in
the constitution. This unit aims to apprise you about basics of Indian Constitution.

The objective of this unit is to enable the learners to understand and apreciate the legal and constitutional
aspects as well as to look at the document as source for social change. After reading this unit your should
be able to:

 give a bird’s eye view of the Indian Constitution;

 create awareness of the Rights and Duties of the citizens;
 make the learners enlightened citizens of this country; and
 familiarize with the new concepts such as parliamentary democracy, rights based approach, civil
liberties and social and economic justice.

BASIC FEATURES OF THE INDIAN CONSTITUTION

The basic features of the Constitution unfold before the learners the essential features inherent in the
Constitution.

Lengthiest Constitution in the World

Indian Constitution, adopted by the Constituent Assembly on November 2, 1949 is the lengthiest Constitution
originally containing 395 Articles, divided into 22 parts and 9 schedules. We have incorporated 93
Amendments to the constitution as on January 2003. It has been a model for many developing countries.
Ideals
The ideals of socialism, secularism and democracy are enshrined and elaborated by the enacting provisions.
Socialist and Secular
The Preamble of the Constitution has incorporated the term ‘Socialist and Secular’ through the 42nd
amendment of the Constitution in 1976. Socialist means the nationalisation of the means of production
and equal distribution of wealth whereas Secular aims at the separation of religion from the State.
Sovereignty Resides in the People
The introduction to the Constitution declares that the constitution of India was adopted and enacted by the
people of India and they are the custodians of the republic.

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Parliamentary Form of Government

The Constitution of India establishes a parliamentary form of government both at the Centre and the States.
In a Parliamentary form of government, the Prime Minister and Council of Ministers are responsible for all
their actions to the government, particularly to the Lower House, Lok Sabha. When they loose their
confidence with the people they should resign. When they refuse to resign the opposition parties will move
a no- confidence motion and remove the government from power.
Unique Blend of Rigidity and Flexibility
Though India has a written constitution, the Indian constitution is not as rigid as the American
constitution. It has incorporated the flexible nature in the procedures for amendments. There are three
methods by which the constitution is amended. In other words, the procedure for amendment is simple,
clear and well articulated and not cumbersome.
Fundamental Rights
The Fundamental Rights are guaranteed by the constitution to all its citizens through Part III of the
constitution. The Fundamental Right deals with political and civil rights. It guarantees Rights to Equality, Right
to Freedom, Freedom of Religion, Right against Exploitation, Educational and Cultural rights and Rights to
Constitutional Remedies. One can approach the Supreme Court directly in case of violation of
Fundamental Rights.
Directive Principles of the State Policy
Part IV of the constitution deals with Social, Economic and cultural Rights. However, they are not justifiable
in the court of law. The idea of a ‘Welfare State’ envisaged in our Constitution can only be achieved if the States
endeavor to implement them with a high sense of moral duty.
Quasi - federal in Nature
The nature of the State is federal, in the sense that the powers are distributed between the Union and the
State. But in times of emergency arising out external danger the Union Government assumes a unitary
character and the union is empowered to legislate for all the States.

Adult Suffrage
All adult citizens above 18 are given the right to vote.
Independence of Judiciary
The Indian judiciary is independent as per the norms of separation of powers. The features that goes with
the independence of Judiciary are direct appointment by the President, given decent salaries and perks on
one hand, whereas judges cannot be removed, simply by executive.
Judicial Review
India borrowed this feature aspect from US. The judiciary can declare a law passed by the Union or State
government as unconstitutional or null and void when it violates the rights guaranteed under the Fundamental
rights to the people of India.

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Fundamental Duties
The Fundamental Duties are incorporated to the constitution through the 42nd amendment. A set of ten
duties are incorporated under the Fundamental Duties under Article 51 A.

