Indian Polity Notes- Part 1

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Indian Polity Notes- Part 1

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Contents 1. Basic Terminologies ............................................................................................................................... 15

1.1 Introduction ........................................................................................................................................ 15

1.2 State Government and Laws ................................................................................................................ 16

1.2.1 State ............................................................................................................................................ 16

1.2.2 Laws ............................................................................................................................................. 16

1.3 Society, Morality and Nation ................................................................................................................ 17

1.3.1 Society ......................................................................................................................................... 17

1.3.2 Civil Society .................................................................................................................................. 17

1.3.3 Morality ....................................................................................................................................... 17

1.3.4 Nation .......................................................................................................................................... 17

1.4 Liberty, Equality and Justice ................................................................................................................. 18

1.4.1 Liberty .......................................................................................................................................... 18

1.4.2 Equality ........................................................................................................................................ 18

1.4.3 Justice .......................................................................................................................................... 19

1.5 Power, Authority and Legitimacy .......................................................................................................... 20

1.5.1 Power........................................................................................................................................... 20

1.5.2 Authority ...................................................................................................................................... 20

1.5.3 Legitimacy .................................................................................................................................... 20

1.6 Sovereignty, Rights, Duties and Governance ......................................................................................... 21

1.6.1 Sovereignty................................................................................................................................... 21

1.6.2 Rights and Duties .......................................................................................................................... 22

1.6.3 Governance .................................................................................................................................. 22

2. Historical Underpinnings, Evolution and Constitutional Developments ..................................................... 23

2.1 Introduction ........................................................................................................................................ 23

2.2 Company Rule (1773-1858) .................................................................................................................. 23

2.2.1 Regulating Act of 1773 .................................................................................................................. 23

2.2.2 Pitt’s India Act (1784) .................................................................................................................... 24

2.2.3 Act of 1786 ................................................................................................................................... 24

2.2.4 Charter Act of 1793 ....................................................................................................................... 24

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2.2.5 Charter Act of 1813 ....................................................................................................................... 24

2.2.6 Charter Act of 1833 ....................................................................................................................... 24

2.2.7 Charter Act of 1853 ....................................................................................................................... 25

2.3 Crown Rule (1858-1947) ...................................................................................................................... 25

2.3.1 Government of India Act, 1858 ...................................................................................................... 25

2.3.2 Indian Councils Act, 1861............................................................................................................... 25

2.3.3 Indian Councils Act, 1892............................................................................................................... 26

2.3.4 Indian Councils Act of 1909 (Morley- Minto Reforms)...................................................................... 26

2.3.5 Government of India Act, 1919 (Montague- Chelmsford Reforms) ................................................... 26

2.3.6 Simon Commission 1927................................................................................................................ 27



3. Features of Indian Constitution .............................................................................................................. 29

3.1 Introduction ........................................................................................................................................ 29

3.2 Salient Features of Indian Constitution ................................................................................................. 29

1. Lengthiest Constitution .................................................................................................................. 29

2. Partly Rigid and Partly Flexible ........................................................................................................ 29

3. A Democratic Republic ................................................................................................................... 30

4. Parliamentary System of Government............................................................................................. 30

5. A Federation with Unitary Bias........................................................................................................ 30

6. Fundamental Rights (most prioritized & basic rights of individuals mainly against state) .................... 31

7. Directive Principles of State Policy (Liberalism + Socialism + Gandhism) ............................................ 32

8. Fundamental Duties ....................................................................................................................... 32

9. Secular State (Interventionist State-Positive concept) ...................................................................... 33

10. An Integrated and Independent Judiciary..................................................................................... 33

11. Single Citizenship ....................................................................................................................... 33

12. Borrowed/ drawn from various sources ....................................................................................... 33

13. Synthesis of Parliamentary Sovereignty (Britain) and Judicial Supremacy (America)........................ 34

14. Universal Adult Franchise............................................................................................................ 34

15. Independent Bodies ................................................................................................................... 34

16. Emergency Provisions ................................................................................................................. 34

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17. Three- Tier Government ............................................................................................................. 34

18. Cooperative Societies ................................................................................................................. 34

3.3 Main objects of Indian Constitutional Law ............................................................................................. 34

4. Making of Constituent Constitution and Schedules.................................................................................. 36

4.1 Demand for Constituent Assembly ....................................................................................................... 36

4.2 Composition of the Constituent Assembly............................................................................................. 36

4.3 Working of Constituent Assembly......................................................................................................... 37

4.4 Constituent Assembly Committees ....................................................................................................... 37

4.4.1 Major Committees ........................................................................................................................ 37

4.4.2 Minor Committees ........................................................................................................................ 37

4.4.3 Drafting Committee ...................................................................................................................... 38

4.5 Changes made by Independence Act of 1947 ........................................................................................ 38

4.6 Other functions of Constituent Assembly .............................................................................................. 39

4.7 Enforcement of Constitution ................................................................................................................ 39

4.8 Experts committee of Congress ............................................................................................................ 39

4.9 Criticism of Constituent Assembly ........................................................................................................ 40

4.10 Arguments defending the Constituent Assembly ................................................................................. 40

4.11 Hindi text of the Constitution ............................................................................................................. 41

4.12 Sessions ............................................................................................................................................ 41

4.13 Schedules of Indian constitution......................................................................................................... 42

4.14 Indian Constitution at a Glance........................................................................................................... 44

5.Comparison of the Indian Constitutional scheme with that of other.............................................................. 47

5.1 Overview of Indian Constitution ........................................................................................................... 47

5.2 Political systems across the world ........................................................................................................ 47

5.2.1 Dictatorship .................................................................................................................................. 47

5.2.2 Democracy ................................................................................................................................... 47

5.2.3 Republic ....................................................................................................................................... 47

5.2.4 Monarchy ..................................................................................................................................... 47

5.2.5 Anarchy ........................................................................................................................................ 48

5.3 Salient Features of the Constitutions of Various Countries: .................................................................... 48

5.3.1 USA .............................................................................................................................................. 48

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5.3.2 UK ................................................................................................................................................ 48

5.3.3 Russia........................................................................................................................................... 49

5.3.4 France .......................................................................................................................................... 49

5.3.5 China............................................................................................................................................ 49

5.3.6 Japan............................................................................................................................................ 50

5.3.7 The below table gives a glance at major adopted provisions from different constitutions:................. 50

5.4 Truly Indian spirit of Constitution is reflected in following provisions:..................................................... 51

5.5 Indian Constitutional features comparison with other constitutions ....................................................... 51

5.5.1 Written Constitution ..................................................................................................................... 51

5.5.2 Flexible or Rigid............................................................................................................................. 51

5.5.3 Unitary or Federal ......................................................................................................................... 51

5.5.4 Type of Government ..................................................................................................................... 52

5.5.5 Parliamentary sovereignty ............................................................................................................. 52

5.5.6 Republic ....................................................................................................................................... 52

5.5.7 President ...................................................................................................................................... 52

5.5.8 Citizenship .................................................................................................................................... 52

5.5.9 Fundamental rights, DPSP and Fundamental Duties ........................................................................ 52

5.5.10 Due process of Law/ Procedure established by law ....................................................................... 52

5.5.11 Emergency provision ................................................................................................................... 53

5.5.12 Table of above compared features: .............................................................................................. 53

6. The Preamble ........................................................................................................................................... 55

6.1 Introduction ........................................................................................................................................ 55

6.2 Preamble ............................................................................................................................................ 55

6.3 Key words ........................................................................................................................................... 56

6.4 Significance of Preamble ...................................................................................................................... 57

6.5 Preamble as a Part of Constitution ....................................................................................................... 58

6.6 Amenability of Preamble...................................................................................................................... 58

6.7 Instruments of Direct Democracy ......................................................................................................... 58

7. Union and its Territory (Art.1-4) (Part-I) .................................................................................................. 59

7.1 Union of States.................................................................................................................................... 59

7.2 Article 1 to 4: ...................................................................................................................................... 59

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7.2.1 Article – 1 ..................................................................................................................................... 59

7.2.2 Article – 2 ..................................................................................................................................... 59

7.2.3 Article – 3 ..................................................................................................................................... 59

7.2.4 Article – 4 ..................................................................................................................................... 60

7.2.5 Procedure..................................................................................................................................... 60

7.3 Dhar and JVP Commission .................................................................................................................... 61

7.4 Fazl Ali Commission ............................................................................................................................. 61

7.5 Criteria for Statehood .......................................................................................................................... 61

7.6 Smaller States Vs Bigger States............................................................................................................. 62

7.7 History of Statehood in India ................................................................................................................ 62

8. Citizenship (Art. 5-11) (Part-II) ................................................................................................................ 64

8.1 Introduction ........................................................................................................................................ 64

8.2 Article 5 to 11 ..................................................................................................................................... 64

8.2.1 Article 5........................................................................................................................................ 64

8.2.3 Article 6 and Article 7 .................................................................................................................... 64

8.2.4 Article 8........................................................................................................................................ 65

8.2.5 Article 9........................................................................................................................................ 65

8.2.6 Article 10 ...................................................................................................................................... 65

8.2.7 Article 11 ...................................................................................................................................... 65

8.3 Domicile ............................................................................................................................................. 65

8.4 Gain of Citizenship............................................................................................................................... 66

8.4.1 Citizenship by birth ....................................................................................................................... 66

8.4.2 Citizenship by descent ................................................................................................................... 66

8.4.3 Citizenship by registration ............................................................................................................. 67

8.4.4 Citizenship by naturalization .......................................................................................................... 67

8.4.5 Citizenship by incorporation of territory ......................................................................................... 67

8.5 Loss of Indian Citizenship ..................................................................................................................... 67

8.6 Single Citizenship................................................................................................................................. 67

8.7 Amendments and NRC......................................................................................................................... 69

8.8 Overseas Citizenship of India................................................................................................................ 69

8.8.1 Registration of Overseas Citizen of India Cardholder ....................................................................... 70

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9. Fundamental Rights............................................................................................................................... 72

9.1 Introduction ........................................................................................................................................ 72

9.2 The Basic Rights .................................................................................................................................. 72

9.3 Article 12 and 13 ................................................................................................................................. 73

9.3.1 Article 12 ...................................................................................................................................... 73

9.3.2.1 Article 13(1) ............................................................................................................................... 73

9.3.2.2 Article 13(2) ............................................................................................................................... 73

9.4 Equality (Articles 14-18) ....................................................................................................................... 73

9.4.1 Article 14 ...................................................................................................................................... 73

9.4.2 Article 15 ...................................................................................................................................... 74

9.4.3 Article 16 ...................................................................................................................................... 76

9.4.4 Article 17 ...................................................................................................................................... 78

9.4.5 Article 18 ...................................................................................................................................... 78

9.5 Freedom (Article 19 To 22)................................................................................................................... 79

9.5.1 Article 19 ...................................................................................................................................... 79

9.5.2 Article 20 – Right against Conviction............................................................................................... 83

9.5.2.1 Protection in Respect of Conviction for Offences (Art.20) ............................................................. 83

9.5.3 Article 21 – Right to life to personal liberty except procedure established by law.............................. 83

9.5.4 Protection against Arrest and Detention......................................................................................... 87

9.6 Rights against Exploitation (Article 23 To 24) ......................................................................................... 89

9.6.1 Prohibition of Traffic in Human Beings and Forced Labour (Art.23)................................................... 89

9.6.2 Article 24 ...................................................................................................................................... 90

9.7 RELIGIOUS RIGHTS (ARTICLE 25 TO 28) ................................................................................................. 90

9.7.1 Freedom of Conscience and Free Profession, Practice and Propagation of Religion (Art.25) ............... 91

9.7.2 Freedom to Manage Religious Affairs ............................................................................................. 91

9.7.3 Freedom from Taxation for Promotion of a Religion (Art. 27)........................................................... 92

9.7.4 Freedom from Attending Religious Instruction (Art. 28)................................................................... 92

9.8 Cultural and Educational Rights (Article 29 To 30) .................................................................................. 93

9.8.1 Protection of Interests of Minorities (Art. 29) ................................................................................. 93

9.8.2 Article 30 ...................................................................................................................................... 94

9.9 Remedies (Art.32 TO 35) ...................................................................................................................... 95

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9.9.1 Important writs (Art.32) ................................................................................................................ 95

9.9.2 Armed Forces and Fundamental Rights (Art.33) .............................................................................. 97

9.9.3 Martial Law Vs National Emergency ............................................................................................... 98

9.10 Amendment of Fundamental Rights ................................................................................................... 99

9.10.1 First Phase .................................................................................................................................. 99

9.10.2 Second Phase.............................................................................................................................. 99

9.10.3 Third Phase ............................................................................................................................... 100

9.10.4 42nd Amendment and Minerva Mills ........................................................................................... 100

9.10.5 Conclusion ................................................................................................................................ 100

9.10.6 Basic Structure not defined ........................................................................................................ 100

9.11 Suspension of fundamental rights..................................................................................................... 101

9.12 Available to Citizens......................................................................................................................... 101

9.13 Available to all persons ................................................................................................................... 101

9.14 Right to property ............................................................................................................................. 102

9.14.1 Present Position of Right to Property.......................................................................................... 105

9.15 Rights outside Part-III....................................................................................................................... 106

10. Directive Principles of State Policy (Art. 36-51) (Part IV) ..................................................................... 107

10.1 Introduction and Features................................................................................................................ 107

10.2 Features of the Directive Principles................................................................................................... 107

10.3 Classification of the Directive Principles ............................................................................................ 108

10.3.1 Socialistic Principles................................................................................................................... 108

10.3.2 Gandhian Principles................................................................................................................... 108

10.3.3 Liberal-Capitalist Principles ........................................................................................................ 109

10.4 New Directive Principles .................................................................................................................. 109

10.5 The Relationship between the Preamble, the Fundamental Rights and the Directive Principles ............ 110

10.6 Conflict between Fundamental Rights and Directive Principles ........................................................... 112

10.6.1 Distinction between Fundamental Rights and Directive Principles ................................................ 113

10.7 Directives outside Part-IV ................................................................................................................. 114

11. Fundamental Duties (Art.51A) (Part IV A) .......................................................................................... 116

11.1 Introduction .................................................................................................................................... 116

11.2 Swaran Singh Committee Recommendations .................................................................................... 118

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11.3 Features of the Fundamental Duties ................................................................................................. 118

11.4 Fundamental Duties ........................................................................................................................ 118

(1) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem: ................................................................................................................................ 118

(2) To cherish and follow the noble ideals which inspired our national struggle for freedom: .............. 119

(3) To uphold and protect the sovereignty, unity and integrity of India: ............................................ 119

(4) To defend the country and render national service when called upon to do so: ........................... 120

(5) To promote harmony and the 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: ......................................................................................................................... 120

(6) To value and preserve the rich heritage of our composite culture: ............................................... 120

(7) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures: ................................................................................................... 121

(8) To develop the scientific temper, humanism and the spirit of inquiry and reform: ....................... 122

(9) To safeguard public property and to abjure violence: ................................................................. 122

(10) To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavor and achievement: ............................................................. 122

(11) Every parent or guardian to provide opportunities for education to his child or ward between the

age of 6 and 14 years:.......................................................................................................................... 122

11.5 Legal provisions for Fundamental duties ........................................................................................... 123

11.6 Significance of Fundamental Duties .................................................................................................. 123

12. The Panchayats (Part-IX) (Art.243-243O) ........................................................................................... 125

12.1 History ............................................................................................................................................ 125

12.2 The 73rd And 74th Constitution Amendment Acts ............................................................................... 125

12.2.1 Special features of the new system: ........................................................................................... 125

12.3 73rd Amendment Act Of 1992 ........................................................................................................... 126

12.3.1 Significance of the Act ............................................................................................................... 126

12.3.2 SALIENT FEATURES .................................................................................................................... 127

12.3.3 State Election Commission ......................................................................................................... 128

12.3.4 Powers and Functions................................................................................................................ 128

12.3.5 Finances ................................................................................................................................... 128

12.3.6 Finance Commission.................................................................................................................. 129

12.3.7 Audit of Accounts: ..................................................................................................................... 129

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12.3.8 Application to Union Territories ................................................................................................. 129

12.3.9 Exempted States and Areas........................................................................................................ 129

12.3.10 Continuance of Existing Laws and Panchayats ........................................................................... 130

12.3.11 Bar to Interference by Courts in Electoral Matters ..................................................................... 130

12.4 Eleventh Schedule ........................................................................................................................... 130

12.5 Compulsory and Voluntary Provisions ............................................................................................... 131

A. Compulsory Provisions ................................................................................................................. 131

B. Voluntary Provisions .................................................................................................................... 132

12.6 PESA Act of 1996 (Extension Act) ...................................................................................................... 132

12.6.1 Objectives of the Act ................................................................................................................. 132

12.6.2 Features of the Act .................................................................................................................... 133

12.6.3 Finances of Panchayati Raj ......................................................................................................... 134

12.6.4 Reasons for Ineffective Performance .......................................................................................... 136

13. The Municipalities (Part-IXA) (Art. 243P-243ZG) ................................................................................ 138

13.1 Introduction .................................................................................................................................... 138

13.2 Evolution of Urban Bodies................................................................................................................ 138

13.2.1 Historical Perspective ................................................................................................................ 138

13.3 Committees and Commissions on Urban Local Governments ............................................................. 139

13.4 Constitutionalization........................................................................................................................ 139

13.5 74TH Amendment Act Of 1992 .......................................................................................................... 139

13.5.1 Salient Features ........................................................................................................................ 140

13.5.2 Composition ............................................................................................................................. 140

13.5.3 Wards Committees.................................................................................................................... 140

13.5.4 Reservation of Seats .................................................................................................................. 141

13.5.5 Duration of Municipalities ......................................................................................................... 141

13.5.6 Disqualifications ........................................................................................................................ 141

13.5.7 State Election Commission ......................................................................................................... 141


13.5.9 Finances ................................................................................................................................... 142

13.5.10 Finance Commission ................................................................................................................ 142

13.5.11 Audit of Accounts .................................................................................................................... 143

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13.5.12 Application to Union Territories ............................................................................................... 143

13.5.13 Exempted Areas ...................................................................................................................... 143

13.5.14 District Planning Committee..................................................................................................... 143

13.5.15 Metropolitan Planning Committee ........................................................................................... 144

13.6 Continuance of Existing Laws and Municipalities ............................................................................... 144

13.7 Bar to Interference by Courts in Electoral Matters ............................................................................. 145

13.8 Twelfth Schedule ............................................................................................................................. 145

13.9 Types of Urban Governments ........................................................................................................... 146

13.9.1 Municipal Corporation:.............................................................................................................. 146

13.9.2 Municipality: ............................................................................................................................. 147

13.9.3 Notified Area Committee: .......................................................................................................... 147

13.9.4 Town Area Committee:.............................................................................................................. 147

13.9.5 Cantonment Board: ................................................................................................................... 148

13.9.6 Township .................................................................................................................................. 149

13.9.7 Port Trust: ................................................................................................................................ 149

13.9.8 Special Purpose Agency: ............................................................................................................ 149

13.9.9 Municipal Personnel ..................................................................................................................... 150

13.9.9.1 Separate Personnel System ............................................................................................... 150

13.9.9.2 Unified Personnel System.................................................................................................. 150

13.9.9.3 Integrated Personnel System ............................................................................................. 150

13.10 Municipal Revenue ........................................................................................................................ 151

13.10.1 Tax Revenue ..................................................................................................................... 151

13.10.2 Non-Tax Revenue.............................................................................................................. 151

13.10.3 Grants .............................................................................................................................. 151

13.10.4 Devolution .............................................................................................................................. 151

13.10.5 Loans ............................................................................................................................... 151

13.11 Central Council of Local Government .............................................................................................. 151

Note:...................................................................................................................................................... 152

14. Public Services................................................................................................................................. 153

14.1 Position of Civil Servants in a Parliamentary System of Government.................................................... 153

14.2 Matters which call for regulation ...................................................................................................... 154

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14.3 Power to prescribe conditions of Service........................................................................................... 154

14.4 Tenure of office ............................................................................................................................... 155

14.5 Cannot be fettered by Contract ........................................................................................................ 155

14.6 Limitations upon exercise of the Pleasure ......................................................................................... 156

14.6.1 Exceptions in the case of some high officials ............................................................................... 156

14.7 Safeguards for civil servants ............................................................................................................. 156

14.8 In which cases the opportunity must be given ................................................................................... 157

14.9 What Constitutes Dismissal, Removal and Reduction in Rank ............................................................. 157

14.10 Exceptions to the requirement of giving opportunity ....................................................................... 159

14.11 Article 323a (Xiv A) Of the Constitution and the Administrative Tribunals Act, 1985........................... 159

14.12 Public Service Commissions for the Union and the States ................................................................. 160

14.13 Appointment and Term of office of Members.................................................................................. 160

14.13.1 Independence of the Commission ............................................................................................ 161

14.14 Functions of Public Service Commissions......................................................................................... 162

14.15 Report of Public Service Commissions ............................................................................................. 164

14.16 How far Commission’s advice binding on the Government ............................................................... 164

14.17 All-India Services (Article 312) ........................................................................................................ 165

14.18 Fundamental Rights of Civil Servants .............................................................................................. 166

15. Weaker Sections (Part XVI) (Art.330-342) .......................................................................................... 168

15.1 Weaker Sections (SCs, STs, OBCs and Anglo-Indians) .......................................................................... 168

15.2 National Commissions for Scheduled Castes (Article 338) and Scheduled Tribes (Article 338(A)) .......... 168

15.2.1 Structure of NCSC and NCST....................................................................................................... 169

15.2.2 Duties of NCSC and NCST ........................................................................................................... 169

15.2.3 Power of NCSC and NCST ........................................................................................................... 170

15.2.4 Consultation by Union and State Governments ........................................................................... 170

15.3 National Commission for Backward Classes (NCBC) (Article 338(B)) .................................................... 170

15.3.1 What is NCBC? .......................................................................................................................... 170

15.3.2 Background............................................................................................................................... 170

15.3.3 Structure of NCBC ..................................................................................................................... 171

15.3.4 Constitutional Provisions ........................................................................................................... 172


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15.3.6 How Does The New Commission Be Different From Its Earlier Version? ........................................ 172

15.3.7 Issues ....................................................................................................................................... 173

15.3.8 Suggestions............................................................................................................................... 173

16. Official Language Part XVII (Articles 343 to 351)................................................................................. 174

16.1 Introduction .................................................................................................................................... 174

16.2 Articles related ................................................................................................................................ 174

16.3 Language of the Union ..................................................................................................................... 175

16.4 Regional Languages ......................................................................................................................... 175

16.5 Language of the Judiciary and Texts of Laws ...................................................................................... 176

16.6 Special Directives............................................................................................................................. 177

16.6.1 Protection of Linguistic Minorities .............................................................................................. 177

16.6.2 Development of Hindi Language................................................................................................. 177

16.6.3 Committee of Parliament on Official Language............................................................................ 178

16.6.4 Classical Language Status........................................................................................................... 179

16.6.5 Benefits .................................................................................................................................... 180

16.6.6 Criteria ..................................................................................................................................... 180

17. Emergency Provisions Part XVIII (Art.352 to 360) ............................................................................... 181

17.1 Introduction .................................................................................................................................... 181

17.2 Different Kinds of Emergencies......................................................................................................... 181

17.3 42nd and 44th Amendments .............................................................................................................. 181

17.3.1 Proclamation of Emergency ................................................................................................... 182

17.3.2 Question: How a Proclamation may terminate ............................................................................ 182

17.3.3 Use of the Emergency Powers .................................................................................................... 184

17.3.4 Proclamation of Failure of Constitutional machinery in a State..................................................... 185

17.3.5 Conditions for extension of duration beyond one year ................................................................ 186

17.3.6 Judicial Review .......................................................................................................................... 186

17.3.7 Articles 352 and 356 compared .................................................................................................. 187

17.3.8 Use of the Power....................................................................................................................... 187

17.3.9 Frequent and improper use of the power under Article 356, deprecated ...................................... 188

17.3.10 Power under Art. 356 must be used rarely ................................................................................ 189

17.3.11 President not to take irreversible steps under Art. 356 (1) (a), 9(b) & (c). .................................... 189

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17.3.12 Court’s Power to restore status quo ante.................................................................................. 189

17.3.13 Illustration of cases where resort to Art. 356 would not be proper ............................................. 189

17.3.14 Proper occasions for use suggested .......................................................................................... 190

17.3.15 Effect of 44th Amendment on Article 356 .................................................................................. 190

17.3.16 Proclamation of Financial Emergency ....................................................................................... 191

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1. Basic Terminologies

1.1 Introduction The root word of all the three is ‘Poleis’ which means city-state. In pre Christian period, city-states like Greece,

Sparta, Athens, Macedonia, Rome, troy etc. are mentioned in the writings of Socrates, Plato, Aristotle and other Greek philosophers. City states were having small population and limited geographical area.