The Sources of Indian Constitution

The Government of India Act 1935

• Emergency provisions
• Establishment of supreme court[ judiciary]
• Public service commission
• Office of governor
• The federal scheme of government

United Kingdom

• Parliamentary form of government

• Single citizenship
• Rule of law
• Legislative procedure
• Parliamentary privileges
• Writs

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United States of America

• Fundamental rights
• Preamble
• Seperation of Power
• Supremacy of the constitution
• Independence judiciary [Removal procedure of Supreme Court and High
Court Judges]
• Judicial review
• Equal Protection Of Law
• Election of the head of the state
• Impeachment of president and its procedure
• Post of vice president
• Financial emergency

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Canada

• Federalism with strong centre

• Centre appoints governor of the states
• Residency Powers vest with the centre
• Advisory jurisdiction of Supreme Court

Australia

• Concurrent list
• Division of powers between centre and state
• Freedom of trade and Commerce
• Joint sitting of the two houses of parliament

Ireland

• Directive Principles of State Policy

• Nomination of members in Rajya Sabha
• Method of election of president

Germany

• President's power during emergency

• Suspension of fundamental rights during emergency

Soviet Union [USSR]

• Fundamental duties
• The ideals of social, economy and justice

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South Africa

• Election of members of Rajya Sabha

• Procedure of constitutional amendment

Japan

France

• Republican system
• Ideas of Liberty, equality and fraternity

Evolution of the Indian Constitution

The historical underpinnings and evolution of the India Constitution can be traced to many
regulations and acts passedbefore Indian Independence.

Regulating Act of 1773

 The first step was taken by the British Parliament to control and regulate the affairs
of the East India Company in India.
 It designated the Governor of Bengal (Fort William) as the Governor-
General (of Bengal).
 Warren Hastings became the first Governor-General ofBengal.
 Executive Council of the Governor-General was established (Four
members). There was no separatelegislative council.
 It subordinated the Governors of Bombay and Madras to the Governor-General
of Bengal.
 The Supreme Court was established at Fort William (Calcutta) as the
Apex Court in 1774.
 It prohibited servants of the company from engaging in any private trade or

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accepting bribes from the natives.

 Court of Directors ( the governing body of the company) should report its
revenue.

Pitt’s India Act of 1784

 Distinguished between commercial and political functionsof the company.

 Court of Directors for Commercial functions and Board of Control for political
affairs.
 Reduced the strength of the Governor General’s council tothree members.
 Placed the Indian affairs under the direct control of theBritish Government.
 The companies territories in India were called “the Britishpossession in India”.
 Governor’s councils were established in Madras andBombay.

Charter Act of 1813

 The Company’s monopoly over Indian trade terminated; Trade with India open
to all British subjects.

Charter Act of 1833

 Governor-General (of Bengal) became the Governor-General of India.

 First Governor-General of India was Lord William Bentick.
 This was the final step towards centralization in BritishIndia.
 Beginning of a Central legislature for India as the act also took away legislative
powers of Bombay and Madras provinces.
 The Act ended the activities of the East India Company as a commercial body and
it became a purely administrative body.

Charter Act of 1853

 The legislative and executive functions of

the Governor-General’s Council were separated.

 6 members in Central legislative council. Four out of six members were

appointed by the provisional governmentsof Madras, Bombay, Bengal and Agra.
 It introduced a system of open competition as the basis for the recruitment of civil
servants of the Company (Indian Civil Service opened for all).

Government of India Act of 1858

 The rule of Company was replaced by the rule of theCrown in India.

 The powers of the British Crown were to be exercised by the Secretary of State
for India
 He was assisted by the Council of India, having 15members

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 He was vested with complete authority and control over the Indian administration
through the Viceroy as his agent
 The Governor-General was made the Viceroy of India.
 Lord Canning was the first Viceroy of India.
 Abolished Board of Control and Court of Directors.

Indian Councils Act of 1861

 It introduced for the first time Indian representation in the institutions like Viceroy’s
executive+legislative council (non- official). 3 Indians entered the Legislative
council.
 Legislative councils were established in Center andprovinces.
 It provided that the Viceroy’s Executive Council should have some Indians as
the non-official members while transacting the legislative businesses.
 It accorded statutory recognition to the portfolio system.
 Initiated the process of decentralisation by restoring the legislative powers to
the Bombay and the Madras Provinces.

India Council Act of 1892

 Introduced indirect elections (nomination).

 Enlarged the size of the legislative councils.
 Enlarged the functions of the Legislative Councils and gave them the power of
discussing the Budget and addressing questions to the Executive.

Indian Councils Act of 1909

i) This Act is also known as the Morley- Minto Reforms.

ii) Direct elections to legislative councils; first attempt at introducing a
representative and popular element.
iii) It changed the name of the Central Legislative Council to the Imperial
Legislative Council.
iv) The member of the Central Legislative Council was increased to 60
from 16.
v) Introduced a system of communal representation for Muslims by accepting
the concept of ‘separate electorate’.
vi) Indians for the first time in Viceroys executive council.(Satyendra Prasanna
Sinha, as the law member)

Government of India Act of 1919

 This Act is also known as the Montague-ChelmsfordReforms.

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 The Central subjects were demarcated and separated from those of the Provincial
subjects.
 The scheme of dual governance, ‘Dyarchy’, was introduced in the Provincial
subjects.
 Under the dyarchy system, the provincial subjects were divided into two parts
– transferred and reserved. On reserved subjects, Governor was not
responsible to theLegislative council.
 The Act introduced, for the first time, bicameralism at thecenter.
 Legislative Assembly with 140 members and Legislative council with 60
members.
 Direct elections.
 The Act also required that the three of the six members of the Viceroy’s Executive
Council (other than Commander-in-Chief) were to be Indians.
 Provided for the establishment of the Public ServiceCommission.

Government of India Act of 1935

 The Act provided for the establishment of an All-India Federation consisting

of the Provinces and the Princely States as units, though the envisaged
federation nevercame into being.
 Three Lists: The Act divided the powers between the Centre and the units into
items of three lists, namely the Federal List, the Provincial List and the
Concurrent List.
 The Federal List for the Centre consisted of 59 items, the Provincial List for the
provinces consisted of 54 items and the Concurrent List for both consisted of 36
items
 The residuary powers were vested with the Governor-General.
 The Act abolished the Dyarchy in the Provinces and introduced
‘Provincial Autonomy’.
 It provided for the adoption of Dyarchy at the Centre.
 Introduced bicameralism in 6 out of 11 Provinces.
 These six Provinces were Assam, Bengal, Bombay, Bihar, Madras and the United

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Province.
 Provided for the establishment of Federal Court.
 Abolished the Council of India.

Indian Independence Act of 1947

 It declared India as an Independent and Sovereign State.

 Established responsible Governments at both the Centreand the Provinces.
 Designated the Viceroy India and the provincial Governors as the Constitutional
(normal heads).
 It assigned dual functions (Constituent and Legislative) to the Constituent
Assembly and declared this dominion legislature as a sovereign body.
Making of the Indian Constitution

The constitution was drafted by the Constituent Assembly, which was elected by elected
members of the provincial
assemblies. The 389-member assembly (reduced to 299 after the partition of India)
took 2 years 11 months and 18 days to draft the constitution.

Dr. B R Ambedkar is recognised as the "Father of the Constitution of India".

 6 December 1946: Formation of the Constitution Assembly (in accordance with French
practice).
 9 December 1946: The first meeting was held in the constitution hall.
 11 December 1946: The Assembly appointed Rajendra Prasad as its president, H. C.
Mukherjee as its vice-chairman and B. N. Rau as constitutional legal adviser. (There
were initially 389 members in total, which declined to 299 after partition. Out of the 389
members, 292 were from government provinces, 4 from chief commissioner provinces
and 93 from princely states.)
 13 December 1946: An 'Objective Resolution' was presented
by Jawaharlal Nehru, laying down the underlying principles of the constitution. This
later became the Preamble of the Constitution.
 22 January 1947: Objective resolution unanimously adopted.

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 22 July 1947: National flag adopted.

 15 August 1947: Achieved independence. India split intothe Dominion of
India and the Dominion of Pakistan.
 29 August 1947: Drafting Committee appointed with B. R. Ambedkar as its Chairman.
The other 6 members of committee were Munshi, Muhammed Sadulla, Alladi
Krishnaswamy Iyer, N. Gopalaswami Ayyangar, Khaitan and Mitter.
 26 November 1949: The Constitution of India was passed and adopted by the
assembly. It had a Preamble, (with 395 Articles, 8 Schedules, 22 Parts). { Presently it
has around 448 articles, 25 partsand 12 schedules}
 26 January 1950: The Constitution came into force. (The process took 2 years, 11
months and 18 days)
CITIZENSHIP

Citizenship at the commencement of the Constitution.