The population in ideal states of Plato and Aristotle were 5040 and 10000 respectively. State is the result of human

rationality to regulate society in wake of conflicts and ideas involving individuals, groups, institutions and

government. Population, territory, government and sovereignty (supremacy) are the components of state.

Sovereignty is the most important feature of state for sake of finality of decisions to ensure predictability and

certainty in wake of imperfections of society. Tribal state, city-state, oriental empires (Mauryan empire), Great

roman state existed in ancient period while in medieval history, there were feudal states. Modern age witnessed

emergence of large nation states, the feasibility of which is attributed to modern means of communication

enabling state to control large territories.

Earlier state was virtually police state meant for maintaining law and order and providing security. However with

the passage of time role of state increased which includes welfare of society (welfare state). Increasing role of state also widened the meaning and scope of politics.

Traditional definition of political science is the study of state and its related institutions. According to Garner, it

starts with state and ends at state. According to Gettel, it is the science of state. However politics is omnipresent even if there is no direct involvement of state. E.g. film politics, cricket politics, etc.

Conflicts and cooperation are two sides of the same coin called politics on public issues (not private issue).

Conflicts are inevitable while cooperation is desirable. When we see conflictual aspects of politics it appears dirty.

E.g. mud slanging, allegations and counter allegations etc. However politics has immense potential of conflict

resolution due to elements of flexibility, tolerance, spirit of give and take, spirit of middle path and accommodation in wake of conflicts interest and ideas.

Political solution of Arab Israel problem, Kashmir problem, Ayodhya problem etc. is sought and not legal solution.

We must appreciate political processes when consensus and agreements are done by narrowing the differences

and divergences. Sometimes politicization of public issues is seen negatively but it also helps in amicable

resolution of conflicts. Different political theories of states are the different perspectives to see and understand

the same state. This helps in multidimensional, enriched and holistic understanding.

Every theory is tentative and is subject to revision and criticism paving the ways for another theory and so on.

Theories are dynamic in nature and closely linked with philosophy and value (expression of preference). The preferences and perspective of different theories are different.

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1.2 State Government and Laws

1.2.1 State State is a legal entity having four elements namely population, territory, government & Sovereignty

(supremacy).Sovereignty to decide with finality is exercised by government of the day in wake of conflicts of interests in society.

Political executive is temporary and owing its position to mandate in democracy while bureaucrats are permanent executive owning their position to merit.

1.2.2 Laws Positive laws are man-made laws to regulate society. These are rules and regulations to ensure certainty in action

and behavior of members of society. Laws are the result of collective rationality. Laws are backed by sanctions

i.e. non-obedience invites punishment for its universal effectiveness. It has both value & validity and also works as deterrence against anti-social activity to ensure safety & certainty in everybody’s life

Constitution is the supreme law containing principles of Governance along with rights, duties, powers, functions

and relations involving state Civil Society and Individuals. Case laws, statutes, administrative laws, customs, traditions etc. also regulate human society.

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Constitutionalism is a modern political ideology associated with liberal democracy to ensure rule of law rather than rule by law.

1.3 Society, Morality and Nation

1.3.1 Society Society is the group of individuals voluntarily coming together to fulfill various needs & aspirations of all

individuals. There can be various societies within a Nation-State & there can be societies cutting across national boundaries

1.3.2 Civil Society Civil Society is autonomous from state on one hand and various groups of it affect state decisions on the other.

Family, school, religious place, relatives, interest groups etc. are different layers of socialization by which a self-

centric infant become sharing and productive human being.

1.3.3 Morality Morality is individualistic judgement in terms of rights and wrongs while ethics is societal. Morality is opposite of selfishness i.e. doing well with all. It is more urgently required in political sphere dealing with public issues.

1.3.4 Nation Nation is an imagined political community with psychological bond of ones among members. Nation is a Latin

word which means racial group. Language & Culture became the basis of Nationhood in Western European

countries in early modern period.

However, India is a multilingual, multi-religious & multicultural diverse Nation-State. Extreme Nationalism threatens international peace & causes wars.

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1.4 Liberty, Equality and Justice

1.4.1 Liberty Liberty means absence of constraints and interchangeably used with freedom. The former is more specific

individual while later is universally used. A person is entitled for liberty and not license (absolute liberty) as he is

not infallible like God. Similarly authority of State is also not absolute as it is exercised by group of persons

constituting government. In other words neither liberty is absolute and nor authority of state. Liberty has to be

balanced between these two extreme ends.

1.4.1.1 Freedom assured by Atlantic charter (1941)

(i) Freedom of Speech and expression

(ii) Freedom of worship

(iii) Freedom from fear

(iv) Freedom from wants

(I) & (ii) freedoms are mainly negative freedom ensured by non-intervention of state while freedoms of (iii) & (IV) Are positive as they are enabled by the State.

1.4.2 Equality Equality means reduction of irrational and unjust inequalities. It does not mean ending all differences. Moreover

there are certain differences which are natural and un-alterable. Equality also does not mean literal equality.

Certain inequalities, differences and diversity are welcome and desirable in interdependent human society.

Equals are treated equally to ensure Numerical equality while un-equals are treated un-equally to ensure

proportional equality. More needy to get more on humanitarian ground while more able also gets more for

incentivizing those excellence and contributions which promotes social good.eg – poor to get subsidy from

government as they are needy while Sachin Tendulkar got Bharat-Ratna for excellence.

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Rule of law, equality before law, equality of status and equal treatment are meant to ensure numerical equality

while proportional and differential treatment, positive discrimination (affirmative action) and equality of

opportunity are meant to ensure proportional equality.

Socialist Marxist theory prefers equality over liberty but for Liberal-Capitalist theory, liberty is primary and

equality is secondary. Liberal democracy based on universal adult franchise and citizenship ensures political equality of human kind.

The claims of socio-economic equality by poor and working class pertains to material sphere of exchange, hence

Capitalists (rich) would resist it more. Balancing the claims of liberty and equality is important to ensure justice as per the conditions of society.

Individual liberty gets greater preference than socio-economic equality in prosperous society while opposite is true

in poor society. Traditional concept of equality involves equitable distribution of wealth, resources, utilities and

desire satisfaction; however, Prof Amartya Sen favors equitable distribution of capabilities.

Reading is a function but literacy is the capability. Skill and Capability development of weak and poor would help

in reducing unjust inequality. H.R.D, vocational training, literacy, training, etc. would reduce inequality on sustainable basis.

1.4.3 Justice Jus is the Latin word which means bond which keeps the members of society together. Justice is the value l aden

subjective issue with different perspectives, types and theories. Numerical justice, proportional justice,

distributive justice, corrective justice, political justice, social justice, economic justice, fairness in justice,

retributive justice are different variants of the same issue justice.

It is one of the most debated and improvised concept to ensure social and political stability in human history. The

meaning and scope of value laden love is limited to good relationship but justice involves doing well with all.

Functional specialization, non-interference & harmony within individual and among 3 classes of society would

ensure proportional justice in which everybody would contribute as per his ability and gets as per his needs, ability

and capacity. This proportional principle helps in amicable distribution of public goods namely wealth, resources, posts, opportunity, means of power and prestige etc.

The corrective justice of Aristotle involves corrective measures by state in which victim is compensated and

offender is punished, equivalent to loss & offence respectively. E.g. mild punishment for civil offence while harsh punishment for criminal offence

Liberal Capitalist theory favored individualistic justice, instrumental justice, civil liberties, legal-political equality, economic inequality, private property and incentive system. The socialist Marxist theory favored substantive

Justice, socio-economic equality, equality of opportunity and egalitarian society. John Rawls rejected both US

Capitalism and soviet socialism. The capitalism promotes economic inequality while socialism promoted single party totalitarianism and political centralization.

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Rawls favored liberty for all individuals and fair equality of opportunity for all. The society is a chain connection

in which weak must be reinforced without doing it at the expense of strong. The rich and strong sections of society

would be incentivized to compliment the weak.

The public policy makers would have ‘veil of ignorance’ to remain unbiased of their positions in social ladder.

Rawls was inspired from social contract theory but rejected Utilitarian theory of Bentham. The increased

happiness of rich cannot compensate the sufferings of poor. Fairness involves visible justice appreciated by society

at large and not only by judges of legal fraternity.

1.5 Power, Authority and Legitimacy

1.5.1 Power Power is the ability or capacity of more powerful to influence the actions and behavior of less powerful in a desired

manner. Power is a relative concept and is the phenomenon of all relations of the world Legitimacy simply means

rightfulness or considered to be right

1.5.2 Authority Authority is the most positive form of power as it involves voluntary compliance. Authority is the power backed

by law and is also legitimate power. Force is the most negative form of power as it involves compliance by

coercion. Power is the ability to issue effective commands while authority is the right or entitlement to issue

effective commands. Authority imbibes credibility (capacity + effectiveness), hence it gives moral right to rule.

1.5.3 Legitimacy Legitimacy is a value laden, perceptional and subjective issue in contrast to man made positive laws which are

objective, factual, explicit and codified. Excessive and frequent use of force by state is the symptom of eroding

legitimacy of it. Hence force is used as a last resort by powerful sovereign state.

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Max Weber (19th century German Sociologist) favored Capitalism and Liberal democracy. State is a human

organization having monopoly of using legitimate violence within the given territory. Modern Nation State is based

on rational-legal authority.

Laws emerge from collective rationality of society. Max Weber favored neutral bureaucracy in liberal democracy

with division and specialization of work, hierarchy, functioning on the basis of abstract rules, impersonal (anonymity), impolitically, and merit based appointment, promotion, posting, etc.

1.6 Sovereignty, Rights, Duties and Governance

1.6.1 Sovereignty Sovereignty literally means Supremacy and is considered most important feature of state besides population

territory and government. Sovereignty legally lies with the state must politically exercise by government of the

day. Sovereignty ensures finality of decisions and certainty in wake of conflicts of interests and ideas in society.

The concept of sovereignty became more dominant and relevant in wake of emergence of large Nation-states

under strong monarchs in early modern period. Austin gave monistic theory of sovereignty in which it is considered to be absolute, universal, permanent, indivisible and in-alienable.

“Laws are the commands of the sovereign from determinate source and are backed by Sanctions (Austin)”.

Mutual and reciprocal recognition of sovereignty is essential for stability of international relations. This was agreed

in Theory of Westphalia (1648) by 6-7 European countries during balance of power system. Bodin favored internal

sovereignty i.e. state would have final authority in relation to individuals, groups and resources falling within the

territory of state also called domestic territory of Nation State.

Grotius who is called father of international law favored external sovereignty i.e. state has supremacy in deciding

its foreign policy. Hobbes favored legal sovereignty of state which is unquestionable in absolute monarchy. Locke

favored political sovereignty i.e. supremacy exercised by government on behalf of state. Since government is also

a group of human beings who are not infallible, hence it can be questioned.

For Rousseau, Sovereignty is the feature of people and not state. State is merely an agent of supreme people,

thus he favored popular sovereignty. General will is inherent in the whole community and state cannot claim to represent it as will is non-representable and non-transferable.

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Defacto sovereignty is the supremacy enjoyed by rulers in reality and may not be legally entitled for it. De-jure

sovereignty is the supremacy backed and justified by law. Government (set of persons) took decis ions for war and

sacrificing people in First World War (1914-1919).

In wake of massive collateral damage and human rights violation due to World war, the autonomous groups

started questioning supremacy of government on the name of state sovereignty. This led to emergence of pluralist theory of sovereignty which

Rejected monistic theory of sovereignty. The Pluralist theory is also called group theory. The autonomous groups

mainly interest groups should play important role in shaping public policy. State should play the role of coordinator and not controller. Laws are above state. The State is association of association & authority is federal (Laski).

1.6.2 Rights and Duties The rights are mostly those justified claims and entitlements which are socially acceptable and legally enforceable.

The individuals avail Civil Rights as a private individual while political rights as a citizen. The socio-economic rights are group claims. E.g. Women rights, Worker’s rights, consumer rights etc.

However, moral rights cannot be legally enforceable because of subjectivity. Duties are the terms of obligations on our part. Rights & duties are two faces of the same coin. One cannot exist without the other.

1.6.3 Governance It is a contemporary involving interactions & processes involving government, civil society, Individuals/ Citizens

and market (business). It goes beyond government by including informal processes as well for setting priorities

and delivering services with fairness, accountability & transparency.

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2. Historical Underpinnings, Evolution and

Constitutional Developments

2.1 Introduction All the constitutions of the world are the heirs of the past as well as the testators of the future. Constitution of

Indian Republic is not the product of a pol itical revolution but of the research and deliberations of a body of eminent representatives of the people who sought to improve the existing system of administration.

Though the credits of making of Indian Constitution is often given to Constituent Assembly constituted for the

same purpose, various features of Indian Constitution has its roots in the laws of British rule. The events of British

rule that had impact on Indian Constitution and polity can be segregated under two time periods:

During Company rule (1773-1858) And during Crown rule (1858-1947)

2.2 Company Rule (1773-1858) British East India Company came to India in 1600 with a charter of Queen Elizabeth, which granted it the exclusive

right of trading in India. In 1765, after battle of Buxar, Company obtained ‘diwani’ (revenue and civil justice) rights

over Bengal, Bihar and Orissa region. Thus began the phase of Company rule with the first ever regulation of Company of 1773.

2.2.1 Regulating Act of 1773 It was first step taken by British government to control and regulate company affairs and it was first time

that Crown recognized political and administrative functions of the Company.

This act designated the Governor of Bengal as the ‘Governor General of Bengal’ and made executive

council of 4 members to assist him. The first Governor General of Bengal was Lord Warren Hastings.

Bombay and Madras Presidencies were made subordinate to Bengal

It prohibited the servants of company from engaging in private trade and from accepting any kind of gifts

or bribes.

It also required the Court of Directors (i.e. governing body of company) to report on its revenue, civil and

military affairs in India. This implies that British Government’s control over the Company strengthened.

It also made provision for establishment of Supreme Court at Calcutta (1774).

The Regulating Act of 1773 made a provision that the Charter of the Company would be reviewed every 20 years. Therefore, from time to time, Acts of 1793, 1813, 1833 and 1853 renewed the Charter Act of the Company and brought about some changes here and there. The first Law Commission was established after the Charter Act of 1833.

Amendments of 1781 – Jurisdiction of S.C. Clearly defined and English laws could be applicable to Englishmen only.

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2.2.2 Pitt’s India Act (1784) For the first time, company’s territories in India were called as “British possession in India” and the British

Government was given supreme control over Company’s administration and affairs in India.

Commercial and political functions of the Company were distinguished.

System of double government was established as

Court of Directors looked after commercial affairs

And a new body called Board of Control was created for looking after political affairs. It had

powers to supervise and direct all the operations of civil and military government and revenues of the British Indian possession.

2.2.3 Act of 1786 The new Governor General to be appointed was Lord Cornwallis with two demands for accepting the

office viz. to override the decision of his council in special cases and to be Commander-in-chief also.

Thus this act was passed accepting Lord Cornwallis’s demands.

2.2.4 Charter Act of 1793 It extended overriding powers of Lord Cornwallis to his successors and Governors of Presidencies.

It also extended Company’s monopoly of trade in India for next 20 years.

Governor General’s power and control over the subordinate presidencies of Bombay and Madras was

increased.

It specified that Commander-in-chief would not be member of Governor General’s Council unless so

appointed. Henceforth, the members of Board of Control and their staff was to be paid from the Indian revenues.

2.2.5 Charter Act of 1813 Asserted Crown’s sovereignty over the Company’s territories in India.

It abolished Company’s monopoly of trade in India i.e. other British Companies could now trade in India.

However, trade in tea and trade in China was still Company’s monopoly.

It allowed Christian missionaries in India to spread western education. Also allowed local governments in India to tax people and can even punish them for not paying taxes.

2.2.6 Charter Act of 1833 This was the ultimate step towards centralization.

The Governor General of Bengal was made as “Governor General of India” and all civil and military

powers were vested in him. Lord William Bentick was the first Governor General of India.

Governor General of India had exclusive legislative powers for entire British India, thus depriving

Governor of Bombay and Madras of their legislative powers. Henceforth the laws made were to be called

as “Acts” while the previous laws were said as Regulations.

It ended the commercial activities of the Company and thus made it a purely administrative body.

An attempt was made to establish a system of open competition for civil services, however it remained only on paper.

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2.2.7 Charter Act of 1853 It is last of the series of Charter Acts

It provided for first time, separation of legislative and executive functions of Governor General’s Council.

Established a separate Governor’s legislative council, which came to be known as Indian (Central)

Legislative Council (total 6 members including 4 local representatives).

It worked as mini-parliament, adopting same procedures as that of British Parliament.

Thus for the first time, legislation was treated as special function of government.

Open competition system for civil services was adopted in spirit. Thus the covenanted civil service was

now thrown open for Indians too. Accordingly, Macaulay Committee (the committee for Indian Civil

Services) was formed in 1854.

It also extended Company’s rule but unlike previous Charter Acts the period of extension was not

mentioned. This was a clear sign that Company’s rule could be terminated anytime as per wish of the Parliament.

2.3 Crown Rule (1858-1947) After the sepoy mutiny of 1857-58, the Crown took over the administration of British possession in India. Thus

Company’s rule came to end with Queen’s Proclamation, in which Queen has assumed the Government of India

and promised no further annexation and respect the rights, dignity and honor of Native Princes, also it promised

to admit their subjects (Indians) impartially to offices, the duties of which they may be qualified by their education, ability and integrity.

2.3.1 Government of India Act, 1858 Henceforth, India was to be governed by and in the name, of Her Majesty.

Designation of Governor General of India was changed to “Viceroy of India”, he was direct representation

of British Crown in India and Lord Canning was first Viceroy of India.

It abolished the Board of Control and Court of Directors thus abolishing the system of double

A new office was created of Secretary of State for India, he had complete authority and control over

Indian administration. He was supposed to be member of British Cabinet, responsible solely to the British

Parliament.

Also Indian Council was established, a 15 member body to assist the Secretary of State, who was also the

chairman of this advisory body.

The Act’s main aim was to improve the administrative system of Indian Government so as to be

controlled by British Parliament and the act didn’t make any relevant changes in the system of government prevailing in India.

2.3.2 Indian Councils Act, 1861 Beginning was made of representative institutions by associating Indians with the law making process.

Thus some Indians were nominated by viceroy as non-official members of his council. Hence, in 1862,

Viceroy Lord Caning nominated three Indians viz. Raja of Banaras, Sir Dinkar Rao and Maharaja of

Patiala as members of his legislative council.

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Process of decentralization started. Legislative powers of Bombay and Madras Presidencies was restored.

Thus this act brought end to the centralizing tendency that had started from Regulating Act of 1773 and

reached its climax by Charter Act of 1833.

It empowered Viceroy to issue ordinances which would have life of 6 months.

It also gave recognition to the “portfolio system” introduced by Lord Canning in 1859.

It provided for the establishment of new legislative council for Bengal, North-west provinces and Punjab in 1862, 1886 and 1897 respectively.

2.3.3 Indian Councils Act, 1892 Number of non-official members in Central and Provincial legislative councils were increased while

maintaining official majority.

Increased the function of legislative council and were granted with the power to discuss the budget as

well as to address questions to the executive.

Provided for nomination of some non-official members of

Central legislative council by the Viceroy on recommendation of Provincial legislative council and

Bengal chamber of commerce.

Provincial legislative council by the Governor on the recommendation of district boards,

municipalities, universities, trade associations, zamindaris’ and chambers.

Act made indirect provision of election for filling some of non-official seats of both central and provincial legislative council. However, use of word “election” is not done in the act.

2.3.4 Indian Councils Act of 1909 (Morley- Minto Reforms) Lord Morley- Secretary of State

Lord Minto- Viceroy of India

Increased size of legislative council- both Central (with official majority retained) and Provincial (non-

official majority allowed)

Members were allowed to ask supplementary questions and move resolution on budget i.e. it enlarged

deliberative functions of legislative council at both levels.

For the first time, Indians were associated with the executive councils of the Viceroy and Governor

Satyendra Sinha was the first Indian to be member of Viceroy’s executive council .

Introduced a system of ‘communal representation’ for Muslims by accepting the concept of “separate

electorate” (where only Muslim voters voted for Muslim member). Thus the Act ‘Legalized Communalism’ and Lord Minto came to known as Father of Communal Electorate.

2.3.5 Government of India Act, 1919 (Montague- Chelmsford Reforms) Montague- Secretary of State Lord Chelmsford- Viceroy of India

Central control over the provinces was loosened by demarcating and separating the central and

provincial subjects to make laws on respectively. However, the structure of government still remained

central and unitary.

Provincial subjects further divided as

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Transferred subjects – to be administered by the Governor with the aid of ministers who are

responsible to the legislative council.

Reserved Subjects – to be administered by the Governor and his executive council.

This dual scheme of Governance was called as “dyarchy”. However the experiment was largely

unsuccessful.

For the first time, bicameralism and direct elections were introduced in the country. Indian legislative

council was divided into two

Upper house (Council of State)

Lower house (Legislative Assembly)

Both the houses had directly elected member’s majority.