At the commencement of this Constitution, every person who has his domicile in the
territory of India and—

Rights of citizenship of certain persons who have migrated to India from Pakistan.

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) who has been ordinarily resident in the territory of India for not less than five years
immediately preceding such commencement,shall be a citizen of India.

6. Notwithstanding anything in article 5, a person who has migrated to the territory of India
from the territory now included in Pakistan shall be deemed to be a citizen of India at the
commencement of this Constitution if—

(a) he or either of his parents or any of his grandparents was born in India as defined in the
Government of India Act, 1935 (as originally enacted); and

(b) (i) in the case where such person has so migrated before the nineteenth day of July, 1948,
he has been ordinarily resident in the territory of India since the date of his migration, or

(ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he
has been registered as a citizen of India by an officer appointed in that behalf by the Government

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of the Dominion of India on an application made by him therefor to such officer before the
commencement of this Constitution in the form and manner prescribed by that Government:

Provided that no person shall be so registered unless he has been resident in the territory of India
for at least six months immediately preceding the date of his application.

7. Notwithstanding anything in articles 5 and 6, a person who has after the first day of
March, 1947, migrated from the territory of India to the territory now included in Pakistan shall
not be deemed to be a citizen of India:

Provided that nothing in this article shall apply to a person who, after having so migrated to the
territory now included in Pakistan, has returned to the territory of India under a permit for
resettlement or permanent return issued by or under the authority of any law and every such
person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory
of India after the nineteenth day of July, 1948.

8. Notwithstanding anything in article 5, any person who or either of whose parents or any
of whose grandparents was born in India as defined in the Government of India Act, 1935 (as
originally enacted), and who is ordinarily residing in any country outside India as so defined
shall be deemed to be a citizen of India if he has been registered as a citizen of India by the
diplomatic or consular representative of India in the country where he is for the time being
residing on an application made by him therefor to such diplomatic or consular representative,
whether before or after the commencement of this Constitution, in the form and manner
prescribed by the Government of the Dominion of India or the Government of India.

9. No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of

India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any
foreign State.

10. Every person who is or is deemed to be a citizen of India under any of the foregoing
provisions of this Part shall, subject to the provisions of any law that may be made by
Parliament, continue to be such citizen.

11. Nothing in the foregoing provisions of this Part shall derogate from the power of
Parliament to make any provision with respect to the acquisition and termination of citizenship
and all other matters relating to citizenship.

Preamble

1.0 THE PREAMBLE

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The Preamble is an introduction to the constitution. It sets out the goals, the values and the ideals for
which our country stands. The objectives specified in the Preamble contains the basic structure of our
constitution, which can not be amended in exercise of the power under article 368 of the
constitution. (Refer Keshvanand Bharati Vs State of Kerala, AIR 1973 SC 1461 and Indira Gandhi
Vs Raj Narain, AIR 1975 SC 2299).

The preamble is a part of the constitution which reads as:

“WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN,
SOCIALIST, SECULAR DEMOCRATIC REPUBLIC and to secure
to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
In our constituent assembly this twenty-sixth day of November 1949, do hereby adopt, enact and give to
our selves this constitution”.
The Forty-second amendment to the Constitution in 1976 incorporated terms such as ‘Socialist and
Secular’ and ‘Unity and Integrity’ of the nation in the preamble. Pluralism is the keystone of
Indian Culture whereas religious tolerance is the bedrock of Indian secularism.
The Preamble may be involved to determine the ambit of (a) Fundamental rights and
(b) Directive Principles of State Policy. From the preamble it is clear that India has emerged as a
Sovereign, Socialistic, Secular, Democratic, Republic ensuring to its citizens Justice, Liberty,
Equality, and Fraternity.
We the People
The power to govern is drawn from the people of India therefore, sovereignty, resides with the people
of India.
This means that India is no more under the domination of any foreign country and any external force
can not influence its decisions. It is a free and independent country. It can acquire foreign territory
and if necessary, cede a part of the territory in favour of a foreign state.
Socialist

There are many definitions for socialism but one well accepted explanation is the
nationalization of the means of production and equal distribution of wealth. In other words
absence of private property.
Secular
This means a State taking a neutral position on religion. It is separation of State and religion.
There is no official religion in India. Secularism pervades its provisions which give full opportunity
to all persons to profess, practise and propagate religion of their choice. All religions will receive

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equal treatment. It is neither a theocratic nor an atheistic state.