3 out of 6 members of Viceroy’s executive council were to be Indian (except Commander-in-chief)

Separate electorates extended to Sikhs, Anglo-Indians, Indian Christians and Europeans.

Franchise was granted to limited number of people on the basis of property, tax, or education.

A new office i.e. High Commissioner for India was created in London.

Provided for a Central Public Service Commission, which was established in 1926.

For the first time, provincial budgets were separated from central budgets and provinces enacted their

respective budgets.

Appointment of a Statutory Commission i.e. Simon Commission after 10 years to look into the working of

this act.

2.3.6 Simon Commission 1927 Appointed 2 years prior to the scheduled date.

7 member body with no Indian member.

Recommended – Abolition of Dyarchy, establishment of federation, continuation of communal electorate,

extension of responsible government in the provinces.

Its recommendation were discussed over three round table conferences and then a ‘white paper on

constitutional reforms’ was prepared for the consideration of Joint Select Committee of the British Parliament. And recommendations of this committee were incorporated in the act of 1935.

2.3.7 Government of India Act, 1935 Lengthy and detailed document with 310 sections and 10 schedules.

All India Federation (which was never implemented)

Subjects were divide in three list i.e. Federal; Provincial; and Concurrent.

Residuary powers were being given to the Viceroy.

Dyarchy was adopted at the Centre and abolished diarchy in the provinces and instead adopted ‘provincial

autonomy’. Also the act introduced responsible government in the provinces i.e. the Governor was

supposed to act as per the advice of the ministers who are responsible to the legislature. However, this

provision was into effect from 1937-1939 only.

Federal subjects were divided as transferred and reserved. However, this provision of the act never came

into effect.

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Bicameralism was introduced in 6 out of 11 provinces.

Separate electorates were extended for depressed classes (SC); women and labors.

It abolished the Indian Council ( established by Government of India act,1858 )

Secretary of State was provide with a group of advisors.

Franchise was expanded. About 10% of total population now had voting rights.

It also made provision for establishment of a Reserve Bank of India to control currency and credit of the

country.

Along with establishment of Federal Public Service Commission, the act also made provision for

establishment of Provincial Public Service Commission and Joint Public Service Commission.

Provision for establishment of Federal Court. (Note- Supreme Court was established by Regulating Act of 1773)

2.3.8 Government of India Act, 1947 British Prime Minister Clement Atlee declared on 20 Feb, 1947 that British rule in India would end before

30 June, 1948. And on 3 June, 1947 Viceroy Lord Mountbatten put forth the partition plan which was

accepted by the Muslim League and hence this act was made to give effect to Mountbatten plan.

Act ended the British rule in India and declared India as independent and sovereign from 15 Aug, 1947.

Provided for partition of India and creation of Pakistan with the right for both countries to secede from

the British Commonwealth.

Abolished the office of Viceroy and Office of Secretary of State for India.

It empowered the constituent assemblies to frame and adopt any constitution, repeal any law/act of

British rule including the Independence Act itself.

It proclaimed the lapse of British paramountcy over Indian princely states and tribal areas.

Granted freedom to Indian princely states to join either of the dominion or remain independent.

Provided that each dominion to be governed as per Government of India act, 1935 until new constitution

is framed.

Deprived British Monarch of his right to veto bills but this right was reserved with Governor General.

The act designated Governor General of India and Provincial Governors as constitutional (nominal) heads

of the States, but were to act on the aid and advice of respective council of ministers in all the matters

The title of Emperor of India was being dropped from royal titles of Britain.

Discontinued the process of appointment to civil services and reservation of post by secretary of state

for India. However, appointments prior to 15 Aug, 1947 would continue the service.

Thus at stroke of midnight of 14-15 August, 1947 British rule ended and two new independent dominions of

India and Pakistan got the power to rule their territories. In India, Lord Mountbatten became first Governor

General and Jawaharlal Nehru as First Prime Minister (Note-first Indian Governor General of India was C.

Rajagopalachari)

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3. Features of Indian Constitution

3.1 Introduction The Constitution of India has some important features as compared to other constitutions to the globe. As Dr.

B.R. Ambedkar, the Chairman of the Drafting Committee puts it; the framers had tried to accommodate the best features of other constitutions, keeping in view the odd problems and needs of India.

3.2 Salient Features of Indian Constitution

1. Lengthiest Constitution Indian Constitution can be called the largest written constitution in the globe because of its provisions. In its

original form, it consisted of 395 Articles and 8 Schedules to which additions have been made through subsequent changes. At present it contains 465+ Articles and 12 Schedules, and more than 100 amendments.

There are a variety of factors responsible for the lengthy size of the constitution. One major factor was that the framers of the constitution borrowed provisions from several sources and several other constitutions of the globe.

They have followed and reproduced the Government of India Act 1935 in providing matters of governmental

detail. Secondly, it was necessary to make provisions for odd problems of India like SC/ST/OBC. Thirdly, provisions

were made for elaborate centre-state relations in all aspects of their governmental and other activities. Fourthly, the size of the constitution became bulky, as provisions regarding the state government were also included.

Further, a detail list of individual rights, directive principles of state policy and the details of government procedure

were laid down to make the Constitution clear and unambiguous for the common citizen. Thus, the Constitution

of India became an exhaustive and lengthy one.

2. Partly Rigid and Partly Flexible The Constitution of India is neither purely inflexible nor purely flexible. There is a harmonious blend of inflexibility

and flexibility. The common law-making process by Indian Parliament can amend some parts of the Constitution.

Certain provisions can be amended, only when a Bill for that purpose is passed in each house of Indian Parliament

by a majority of the total membership of that house and by a majority of not less than two-third of the members

of that house present and voting.

Then there are certain other provisions, which can be amended by the second method, described above and are

ratified by the legislatures of not less than one-half of the states before being presented to the President for his

assent. It must also be noted that the power to initiate bills for amendment lies in Indian Parliament alone, and

not in the state legislatures.

Pandit Nehru expressed in the Constituent Assembly, "While we want the Constitution to be as solid and

permanent as we can make it, there is no permanence in Constitution. There should be certain flexibility. If you

make anything inflexible and permanent, you stop the nation‘s growth, the growth of a living, vital organic

people."

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3. A Democratic Republic India is a democratic republic. It means that sovereignty rests with the people of India. They govern themselves

through their representative‘s elected based on universal adult franchise. The President of India, the highest official of the state is elected for a fixed term.

Although, India is a sovereign republic, yet it continues to be a member of the Commonwealth of Nations with

the British Monarch as its head. Her membership of the Commonwealth does not compromise her position as a

sovereign republic. The commonwealth is an association of free and independent nations. The British Monarch is only a symbolic head of that association.

4. Parliamentary System of Government India has adopted the Indian Parliamentary system as found in Britain. In this system, the executive is responsible

to the legislature, and remains in power only as long and it enjoys the confidence of the Indian Parliament. The President of India, who remains in office for five years, is the nominal, titular or constitutional head.

The Union Council of Ministers with the Prime Minister as its head is drawn from the elected representatives. It is

collectively responsible to the House of People (Lok Sabha), and has to resign as soon as it loses the confidence of

that house. The President, the nominal executive shall exercise his powers according to the advice of the Union Council of Ministers, the real executive.

In the states also, the government is Indian Parliamentary in nature. It involves collective responsibility of

government towards lower house.

5. A Federation with Unitary Bias Article 1 of the Constitution of India says: "India that is Bharat shall be a Union of States." Though the word

'Federation' is not used, the government is federal.

A state is federal when

(a) there are two sets of governments and there is distribution of powers between the two,

(b) there is a written constitution, which is the supreme law of the land and

(c) there is an independent judiciary to interpret the constitution and settle disputes between the Centre and other at the states.

All these features are present in India. There are two sets of government, one at the Centre, the other at state

level and the distribution of powers between them is quite detailed in our Constitution. The Constitution of India

is written and the supreme law of the land. At the apex of single integrated judicial system, stands the Supreme

Court which is independent from the control of the executive and the legislature.

But in spite of all these essential features of a federation, Indian Constitution has an unmistakable unitary

tendency. While other federations like U.S.A. provide for dual citizenship, the India Constitution provides for single citizenship. There is also a single integrated judiciary for the whole country.

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The provision of All India Services, like the Indian Governmental Service, the India Police Service, and Indian Forest

Service prove another unitary feature. Members of these services are recruited by the Union Public Service

Commission on an All-India basis. Because these services are controlled by Union Government, to some extent this constitutes a constraint on the autonomy of states.

A significant unitary feature is the Emergency provisions in the Indian constitution. During the time of emergency,

the Union Government becomes most powerful and the Union Indian Parliament acquires the power of making

laws for the states. The Governor placed as the constitutional head of the state, acts as the agent of the Centre

and is intended to safeguard the interests of the Centre. These provisions reveal the centralizing tendency of our federation.

Federal Features Unitary Features

1. Constitutional division of powers between centre

& states 1. Single Citizenship

2. Written constitution 2. Destructible states

3. Federal court 3. Residuary powers with Union (article 248)

4. Upper House (Rajya Sabha) represents States 4. Union is not formed by agreement between the

states.

Prof. K.C. Where has rightly remarked that Indian Constitution provides, "a system of government which is quasi-

federal, a unitary state with the subsidiary unitary features". The framers of the constitution expressed clearly

that there exists the harmony of federalism and the unitary.

Dr. Ambedkar said, "The political system adopted in the Constitution could be both unitary as well as federal

according to the requirement of time and circumstances". We can say that India has a "Cooperative federalism" with central guidance and state compliance.

6. Fundamental Rights (most prioritized & basic rights of individuals mainly against state) "A state is known by the rights it maintains", remarked Prof. H.J. Laski. The constitution of India affirms the basic

principle that every individual is entitled to enjoy certain basic rights and part III of the Constitution deals with those rights which are known as fundamental rights.

Originally there were seven categories of rights, but now they are six in number. They are

(i) Right to equality,

(ii) Right to freedom,

(iii) Right against exploitation,

(iv) Right to freedom of Religion,

(v) Cultural and Educational rights and

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(vi) Right to constitutional remedies.

(vii) Right to property (Article-31) originally a fundamental right has been shifted by the 44th Amendment Act. 1978. It is now a legal right (Article 300(A)).

These fundamental rights are justiciable and the individual can move the higher judiciary that is the Supreme

Court or the High Courts, if there is an encroachment on any of these rights. The right to move to the Supreme

Court straight for the enforcement of fundamental rights has been guaranteed under Article 32 (Right to

Constitutional Remedies). However, fundamental rights in India are not absolute. Reasonable restrictions can be

imposed keeping in view the security-requirements of the state.

7. Directive Principles of State Policy (Liberalism + Socialism + Gandhism) A novel feature of the Constitution is that it contains a chapter in the Directive Principles of State Policy. These

principles are in the nature of directives to the government to implement them for establishing social and

economic democracy in the country.

It embodies important principles like adequate means to livelihood, equal pay for both men and women,

distribution of wealth so as to serve the common good, free and compulsory primary education, right to work,

public assistance in case of old age, unemployment, sickness and disablement, the organization of village

Panchayats, special care to the economically back ward sections of the people etc.

Most of these principles could help in making India welfare state, although they are not justiciable. These principles have been stated a; "fundamental in the governance of the country".

8. Fundamental Duties A new part IV (A) after the Directive Principles of State Policy was incorporated in the constitution by the 42nd Amendment, 1976 for fundaments duties. These duties are:

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;

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

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

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

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

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

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i) to safeguard public property and to abjure violence;

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

The purpose of incorporating these duties in the Constitution is just to remind the people that while enjoying

their right as citizens, should also perform their duties for rights and duties are correlative .

86th Constitutional Amendment 2002 added 11th duty for guardians to send their children for primary education of the age group 6 – 14 years.

9. Secular State (Interventionist State-Positive concept) A secular state is neither religious nor irreligious, or anti -religious. Rather it is quite neutral in matters of religion.

India being a land of many religions, the founding fathers of the Constitution thought it proper to make it a secular state.

India is a secular state, because it makes no discrimination between individuals on the basis of the religion. On

the contrary, right to freedom of religion is ensured in the Constitution and people belonging to any religious

group have the right to profess, practice or propagate any religion they like. Sarva Dharm Sambhav entails promoting all religions equally.

10. An Integrated and Independent Judiciary The judiciary occupies an important place in our Constitution and it is also made independent of the legislature

and the executive. The Supreme Court of India stands at the apex of single integrated judicial system. It acts as protector of fundamental rights of Indian citizens and guardian of the Constitution.

If any law passed by the legislature or action taken by the executive contravenes the provisions of the Constitution,

they can be declared as null and void by the Supreme Court.

Thus, it has the power of judicial review. But judicial review in India constitutes a middle path between the American judicial supremacy in one hand and British Indian Parliamentary supremacy in the other.

11. Single Citizenship The Constitution of India recognizes only single citizenship. In the United States, there is provision of dual

citizenship. In India, we are citizens of India only, not of the respective states to which we belong. This provision

would help in promoting unity and integrity of the nation. State legislatures have no role in amending laws of citizenship.

12. Borrowed/ drawn from various sources Ambedkar proudly said that Indian Constitution is made after ‘ransacking all the known Constitutions of the world’. About 60+ Constitutions were referred.

Structural part – Government of India Act, 1935

Philosophical part – American and Irish Constitution

Political part – British Constitution

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13. Synthesis of Parliamentary Sovereignty (Britain) and Judicial Supremacy (America) Just as Indian Parliamentary system differs from Britain, the scope of Judicial Review power of Supreme Court in

India is narrower than that of in USA. The reason is American Constitution provides for “due process of law “as against “procedure established by law” of Indian Constitution.

Thus there is synthesis in India, where Supreme Court can declare a parliamentary law as unconstitutional through

judicial review, while on other hand Parliament can amend the major portion of Constitution.

14. Universal Adult Franchise Every citizen above age of 18 years has right to vote without any discrimination of caste, race, religion, sex,

literacy, wealth and so on. Introduction of universal adult franchise was a bold experiment considering India’s size,

diversity, illiteracy, etc. It makes democracy broad-based, enables minorities to protect their interests and gives hope to weaker sections.

15. Independent Bodies Independent bodies like Election commission, CAG, UPSC, SPSC act as bulwarks of the democratic system of

government in India. Their independence is ensured by giving them security of tenure, fixed service conditions, expenses charged on consolidated fund of India, etc.

16. Emergency Provisions It enables President to meet any extraordinary situation. This provision is included with a view to safeguard

sovereignty, unity, integrity and security of country, the democratic political system and the constitution.

Constitution provides for 3 types of emergencies viz. National; State; and Financial. During emergency Central Government becomes all powerful and the states go into total control of the Centre.

This type of political system where federal system transforms into a unitary system during emergency is a unique feature of the Indian Constitution.

17. Three- Tier Government Originally, Indian Constitution didn’t have this provision and it was added by 73rd and 74th CAA, 1992 which gave recognition to local government i.e. Panchayats and Municipalities respectively.

18. Cooperative Societies Constitutional recognition was given to Cooperative societies through 97th CAA, 2011 which added new part IX-B to the constitution and made changes in Art.19 and added new Art.43-B and Art.243-ZH to Art.243-ZT.

3.3 Main objects of Indian Constitutional Law The underlying principles of the Constitution were laid down by Jawaharlal Nehru in his Objectives Resolution:

India is an Independent, Sovereign, Republic;

India shall be a Union of erstwhile British Indian territories, Indian States, and other parts outside British India and Indian States as are willing to be a part of the Union;

Territories forming the Union shall be autonomous units and exercise all powers and functions of the

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Government and administration, except those assigned to or vested in the Union;

All powers and authority of sovereign and independent India and its constitution shall flow from the people;

All people of India shall be guaranteed and secured social, economic and political justice;

equality of status and opportunities before law;

and fundamental freedoms – of talk, expression, belief, faith, worship, vocation, association and action - subject to law and public morality;

The minorities, backward and tribal areas, depressed and other backward classes, shall be provided adequate safeguards;

The territorial integrity of the Republic and its sovereign rights on land, sea and air shall be maintained according to justice and law of civilized nations;

The land would make full and willing contribution to the promotion of world peace and welfare of mankind

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4. Making of Constituent Constitution and

Schedules

4.1 Demand for Constituent Assembly The idea of Constituent Assembly was put forth for the first time in 1934 by Manabendra Nath Roy, a

pioneer of the communist movement in India and was also advocate of radical democracy.

However, Indian National Congress (INC) made an official demand of Constituent Assembly in 1935.

In 1938, Jawaharlal Nehru on behalf of INC declared that ‘the Constitution of India must be framed,

without outside interference by a Constituent Assembly elected on the basis of adult franchise’. British government accepted demand for the first time in ‘August Offer’ of 1940.

After the failed negotiations of Cripps Proposal, Cabinet mission was sent to India, which more or less satisfied even the Muslim League

4.2 Composition of the Constituent Assembly Constituent Assembly was constituted in November, 1946 under the scheme proposed by Cabinet

Mission Plan.

Total strength – 389, British India-296 and Princely States-96

Seats were allotted in proportion to population (1 seat per 1 million people)

Each province and princely states allotted seats in proportion to their population.

Seats of British provinces were further divided among Muslim; Sikhs; and General in proportion of their

population.

Representatives of princely states were nominated while representatives of each community elected by

members of that community (separate electorate) i.e. Assembly was partly elected and partly nominated.

Elections to Assembly happened in July-August, 1946 and seats of princely states were not filled as they

decided to stay away from Constituent Assembly.

The Election was not based on adult franchise but the assembly had representative of all sections of

society viz. Hindus; Muslims; Sikhs; Christians; Parsis; Anglo-Indians; Indian Christians; SC; ST; including

women of all sections. (Note- except Mahatma Gandhi, all other important personalities of that time were members of Constituent

Assembly)

Eminent Bureaucrat and jurist Sir Benegal Narsing Rao was appointed as the Constitutional Advisor of

the Assembly. (he was later appointed as judge at ICJ, Hague)

It had in all 11 sessions over the period of 2 years, 11 months and 18 days.

Final session happened on 24 January, 1950. However the Constituent Assembly continued as the

provisional parliament of India from 26 January, 1950 till formation of new parliament after the first

general elections of 1951-52.

Symbol (seal)- Elephant

Secretary to the Constituent Assembly – H.V.R. Iyengar

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Chief Draftsman – S.N. Mukherjee

Calligrapher – Prem Behari Narain Raizada

Original version Decorated by artists – Nand Lal Bose and Beohar Rammanohar Sinha Hindi version calligraphy done by Vasant Krishan Vaidya and decorated by Nand Lal Bose

4.3 Working of Constituent Assembly First session was attended by only 210 members as turnout of Muslim members was very less (just 4) due

to boycott of first session of Constituent Assembly called by Muslim League. (league also later withdrew

support from cabinet mission and declared 16 Aug, 1946 as ‘Direct Action’ day for achieving Pakistan)

While, Interim Government was formed India on 2 Sept, 1946.

First historical session of Indian Constituent Assembly took place on 9 Dec, 1946 under the chairmanship

of Dr.Sachidananda Sinha.

On 11 Dec, Dr.Rajendra Prasad was elected as the permanent president

There were two vice-president- H.C. Mukherjee and V.T. Krishnamachari

Objective Resolution was moved on 13 Dec, 1946 by Jawaharlal Nehru.

Princely states gradually joined by early 1947. Members of Muslim League from Indian Dominion also joined after acceptance of Mountbatten Plan.

4.4 Constituent Assembly Committees

4.4.1 Major Committees Sr.no. Committee Chairman

1 Union Powers Committee Jawaharlal Nehru

2 Union Constitution Committee Jawaharlal Nehru

3 Provincial Constitution Committee Sardar Patel

4 Drafting Committee B.R. Ambedkar

5 Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas

Sardar Patel

6 Rules of Procedure Committee Dr. Rajendra Prasad

7 States Committee (Committee for Negotiating with States) Jawaharlal Nehru

8 Steering Committee Dr. Rajendra Prasad

4.4.2 Minor Committees Sr.no. Committee Chairman

1 Finance and Staff Committee Dr. Rajendra Prasad

2 Credentials Committee Alladi Krishnaswami Ayyar

3 House Committee B. Pattabhi Sitaramayya

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4 Order of Business Committee Dr. K.M. Munshi

5 Ad-hoc Committee on the National Flag Dr. Rajendra Prasad

6 Committee on the Functions of the Constituent Assembly G. V. Mavalankar

7 Ad-hoc Committee on the Supreme Court S.Varadachari (not assembly member)

8 Committee on Chief Commissioner’s Provinces B. Pattabhi Sitaramayya

9 Expert Committee on the Financial Provisions of the Union Constitution

Nalini Ranjan Sarakar ( not assembly member)

10 Linguistic Provinces Commission S. K. Dar ( not assembly member)

11 Special Committee to Examine the Draft Constitution Jawaharlal Nehru

12 Press Gallery Committee Usha Nath Sen

13 Ad-hoc Committee on Citizenship S. Varadachari (not assembly member)

4.4.3 Drafting Committee Most important and vital committee set up on 29 Aug, 1947

Entrusted with task of preparing of draft of Constitution.

It is 6 member body

Dr. B. R. Ambedkar (Chairman)

N. Gopalaswamy Ayyangar

Alladi Krishnaswamy Ayyar

Dr. K. M. Munshi

Syed Mohammad Saadullah

N. Madhava Rau (replaced B.L. Mitter)

T.T Krishnamachari (replaced D.P. Khaitan)

It took less than 6 months and sat only for 141 days to complete the draft.

The first Draft of the Constitution was prepared by Feb, 1948 and people of India were given time span of

8 months to review it.

Taking into consideration the public opinion and criticism, draft committee made a second draft by

October, 1948.

At last, on 26 Nov, 1949, the process was completed and 284 members signed the document thus

completing the process of constitution making. Note – The Preamble was made after entire Constitution was enacted.

4.5 Changes made by Independence Act of 1947 It made 3 changes

1. It made Constituent Assembly a sovereign body with right to abrogate or alter any law.

Dr. B. R. Ambedkar is also called ‘Father

of Indian Constitution’, ‘Chief Architect

of Indian Constitution’ and ‘Modern Manu’

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2. Two separate functions were assigned to the Constituent assembly i.e. to act as Constituent

assembly i.e. to frame constitution of India and was chaired by Dr. Rajendra Prasad and other

function was to act as Legislative body which was chaired by G. V. Mavalankar. These two

functions continued till 26 Jan, 1950. And later till the first election results, it was also the first

Parliament of India.

3. After the withdrawal of Muslim League members, total strength came down to 299 as against 389 under Cabinet Mission Plan.

4.6 Other functions of Constituent Assembly Except than making Constitution of India, other functions performed by Constituent assembly are:

1. Ratified India’s membership of Commonwealth in May, 1949.

2. Adopted National Flag on 22 July, 1947.

3. Adopted National Anthem on 24 Jan, 1950.

4. Adopted National Song on 24 Jan, 1950. 5. Elected Dr. Rajendra Prasad as First President of India on 24 Jan, 1950.

4.7 Enforcement of Constitution Some of the provisions of Constitution regarding citizenship, elections, provisional parliament,

temporary and transitional provisions and short title contained in Articles 5,6,7,8,9, 60, 324, 366, 379,

380, 388, 391, 392 and 393 came into force on 26 Nov, 1949 itself.

Remaining provisions constituting major part of the Constitution came into force on 26 Jan, 1950, the

day referred to as ‘date of commencement of the constitution’.

With the commencement of the constitution, Indian Independence Act of 1947 and Government of India

Act, 1935, with all enactments amending or supplementing the latter Act were repealed. However,

Abolition of Privy Council Jurisdiction (1949) was continued. Note- Constitution of India with a Preamble, 395 Articles and 8 Schedules was adopted on 26 Jan, 1950

(celebrated as Republic Day) since in 1930 26 Jan, was selected as a day to be celebrated as Purna Swaraj Day at Lahore Session of INC.

4.8 Experts committee of Congress INC had appointed an Expert Committee on 8 July, 1946 for the purpose of preparing material for the

Constituent assembly, while the elections to the constituent assembly were still in process. Members of

this Committee were:

1. Jawaharlal Nehru (chairman)

2. M. Asaf Ali

3. K. M. Munshi

4. N. Gopalaswami Ayyangar

5. K. T. Shah

6. D. R. Gadgil

7. Humayun Kabir

8. K. Santhanam

Later Krishna Kripalani was co-opted as member and convener of committee on the Chairman’s proposal.

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Committee had two sittings at New Delhi and Bombay in July and August, 1946 respectively.

Apart from a number of notes prepared by its members, the committee also discussed the procedure to

be adopted by the Constituent Assembly, the question of appointment of carious committees and draft

resolution on the objectives of the constitution to be moved during the first session of the Constituent

Assembly.

Granville Austin, a British constitutional expert, “it was the Congress Experts Committee that set India

on the road to her present Constitution. The committee members working within the framework of the

Cabinet Mission Scheme, made general suggestions about autonomous areas, the powers of provincial

Governments and the Centre, and about such issues the princely states and the amending power. They also drafted a resolution, closely resembling the Objective Resolution”.

4.9 Criticism of Constituent Assembly Non Representative Body- as it was not directly elected by the people of India through universal franchise.

Not a Sovereign body – as it was created by the proposals of British Government and held sessions with

permission from British Government.

Time Consuming – Critics stated that American Constitution was made in 4 months only and in this

context, Naziruddin Ahmed, member of Constituent Assembly named Drafting Committee as “Drifting

Committee”

Congress Dominated – as 82% of seats were held by Congress members. In this Context, Granville Austin

commented, “the Constituent assembly is one-party body in an essentially one party country. The

Assembly was the Congress and the Congress was India”.

Lawyer-Politician Domination – critics pointed out that other sections of society were not sufficiently

represented and this caused bulkiness and complicated language of the Constitution.

Hindu Domination – in this context, Lord Viscount Simon called it “a body of Hindus” and even Winston Churchill commented that Constituent Assembly represented “only one major community of India”

4.10 Arguments defending the Constituent Assembly

It’s true that CA was formed by Cabinet Mission sent by British Government but practically it was independent. It did not seek any direction, guidance or pressure of any foreign authority.

Members of Constituent Assembly were not directly elected but 1951-1952 general elections returned almost same members which indicate the composition of CA. Moreover, representation of princely states helped the cause of their integration with India.

It’s true that more than 92% members in CA were Hindus but it did not lead to any biasness. We have secular state and minorities are beneficiary of positive discrimination as evident from provisions in article 25 to article 30.

It’s true that most of members of CA wee lawyers but most of them were seasoned politicians as well who worked at grassroots level. Moreover, in wake of low literary the complex work of law making was reinforced by their services.

Congress dominated in CA but it did not provide Single Party System. Moreover, many non-congressmen were included in government and CA.

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Bulky Constitution is required in 3rd world country like India to avoid ambiguity and scope of misuse. Moreover in wake of diversity provisions for all sections would require giving adequate space to them.

It’s true that many provisions in our constitution are heavily borrowed but its selective adaptation rather than blind imitation. Moreover, many Gandhian principles have been included in it.

Middle path is in our ethos hence ambiguity is a common criticism but this proves that we are not extremists.

Democratic decision making involves debates and discussion hence it was having worth. Inclusive decisions require time and energy.

More than 100 amendments are not weakness but sign of living and adaptive document. Moreover, many amendments are technical and periodic which were done as per the need of time.

Liberal democracy in India has proved to be grand success if he compares it other 3rd World Countries.

4.11 Hindi text of the Constitution This provision was not originally in the Constitution but was added through 58th Constitutional Amendment Act

of 1987 which added a new article 394- A in part XXII. It said:

1. President shall cause to be published under his authority

i. The translation of Constitution in Hindi language. All the amendments made before such

publications should be incorporated in it.

ii. The translation in Hindi of every amendment of Constitution made in English.

2. The Translation of Constitution and its every Amendment published shall be construed to have same

meaning as the original text in English. If any difficulty arises regarding this matter, President shall cause

the Hindi text to be revised suitably.

3. The translation of the Constitution and its every amendment published shall be deemed to b e, for all purposes, its authoritative text in Hindi.

4.12 Sessions Sessions Dates I 9-23 Dec, 1946

II 20-25 Jan, 1947

III 28 April – 2 May, 1947 IV 14-31 July, 1947

V 14-30 Aug, 1947 VI 27 Jan, 1948

VII 4 Nov, 1948- 8 Jan, 1949 VIII 16 May – 16 June, 1949

IX 30 July – 18 Sept, 1949

X 6-17 Oct, 1949 XI 14-26 Nov, 1949

XII 26 Jan, 1950

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4.13 Schedules of Indian constitution

Schedules and Articles Features of Schedules

First Schedule

(Art. 1 and 4)

It contains the name of States and Union Territories

Territorial Jurisdiction of states is also included

Second Schedule

(Art.59, 65, 75, 125, 148, 158, 164, 186, 221)

The provisions in relation to allowances, privileges, emoluments of:

President of India

Governors of Indian States

Speaker of Lok Sabha & Deputy Speaker of Lok Sabha

Chairman of Rajya Sabha & Deputy Chairman of Rajya

Sabha

Speaker and Deputy Speaker of Legislative Assemblies of

Indian States

Chairman and Deputy Chairman of Legislative Councils of

the Indian States

Supreme Court Judges

High Court Judges Comptroller & Auditor General of India (CAG)

Third Schedule

(Art. 75, 84, 99, 146, 173, 188,

219)

It contains the forms of oath and affirmation for:

Union Ministers of India

Parliament Election Candidates

Members of Parliament (MPs)

Supreme Court Judges

Comptroller and Auditor General

State Ministers

State Legislature Elections’ Candidates

State Legislature Members High Court Judges

Fourth Schedule

(Art. 4 and 80)

It contains the provisions in relation to the allocation of seats for States and Union Territories in the Rajya Sabha

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Fifth Schedule

(Art. 244)

It contains provisions in relation to the administration and control

of scheduled areas and scheduled tribes

Sixth Schedule

(Art. 244 and 275)

It contains provisions in relation to the administration of tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram

Seventh Schedule

(Art. 246)

This schedule deals with the three legislative lists:

Union – originally had 97 subjects, now has 100

State – originally had 66 subjects, now has 61

Concurrent – originally had 47 subjects, now has 52

Residuary subjects are under Centre’s right to make laws.

Eighth Schedule

(Art. 344 and 351)

It deals with the 22 official languages recognized by the Indian

Constitution: Assamese; Bengali; Bodo; Dogri (Dongri); Gujarati;

Hindi; Kannada; Kashmiri; Konkani; Mathili (Maithili); Malayalam;

Manipuri; Marathi; Nepali; Oriya; Punjabi; Sanskrit; Santhali; Sindhi; Tamil; Telugu; Urdu.

Note: English is not included in eighth schedule

Ninth Schedule

(Art. 31-B)

It deals with the state acts and regulations of that deal with land

reforms and abolition of the zamindari system. It also deals with

the acts and regulations of the Parliament dealing with other matters.

Note:

1st Amendment Act 1951 added the Ninth Schedule to protect the

laws included in it from judicial scrutiny on the ground of violation of fundamental rights.

However, in 2007, the Supreme Court ruled that the laws included

in this schedule after 24 April, 1973 (Keshavnanda Bharati case) are

now open to judicial review

Tenth Schedule It contains provisions relating to disqualification of the members of Parliament and State Legislatures on the ground of defection.

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4.14 Indian Constitution at a Glance Part Subject Articles

Part I The Union and its territory Art. 1 to 4

Part II Citizenship Art. 5 to 11

Part III Fundamental Rights Art. 12 to 35

Part IV Directive Principles Art. 36 to 51

Part IVA

Fundamental Duties Art. 51A

Part V The Union Art. 52 to 151

Part VI The States Art. 152 to

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Part VII Repealed by Const. (7th Amendment) Act, 1956

Part VIII

The Union Territories Art. 239 to 242

(Art. 102 and 191) Note: This schedule was added by the 52nd Amendment Act of

1985, also known as Anti-defection Law

Eleventh Schedule

(Art. 243-G)

It contains the provisions that specify the powers, authority and responsibilities of Panchayats. It has 29 matters.

Note: This schedule was added by the 73rd Amendment Act of

1992

Twelfth Schedule

(Art. 243-W)

It deals with the provisions that specify the powers, authority and responsibilities of Municipalities. It has 18 matters.

Note: This schedule was added by the 74th Amendment Act of

1992

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Part Subject Articles

Part IX The Panchayats Art. 243 to

243O

Part

IXA The Municipalities

Art. 243P to

243ZG

Part

IXB

Co-operative Societies (however this part is declared void by SC in 2021 as it declared

97th CAA as partially void on procedural grounds

Art. 243H to

243ZT

Part X The Scheduled and Tribal Areas Art. 244 to

244A

Part XI Relations between the Union and the States Art. 245 to

263

Part XII Finance, Property, Contracts and Suits Art. 264 to

300A

Part XIII

Trade, Commerce and Intercourse within the Territory of India Art. 301 to 307

Part XIV

Services under the Union and the States Art. 308 to 323

Part XIVA

Tribunals Art. 323A to 323B

Part XV Elections Art. 324 to 329A

Part XVI

Special provisions relation to certain classes Art. 330 to 342

Part XVII

Official Language Art. 343 to 351

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Part Subject Articles

Part

XVIII Emergency Provisions

Art. 352 to

360

Part

XIX Miscellaneous

Art. 361 to

367

Part XX Amendment of the Constitution Art. 368

Part XXI

Temporary, Transitional and Special Provisions Art. 369 to 392

Part XXII

Short title, commencement, authoritative text in Hindi and repeals Art. 393 to 395

Note: Three parts – 9A Municipalities, 9B Co-operative societies and 14A tribunals – are added to the original

constitution via amendments. Various articles were also added under these 25 parts of Indian constitution as amendments total count is around 450

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5.Comparison of the Indian Constitutional scheme

with that of other

5.1 Overview of Indian Constitution While answering to the criticism of Indian Constitution being called as “borrowed Constitution”, Dr. B. R.

Ambedkar, the Chairman of the Drafting Committee said, “One likes to ask whether there can be anything new

in a Constitution framed at this hour in the history of the world. More than hundred years have rolled over when

the first written Constitution was drafted. It has been followed by many countries reducing their constitutions to

writing.

What the scope of a Constitution should be has long been settled. Similarly, what are the fundamentals of a

Constitution are recognized all over the world. Given these facts, all Constitutions in their main provisions must look similar.

The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to

remove the faults and to accommodate it to the needs of the country. The charge of producing a blind copy of the Constitutions of other countries is based, I am sure, on an inadequate study of the Constitution.”

Thus Ambedkar has rightly said that Indian Constitution was made after ransacking the known constitutions of

the world. In this chapter, we shall have look at provisions borrowed from other constitutions and those

developed indigenously for the Indian constitution.

5.2 Political systems across the world

5.2.1 Dictatorship This is form of government where ruler is an absolute dictator and does not have any constraint of constitution or laws or from people

5.2.2 Democracy It is the form of government where people have the power to rule, either directly or indirectly through their elected representatives.

5.2.3 Republic This form of government is slightly different from Democracy, here supreme power rests in the hands of

citizens entitled to vote and the power is exercised by the elected officers and representatives responsible to the people and governed according to the law.

5.2.4 Monarchy It is the type of government where the ruler is hereditary and not elected and his/her orders are ultimate and

has all powers. Though Britain sets an example of constitutional monarchy where head of state is not elected

instead is from Royal Family but the head of government is elected and governs as per constitution.

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5.2.5 Anarchy Here, there is absence of any government. It is a state of society where there is no law or any supreme power i.e. a state of complete lawlessness and political confusion.

5.3 Salient Features of the Constitutions of Various Countries:

5.3.1 USA It is a federal republic with 50 States.

The most important features of this constitution are:

Presidential Democracy, where President is head of state as well as government. But in India President

is just head of state while head of government is Prime minister and thus even the election process of

President in both countries. In USA President is elected by the people while in India by the elected

representatives.

Federal system which emerged from initial agreement between different states. Difference with India is

that India is union of states who do not have write to secede and there has been no initial agreement

between states.

Constitution and Rule of law, that is law is above every one and Constitution is the ‘King’. In India also

constitution is of utmost importance however with flexibility of amendment so that to make it fit for

governance with changing times

Separation of power and checks and balances: Though this provision is also adopted by Indian

constitution, it is in diluted manner with respect to separation of power.

5.3.2 UK The United Kingdom of Great Britain and Northern Ireland, commonly called as Britain is a constitution al monarchy with a sovereign parliamentary system

The important features of this constitution can be summarized as follows:

It is an unwritten constitution, thus it is flexible and based on continuity of development. Nevertheless

many sources of constitutional laws are written and these along with non-legal rules make up British

Government’s constitution

Legislative supremacy represents cornerstone of the constitution. Parliament has all powers to make,

amend or abolish any law or rule.

There is no strict separation of power between the three organs of government i.e. executive;

legislature; and judiciary.

UK is unitary contrary to a federal state.

Legislature is bicameral, with lower house being more powerful, which is similar in India.

Judiciary is also independent as in India.

It’s Cabinet system is also adopted in India but Except shadow cabinet

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5.3.3 Russia Russia is federal semi presidential republic, where there is Prime Minister led executive.

Major features of constitution are:

This constitution is based on standards of human rights and basic principles of democratic state

building like neutral ideology of state, separation of power, competitive elections and political pluralism.

It has semi-presidential system and more powerful executive and more independent President with

respect to French model of semi-presidential government.

Russian President holds major political power and is not only just head of state but also commander-in-

chief of armed forces.

There are innate checks and balances in the legislature. Provision of constitutional court, Supreme

Court and lower courts is done but withholds several areas of traditional court jurisdiction from court

and hands it over to the President.

Indian constitution has adopted the idea of Fundamental duties and the ideal of Justice (social,

economic and political) enshrined in the Preamble from this constitution.

5.3.4 France France is a unitary semi-presidential republic and its constitution is also called the constitution of the fifth Republic as it replaced the Fourth Republic in 1958.

Salient features are:

Preamble mentions Rights of Man and of Citizen and establishes France as a secular and democratic

country, while sovereignty lies with the people.

Provides for election of the President and the Parliament members and also selection of government

and powers of each of them and their relations. It makes President politically strong.

It ensures judicial authority and creates high court, a constitutional council and an economic and social

council.

It also sets out method for amendment of constitution which is either done through referendum or

through parliamentary process with consent from the President.

Indian constitution was influenced by the ideas of liberty, equality and fraternity of French Constitution

and also its idea of Republic was borrowed by India.

5.3.5 China Constitution is nominally the supreme law of the People’s Republic of China.

Its salient features are:

The country has unitary Marxist-Leninist one-party socialist republic.

It is unitary with special administrative regions

The power is distributed among six organs i.e. Legislative; Executive; Military; Judicial; and

Procuratorate (Prosecutor General’s Office)

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President is the head of the state and unicameral legislature

Premier-led State Council heads the executive

Provides for Supreme People’s Court, Supreme People’s Procuratorate

It provides for democratic centralism, protection of human rights, freedom of religion, no discrimination

and exploitation.

The constitution is written and flexible

5.3.6 Japan Japan is a constitutional monarchy where Emperor has ceremonial position with very limited powers, he is defined by the constitution as “the symbol of the state and of the unity of the people”

Salient features of the constitution are:

It provides for parliamentary system with certain fundamental rights

The constitution also referred as “postwar constitution” is mostly known for the renunciation of the

right to wage war.

It is rigid and no amendment done since its adoption

It has provided for bicameral legislature with both the houses having directly elected members.

Prime Minister led cabinet is the Executive and is answerable to the legislature, while judiciary is headed by Supreme Court. (Similar to India)

5.3.7 The below table gives a glance at major adopted provisions from different

constitutions: Sr.no. Country

1 Government of India Act,1935

Federal Scheme; Office of Governor; Judiciary; Public Service Commissions; Emergency Provisions and administrative details

2 USA

Written constitution; provision of states; Fundamental Rights; electoral college; independent judiciary; judicial review provision; impeachment of the President; President being supreme commander of armed forces; Supreme Court; removal of Supreme Court (SC) judge and high court judge; idea of Preamble; and post of Vice President and his/her being ex-officio chairman of Rajya Sabha

3 UK Nominal head i.e. President (like Queen); Cabinet of ministers; post of PM; parliamentary type of government; Rule of Law; legislative procedure; bicameral legislature and parliamentary privileges; prerogative writs; lower house being powerful; council of ministers being responsible to lower house; post of speaker in Lok Sabha; and single citizenship

4 Ireland Directive Principles of State Policy; nomination of members to Rajya Sabha by the President; and method of election of President

5 Russia Fundamental Duties; five year plan; and ideal of justice (social, economic and political) in the Preamble

6 France Republic; ideals of liberty, equality and fraternity in the Preamble

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7 Germany Suspension of Fundamental rights during emergency 8 South Africa Procedure of amendment of constitution; and election of members of

Rajya Sabha

9 Canada Federation with strong Centre; distribution of powers between Centre and States residuary powers with Centre; appointment of State governors by the Centre; advisory jurisdiction of Supreme Court

10 Japan Procedure established by law; and law on which Supreme Court Functions

11 Australia Concurrent list; language of the Preamble; freedom of trade, commerce and intercourse; and joint sitting of the two houses of parliament

5.4 Truly Indian spirit of Constitution is reflected in following provisions: Zero Hour

Preventive Detention laws

Calling attention motion

Panchayati Raj system

Lokpal and Lokayut

5.5 Indian Constitutional features comparison with other constitutions

5.5.1 Written Constitution Indian Constitution is one of the longest written Constitution of the world. Other countries with written

constitutions include USA; Great Britain/UK; France; and Japan

5.5.2 Flexible or Rigid Indian Constitution is more flexible than rigid since amendment of only few provisions require state’s ratification

that too just half of the states. Rest of the provisions can be either amended through special majority or simple majority.

Britain has a very flexible Constitution and requires no special procedure for amendment and is amended like

an ordinary law. USA’s Constitution is regarded as rigid since amendment is done only by special process

defined in the constitution. Also Constitutions of France, Japan and Germany are termed as Rigid.

5.5.3 Unitary or Federal India is federal system with unitary bias i.e. though normally federal in structure, it transforms into unitary

system at time of emergencies. USA is a strictly federal state. While other countries like Britain, France and Japan have adopted unitary state model.

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5.5.4 Type of Government India has adopted Parliamentary type of government both at Centre and at states, largely based on Britain’s

Parliamentary system. Even Japan has similar system as Britain, while France has quasi-parliamentary and quasi-presidential system and USA has complete Presidential form of Government.

5.5.5 Parliamentary sovereignty In Britain, Parliament has supreme power and ultimate sovereignty. In France Parliament’s powers limited by

political executive. While in India, Japan and USA, there is supremacy of written constitution and judicial review which is done by Supreme Court which acts as custodian of constitution.

India has perfect blend of Britain’s parliamentary supremacy and America’s judicial review

5.5.6 Republic While India, USA, France, Germany and Russia have adopted Republic form of government, countries like UK and Japan work under constitutional monarchy.

5.5.7 President In India, President is nominal head of state while Prime Minister is real executive or head of government. Likewise, in Germany too President is nominal head while Chancellor runs the government.

However, things are different in USA where President is both head of state as well as head of government.

Similarly in France too President is head of state and has dominant position.

5.5.8 Citizenship India has single citizenship model like of the Britain. While in USA, people hold citizenship of Centre as well as

state. India does not permit dual citizenship and in case of acquiring citizenship of any other country, person

loses citizenship of India. Britain and other countries like USA, France, Germany, Australia allow dual citizenship.

5.5.9 Fundamental rights, DPSP and Fundamental Duties India has fundamental rights modelled on American bill of rights. Even USSR and Japan Constitution has similar

provision but no such rights are there in constitution of Britain.

India has taken Fundamental Duties from USSR and Directive Principles from Ireland.

5.5.10 Due process of Law/ Procedure established by law Due process of law means legal proceedings according to rules and principles that have been established in t he

system of jurisprudence for the enforcement and protection of private rights. It is mentioned in American constitution

Procedure established by law means duly enacted law by the legislature is valid if it has followed correct procedure. It does not see if law enacted is fair and just. It can take away person’s liberty or life too.

In India, there is no mention of ‘due process of law’. In Maneka Gandhi vs UOI case (1978), SC held that

‘procedure established by law’ within the meaning of Art.21 must be ‘right, fair and just’ and ‘not arbitrary,

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fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Art.21 would not be satisfied.

Thus, the ‘procedure established by law’ has acquired same significance in India as the ‘due process of law’

clause in America.

5.5.11 Emergency provision Indian Constitution has provision of three emergencies viz. National; Financial; and State. State of emergency

and their provisions differ according to different countries, yet the provision of emergency can be found in the constitution of Australia; Canada; France; Germany; and USA

5.5.12 Table of above compared features:

Country/ Feature

India UK USA Russia Japan France Germany

Written/ Unwritten

Written Unwritten written Written Written

Flexible/Rigid Both Flexible Rigid Rigid Rigid Rigid Rigid

Unitary/Federal

Federal with unitary bias

Unitary Federal Federal Unitary Unitary Federal

Parliamentary/ Presidential Democracy

Parliamentary Democracy


Presidential Democracy

Semi-presidential


Quasi-parliamentary and quasi-presidential Democracy

Parliamentary Republic

Sovereignty of parliament

Supremacy of constitution

Supremacy of Parliament

Supremacy of Constitution

Supremacy of Constitution

Parliament with limited powers

Republic/Monarch

Republic Constitutional Monarchy

Republic Republic

Constitutional Monarchy

Republic Republic

President Ceremonial Executive Executive

Executive Ceremonial

Dual citizenship

Not recognized

Yes yes Yes no yes In principle, not recognized

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Fundamental rights

Yes No yes Yes yes yes yes

Due process of law/Procedure established by law

Procedure established by law

Rule of law

Due process of law

Procedure established by law

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6. The Preamble 6.1 Introduction American Constitution was the first one to start with Preamble, India followed the same. Preamble provides the

essence of Constitution. N.A. Palkhivala, eminent jurist and constitutional expert called preamble as “identity

card of the constitution”.