Democratic
The Democratic has been introduced with a view to realize the political, economic and social
democracy. Political democracy means one vote for one person and rotation of government. Social
democracy means absence of discrimination on the basis of caste, religion, race, gender etc.
Economic democracy means to bridge the gap between rich and poor in terms of income and
distribution of wealth.
Republic
Since the constitution has been given by the people to themselves, thereby affirming the republican
character of the polity and sovereignty of the people.
In the independent India the Head of the Republic, President is elected which means, we have put
an end to the hereditary rule. (Under the British, regime we were under the Monarchy or Crown ).
Justice
The term justice being used in its widest possible sense which is made clear by the addition of
the objectives ‘social, economic and political’ to justice. It intents not only creating an environment
in which social, economic and political justice is assured but also work positively against any form
of discrimination existing in the society on the basis of caste, community race, religion or
otherwise.
Liberty
It is the basic freedom set forth by the French Revolution. Our Constitution believes in freedom of
different nature---social, civil and political as articulated through the fundamental rights in the
Constitution under Part III.
Equality
‘Equality before law’ and ‘equal protection of laws’ are guaranteed under the Fundamental
Rights, enshrined in the constitution.
Fraternity
Fraternity, according to Dr. Ambedkar, is “a sense of common brotherhood and sisterhood of
all Indians”. Without fraternity he was clear in his mind that “equality and liberty will be no deeper
than coats of paint”. Liberty, equality and fraternity forming a
union of trinity in the sense that if we divorce one from the other, it defeats the very purpose of
democracy.
The structural part of the constitution is, to a large extent, derived from the Government of India Act,
1935 whereas its philosophical part has many other sources. In our constitution, Fundamental
rights partly derives its inspiration from the Bill of Rights, enshrined in the American constitution;
Directive Principles of State Policy from the Irish Constitution. We had added the principle of cabinet
government and executive- legislature relationship from the British experience. The Canadian

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Constitution partly proved source for Union-State relations whereas Australian constitution provided
us concurrent list, privileges of the members of parliament and matter related to trade and commerce.
Besides these, we have also many indigenous and innovative ideas like Panchayats, international
peace and security.
Constitution is a living and organic thing. It is not to be construed as a mere law, but as the machinery
through which laws are made.

1.1 FUNDAMENTAL RIGHTS

Fundamental rights are the political and civil rights meant for all the citizens. Kept in Part III of the
constitution, Fundamental Rights are borrowed mainly from the UDHR (Universal Declaration of
Human Rights, 1948) and Bill of Rights enshrined in the American constitution. Fundamental rights
have paramount importance in the constitution as it declares that all laws inconsistent with or in
derogation of the fundamental rights shall be void. Further, State shall not make any law which takes
away or abridge the rights conferred in Part III of the constitution. The fundamental rights are
provided to protect the dignity of the individual and to create conditions in which every human being can
develop his or her personality to the fullest extent possible. The constitutional remedies make the
fundamental rights active, alive and functional.
Classification of Fundamental Rights: Broadly fundamental rights can be classified, based on nature,
in six groups.

a) Right to Equality (Arts. 14-18)

b) Right to Freedom (Arts. 19-22)
c) Right against Exploitations (Arts. 23-24)
d) Right to Freedom of Religion (Arts. 25-28)
e) Cultural and Educational Rights (Arts. 29-30)
Right to Constitutional Remedies (Arts. 32-35)

Right to Equality (Arts 14-18)

Article 14 – The State shall not deny any person ‘equality before law’ and ‘equal protection of
laws’ within the territory of India. The source of article 14 lies in American and British constitutions.
‘Equality before law’ is borrowed from the British Constitution and negative in connotation implying
the absence of any special privilege in favour of the individual whereas ‘Equal protection of laws’ is
borrowed from US, but positive in connotation. It means that all people have to get equal treatment in
similar circumstances. The element of reasonableness is an important consequence to apply this
right. It is also available even to foreigners and aliens alike.
To spell out, the principle of equality in greater detail, Article 15 directs that the State shall not
discriminate against a citizen on grounds of religion, race, caste, sex or place of birth or any of them.
It prohibits discrimination but permits state to make special provisions.

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Article 15-clause (1) --- the State is prohibited to discriminate between citizens on grounds
only of religion, race, caste, place of birth or any of them. However, Art 15-Clause (2): prohibits
discrimination by the State and the citizens with regard to access to shops, public restaurants,
hotels and places of public entertainment or the use of wells, tanks bathing ghats, roads and places
of public resorts maintained wholly or partly out of State funds or dedicated to the use of general
public. Recognising need of special protection, it offers special protection for women and children
[Art 15 (3)] and provides reservation for socially and educationally Backward Classes of the citizens
or for the Scheduled Castes and Scheduled Tribes. [Art 15(4)]
Article 16 creates the right to equality of opportunity in public employment which explains that
no citizen shall be discriminated against or be ineligible for any employment or office under the State
on grounds only of religion, race, caste, sex, place of birth, descent or residence. Two additional
grounds ‘descent and residence’ which was not included in Art. 15 have been added in Art.16.
The Art.16-(4) provides reservation for appointments or post in favour of any Backward Classes of
citizens who, in the opinion of the State, are not adequately represented in the service under the
State.
Article 17 Abolition of Untouchability : Our Constitution abolishes untouchability and forbids its
practice in any form. In pursuance of this article the Parliament enacted Untouchability Offences Act
in 1955. It has been renamed as Protection of Civil Rights Act, 1995 Further to strengthen the
legislation the government enacted Scheduled Castes and Scheduled Tribes Prevention of
Atrocities Act in 1989 and Scheduled Castes and Scheduled Tribes ‘Prevention of Atrocities
rules’ in 1995.
Similarly, state has abolished all the titles to create equality among citizens in the free and
independent India. Military and Academic distinction are however exempted from the provision for
they are an incentive to further efforts for the perfection of the military power of the State.
Rights to Freedom (Arts. 19-23)

Freedom as fundamental rights has been explained under Arts. 19-23. All citizens shall have the right
to freedom of speech and expression, peaceful assembly without arms, unionization or forming
association, free movement and freedom to settle anywhere within country.
Citizens have been granted freedom to express one’s conviction and opinions freely by word of
mouth, writing, printing, pictures or any other mode. It includes the freedom of press. Therefore, pre -
censorship of newspapers and magazines are invalid. The above
rights have some reasonable restrictions. The grounds of restrictions for freedom of speech and
expression are:
i) security of the State
ii) friendly relation with foreign States,
iii) public order,
iv) decency and morality,
iv) contempt of Court,
v) defamation,
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vi) incitement of an offence, and