Indian Constitution Preamble is based on the ‘Objective Resolution’ moved by Jawaharlal Nehru and adopted by

the Constituent Assembly. By 42nd CAA, 1976, Preamble was amended to add three new terms- Socialist, Secular and Integrity.

6.2 Preamble

Preamble of Indian Constitution reads as:

Preamble reveals 4 components

1. Source of authority of

Constitution i.e. we the people.

2. Nature of Indian State i.e.

Sovereign, Socialist, Secular,

Democratic and Republic polity.

3. Objective of the Constitution i.e.

Justice, Liberty, Equality and

Fraternity.

4. Date of adoption of Constitution

i.e. 26 November, 1949.

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6.3 Key words Sovereign: The word “Sovereign” means India is an independent

nation and the Legislature of Indian has the power to enact laws

in the country.

Socialist: The word “Socialist” was added to the Preamble by the

42nd Constitutional Amendment in 1976. Socialism means the achievement of socialist ends through democratic ways.

Secular: The term “Secular” means that all religions that equal

respect, protection, and support from the state.

Democratic: “Democratic” indicates the Constitution established a form of government which is by the people,

for the people, and of the people.

B.R. Ambedkar- political democracy

cannot last unless their lies social

democracy.

Social democracy- way of life that

recognizes liberty, equality and fraternity.

Union of trinity – principles of liberty,

equality and fraternity.

Divorce of one from other would defeat the very purpose of democracy.

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Republic: In a Republic state, the head of the state is elected either directly or indirectly by the people.

Justice: The expression “Justice” embraces three forms: social,

economic, and political through provisions of Fundamental and Directive principles.

Liberty: The word “Liberty” means the liberty of expression, thought, faith, belief, and worship. It also provides

freedom from slavery, discrimination, despotism.

Equality: The word “Equality” provides equal status and opportunities to all the citizens and people of the country.

Fraternity: “Fraternity” means a feeling of brotherhood. The Preamble urges the people to assure the d ignity of the individual and unity, the integrity of the nation.

6.4 Significance of Preamble It has the basic philosophy on which the Constitution of India is based on, it contains noble vision of

Constituent assembly and reflects aspirations of founding fathers of constitution

Alladi Krishnaswami, “ the preamble to our constitution expresses what we had thought or dreamt so

long”

K. M. Munshi commented that Preamble is “the horoscope of our sovereign democratic republic”

Pandit Thakur Das, another member of Constituent assembly said, “The Preamble is the most precious

part of the Constitution. It is the soul of the Constitution. It is the key to the Constitution. It is a jewel set

in the Constitution. It is a proper yardstick with which one can measure the worth of the Constitution”

Sir Emest Barker, a distinguished English political scientist described Preamble as “key -note” to the Constitution.

Phrase ‘dignity of individual‘

signifies Constitution not only

ensures material benefit and

maintain democratic set-up, but

also recognizes that the

personality of every individual is sacred – K.M. Munshi

Note: Distributive Justice = Social + Economic Justice

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6.5 Preamble as a Part of Constitution Berubari Union Case(1960), SC – ‘Preamble is key to the minds of makers of constitution’, despite this

recognition, SC said that Preamble is not part of the Constitution

Keshavnanda Bharati Case (1973), SC - rejected the earlier opinion and held that Preamble is part of the

Constitution

Again in LIC of India Case (1995), SC – Preamble is integral part of the Constitution.

Preamble was inserted after entire Constitution was enacted with the view to ensure that it conforms to the Constitution.

Note – Preamble is neither a source of power nor a constraint on the powers of legislature. Also Preamble is non justiciable.

6.6 Amenability of Preamble Whether Preamble can be amended or not under Art.368, was the question which arose in Keshavananda

Bharti Case (1973).

SC held that Preamble is part of Constitution and can be amended provided that it doesn’t hamper the

‘basic structure’ of Constitution.

Till now, Preamble is amended only once, by 42nd CAA, 1976, which added three new words in it – Secular, Socialist and Integrity. And this amendment was held as valid.

6.7 Instruments of Direct Democracy In direct democracy, the people exercise their supreme power directly e.g., Switzerland.

Direct democracy has 4 devices - Referendum, Initiative, Recall and Plebiscite

Referendum - procedure in which a proposed legislation is referred to the electorate for acceptance through

direct voting.

Initiative - method by means of which the people can propose a bill to the legislature for enactment.

Recall - way for voters to remove a representative or an officer before the expiry of his/her term, when he fails

to discharge his duties properly.

Plebiscite - method of obtaining the opinion of people on any issue of public importance. It is generally used to solve territorial disputes.

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7.Union and its Territory (Art.1-4) (Part-I)

7.1 Union of States Article 1 describes India, that is, Bharat as a ‘Union of States’ rather than a ‘Federation of States’. This provision

deals with two things: one, name of the country, and two, type of polity.

There was no unanimity in the Constituent Assembly with regard to the name of the country. Some members

suggested the traditional name (Bharat) while other advocated the modern name (India). Hence, the Constituent Assembly had to adopt a mix of both (‘India, that is, Bharat’)

Secondly, the country is described as ‘Union’ although its Constitution is federal in structure. According to Dr. B

R Ambedkar, the phrase ‘Union of States’ has been preferred to ‘Federation of States’ for two reasons: one,

the Indian Federation is not the result of an agreement among the states like the American Federation; and

two, the states have no right to secede from the federation. The federation is a Union because it is indestructible.

The country is an integral whole and divided into different states only for the convenience of administration.

7.2 Article 1 to 4: 7.2.1 Article – 1: India i.e. Bharat shall be union of States

According to Article 1, the territory of India can be classified into three categories:

1. Territories of the states

2. Union territories

3. Territories that may be acquired by the Government of India at any time.

7.2.2 Article – 2: External re-organization of States (establishment and admission of a new state from

outside)

Article 2 empowers the Parliament to ‘admit into the Union of India, or establish, new states on such terms and

conditions as it thinks fit’. Thus, Article 2 grants two powers to the Parliament:

(a) the power to admit into the Union of India new states; and

(b) the power to establish new states.

The first refers to the admission of states which are already in existence while the second refers to the

establishment of states which were not in existence before. Notably, Article 2 relates to the admission or establishment of new states that are not part of the Union of India.

7.2.3 Article – 3: Internal re-organization of states i.e. names, territories and boundaries of existing states

can be changed by Union.

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Article 3 lays down 86th in this regard:

1. a bill contemplating the above changes can be introduced in the Parliament only with the prior recommendation of the President; and

2. before recommending the bill, the President has to refer the same to the state legislature concerned for expressing its views within a specified period.

The President (or Parliament) is not bound by the views of the state legislature and may either accept or

reject them, even if the views are received in time. Further, it is not necessary to make a fresh reference to the state legislature every time an amendment to the bil l is moved and accepted in Parliament.

Article 3 authorizes the Parliament to:

(a) form a new state by separation of territory from any state or by uniting two or more states or parts of states or by uniting any territory to a part of any state,

(b) Increase the area of any state,

(c) Diminish the area of any state,

(d) Alter the boundaries of any state, and

(e) Alter the name of any state.

7.2.4 Article – 4: Re-organization of states (external & internal) would be done by simple majority of both

houses of parliament.

Article 4 itself declares that laws made for admission or establishment of new states (under Article 2) and

formation of new states and alteration of areas, boundaries or names of existing states (under Articles 3) are not to be considered as amendments of the Constitution under Article 368.

This means that such laws can be passed by a simple majority and by the ordinary legislative process.

7.2.5 Procedure:

Bill of re-organization of states can be introduced in either house of parliament with prior recommendation of

president. President would send the draft of the bill to the concerned state legislature which is going to be affected by such re-organization with a time frame (5th CA 1955) for its advice.

However, the advice of State legislature would not be binding on President or parliament. In other words,

centre can re- organize states even contrary to the advice of State legislature as it happened in granting

statehood to Telangana in 2014.

In other words the states are destructible in India in contrast to US (the true federation). In many cases state

legislature took initiative by passing a resolution for statehood like Uttarakhand, Jharkhand etc. Subsequently centre drafted the bills in consultation with States.

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7.3 Dhar and JVP Commission There has been a demand from different regions, particularly South India, for reorganization of states on

linguistic basis. Accordingly, in June 1948, the Government of India appointed the Linguistic Provinces

Commission under the chairmanship of S K Dhar to examine the feasibility of this.

The commission submitted its report in December 1948 and recommended the reorganization of states on the basis of administrative convenience rather than linguistic factor.

Another Linguistic Provinces Committee, in 1948, examined the issue afresh. It consisted of Jawaharlal Nehru,

Vallahbhai Patel and Pattabhi Sitaramayya and hence, was popularly known as JVP Committee. It formally

rejected language as the basis for reorganization of states.

However, in October 1953, the Government of India was forced to create the first linguistic state, known as Andhra state.

7.4 Fazl Ali Commission In December 1953, a three-member States Reorganization Commission under the chairmanship of Fazl Ali was

made to re-examine the whole question of reorganization of states. Its other two members were K M Panniker

and H N Kunzru.

It submitted its report in September 1955 and broadly accepted language as the basis of reorganization of states. But, it rejected the theory of ‘one language– one state’.

It identified four major factors that can be taken into account in any scheme of reorganization of states:

(a) Preservation and strengthening of the unity and security of the country.

(b) Linguistic and cultural homogeneity.

(c) Financial, economic and administrative considerations.

(d) Planning and promotion of the welfare of the people in each state as well as of the nation as a whole.

7.5 Criteria for Statehood 1. Peoples aspirations 6. Cultural differences

2. Population 7. Tribal aspirations

3. Feasible Geographical size 8. Economic backwardness

4. Administrative Convenience 9. External & Internal security concerns

5. Language 10. Economic Self-sufficiency

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7.6 Smaller States Vs Bigger States S.N. MERITS DEMERITS

1. Administrative Convenience 1. Chances of political instability

2. Better Accommodation of peoples aspirations 2. More chances of Interstate disputes

3. More democratic by bridging gap between governing and governed.

3. Problem of self-sufficiency

4. More allocation of resources in capacity of state rather than region of a state.

4. Cost & burden on State exchequer for creating new infrastructure of a new capital

5. Ease of Consensus 5. Problems in pooling less and scarce resources.

7.7 History of Statehood in India The demand of linguistic states gathered momentum soon after independence of India.

However, S.K. Dhar Committee (1948) and JVP committee (1948) both rejected linguistic states because memories of communal partition. T

elugu leader Sriramulu died after fast onto death for the cause of Telugu statehood.

This exerted pressure and Fazl Ali Committee (1953) accepted linguistic states. 7th Constitutional amendment

was states re-organization act by which 14 uniform states and 6 UTs came into existence.

Gujarat got statehood in 1960 by separating it from Marathi speaking Maharashtra. Nagaland got statehood in

1963 in wake of security threats after Indo-China war. Hindi speaking region of Punjab got separated in 1966 and Haryana became 17th state of India.

Based on compromise formula, Chandigarh became a UT and common capital of both Punjab and Haryana.

Himachal Pradesh emerged as a new state by carving it out from Punjab in Jan. 1971. Meghalaya, Manipur & Tripura got statehood in Jan. 1972.

Sikkim was acceded to India as 22nd state after plebiscite by 36th CA 1975.

Mizoram, Arunachal and Goa got statehood in 1987.

Chattisgarh, Uttrakhand and Jharkhand got statehood by separating them from MP, UP and Bihar respectively in 2000.

Telangana became 29th state in 2014 by Union Contrary to recommendations of Andhra Assembly. There are so

many pending demands for statehood like Vidarbha, Gorkhaland, Harit Pradesh etc. but it cannot be affected

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without consensus and feasibility. Simple majority required for reorganization of states has not led to frequent legislation of statehood. Many regions got statehood after prolonged historical struggle only.

The provision of simple majority for states reorganizations have not led to frequent creation without feasibility

as evident from the gaps in granting statehood and pendency of large number of demands.

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8.Citizenship (Art. 5-11) (Part-II)

8.1 Introduction Citizenship constitutes the indispensable foundational principle of democratic polity. It involves the individual's

full political membership in the State, his permanent allegiance to the State and the official recognition by the State of his integration into the political system.

Citizenship brings certain rights, duties, privileges and obligations that do not belong to aliens . All public offices

are open to a citizen; he is eligible for recruitment to all public services. The right to vote and certain

fundamental rights are available only to citizens and citizens have obligations like paying taxes, defending, the nation etc.

Citizenship may also be viewed as the legal relationship between the individual and the State under which the

individual pledges his loyalty to the State and the State offers its protection to the individual. This relationship is regulated by national law and recognized by international law.

There existed no concept of Indian citizenship before 26 November 1949 when the Constituent Assembly

adopted the Constitution and at once brought into force articles 5 to 11 relating to citizenship. Until then, those

of us who lived in British India were under the Crown and as such British subjects governed by the British Nationality Acts and those who came from any of the princely States had the status of British protected persons.

The partition of India and massive migrations created stupendous problems for citizenship determination.

Citizenship provisions in the Constitution – articles 5 to 11 – gave the Constitution Drafting Committee the maximum headache and took a large number of drafts and more than two years to be finalized.

Even then, the Constitution only laid down the law in regard to who would be citizens of India at the time of the

commencement of the Constitution. It did not provide for the mode of acquisition and termination of

citizenship. Article 11 said that Parliament could regulate the right of citizenship by law. The Indian Citizenship Act passed in 1955 laid down the law for acquisition and termination of Citizenship.

8.2 Article 5 to 11 8.2.1 Article 5 – Date of commencement of citizenship

A person who had his domicile in India and also fulfilled any one of the three conditions, viz., if he was born in

India; or if either of his parents was born in India; or if he has been ordinarily resident in India for five years immediately before the commencement of the Constitution, became a citizen of India

8.2.3 Article 6 and Article 7 – Indian citizenship to refugees in relation to Pakistan on humanitarian

grounds.

A person who migrated to India from Pakistan became an Indian citizen if he or either of his parents or any of his

grandparents was born in undivided India and also fulfilled any one of the two conditions viz., in case he

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migrated to India before July 19, 1948, he had been ordinarily resident in India since the date of his migration; or

in case he migrated to www.freeupscmaterials.org India on or after July 19, 1948, he had been registered as a

citizen of India.

But, a person could be so registered only if he had been resident in India for six months preceding the date of his application for registration (Article 6).

A person who migrated to Pakistan from India after March 1, 1947, but later returned to India for resettlement

could become an Indian citizen. For this, he had to be resident in India for six months preceding the date of his

application for registration (Article 7)

8.2.4 Article 8 – People of Indian origin (PIOs) to be entitled for certain social, economic, cultural and

religious rights (not political rights)

A person who, or any of whose parents or grandparents, was born in undivided India but who is ordinarily

residing outside India shall become an Indian citizen if he has been registered as a citizen of India by the

diplomatic or consular representative of India in the country of his residence, whether before or after the

commencement of the Constitution. Thus, this provision covers the overseas Indians who may want to acquire Indian citizenship (Article 8)

8.2.5 Article 9 – Termination of Indian citizenship on acquiring citizenship of other country.

No person shall be a citizen of India or be deemed to be a citizen of India, if he has voluntarily acquired the citizenship of any foreign state

8.2.6 Article 10 – Continuation of rights of citizenship

Every person who is or is deemed to be a citizen of India shall continue to be such citize n, subject to the

provisions of any law made by Parliament

8.2.7 Article 11 – Parliament can amend laws of citizenship by simple majority of both houses of

Parliament.

Parliament shall have the power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.

8.3 Domicile Domicile is an important criterion for citizenship of any country. Though the term is not defined in the Indian

Constitution, domicile ordinarily connotes a person's residence where he intends to live on a permanent basis.

Thus, a permanent residence and the intention to reside there indefinitely are two important ingredients

constituting 'domicile'.

Article 5 provides that a person becomes entitled to the Citizenship of India if, at the commencement of the

Constitution, he has his domicile in the territory of India, he or either of his parents were born in India, or he has

been ordinarily resident in the territory of India for not less than five years immediately before the commencement of the Constitution.

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Domicile by birth or residence as aforesaid can be changed by a person by exercising his choice declaring his

intention to reside in some other country for an indefinite period. In fact, citizenship is denoted by dom icile and

not vice-versa. The latter is distinguishable from citizenship inasmuch as it is vitally connected with territory and not membership of the community which is at the root of the notion of citizenship.

The Constitution avoids dual citizenship; there is one citizenship related to the domicile in the territory of whole

of India and not in a part of it. There is no separate State citizenship as in the U.S.A. Thus, it is not correct to say

that a citizen of India is domiciled in one State or another forming part of the Union of India. The domicile which he has is only one domicile, namely, domicile in the territory of India.

8.4 Gain of Citizenship Acquisition of Citizenship after January 26, 1950. – B. The various modes of acquisition of citizenship prescribed by the Citizenship Act, 1955, are as follows:

8.4.1 Citizenship by birth: Subject to S. 3(2) of the Citizenship Act, 1955 every person born in India –

(i) on or after January 26, 1950, but before the 1st day of July 1987;

(ii) on or after 1st day of July 1987 but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;

(iii) on or after the commencement of the Citizenship (Amendment) Act, 2003 where –

a) both of his parents are citizen of India; or

b) One of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.

c) However a person shall not be a citizen of India by virtue of mere birth if at the time of his birth –

(1) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of India; or

(2) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.

8.4.2 Citizenship by descent: Broadly speaking, a person born outside India

(i) on or after January 26, 1950, but before the 10th day of December, 1992, if his father is a citizen of India at the time of his birth; or

(ii) on or after the 10th day of December, 1992, if either of his parents is a citizen of India at the time of his birth shall be a citizen of India by descent.

However, a minor who is a citizen of India by virtue of descent and is also a citizen of any other country shall

cease to be a citizen of India if he does not renounce the citizenship or nationality of another country within six months of attaining full age.

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8.4.3 Citizenship by registration: Several classes of persons (who have not otherwise acquired Indian

citizenship) can acquire Indian citizenship by registering themselves to that effect before the prescribed

authority, e.g., persons of Indian origin who are ordinari ly resident in India and have been so resident for seven

years immediately before making the application for registration; persons who are married to citizens of India; a

person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for [one year] before making an application for registration.

8.4.4 Citizenship by naturalization: A foreigner not being an illegal migrant can acquire Indian

citizenship, on application for naturalization to the Government of India.

8.4.5 Citizenship by incorporation of territory: If any new territory becomes a part of India, the

Government of India shall specify the persons of that territory who shall be the citizens of India.

In 1985 a special provision was also added as to citizenship of persons of Indian Origin covered by the Assam Accord. Under Subsection 2 of Section 6A two conditions are required to be satisfied –

(i) persons who are of Indian Origin (undivided India) came before 1-1-1966 to Assam from the specified territory, and

(ii) have been "ordinarily resident" in Assam as it existed in 1985 since the date of entry in Assam. [State of Arunachal Pradesh v. Khudiram Chakma, AIR 1994 SC 1961].

No citizenship would be granted to those Bangladeshi immigrants who came after 24th March, 1971. NRC is applicable only for the immigrants who came in the period 1966 to 1971.

8.5 Loss of Indian Citizenship The Citizenship Act, 1955, also lays down how the citizenship of India may be lost – whether it was acquired

under the Citizenship Act, 1955, or prior to it – under the provisions of the Constitution (i.e., under Arts. 5-8). It

may happen in any of the three ways – renunciation, termination and deprivation.

Renunciation is a voluntary act by which a person holding the citizenship of India as well as that of another country may abjure one of them.

Termination shall take place by operation of law as soon as a citizen of India voluntarily acquires the citizenship of another country (Article 9).

Deprivation is a compulsory termination of the citizenship of India, by an order of the Government of India, if it

is satisfied as to the happening of certain contingencies, e.g., that Indian citizenship had been acquired by a person by fraud, or that he has shown himself to be disloyal or disaffected towards the Constitution of India.

8.6 Single Citizenship It should be noted in this context, that our Constitution, though federal, provides for one citizenship only,

namely, the citizenship of India. In federal States like the U.S.A. and Switzerland, there is a dual citizenship,

namely, federal or national citizenship and citizenship of the State where a person is born or permanently resides, and there are distinct rights and obligations flowing from the two kinds of citizenship.

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In India, a person born or resident in any State can acquire only one citizenship, namely, that of India and the

civic and political rights which are conferred by the Constitution upon the citizens of India can be equally claimed

by any citizens of India irrespective of his birth and residence in any part of India.

Permanent residence within a State may, however, confer advantages in certain other matters, which should be noted in this context:

So far as employments under the Union are concerned, there shall be no qualification for residence within any particular territory, but by Art. 16(3) of the Constitution, Parliament is empowered to lay down that as regards any particular class or classes of employment under a State or a Union Territory residence within that State or Territory shall be a necessary qualification. This exception in the case of State employments has been engrafted for the sake of efficiency, insofar as it depends on familiarity with local conditions.

It is to be noted that it is Parliament which would be the sole authority to legislate in this matter and that State Legislatures shall have no voice. To this extent, invidious discrimination in different States is sought to be avoided. Parliament, in the exercise of this power, enacted the Public Employment (Requirement as to Residence) Act, 1957, for a temporary duration.

By this Act, Parliament empowered the Central Government to make rules, having force for a specified period, prescribing a residential requirement only for appointment to non-Gazette posts in Andhra Pradesh, Himachal Pradesh, Manipur and Tripura. Since the expiry of this Act in 1974, nobody can be denied employment in any State on the ground of his being a non-resident in that State.

As will be seen in the Chapter on Fundamental Rights, Art. 15(1), which prohibits discrimination on grounds only of race, religion, caste, sex or place of birth, does not mention residence. It is, therefore, constitutionally permissible for a State to confer special benefits upon its residents in matters other than those in respect of which rights are conferred by the Constitution upon all citizens of India. One of these, for instance, is the matter of levying fees for admission to State educational institutions.

The Supreme Court has held that because discrimination on the ground of residence is not prohibited by Art. 15, it is permissible for a State to offer a concession to its residents in the matter of fees for admission to its State Medical College.

So far as the State of Jammu and Kashmir is concerned, the Legislature of the State is authorised to confer special rights and privileges upon persons permanently resident in the State as respects:

employment under the State Government;

acquisition of immovable property in the State;

settlement in the State; or

Right to scholarships and such other forms of aid as the State Government may provide.

The Constitution recognizes only one domicile, namely, the domicile in India. Article 5 of the Constitution is

clear and explicit on this point and it refers only to one domicile, namely, "domicile in the territory of India." The

legal system which prevails throughout the territory of India is one single indivisible system.

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Though different domicile rules in different states actually defeat the advantages of single-citizenship. It

engenders provincialism. The concept of 'domicile' has no relevance to the applicability of municipal laws,

whether made by the Union of India or by the States.