vii) sovereignty and integrity of India.
The right of assembly includes the right to hold meeting and to take out processions. This right is
subject to the restriction of being peaceful and without arms. Citizens have right to form, to join an
association or trade union. Every citizen of India has also the right to reside and settle in any part of
India but the grounds of restriction include the interest of general public as well as State [Art. 19
(1)(d)].
Right to Property is not a fundamental right but it is a legal right. Under article 19(1) (f), Citizens
have rights to acquire, hold and dispose of property. This is dropped through the 44th amendment to the
Constitution in 1978. Further, all citizens shall have the right to practice any profession or to carry out
any occupation or trade or business with reasonable restrictions, in the interest of general public and in
prescribing professional or technical qualification necessary for practicing any profession or carrying
out any occupation, trade or business.
The Indian Constitution observes that ‘no person shall be convicted of any offence except for
violation of law in force at the time of the commission of the act charged as an offence nor be
subjected to a penalty greater than that which might have been inflicted under the law in force at the
time of commission of the offence’. (This is known as ex-post facto law). It also guarantees a person
against a double jeopardy i.e. a person should not be punished twice for the same offence. While
constitution prohibits ‘self incrimination’ which means no person accused of any offence shall be
compelled to be a witness against himself.
Protection of life and personal liberties means that ‘No person shall be deprived of his or her life or
personal liberty except according to procedure established by law’. Thus, assures personal liberty of
citizens against the arbitrary action on the part of the law enforcing authorities. We have been provides
safeguards against arbitrary arrest and detention. Accordingly, Article 22 guarantees four rights to
the person who is arrested under an ordinary law.
i) The right to be informed as soon as, may be the ground of arrest.
ii) The right to consult and to be represented by a lawyer of one’s own choice.
iii) The right to be produced before a magistrate within 24 hours.
iv) The freedom from detention beyond the set period except by the order of the magistrate.
Further sub - clauses (5 -7) of Art. 22 deals with the preventive detention. Preventive detention is
opposite to punitive detention. While the purpose of punitive detention is to punish a person for what he
has already done, the objective of preventive detention is not to punish a person for having done
something but to intercept before one does it and to prevent him/her from doing it. The period of
detention has been decreased from 3 months to 2 months and also the composition of
review/advisory board has been
changed after the 44th amendment to the constitution, 1978. The following are some of the
preventive detention laws in operation. Human Rights activists also call them as ‘black laws’
such as (i) MISA (Maintenance of Internal Security Act, 1971),
(ii) COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act
1974, (iii) TADA (Terrorist and Disruptive Activities (Prevention, Act 1985) and (iv) POTA
(Prevention of Terrorist Activities Act 2002).
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Rights against Exploitation Arts 23 - 24

Article 23 prohibits trafficking in human beings, beggar, slavery, and other similar forms of forced
labour. Art.23-Clause (2) permits the State to impose compulsory services for public purposes.
Trafficking in human being means selling and buying men, women and children like marketable
commodities. The traffic in human beings include slavery, immoral traffic in women and children
for immoral purposes like sex work and other forms of forced labour.
The Constitution clearly prohibits employment of Children below 14 years of age in factories and
hazardous employment (Art. 24). The government has enacted several laws to prohibit children
from working. Some of the legislations are Employment of Children Act, 1938, Children (pledging
of labour) Act, 1933, the Mines Act, 1952 and Child Worker Regulation Act, 1986.
Rights to Freedom of Religion
The term ‘religion’ is not defined in the Constitution whereas it also guarantees secularism as one of the
ideals of the Constitution. It guarantees a) freedom of conscience,
b) freedom to profess, practice and propagate any religion. Reasonable restrictions to this freedom
are religious liberties subject to public order, morality and health (Art. 25). Further subject to public
order, morality and health every religious denomination or any section should have the following rights
to establish and maintain institutions for religious and charitable purposes:
a) to manage its own affairs in the matters of religion.
b) to own and acquire movable and immovable properties.
c) to administer such properties in accordance with law.
In order to ensure the secular charater, Art. 27 provides ‘no one shall be compelled to pay any tax
for the promotion or maintenance of any particular religion or religious denomination’. This is to
ensure the secular character of the State. Consequently, there is prohibition of religious instruction in
State aided institutions.
Cultural and Educational Rights
State has been entrusted responsibility of protection of interests of minorities (Art. 29). It also
confers minorities right to establish and administer educational institutions and provides following
four distinctive rights :
a) Right of any section of citizens to conserve its own language, script or culture [Art. 29 (1)].
b) Right of all religion and linguistic minorities to establish and administer educational institutions
of their choice [Art. 30(1)].
c) Right of an education institution not to be discriminated in matters of State aid on grounds that
it is managed by a religious or linguistic minority [Art. 30 (2)].
d) Right of the citizen not to be denied admission in to any State maintained or State aided
institutions on grounds of religion, caste, race or language [Art. 29 (2)].
The word ‘minority’ has not been defined in the constitution but it has intent to use term in wide sense
i.e. section of citizens. Minorities shall be protected in respect of their language, script and
culture. The state shall not make any law that operate oppressively or prejudicially

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Right to Constitutional Remedies

Realizing the futility of granting rights without an effective machinery for their enforcement, the Constitution
makers included in chapter III itself the rights to Constitutional Remedies. Article 32 guarantees to a person
the right to move the Supreme Court directly for the enforcement of their fundamental rights. The
Supreme Court can issue various kinds of writs for the enforcement of these rights. The right to
Constitutional remedies shall not be suspended except as otherwise provided in the constitution that is
during emergency under Article 352. Article 32 has been called the cornerstone of the entire edifice
set up by the constitution. Dr. Ambedkar called it “the very heart and soul of the Constitution”.
One can seek redressal through following petitions.
The Writ of Habeas Corpus: It means “To have a body”. It is a powerful safeguard against arbitrary
acts not only on private individuals but also of the executive. This writ can be filed by any one
including the arrested person, his relatives, friends etc. This petition will force the arresting
authorities to produce the person bodily in the court.
The Writ of Mandamus: Literally means ‘we command’ This writ commands the person to whom
it is addressed to perform public or quasi public legal duty which he has refused to perform and the
performance of which cannot be enforced by any other legal remedy.
The Writ of Prohibition: It simply means to forbid or to stop. The Supreme Court or High Court
issues directions to an inferior court or institution of governance, forbidding the latter to continue
proceeding in a case in excess of its jurisdiction or to encroach on jurisdiction with which it is not
legally vested.
The Writ of Certiorari: It means ‘to be more fully informed of’. It is issued to a lower court after
a case has been decided by it denouncing or abolishing that order. The objective is to secure that
order. Jurisdiction of an inferior court does not encroach the jurisdiction which it does not possess.
The Writ of Quo warranto : The writ of Quo warrranto means ‘by what warrant or by what order’.
It is a proceeding by which the court inquires into the legality of the claim, which a party asserts to a
public office and to remove from his or her employment if the claim is not found.

1.5 FUNDAMENTAL DUTIES

The fundamental duties are incorporated by the 42nd Amendment to the Constitution in 1976 as Article
51-A in Part IV-A. India is the only country having in the Constitution rights and duties side by side.
Rights and duties are correlated. The following ten are the charter of duties for the citizens of India:

a) to abide by the Constitution and respect its ideals and institutions, the National flag and
the National Anthem;

b) to cherish and follow the noble ideals which inspired our national struggle for
freedom.

c) to uphold and protect the sovereignty, unity and integrity of India;

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d) to defend the country and render national service when called upon to do so;

e) to promote harmony and spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women;

f) to value and preserve the rich heritage of our composite culture;

g) to protect and improve the natural environment including forest, lakes, rivers and wild
life, and to have compassion for living creatures;

h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

i) to safeguard public property and to abjure violence;

j) to strive towards excellence in all spheres of individual and collective activity so that
nation constantly rises to higher levels of endeavour and achievement.

There is no provision in the Constitution for direct enforcement of these duties. These can
not be enforced by writs, but can be promoted only by constitutional methods. Their
inclusion has been justified on the basis that they would help to strengthen our democracy.
These duties are obligatory on citizens. It is only through education and enlightened public
opinion that a feeling of pride and responsibility towards these constitutional duties to the
nation can be inculcated in the citizens.

DIRECTIVE PRINCIPLES OF STATE POLICY

In Part IV of the constitution, Directive Principles of the State policy are explained from
Art. 36 to Art. 51. It is borrowed from the Irish Constitution. The objective of Directive Principles
is to embody the concept of ‘welfare state’. Thus Directives have been held to supplement
fundamental rights to achieve the ideals of welfare state. The Directive Principles of State
policy,deals with the social, economic and cultural rights. Unfortunately they are not justifiable in the
court of law when it is violated. However, Directive principles are fundamental in the governance of
the country. These are the directions to the State and law making bodies to keep in mind while
framing policies and laws. The Directive Principles have not been properly classified in the
Constitution. Yet they can be conveniently divided into the following categories.
Socialist Principles
i) Equal distribution of wealth and material resources among all classes of people so as to
prevent its concentration in a few hands. (Art. 38 and 39)

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ii) Provision of adequate means of livelihood to all the citizens. (Art. 43)
iii) Equal pay for equal similar work for both men and women. (Art. 39)
iv) Right to work, education and public assistance (Art. 41)

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