It would not, therefore, be right to say that a citizen of India is domiciled in one state or another, forming part of the Union of India. The domicile which he has, is only one domicile, namely, domicile in the territory of India.

When a person who is permanently resident in one State goes to another State with the intention to reside

there permanently or indefinitely, his domicile does not undergo any change: he does not acquire a new

domicile of choice, His domicile remains the same, namely, Indian domicile. Moreover, to think in terms of state domicile will be highly detrimental to the concept of unity and integrity of India.

8.7 Amendments and NRC Indian citizenship Act 1955 was subject to amendments in 1986, 1992, 2003, 2005(OCI Act), 2015 & 2016. The

amendment of 1986 inserted art 6(A) in the part II to implement Assam accord of 1985. Those immigrants who

came during the period Jan 1, 1966 to March 24 (1997) from East Pakistan would have to wait 10 years for availing political rights. Their names would figure in national register for citizens (NRC) till then.

The immigrants who came on March 25, 1971 or onwards to be deported & would not be considered for Indian

citizenship at all. 2015 amendment ended PIO scheme and OCI scheme extended to people of Indian origin for

all countries except Pakistan, Afghanistan and Bangladesh. Now, it will be OCI card holder that is OCIC.

• Persons domiciled in the territory of India as on November 26, 1949 automatically became Indian citizens

• Any person born in India on or after Jan 26, 1950 prior to July 1, 1987 (based on 1986 Act) is citizen of India by birth

• July 1, 1987 to December 3, 2004 either parent must be citizen of India

• December 3, 2004 onwards none of the parent should be illegal immigrant

• December 3, 2004 onwards a person taking birth outside India can claim Indian citizenship by descent only if he/she is registered to an Indian diplomatic mission within 1 year of date of birth

8.8 Overseas Citizenship of India In September 2000, the Government of India (Ministry of External Affairs) had set-up a High Level Committee

on the Indian Diaspora under the Chairmanship of L.M. Singhvi. The mandate of the Committee was to make a

comprehensive study of the global Indian Diaspora and to recommend measures for a constructive relationship with them.

The committee submitted its report in January 2002. It recommended the amendment of the Citizenship Act,

1955, to provide for grant of dual citizenship to the Persons of Indian Origin (PIOs) belonging to certain

specified countries. Accordingly, the citizenship (Amendment) Act, 2003, made provision for acquisition of Overseas Citizenship of India (OCI) by the PIOs of 16 specified countries other than Pakistan and Bangladesh.

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It also omitted all provisions recognizing, or relating to the Commonwealth Citizenship from the Principal Act.

Later, the Citizenship (Amendment) Act, 2005, expanded the scope of grant of OCI for PIOs of all countries

except Pakistan and Bangladesh as long as their home countries all dual citizenship under their local laws.

It must be noted here that the OCI is not actually a dual citizenships as the Indian Constitution forbids dual

citizenship or dual nationality (Article 9). Again, the Citizenship (Amendment) Act, 2015, has modified the provisions pertaining to the OCI in the Principal Act.

It has introduced a new scheme called “Overseas Citizen of India Cardholder” by merging the PIO card scheme

and the OCI card scheme. The PIO card scheme was introduced on 19-08-2002 and thereafter the OCI card scheme was introduced w.e.f. 01-12-2005.

Both the schemes were running in parallel even though the OCI card scheme had become more popular. This

was causing unnecessary confusion in the minds of applicants. Keeping in view some problems being faced by

applicants and to provide enhanced facilities to them, the Government of India decided to formulate one single scheme after merging the PIO and schemes, OCI containing positive attributes of both.

Hence, for achieving this objective, the Citizenship (Amendment) Act, 2015, was enacted. The PIO scheme was

rescinded w.e.f. 09-01-2015 and it was also notified that all existing PIO cardholders shall be deemed to be OCI cardholder’s w.e.f. 09-01-2015.

The Citizenship (Amendment) Act, 2015, replaced the nomenclature of “Overseas Citizen of India” with that of

“Overseas Citizen of India Cardholder” and made the following provisions in the Principal Act:

8.8.1 Registration of Overseas Citizen of India Cardholder

(1) The Central Government may, on an application made in this behalf, register as an Overseas Citizen of India Cardholder—

(a) any person of full age and capacity,—

(i) who is a citizen of another country, but was a citizen of India at the time of, or at any time after the commencement of the Constitution; or

(ii) who is a citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or

(iii) who is a citizen of another country, but belonged to a territory that became part of India after the 15th August,1947; or

(iv) )who is a child or a grandchild or a great grandchild of such a citizen; or

(b) a person, who is a minor child of a person mentioned in clause (a); or

(c) a person, who is a minor child, and whose both parents are citizens of India or one of the parents is a citizen of India; or

(d) spouse of foreign origin of a citizen of India or spouse of foreign origin of an Overseas Citizen of India Cardholder and whose marriage has been registered and subsisted for a continuous period of not less

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than two years immediately preceding the presentation of the application.

No person, who or either of whose parents or grandparents or great grandparents is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, specify, shall be eligible for registration as an Overseas Citizen of India Cardholder.

(2) The Central Government may specify the date from which the existing persons of Indian Origin Cardholders shall be deemed to be Overseas Citizens of India Cardholders.

(3) Notwithstanding anything contained in point (1), the Central Government may, if it is satisfied that special circumstances exist, after recording the circumstances in writing, register a person as an Overseas Citizen of India Cardholder.

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9.Fundamental Rights 9.1 Introduction The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. In this regard, the

framers of the Constitution derived inspiration from the Constitution of USA (i.e., Bill of Rights). Part III of the

Constitution is rightly described as the Magna Carta of India. It contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights.

In fact, the Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of

any other country in the world, including the USA. The Fundamental Rights are guaranteed by the Constitution

to all persons without any discrimination. They uphold the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation.

The Fundamental Rights are meant for promoting the ideal of political democracy. They prevent the

establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the

people against the invasion by the State. They operate as limitations on the tyranny of the executive and

arbitrary laws of the legislature. In short, they aim at establishing ‘a government of laws and not of men’.

9.2 The Basic Rights Fundamental Rights are mostly those individual rights against state which has been given highest priority and protection (SC & HCs work as its guardian)

Part III of the Constitution which contains perhaps one of the most elaborate charters of human rights yet

framed

By any State, consistent with the aim of the unity of the nation and the interests of the public at large, has been

described by Justice Gajendragadkar as the "very foundation and cornerstone of the democratic way of life

ushered in this country by the Constitution". These fundamental rights substantially cover all the traditional civil and political rights enumerated in articles 2 to 21 of the Universal Declaration.

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According to Justice Bhagwati: These fundamental rights represent the basic values cherished by the people of

this country since the Vedic times and they are calculated to protect the dignity of the individual and create

conditions in which every human being can develop his personality to the fullest extent. They weave a 'pattern

of guarantee' on the basic structure of human rights and impose negative obligations on the State not to encroach on individual liberty in its various dimensions.

9.3 Article 12 and 13 9.3.1 Article 12 – Definition of State

This definition includes executive and legislature at union and state levels, PSUs and any agency working under

state but higher judiciary is not included in this definition. SC & HCs are guardian and protector of fundamental rights rather than potential breached.

9.3.2.1 Article 13(1) – The pre-constitutional laws which were inconsistent with fundamental rights would

be eclipsed (Doctrine of eclipse).

9.3.2.2 Article 13(2) – State cannot make any law which infringes the Fundamental Rights (Post-

constitutional laws) (Prohibitory).

Note: Executive & legislature gave primacy to directive principles of state policy (DPSP) over fundamental rights

(FRs). They favored distinction of ordinary law passed by simple majority and constituent law passed by 2/3rd majority. (Shankari Prasad case 1951)

It was argued that the Parliament is successor of the Constituent Assembly hence the Constitutional

Amendment Bill does not come under the definition of law of Article 13. In other words, the Parliament cannot be

stopped from implementing DPSPs, if laws are passed by special majority i.e. 2/3rd majority

9.4 Equality (Articles 14-18) Equality – It involves reduction of unjust inequalities. It does not mean literal equality or ending all differences.

9.4.1 Article 14 – Equality before law and equal protection of law.

Numerical Equality – Treating equals equally root of law equal status before law

Proportional Equality – treating unequal unequally i.e. more needy to get more and more able should also get

more. Positive discrimination by the state in favor of more needy ensures equality of opportunity more able is

rewarded more to promote collective good.

9.4.1.1 Exceptions to Equality: The rule of equality before law is not absolute and there are constitutional and

other exceptions to it. These are mentioned below:

The President of India and the Governor of States enjoy the following immunities (Article 361)

a) The President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office.

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b) No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office.

c) No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office.

d) No civil proceedings against the President or the Governor shall be instituted during his term of office in any court in respect of any act done by him in his personal capacity, whether before or after he entered upon his office, until the expiration of two months next after notice has been delivered to him.

e) No person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper (or by radio or television) of a substantially true report of any proceedings of either House of Parliament or either House of the Legislature of a State (Article 361-A).

f) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof (Article 105).

g) No member of the Legislature of a state shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof (Article 194).

h) Article 31-C is an exception to Article 14. It provides that the laws made by the state for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violates Article 14. The Supreme Court held that "where Article 31-C comes in, Article 14 goes out".

i) The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from crimi nal and civil proceedings.

j) The UNO and its agencies enjoy the diplomatic immunity.

9.4.2 Article 15 – No negative discrimination among citizens on the basis of caste, creed, religion, sex or

place of birth.

(Note: Positive discrimination in favor of SCs, STs, OBCs, Women and other weaker sections by the state is not to

be prohibited.)

9.4.2.1 Prohibition of Discrimination on Certain Grounds Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. The two crucial words in this provision are 'discrimination' and 'only'.

The word 'discrimination' means 'to make an adverse distinction with regard to' or 'to distinguish unfavorable and others’. The use of the word 'only' connotes that discrimination on other grounds is not prohibited.

The second provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or

condition on grounds only of religion, race, caste, sex, or place of birth with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment; or

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(b) the use of wells, tanks, bathing Ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public.

This provision prohibits discrimination both by the State and private individuals, while the former provision

prohibits discrimination only by the State.

There are three exceptions to this general rule of non-discrimination:

1) The state is permitted to make any special provision for women and children. For example, reservation of seats for women in local bodies or provision of free education for children.

2) The state is permitted to make any special provision for the advancement of any socially and e ducationally backward classes of citizens or for the scheduled castes and scheduled tribes. For example, reservation of seats or fee concessions in public educational institutions.

3) The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.

The last provision was added by the 93rd Amendment Act of 2005. In order to give effect to this provision, the

Centre enacted the Central Educational Institutions (Reservation in Admission) Act, 2006, providing a quota of

27% for candidates belonging to the Other Backward Classes (OBCs) in all central higher educational institutions including the Indian Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs).

In April 2008, the Supreme Court upheld the validity of both, the Amendment Act and the OBC Quota Act. But,

the Court directed the central government to exclude the 'creamy layer' (advanced sections) among the OBCs

while implementing the law.

Creamy Layer: The children of the following different categories of people belong to 'creamy layer' among OBCs and thus will not get the quota benefit:

1. Persons holding constitutional posts like President, Vice-President, Judges of SC and HCs, Chairman and Members of UPSC and SPSCs, CEC, CAG and so on.

2. Group 'A' / Class I and Group 'B' / Class II Officers of the All India, Central and State Services; and Employees holding equivalent posts in PSUs, Banks, Insurance Organizations, Universities etc., and also in private employment.

3. Persons who are in the rank of colonel and above in the Army and equivalent posts in the Navy, the Air Force and the Paramilitary Forces.

4. Professionals like doctors, lawyers, engineers, artists, authors, consultants and so on.

5. Persons engaged in trade, business and industry.

6. People holding agricultural land above a certain limit and vacant land or buildings in urban areas.

7. Persons having gross annual income of more than Rs. 6 lakh or possessing wealth above the exemption

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limit. In 1993, when the "creamy layer" ceiling was introduced, it was Rs. 1 lakh. It was subsequently revised to Rs. 2.5 lakh in 2004, Rs. 4.5 lakh in 2008 and Rs. 6 lakh in 2013.

9.4.3 Article 16 – No discrimination among citizens in public employment.

(Note: Government is meant for whole society hence no negative discrimination is allowed in government employment.)

9.4.3.1 Equality of Opportunity in Public Employment Article 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any

office under the State. No citizen can be discriminated against or be ineligible for any employment or office

under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.

There are three exceptions to this general rule of equality of opportunity in public employment:

1. Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority. As the Public Employment (Requirement as to Residence) Act of 1957 expired in 1974, there is no such provision for any state except Andhra Pradesh and Telangana.

2. The State can provide for reservation of appointments or posts in favor of any backward class that is not adequately represented in the state services.

3. A law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.

9.4.3.2 Mandal Commission and Aftermath

In 1979, the Morarji Desai Government appointed the Second Backward Classes Commission under the

chairmanship of B P Mandal, a Member of Parliament, in terms of Article 340 of the Constitution to investigate the conditions of the socially and educationally backward classes and suggest measures for the ir advancement.

The commission submitted its report in 1980 and identified as many as 3743 castes as socially and educationally

backward classes. They constitute nearly 52% component of the population, excluding the scheduled castes (SCs) and the scheduled tribes (STs).

The commission recommended for reservation of 27% government jobs for the Other Backward Classes (OBCs)

so that the total reservation for all ((SCs, STs and OBCs) amounts to 50%. It was after ten years in 1990 that the

V P Singh Government declared reservation of 27% government jobs for the OBCs. Again in 1991, the Narasimha Rao Government introduced two changes:

(a) Preference to the poorer sections among the OBCs in the 27% quota, i.e., adoption of the economic criteria in granting reservation, and

(b) Reservation of another 10% of jobs for poorer (economically backward) sections of higher castes who are not

covered by any existing schemes of reservation.

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In the famous Mandal case (1992), the scope and extent of Article 16(4), which provides for reservation of jobs in

favor of backward classes, has been examined thoroughly by the Supreme Court. Though the Court has rejected

the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions, viz.

a. The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation.

b. No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., up to 1997).

c. The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.

d. The 'carry forward rule' in case of unfilled (backlog) vacancies is valid. But it should not violate 50% rule.

e. A permanent statutory body should be established to examine complaints of over-inclusion and under – inclusion in the list of OBCs.

With regard to the above rulings of the Supreme Court, the government has taken the following actions:

• Ram Nandan Committee was appointed to identify the creamy layer among the OBCs. It submitted its report in 1993, which was accepted.

• National Commission for Backward Classes was established in 1993 by an act of Parliament. It considers inclusions in and exclusions from the lists of castes notified as backward for the purpose of job reservation.

• In order to nullify the ruling with regard to reservation in promotions, the 77th Amendment Act was enacted in 1995. It added a new provision in Article 16 that empowers the State to provide for reservation in promotions of any services under the State in favor of the SCs and STs that are not adequately represented in the state services.

Again, the 85th Amendment Act of 2001 provides for 'consequential seniority' in the case of promotion by virtue of rule of reservation for the government servants belonging to the SCs and STs with retrospective effect from June 1995.

• The ruling with regard to backlog vacancies was nullified by the 81st Amendment Act of 2000. It added another new provision in Article 16 that empowers the State to consider the unfilled reserved vacancies of a year as a separate class of vacancies to be filled up in any succeeding year or years.

Such class of vacancies are not to be combined with the vacancies of the year in which they are being filled up to determine the ceiling of 50% reservation on total number of vacancies of that year. In brief, it ends the 50% ceiling on reservation in backlog vacancies.

• The 76th Amendment Act of 1994 has placed the Tamil Nadu Reservations Act of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69 per cent of reservation, far exceeding the 50 per cent ceiling.

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9.4.4 Article 17 – right against caste based untouchability

(Note: This right is an absolute right against tyrannical, oppressive and castist society and not against state.

Untouchability is gravest and historically rooted form of Inequality.)

9.4.4.1 Abolition of Untouchability

Article 17 abolishes 'untouchability' and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.

In 1976, the Untouchability (Offences) Act, 1955 has been comprehensively amended and renamed as the

Protection of Civil Rights Act, 1955 to enlarge the scope and make penal provisions more stringent. The act

defines civil right as any right accruing to a person by reason of the abolition of untouchability by Article 17 of the Constitution.

The term 'untouchability' has not been defined either in the Constitution or in the Act. However, the Mysore

High Court held that the subject matter of Article 17 is not untouchability in its literal or grammatical sense but

the 'practice as it had developed historically in the country'.

It refers to the social disabilities imposed on certain classes of persons by reason of their birth in certain caste. Hence, it does not cover social boycott of a few individuals or their exclusion from religious services, etc.

Under the Protection of Civil Rights Act (1955), the offences committed on the ground of untouchability are

punishable either by imprisonment up to six months or by fine up to Rs. 500 or both. A person convi cted of the

offence of 'untouchability' is disqualified for election to the Parliament or state legislature. The act declares the

following acts as offences:

1. preventing any person from entering any place of public worship or from worshipping therein;

2. justifying untouchability on traditional, religious, philosophical or other grounds;

3. denying access to any shop, hotel or places of public entertainment;

4. insulting a person belonging to scheduled caste on the ground of untouchability;

5. refusing to admit persons in hospitals, educational institutions or hostels established for public benefit;

6. preaching untouchability directly or indirectly; and

7. Refusing to sell goods or render services to any person.

The Supreme Court held that the right under Article 17 is available against private individuals and it is the constitutional obligation of the State to take necessary action to ensure that this right is not violated.

9.4.5 Article 18 – Abolition of Imperial Titles

(Note: The British imperial titles like Sir, Rai Bahadur, Kaisar-i-hind, Marshall Community etc. were conferred for

promoting loyalty towards foreign rule. In independent India titles and awards given for individual and collective excellence is not prohibited.)

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9.4.5.1 Abolition of Titles Article 18 abolishes titles and makes four provisions in that regard:

1. It prohibits the state from conferring any title (except a military or academic distinction) on anybody, whether a citizen or a foreigner.

2. It prohibits a citizen of India from accepting any title from any foreign state.

3. A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.

4. No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.

From the above, it is clear that the hereditary titles of nobility like Maharaja, Raj Bahadur, Rai Bahadur, Rai

Saheb, Dewan Bahadur, etc., which were conferred by colonial States are banned by Article 18 as these are against the principle of equal status of all.

In 1996, the Supreme Court upheld the constitutional validity of the National Awards – Bharat Ratna, Padma

Vibhushan, Padma Bhushan and Padma Sri. It ruled that these awards do not amount to 'titles' within the meaning of Article 18 that prohibits only hereditary titles of nobility.

Therefore, they are not violates Article 18 as the theory of equality does not mandate that merit should not be

recognized. However, it also ruled that they should not be used as suffixes or prefixes to the names of awardees. Otherwise, they should forfeit the awards.

These National Awards were instituted in 1954. The Janata Party government headed by Morarji Desai discontinued them in 1977. But they were again revived in 1980 by the Indira Gandhi government.

9.5 Freedom (Article 19 To 22) Freedom – It means absence of restrictions and interchangeably used with liberty. However, liberty/freedom

cannot be absolute and justified restrictions are applied to ensure freedom of all.

9.5.1 Article 19 consists of 6 civil liberties i.e. those freedoms which every private individual is entitled for

namely:

1. Freedom of Speech & Expression

2. Freedom of Association

3. Freedom of Association

4. Freedom of Occupation and Profession

5. Freedom of Residence

6. Freedom of Movement

As no civil liberty is absolute hence article 19(2) provides for preventive detention. By this district administration is empowered to arrest a person on the basis of suspicion who may potentially disturb public peace.

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97th constitution amendment 2011 added article 19 (1) (C) which provides for right to establish cooperative

societies. However, in 2021, SC declared this amendment void partially on procedural grounds but provisions

related to multi-state cooperatives remain valid.

Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978.

These six rights are protected against only state action and not private individuals. Moreover, these rights are

available only to the citizens and to shareholders of a company but not to foreigners or legal persons like

companies or corporations, etc.

The State can impose 'reasonable' restrictions on the enjoyment of these six rights only on the grounds mentioned in the Article 19 itself and not on any other grounds.

9.5.1.2 Freedom of Speech and Expression: It implies that every citizen has the right to express his views,

opinions, belief and convictions freely by word of mouth, writing, printing, picturing or in any other manner. The Supreme Court held that the freedom of speech and expression includes the following:

1. Right to propagate one's views as well as views of others.

2. Freedom of the press.

3. Freedom of commercial advertisements.

4. Right against tapping of telephonic conversation.

5. Right to telecast, that is, government has no monopoly on electronic media.

6. Right against bundh called by a political party or organization.

7. Right to know about government activities.

8. Freedom of silence.

9. Right against imposition of pre-censorship on a newspaper.

10. Right to demonstration or picketing but not right to strike.

The State can impose reasonable restrictions on the exercise of the freedom of speech and expression on the

grounds of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence.

9.5.1.3 Freedom of Assembly: Every citizen has the right to assemble peaceably and without arms. It includes

the right to hold public meetings, demonstrations and take out processions. This freedom can be exercised only

on public land and the assembly must be peaceful and unarmed. This provision does not protect violent,

disorderly, riotous assemblies, or one that causes breach of public peace or one that involves arms. This right does not include the right to strike.

The State can impose reasonable restrictions on the exercise of right of assembly on two grounds, namely,

sovereignty and integrity of India and public order including the maintenance of traffic in the area concerned.

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Under Section 144 of Criminal Procedure Code (1973), a magistrate can restrain an assembly, meeting or

procession if there is a risk of obstruction, annoyance or danger to human life, health or safety or a disturbance

of the public tranquility or a riot or any affray.

Under Section 141 of the Indian Penal Code, as assembly of five or more persons becomes unlawful if the object is (a) to resist the execution of any law or legal process;

(b) to forcibly occupy the property of some person;

(c) to commit any mischief or criminal trespass;

(d) to force some person to do an illegal act; and

(e) to threaten the government or its officials on exercising lawful powers.

9.5.1.4 Freedom of Association: All citizens have the right to form associations or unions or co-operative

societies (from 2021, as SC declared 97th CAA partially void, on procedural grounds where provisions related to

multistate cooperatives remain valid. However, this doesn’t stop formation of Cooperatives, just they will be

ruled by respective State government).

It includes the right to form political parties, companies, partnership firms, societies, clubs, organizations, trade

unions or anybody of persons. It not only includes the right to start an association or union but also to continue

with the association or union as such. Further, it covers the negative right of not to form or join an association or

union.

Reasonable restrictions can be imposed on the exercise of this right by the State on the grounds of sovereignty

and integrity of India, public order and morality. Subject to these restrictions, the citizens have complete liberty

to form associations or unions for pursuing lawful objectives and purposes. However, the right to obtain

recognition of the association is not a fundamental right.

The Supreme Court held that the trade unions have no guaranteed right to effective bargaining or right to strike

or right to declare a lock-out. The right to strike can be controlled by an appropriate industrial law.

9.5.1.5 Freedom of Movement: This freedom entitles every citizen to move freely throughout the territory of

the country. He can move freely from one state to another or from one place to another within a state. This

right underline the idea that India is one unit so far as the citizens are concerned. Thus, the purpose is to

promote national feeling and not parochialism.

The grounds of imposing reasonable restrictions on this freedom are two, namely, the interests of general public

and the protection of interests of any scheduled tribe. The entry of outsiders in tribal areas is restricted to

protect the distinctive culture, language, customs and manners of scheduled tribe s and to safeguard their traditional vocation and properties against exploitation.

The Supreme Court held that the freedom of movement of prostitutes can be restricted on the ground of public

health and in the interest of public morals. The Bombay High Court validated the restrictions on the movement of persons affected by AIDS.

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The freedom of movement has two dimensions, viz, internal (right to move inside the country) and external

(right to move out of the country and right to come back to the country). Article 19 protects only the first

dimension. The second dimension is dealt by Article 21 (right to life and personal liberty).

9.5.1.6 Freedom of Residence: Every citizen has the right to reside and settle in any part of the territory of the

country. This right has two parts:

(a) the right to reside in any part of the country, which means to stay at any place temporarily, and

(b) the right to settle in any part of the country, which means to set up a home or domicile at any place permanently.

This right is intended to remove internal barriers within the country or between any of its parts. This promotes nationalism and avoids narrow mindedness.

The State can impose reasonable restrictions on the exercise of these right on two grounds, namely, the

interest of general public and the protection of interests of any scheduled tribes. The right of outsiders to reside

and settle in tribal areas is restricted to protect the distinctive culture, language, customs and manners of

scheduled tribes and to safeguard their traditional vocation and properties against exploitation. In many parts of

the country, the tribal have been permitted to regulate their property rights in accordance with their customary rules and laws.

The Supreme Court held that certain areas can be banned for certain kinds of persons like prostitutes and habitual offenders.

From the above, it is clear that the right to residence and the right to movement are overlapping to some

extent. Both are complementary to each other.

9.5.1.7 Freedom of Profession, etc.: All citizens are given the right to practice any profession or to carry on any

occupation, trade or business. This right is very wide as it covers all the means of earning one's livelihood.

The State can impose reasonable restrictions on the exercise of this right in the interest of the general public. Further, the State is empowered to:

• prescribe professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business; and

• Carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise.

Thus, no objection can be made when the State carries on a trade, business, industry or service either as a

monopoly (complete or partial) to the exclusion of citizens (all or some only) or in competition with any citizen.

The State is not required to justify its monopoly.

This right does not include the right to carry on a profession or business or trade or occupation that is immoral

(trafficking in women or children) or dangerous (harmful drugs or explosives, etc.). The State can absolutely prohibit these or regulate them through licensing.

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9.5.2 Article 20 – Right against Conviction (Note – This is one of the basic human rights which can never be suspended in any circumstances. One cannot be forced to appear as witness against himself and is allowed to prove ones innocence with fair trial.)

Moreover, for the same offence a person cannot be punished more than one and is called double jeopardy.

9.5.2.1 Protection in Respect of Conviction for Offences (Art.20) Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or

foreigner or legal person like a company or a corporation. It contains three provisions in that direction:

1. No ex-post-facto law: No person shall be (i) convicted of any offence except for violation of a law in force at the time of the commission of the act, nor (ii) subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act.

2. No double jeopardy: No person shall be prosecuted and punished for the same offence more than once.

3. No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself.

An ex-post-facto law is one that imposes penalties retrospectively (retroactively), that is, upon acts already

done or which increases the penalties for such acts. The enactment of such a law is prohibited by the first provision of Article 20.

However, this limitation is imposed only on criminal laws and not on civil laws or tax laws. In other words, a civil

liability or a tax can be imposed retrospectively. Further, this provision prohibits only conviction or sentence

under an ex-post-facto criminal law and not the trial thereof. Finally, the protection (immunity) under this provision cannot be claimed in case of preventive detention or demanding security from a person.

The protection against double jeopardy is available only in proceedings before a court of law or a judicial

tribunal. In other words, it is not available in proceedings before departmental or administrative authorities as

they are not of judicial nature.

The protection against self-incrimination extends to both oral evidence and documentary evidence. However, it does not extend to

(i) compulsory production of material objects,

(ii) compulsion to give thumb impression, specimen signature, blood specimens, and

(iii) compulsory exhibition of the body.

Further, it extends only to criminal proceedings and not to civil proceedings or proceedings which are not of criminal nature.

9.5.3 Article 21 – Right to life to personal liberty except procedure established by law .

(Note – This is again one of the most important basic human rights. It cannot be suspended even during

national emergency. The meaning scope and locus standii of it has expanded over the period of time by

including education, environment, livelihood privacy etc. in it.

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The rights under this article are moving towards due process of law (like US) with increasing judicial intervention

with the passage of time. 86th CA 2002 included Article 21 (A) which has made elementary education for children

of age group 6 to 14 as universal and free.)

In the famous Gopalan case (1951), the Supreme Court has taken a narrow interpretation of the Article 21. It

held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action.

This means that the State can deprive the right to life and personal liberty of a person based on a law. This is

because of the expression 'procedure established by law' in Article 21, which is different from the expression

'due process of law' contained in the American Constitution. Hence, the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unfair or unjust.

Secondly, the Supreme Court held that the 'personal liberty' means only liberty relating to the person or body of

the individual. But, in Menaka case (1978), the Supreme Court overruled its judgement in the Gopalan case by taking a wider interpretation of the Article 21.

Therefore, it ruled that the right to life and personal liberty of a person can be deprived by a law provided the

procedure prescribed by that law is reasonable, fair and just. In other words, it has introduced the American

expression 'due process of law'. In effect, the protection under Article 21 should be available not only against

arbitrary executive action but also against arbitrary legislative action.

Further, the court held that the 'right to life' as embodied in Article 21 is not merely confined to animal

existence or survival but it includes within its ambit the right to live with human dignity and all those aspects

of life which go to make a man's life meaningful, complete and worth living. It also ruled that the expression

'Personal Liberty' in Article 21 is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man.

The Supreme Court has reaffirmed its judgement in the Menaka case in the subsequent cases. It has declared the following rights as part of Article 21:

1. Right to live with human dignity.

2. Right to decent environment including pollution free water and air and protection against hazardous industries.

3. Right to livelihood.

4. Right to privacy.

5. Right to shelter.

6. Right to health.

7. Right to free education up to 14 years of age.

8. Right to free legal aid.

9. Right against solitary confinement.

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10. Right to speedy trial.

11. Right against handcuffing.

12. Right against inhuman treatment.

13. Right against delayed execution.

14. Right to travel abroad.

15. Right against bonded labour.

16. Right against custodial harassment.

17. Right to emergency medical aid.

18. Right to timely medical treatment in government hospital.

19. Right not to be driven out of a state

20. Right to fair trial.

21. Right of prisoner to have necessities of life.

22. Right of women to be treated with decency and dignity.

23. Right against public hanging.

24. Right to hearing.

25. Right to information.

26. Right to reputation.

27. Right of appeal from a judgement of conviction

28. Right to social security and protection of the family

29. Right to social and economic justice and empowerment

30. Right against bar fetters

31. Right to appropriate life insurance policy

32. Right to sleep

33. Right to freedom from noise pollution

34. Right to electricity

9.5.3.1 Right to Education (Art.21A) Article 21(A) declares that the State shall provide free and compulsory education to all children of the age of six

to fourteen years in such a manner as the State may determine. Thus, this provision makes only elementary

education a Fundamental Right and not higher or professional education.

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This provision was added by the 86th Constitutional Amendment Act of 2002. This amendment is a major

milestone in the country's aim to achieve 'Education for All'. The government described this step as 'the dawn of

the second revolution in the chapter of citizens' rights'.

Even before this amendment, the Constitution contained a provision for free and compulsory education for

children under Article 45 in Part IV. However, being a directive principle, it was not enforceable by the courts. Now, there is scope for judicial intervention in this regard.

This amendment changed the subject matter of Article 45 in directive principles. It now reads – 'The state shall

endeavor to provide early childhood care and education for all children until they complete the age of six years.'

It also added a new fundamental duty under Article 51A that reads – 'It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years'.

In 1993 itself, the Supreme Court recognized a Fundamental Right to primary education in the right to life under

Article 21. It held that every child or citizen of this country has a right to free education until he completes the

age of 14 years.

Thereafter, his right to education is subject to the limits of economic capacity and development of the state. In

this judgement, the Court overruled its earlier judgement (1992) which declared that there was a fundamental right to education up to any level including professional education like medicine and engineering.

In pursuance of Article 21A, the Parliament enacted the Right of Children to Free and Compulsory Education

(RTE) Act, 2009. This Act seeks to provide that every child has a right to be provided full time elementary

education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

This legislation is anchored in the belief that the values of equality, social justice and democracy and the

creation of a just and humane society can be achieved only through provision of inclusive elementary education

to all.

Article 21 confers every person the fundamental right to life and personal liberty. It says, “No person shall be

deprived of his life or personal liberty except according to procedure established by law.” The right to life is not confined to a guarantee against taking away of individual’s life but has a wider connotation.

The Supreme Court has ruled “that any act which damages or injuries or interferes with the use of any limb or

faculty of a person either permanently or even temporarily, would be within the inhibition of Article 21. ‘Right to life means to live with human dignity, free from exploitation.”

The court has also held that right to livelihood is also included in the right to life “because no person can live

without the means of living, that is, the means of livelihood.” In another case Supreme Court upheld the right of

people living in hill areas for a suitable approach road because right to life in Article 21 embraces not only

physical existence of life but also the quality of life for the residents of hilly areas; access to road is access to li fe itself.”

According to the Supreme Court, “life includes all that gives meaning to a man’s life including his tradition,

culture and heritage and protection of that heritage in its full measures.” Right to personal liberty is available

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against the State only. In case, right to personal liberty is threatened by some private individual, the remedy lies under the ordinary law and not Article 21.

9.5.3.2 Inferred Rights

The composite or inferred rights are those rights, which are not explicitly provide by the constitution but have

been derived by liberal interpretation of the various provisions of the constitution. Some of the inferred rights are:

• Right to health of the workers

• Right to shelter

• Right against cruel punishment

• Right to live with dignity

• Right to privacy

• Right to speedy trials

• Right against denial of wages and arbitrary dismissal of workers Right of livelihood (Bombay slum case 1985)

9.5.4 Protection against Arrest and Detention Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive.

Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court.

Preventive detention, on the other hand, means detention of a person without trial and conviction by a court.

Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.

Thus, preventive detention is only a precautionary measure and based on suspicion.

The Article 22 has two parts – the first part deals with the cases of ordinary law and the second part deals with

the cases of preventive detention law.

a) The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law:

Right to be informed of the grounds of arrest

(i) Right to consult and be defended by a legal practitioner.

(ii) Right to be produced before a magistrate within 24 hours, excluding the journey time.

(iii) Right to be released after 24 hours unless the magistrate authorizes further detention. These safeguards are not available to an enemy alien or a person arrested or detained under a preventive

detention law.

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The Supreme Court also ruled that the arrest and detention in the first part of Article 22 do not cover arrest

under the orders of a court, civil arrest, arrest on failure to pay the income tax, and deportation of an alien. They

apply only to an act of a criminal or quasi-criminal nature or some activity prejudicial to public interest.

b) The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes the following:

(i) The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court.

(ii) The grounds of detention should be communicated to the detenue. However, the facts considered to be against the public interest need not be disclosed.

(iii) The detenue should be afforded an opportunity to make a representation against the detention order.

Article 22 also authorizes the Parliament to prescribe

(a) the circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board;

(b) the maximum period for which a person can be detained in any classes of cases under a preventive detention law; and

(c) the procedure to be followed by an advisory board in an inquiry.

The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an

advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues.

The Constitution has divided the legislative power with regard to preventive detention between the Parliament

and the state legislatures. The Parliament has exclusive authority to make a law of preventive detention for

reasons connected with defense, foreign affairs and the security of India.

Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for

reasons connected with the security of a state, the maintenance of publ ic order and the maintenance of supplies and services essential to the community.

The preventive detention laws made by the Parliament are:

a. Preventive Detention Act, 1950. Expired in 1969.

b. Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978.

c. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.

d. National Security Act (NASA), 1980.

e. Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA),

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1980.

f. Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995.

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988

h. Prevention of Terrorism Act (POTA), 2002. Repealed in 2004. It is unfortunate to know that no democratic country in the world has made preventive detention as an

integral part of the Constitution as has been done in India. It is unknown in USA.

It was resorted to in Britain only during first and Second World War time. In India, preventive detentio n existed

even during the British rule. For example, the Bengal State Prisoners Regulation of 1818 and the Defense of India Act of 1939 provided for preventive detention.

Article 22 gives protection to the individual against the arbitrary arrest. It says following things:

• A person who is arrested can be detained in custody. But he should be told the grounds of such arrest as soon as may be. He has a right to consult and be defended by a lawyer of his choice.

• The person arrested and detained should be produced before the nearest magistrate within 24 hours. This excludes the time necessary from the place of arrest to the Court of the magistrate. A person cannot be detained beyond 24 hours without the authority of a magistrate.

There are two exceptions to article 22.

• If the person arrested and detained is an enemy alien, or

• He is arrested under any law providing for preventive detention.

9.6 Rights against Exploitation (Article 23 To 24)

9.6.1 Prohibition of Traffic in Human Beings and Forced Labour (Art.23) Article 23 prohibits traffic in human beings, begari (forced labour) and other similar forms of forced labour. Any

contravention of this provision shall be an offence punishable in accordance with law. This right is available to

both citizens and non-citizens. It protects the individual not only against the State but also against private

persons.

The expression 'traffic in human beings' includes

(a) selling and buying of men, women and children like goods;

(b) immoral traffic in women and children, including prostitution;

(c) devadasis; and

(d) slavery. To punish these acts, the Parliament has made the Immoral Traffic (Prevention) Act, 1956.

The term 'begar' means compulsory work without remuneration. It was a peculiar Indian system under which

the local zamindars sometimes used to force their tenants to render services without any payment. In addition to begar, the Article 23 prohibits other 'similar forms of forced labour' like 'bonded labour'.

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The term 'forced labour' means compelling a person to work against his will. The word 'force' includes not only

physical or legal force but also force arising from the compulsion of economic circumstances that is, working

for less than the minimum wage. In this regard, the Bonded Labour System (Abolition) Act, 1976; the Minimum Wages Act, 1948; the Contract Labour Act, 1970 and the Equal Remuneration Act, 1976 were made.

Article 23 also provides for an exception to this provision. It permits the State to impose compulsory service for

public purposes, as for example, military service or social service, for which it is not bound to pay. However, in

imposing such service, the State is not permitted to make any discrimination on grounds only of religion, race, caste or class.

9.6.2 Article 24

It prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous

activities like construction work or railway. But it does not prohibit their employment in any harmless or

innocent work.

The Child Labour (Prohibition and Regulation) Act, 1986, is the most important law in this direction. In addition,

the Employment of Children Act, 1938; the Factories Act, 1948; the Mines Act, 1952; the Merchant Shipping Act,

1958; the Plantation Labour Act, 1951; the Motor Transport Workers Act, 1951; Apprentices Act1961; the Bidi

and Cigar Workers Act, 1966; and other similar acts prohibit the employment of children below certain age.

In 1996, the Supreme Court directed the establishment of Child Labour Rehabilitation Welfare Fund in which the

offending employer should deposit a fine of Rs. 20,000 for each child employed by him. It also issued directions for the improvement of education, health and nutrition of children.

The Commissions for Protection of Child Rights Act, 2005 was enacted to provide for the establishment of a

National Commission and State Commissions for Protection of Child Rights and Children's Courts for providing speedy trial of offences against children or of violation of child rights.

In 2006, the government banned the employment of children as domestic servants or workers in business

establishments like hotels, dhabas, restaurants, shops, factories, resorts, spas, tea-shops and so on. It warned

that anyone employing children below 14 years of age would be liable for prosecution and penal action.

9.6.2.1 Child Labour Amendment (2016)

The Child Labour (Prohibition and Regulation) Amendment Act, 2016, amended the Child Labour (Prohibition

and Regulation) Act, 1986. It has renamed the Principal Act as the Child and Adolescent Labour (Prohibitio n and Regulation) Act, 1986.

The Amendment Act prohibits the employment of children below 14 years in all occupations and processes.

Earlier, this prohibition was applicable to 18 occupations and 65 processes.

Further, the Amendment Act prohibits the employment of adolescents (14 to 18 years of age) in certain hazardous occupations and processes.

9.7 RELIGIOUS RIGHTS (ARTICLE 25 TO 28) The concept of secularism is implied in the provisions relating to right to freedom of religion.

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Article 25 gives every person of India right to freedom of conscience and to freely profess, practice and

propagate religion. The Sikhs have been given right to carry Kirpans. However their right is also not absolute. It

is subjected to public order, morality, health and other provisions of the Part III of the Constitution.

Further the State may regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice. The State may make laws providing for social welfare and reforms.

The State may make laws for the purpose of throwing open of Hindu religious institutions of a public character

to all classes and sections of Hindus. This was done because Hindu religious practices did not allow Harijan’s

entry into the temple.

9.7.1 Freedom of Conscience and Free Profession, Practice and Propagation of Religion

(Art.25) Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. The implications of these are:

• Freedom of conscience: Inner freedom of an individual to mold his relation with God or Creatures in whatever way he desires.

• Right to profess: Declaration of one's religious beliefs and faith openly and freely.

• Right to practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.

• Right to propagate: Transmission and dissemination of one's religious beliefs to others or exposition of the tenets of one's religion. But, it does not include a right to convert another person to one's own religion. Forcible conversions impinge on the 'freedom of conscience' guaranteed to all the persons alike.

From the above, it is clear that Article 25 covers not only religious beliefs (doctrines) but also religious practices

(rituals). Moreover, these rights are available to all persons – citizens as well as non-citizens.

However, these rights are subject to public order, morality, health and other provisions relating to

fundamental rights. Further, the State is permitted to:

• regulate or restrict any economic, financial, political or other secular activity associated with religious practice; and

• Provide for social welfare and reform or throw open Hindu religious institutions of a public character to all classes and sections of Hindus. Article 25 also contains two explanations: one, wearing and carrying of kirpans is to be included in the profession of the Sikh religion; and two, the Hindus, in this context, include Sikhs, Jains and Buddhists.

9.7.2 Freedom to Manage Religious Affairs According to Article 26, every religious denomination or any of its section shall have the following rights:

a. Right to establish and maintain institutions for religious and charitable purposes;

b. Right to manage its own affairs in matters of religion;

c. Right to own and acquire movable and immovable property; and

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d. Right to administer such property in accordance with law.

Article 25 guarantees rights of individuals, while Article 26 guarantees rights of religious denominations or

their sections. In other words, Article 26 protects collective freedom of religion. Like the rights under Article 25,

the rights under Article 26 are also subject to public order, morality and health but not subject to other provisions relating to the Fundamental Rights.

The Supreme Court held that a religious denomination must satisfy three conditions:

a. It should be a collection of individuals who have a system of beliefs (doctrines) which they regard as conducive to their spiritual well-being;

b. It should have a common organization; and

c. It should be designated by a distinctive name.

Under the above criteria, the Supreme Court held that the 'Ramakrishna Mission' and 'Ananda

Marga' are religious denominations within the Hindu religion. It also held that Aurobindo Society

is not a religious denomination.

9.7.3 Freedom from Taxation for Promotion of a Religion (Art. 27) Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.

In other words, the State should not spend the public money collected by way of tax for the promotion or

maintenance of any particular religion. This provision prohibits the State from favoring, patronizing and

supporting one religion over the other.

This means that the taxes can be used for the promotion or maintenance of all religions.

This provision prohibits only levy of a tax and not a fee. This is because the purpose of a fee is to control secular administration of religious institutions and not to promote or maintain religion.

Thus, a fee can be levied on pilgrims to provide them some special service or safety measures. Similarly, a fee can be levied on religious endowments for meeting the regulation expenditure.

9.7.4 Freedom from Attending Religious Instruction (Art. 28) Under Article 28, no religious instruction shall be provided in any educational institution wholly maintained out

of State funds. However, this provision shall not apply to an educational institution administered by the State

but established under any endowment or trust, requiring imparting of religious instruction in such institution.

Further, no person attending any educational institution recognized by the State or receiving aid out of State

funds shall be required to attend any religious instruction or worship in that institution without his consent. In case of a minor, the consent of his guardian is needed.

Thus, Article 28 distinguishes between four types of educational institutions:

a. Institutions wholly maintained by the State.

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b. Institutions administered by the State but established under any endowment or trust.

c. Institutions recognized by the State.

d. Institutions receiving aid from the State.

In (a) religious instruction is completely prohibited while in (b), religious instruction is permitted. In (c) and (d), religious instruction is permitted on a voluntary basis.

9.8 Cultural and Educational Rights (Article 29 To 30) The cultural and educational rights are intended to protect the interest of the minorities. Article 29 States that

the minorities shall have the right to conserve their distinct language, script or culture. (Extended to all communities after SC Judgement)

According to Supreme Court Judgements, this is an absolute right. The Court has also held that ‘right to conserve the language of the citizens also includes the right to agitate for the protection of the language’.

Article 29(2) declares that ‘No citizen shall be denied admission into any education institution maintained by the

State or receiving aid out of State fund on grounds only of religion, race, caste language or any of them.”

Religious minorities are determined at national level while linguistic minorities are determined at state level. Minority is not defined in constitution but defined by national commission for minorities and Supreme Court.

Article 30 gives protection to religious and linguistic minorities. They have the right to establish and administer institutions of their choice.

9.8.1 Protection of Interests of Minorities (Art. 29) Article 29 provides that any section of the citizens residing in any part of India having a distinct language, script

or culture of its own, shall have the right to conserve the same . Further, no citizen shall be denied admission

into any educational institution maintained by the State or receiving aid out of State funds on grounds only of

religion, race, caste, or language.

The first provision protects the right of a group while the second provision guarantees the right of a citizen as an individual irrespective of the community to which he belongs.

Article 29 grants protection to both religious minorities as well as linguistic minorities. However, the Supreme

Court held that the scope of this article is not necessarily restricted to minorities only, as it is commonly

assumed to be. This is because of the use of words 'section of citizens' in the Article that includes minorities as well as majority.

The Supreme Court also held that the right to conserve the language includes the right to agitate for the

protection of the language. Hence, the political speeches or promises made for the conservation of the language

of a section of the citizens does not amount to corrupt practice under the Representation of the People Act, 1951.

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9.8.2 Article 30 - Right of Minorities to Establish and Administer

Educational Institutions Article 30 grants the following rights to minorities

(religious and linguistic)

a. All minorities shall have the right to establish and administer educational institutions of their choice.

b. The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them. This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard. The Act deleted the right to property as a Fundamental Right (Article 31).

c. In granting aid, the State shall not discriminate against any educational institution managed by a minority.

Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend

to any section of citizens (as under Article 29). However, the term 'minority' has not been defined anywhere in

the Constitution.

The right under Article 30 also includes the right of a minority to impart education to its children in its own

language.

Minority educational institutions are of three types:

a. institutions that seek recognition as well as aid from the State;

b. institutions that seek only recognition from the State and not aid; and

c. Institutions that neither seek recognition nor aid from the State. The institutions of first and second type are subject to the regulatory power of the state with regard to syllabus

prescription, academic standards, discipline, sanitation, employment of teaching staff and so on.

The institutions of third type are free to administer their affairs but subject to operation of general laws like contract law, labour law, industrial law, tax law, economic regulations, and so on.

In a judgement delivered in the Secretary of Malankara Syrian Catholic College case (2007), the Supreme Court

has summarized the general principles relating to establishment and administration of minority educational institutions in the following way:

1. The right of minorities to establish and administer educational institutions of their choice

comprises the following rights:

(i) To choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;

(ii) To appoint teaching staff (teachers/lecturers and headmasters/principals) as also non-teaching staff; and to take action if there is dereliction of duty on the part of any of its employees;

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(iii) To admit eligible students of their choice and to set up a reasonable fee structure; and

(iv) To use its properties and assets for the benefit of the institution.

2. The right conferred on minorities under Article 30 is only to ensure equality with the majority

and not intended to place the minorities in a more advantageous position vis-a-vis the majority.

There is no reverse discrimination in favor of minorities.

The general laws of the land relating to national interest, national security, social welfare, public

order, morality, health, sanitation, taxation etc., applicable to all, will equally apply to minority

institutions also.

3. The right to establish and administer educational institutions is not absolute. Nor does it include

the right to mal-administer. There can be regulatory measures for ensuring educational

character and standards and maintaining academic excellence. There can be checks on

administration as are necessary to ensure that the administration is efficient and sound, so as

to serve the academic needs of the institution.

Regulations made by the State concerning generally the welfare of students and teachers,

regulations laying down eligibility criteria and qualifications for appointment, as also conditions

of service of employees (both teaching and non-teaching), regulations to prevent exploitation

or oppression of employees, and regulations prescribing syllabus and curriculum of study fall

under this category. Such regulations do not in any manner interfere with the right under Article

30(1).

4. Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided

minority educational institutions will have the freedom to appoint teachers/lecturers by

adopting any rational procedure of selection.

5. Extension of aid by the State does not alter the nature and character of the minority educational

institutions. The conditions can be imposed by the State to ensure proper utilization of the aid,

without however diluting or abridging the right under Article 30(1).

9.9 Remedies (Art.32 TO 35) Right to Constitutional Remedies: This Article guarantees the right to move Supreme Court in case any of the

fundamental rights are not enforced. It should be noted that the High Courts also share this jurisdiction along

with the Supreme Court which means a citizen is free to approach either the Supreme Court or High Courts for the redressal. The Supreme Court/High Court issues orders or writs for the enforcement of these rights.

9.9.1 Important writs (Art.32) 9.9.1.1 Habeas Corpus: Habeas Corpus is an English Constitutional term which literally means ‘To have the

body’. It is safeguard against unwarranted arrest. While issuing the writ of Habeas Corpus, the Court orders the

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detaining authority to produce the detained person and explain to the Court the reasons of his confinement.

The Court examines the grounds of confinement and sets the arrested person free if he is unlawfully detained. A

stranger or a social worker can even make the writ of Habeas Corpus.

9.9.1.2 Mandamus: Mandamus literally means a command. It is issued to a person when there is no other

adequate legal remedy. It commands the person to whom it is addressed to perform some public or quasi -legal

duty which he has refused to perform. The application of Mandamus can be made only by the aggrieved party.

In issuing the Mandamus, the Court may not only ask to act according to law or refrain from acting contrary to

law, it can also go further to direct in positive terms. Particularly in case involving socio-economic justice the Court has directed to the authorities what particular things are to be done to carry out the law.

9.9.1.3 Prohibition: The writ of prohibition is usually issued by a higher Court to a lower Court forbidding it to

continue proceedings which are in excess of its jurisdiction. This means that the object of the writ is to compel inferior Courts to keep themselves within the limits of their jurisdiction.

9.9.1.4 Certiorari: The writ of prohibition is available at an earlier stage. For the later stage, the writ of certiorari

is issued to remove a suit from an inferior Court to a higher Court as the lower Court do not possess the

adequate jurisdiction and it is continuing with the proceedings. It is to be understood that both the prohibition

and certiorari are intended to stop the inferior Courts from usurping the jurisdiction which they do not possess.

Normally the application of certiorari is to be applied by the aggrieved party. But this does not apply in cases of

public interest litigation.

9.9.1.5 The Writ of Quo Warranto: The writ of quo Warranto (under what authority) is issued to prevent

illegal assumption of any public office. The Court examines the legality of the claim of the person holding public

office. For example a person is appointed in a public office at the age of 60 and the retirement age to that office

is 60 then the Court may issue a writ of quo warrant against that person and declare that official position as

vacant. Any person can apply for the writ of quo Warranto.

A mere declaration of fundamental rights in the Constitution is meaningless, useless and worthless without

providing effective machinery for their enforcement, if and when they are violated. Hence, Article 32 confers the

right to remedies for the enforcement of the fundamental rights of an aggrieved citizen. In other words, the

right to get the Fundamental Rights protected is in itself a fundamental right.

This makes the fundamental rights real. That is why Dr. Ambedkar called Article 32 as the most important article

of the Constitution – 'an Article without which this constitution would be a nullity. It is the very soul of the

Constitution and the very heart of it'. The Supreme Court has ruled that Article 32 is a basic feature of the

Constitution. Hence, it cannot be abridged or taken away even by way of an amendment to the Constitution. It contains the following four provisions:

(a) The right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed.

(b) The Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo-warranto

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(c) Parliament can empower any other court to issue directions, orders and writs of all kinds. However, this can be done without prejudice to the above powers conferred on the Supreme Court. Any other court here does not include high courts because Article 226 has already conferred these powers on the high courts.

(d) The right to move the Supreme Court shall not be suspended except as otherwise provided for by the Constitution. Thus the Constitution provides that the President can suspend the right to move any court for the enforcement of the fundamental rights during a national emergency (Article 359).

It is thus clear that the Supreme Court has been constituted as the defender and guarantor of the fundamental rights of the citizens. It has been vested with the 'original' and 'wide' powers for that purpose.

Original, because an aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal.

Wide, because its power is not restricted to issuing of orders or directions but also writs of all kinds.

The purpose of Article 32 is to provide a guaranteed, effective, expeditors, inexpensive and summary remedy for the protection of the fundamental rights.

Only the Fundamental Rights guaranteed by the Constitution can be enforced under Article 32 and not any other right like non-fundamental constitutional rights, statutory rights, and customary rights and so on.

The violation of a fundamental right is the sine qua non for the exercise of the right conferred by Article 32. In

other words, the Supreme Court, under Article 32, cannot determine a question that does not involve Fundamental Rights.

Article 32 cannot be invoked simply to determine the constitutionality of an executive order or legislation unless it directly infringes any of the fundamental rights.

In case of the enforcement of Fundamental Rights, the jurisdiction of the Supreme Court is original but not

exclusive. It is concurrent with the jurisdiction of the high court under Article 226.

It vests original powers in the high court to issue directions, orders and writs of all kinds for the enforcement of

the Fundamental Rights. It means when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly.

Since the right guaranteed by Article 32 (i.e., the right to move the Supreme Court where a fundamental right is infringed) is in itself a fundamental right, the availability of alternate remedy is no bar to relief under Article 32

However, the Supreme Court has ruled that where relief through high court is available under Article 226, the

aggrieved party should first move the high court.

9.9.2 Armed Forces and Fundamental Rights (Art.33) Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed

forces, para-military forces, police forces, intelligence agencies and analogous forces. The objective of this provision is to ensure the proper discharge of their duties and the maintenance of discipline among them.

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The power to make laws under Article 33 is conferred only on Parliament and not on state legislatures. Any

such law made by Parliament cannot be challenged in any court on the ground of contravention of any of the

fundamental rights.

Accordingly, the Parliament has enacted the Army Act (1950), the Navy Act (1950), the Air Force Act (1950), the Police Forces (Restriction of Rights) Act, 1966, the Border Security Force Act and so on.

These impose restrictions on their freedom of speech, right to form associations, right to be members of trade

unions or political associations, right to communicate with the press, right to attend public meetings or

demonstrations, etc.

The expression ‘members of the armed forces' also covers such employees of the armed forces as barbers, carpenters, mechanics, cooks, chowkidars, bootmakers, tailors who are non-combatants.

A parliamentary law enacted under Article 33 can also exclude the court Martials (tribunals established under

the military law) from the writ jurisdiction of the Supreme Court and the high courts, so far as the enforcement

of Fundamental Rights is concerned.

Article 33 – FRs are not applicable for armed personals during duty. (Note: nature of job requires urgency & quickness in actions)

Article 34 – Fundamental rights are not applicable in case of Marshall Law.

(Although Marshall Law is not explicitly mentioned in constitution but it is implied that FRs would be suspended during Military/Commando operations)

9.9.3 Martial Law Vs National Emergency

Martial Law National Emergency (Article 352)

1. It affects only Fundamental Rights. 1. It affects not only Fundamental Rights but also Centre- state

relations, distribution of revenues and legislative powers between centre and states and may extend the tenure of the

Parliament.

2. It suspends the government and ordinary law

courts.

2. It continues the government and ordinary law courts.

3. It is imposed to restore the breakdown of law and

order due to any reason.

3. It can be imposed only on three grounds – war, to any external

aggression or armed rebellion.

4. It is imposed in some specific area of the country. 4. It is imposed either in the whole country or in any part of it.

5. It has no specific provision in the Constitution. It

is implicit.

5. It has specific and detailed provision in the Constitution. It is

explicit.

Article 35 – Parliament can amend fundamental rights by 2/3rd majority.

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9.10 Amendment of Fundamental Rights

9.10.1 First Phase

• In 1951, within a year of the Constitution coming into force, the Constitution (First Amendment) Act was passed. This Act sought to curtail the right to property guaranteed by article 31. Its constitutionally was questioned in Shankari Prasad. The argument addressed by the petitioners was that Article 13(2) prohibited the State from making any law which takes away or abridges a fundamental right.

• The word ‘law’ used in Article 13(2) includes all Acts including the Constitution Amendment Acts. Rejecting the contention the Supreme Court held that an Act passed in exercise of the power conferred by Article 368 is not a law within the meaning of Article 13(2).

• The Court ruled that law in that article referred to an ordinary law but not to Constitution Amendment Act (Constitution law). Fundamental rights are subject to the amending power of the Parliament under Article 368. In other words ordinary laws cannot amend the fundamental rights but constituent laws can.

• Article 31(A) and 31(B) were added by 1st Constitutional Amendment 1951. Government can acquire property of people under Article 31(A). As per Article 31(B) the property acquired under Article 31(A) would be immune from judicial review on the grounds of violation of fundamental rights.

9.10.2 Second Phase

9.10.2.1 Golaknath Case

• But in 1967 in Golaknath case, the Court overruled earlier decisions. The majority took the view that fundamental rights had been given a transcendent position by the Constitution and no authority including the Parliament acting under Article 368 has the power to abridge or take away any of the fundamental rights.

It refused to distinguish between legislative power and constituent power. It was an 11 judge bench that heard this case and 6 judges constituted the majority. The minority (5 judges) adhered to the earlier views maintaining the amenability of fundamental rights.

• The Parliament reacted to Golaknath by passing the Constitution (24th Amendment) Act, 1971. By this Act Clause (4) was inserted in Article 13 and a new Clause (1) in the Article 368.

This amendment sought to declare that an amendment of the Constitution passed in accordance with Article 368 will not be law within the meaning of Article 13.

Thus Article13 would not be applicable to Constitution amending Acts. Article 31(C) was added by 25th constitutional amendment which gives primacy to Article 39 over articles 14, 19 and 31. The word amount replaced the word compensation by 25th Constitutional Amendment 1971 in relation to acquired property. The amount would be determined by parliament rather than courts.

Fundamental Rights under Article 17, Article 23 & Article 24 are absolute i.e. cannot be justified in any conditions.

Fundamental Rights under article 20 & 21 can never be suspended. Civil liberties under article 19 are

automatically suspended. When national emergency (article 352) is proclaimed on the basis of war and external

aggression only.

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9.10.3 Third Phase

9.10.3.1 Kesavanand Bharati Case

In 1973 the matter came up before the Supreme Court in Kesavanand Bharati case. The Bench

had 13 judges on it. The majority (7 judges) upheld the validity of the 24th Amendment,

overruled ‘Golaknath’ but put forth a new doctrine.

It stated that Parliament has the competence to amend the part containing the fundamental

rights just like any other part of the Constitution.

But by amending the Constitution the Parliament cannot abridge, abrogate or destroy the basic

structure (also called basic feature) of the Constitution.

After Golaknath no fundamental right could be taken away or abridged but after Kesavanand it

is for the court to decide whether a fundamental right is a basic feature or not.

If it so then it cannot be abrogated. Supreme Court in case Keshvanand Bharti case opined that

amount/ compensation should be fair.

9.10.4 42nd Amendment and Minerva Mills

• This judicially created doctrine of basic features was sought to be nullified by the Constitution (42nd Amendment) Act, 1976 by inserting Clause (4) in Article 368. The clause purported to take away the power of judicial review by stating that No amendment of this Constitution (including the provisions of Part-III) … shall be called in question in any court on any ground.

• But the Supreme Court has in Minerva Mills held that Clause (4) of Article 368 was void as it purported to destroy judicial review, a basic feature of the Constitution.

• In Waman Rao the court further clarified that the doctrine of basic features will apply to Amendment Acts passed subsequent to 24-4-1973 i.e. it will apply prospectively and not retrospectively to earlier legislation.

9.10.5 Conclusion

• The result of these amendments and decision is:

(i) Fundamental Rights have no immunity from amendment as such

(ii) The court will in every case consider whether an amendment of fundamental rights abrogates or destroys a basic feature of the Constitution. If the answer be ‘yes’ then the amendment shall be void to that extent.

(iii) The invalidity on the ground of basic features shall apply only to those Acts which are passed after 24- 4-1973.

9.10.6 Basic Structure not defined It is to be noted that the Supreme Court has not defined in precise terms as to what constitutes basic features.

From the decision the following have emerged as basic features-Equality, Judicial Review, Federalism, Secular character, Supremacy of the Constitution, Democratic form of government, Separation of powers.

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9.11 Suspension of fundamental rights The U.S. and the Australian Constitution have no provision for suspension of the fundamental rights. Our

Constitution contains provisions for suspension of these rights (Articles 358 and 359). Article 358 deals with

suspension of Article 19 and Article 359 with other fundamental rights. The effect of these articles is as under:

1. Where an emergency has been proclaimed under Article 352 the State would not be bound by the limitations imposed by Article 19. Under Article 359 the right to move a court for the enforcement of the fundamental rights may be suspended by the President by order. This order would specify the rights which cannot be enforced.

2. Article 359 comes into operation whenever an emergency is proclaimed under Article 352 (on the ground of war, external aggression or armed rebellion) but Article 358 is applied where the emergency is declared on the ground of war or external aggression only (not on the ground of armed rebellion).

3. On declaration of an emergency (under Article 352) Article 358 automatically comes into operation. But Article 359 requires an order to be issued by the President. Such order must specify the fundamental right whose enforcement is being suspended.

4. Article 359 further provides that the enforcement of Arts. 20 and 21 cannot be suspended. So even during the period a proclamation of emergency is in operation a person has the right to seek protection of his life and personal liberty.

5. It is a requirement of both Arts. 358 and 359 that they will affect the suspension of the operation of a relevant fundamental right only where the law which is affecting the right contains a recital that such law is in relation to the proclamation of emergency. In the absence of such a recital the law or any executive action under such law can be challenged on the ground of abridging or taking away a fundamental right. This is to curtail the invasion of liberty.

9.12 Available to Citizens

• Fundamental Rights may be grouped according to the persons benefitted.

• Some rights are available only to citizens. Such Rights are :

a) Article 15-Protection of discrimination on grounds only of religion, race, caste, sex or place of birth.

b) Article 16-Equality of opportunity in matters of public employment

c) Article 19-Freedoms of speech, assembly, association, movement, residence and profession.

d) Articles 29 and 30-Cultural and educational rights of the minorities.

9.13 Available to all persons

Some rights are available to all persons in India, citizens and foreigners alike (except enemy aliens). Such rights are

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b) Article 14-Equality before law.

c) Article 20-Protection in respect of conviction for offences (e.g. double jeopardy, self-incrimination).

d) Article 21-Protection of life and personal liberty.

e) Articles 23 and 24-Right against exploitation.

9.14 Right to property Originally, article 19(1)(f) and article 31 contained the right to property i.e. to acquire, hold and dispose of property subject to the right of the State to compulsory acquisition for public purpose by authority of law.

However, right to property ceased to be a fundamental right when the Constitution (Forty-fourth Amendment) Act, 1978 omitted sub-clause (f) of clause (1) of article 19 and the whole of article 31 from the Constitution.

Articles 31A and 31B inserted by the First Constitutional Amendment and article 31C inserted by the Twenty-

fifth Amendment sought to protect laws providing for acquisition of estates, Acts and regulations specified in

the Ninth Schedule and laws giving effect to Directive Principles.

Articles 33 35 deal with the power of Parliament to modify the rights conferred by Part III of the Constitution in their application to forces.

It is true that the fundamental human rights enshrined in the Constitution of India are hedged in by many

limitations and restrictions. Replying to the criticism that the Fundamental Rights were riddled with so many

restrictions that no value could be attached to them and referring in particular to critics who had relied on the

U.S. Constitution in support of their contention that Fundamental Rights were not 'fundamental' unless they were also 'absolute', Dr. Ambedkar had observed in the Constituent Assembly on November 4, 1948 as follows:

The whole of the criticism about fundamental rights is based upon a misconception. In the f irst place, the

criticism in so far as it seeks to distinguish fundamental rights from non-fundamental rights is not sound. It is

incorrect to say that fundamental rights are absolute while non-fundamental rights are not absolute.

The real distinction between the two is that non-fundamental rights are created by agreement between parties

while fundamental rights are the gift of the law. Because fundamental rights are the gift of the State it does not

follow that the State cannot qualify them. In the second place, it is wrong to say that fundamental rights in

America are absolute...

The Supreme Court invented the doctrine of police power and refuted the advocates of absolute fundamental

rights by the argument that every State has inherent in it police power which is not required to be conferred on

it expressly by the Constitution... There is really no difference in the result. What one does directly, the other

does indirectly. In both cases, the fundamental rights are not absolute.

The fundamental rights secured to the individual are in the nature of limitations or restrictions on the actions of the State. As Patanjali Sastry, Chief Justice, said:

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The whole object of Part III of the Constitution is to provide protection for the freedoms and rights mentioned therein against arbitrary invasion by the State. (State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92).

The Supreme Court has, however come to believe that fundamental rights are not only 'negative' or 'against the

state' but also have a positive content inasmuch as they cast certain responsibilities on the state. This, in a way,

has heralded the beginning of what has come to be regarded as 'judicial activism' with its by-product of public Interest litigation.

Described by Dr. S. Radhakrishnan "as a pledge to our people and a pact with the civilized world", the

fundamental rights are made binding on the State, i.e. the executive as well as the legislature.

Article 13(1) the pre-constitutional laws which were not consistent with fundamental rights would be eclipsed

Article 13(2) declares all laws and executive orders in force immediately before the commencement of the

Constitution, inconsistent with the fundamental rights to be ultra vires and void to the extent of such inconsistency. It also says:

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 contravention be void.

The article thus provides for judicial review of all legislation in India whether past or present through acts done

before the commencement of the Constitution in contravention of the provisions of any law which becomes void by virtue of Part III, is not affected retrospectively.

In R.C. Cooper v. Union of India (AIR 1973 SC 106), the Supreme Court expressed the view that the State action

must be adjudged in the light of its operation upon the rights of the individual and group of individuals in all its

dimensions.

Clause (4) of article 13 makes it clear that the term "law" in that article does not cover constitutional

amendments made under article 368 and therefore validity of a constitutional amendment cannot be

questioned on the ground of it violates fundamental rights unless a fundamental right is held to be part of the

basic feature, of the Constitution.

Under article 12, "the State" includes

(i) the Government and Parliament of India,

(ii) the Government and the Legislature of each of the States,

(iii) all local authorities like municipalities, district boards, Panchayats, Improvement Trusts etc. and

(iv) other authorities within the territory of India or under the control of the Government of India.

The last category "other authorities" naturally posed some difficulties. However, it has been held to include

many authorities created by the Constitution or statute on whom powers are conferred by law, e.g. Rajasthan

Electricity Board, Cochin Devasom Board, Children Aid Society, etc.

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The Life Insurance Corporation, the Oil and Natural Gas Commission, the Delhi Transport Corporation, the

Airports Authority and the Finance Commission have similarly been held to be 'State' under article 12. Even a

private body, it has been held, may be "State" covered by the term "other authorities" if it is entrusted with some public service responsibility as an agency or instrumentality of the State.

On the other hand, the Supreme Court in Sabhajit Tewary v. India (AIR 1975 SC 1329) held that a body like the

Council of Scientific and Industrial Research, registered under the Societies Registration Act, was not a 'state'.

In another case, a registered society (Regional Engineering College) was held to be an 'authority' for purposes of article 12. Justice P.N. Bhagwati said:

The mandate of a corporation may be adopted in order to free the Government from the inevitable constraints

of redtapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic

human rights.

Otherwise, it would be the easiest thing for the Government to assign to a plurality of corporations almost every

State business such as Post and Telegraph, TV and Radio, Rail Road and Telephone – in short every economic activity – and thereby cheat the people of India out of the Fundamental Rights guaranteed to them.

Earlier in Raman D. Shetty v. International Airports Authority (AIR 1979 SC 1628), the Supreme Court holding

the Airports Authority in the category of "other authorities" propounded the proposition that an

'instrumentality' or 'agency' of the Government would be regarded as an 'authority' or 'state' and also laid

down some tests to examine the question.

For example, the Courts may examine whether the body in question is wholly controlled by the Government in

carrying out its functions. Is the entire share capital owned by the Government? Is the adminis tration of the

body controlled by the directors appointed by the Government and whether they are subject to Government

control? Does the state exercise deep and pervasive control over the body? Or, does it enjoy monopoly status

conferred or protected by the state and so on. The list is not exhaustive but each case has to be decided by the

Courts on whether the body in question falls within the purview of article 12.

In regard to 'judiciary', the Supreme Court has held that even if a court is treated as 'state'. A writ under

article 12 cannot be issued to a High Court of competent jurisdiction against its judicial orders, because such

orders cannot be said to violate the fundamental rights.

The National Commission to Review the Working of the Constitution (2002), among others, recommended

that:

a) freedom of the press should be specifically mentioned as a fundamental right,

b) truth should be made admissible as a defense in contempt of court cases,

c) those deprived of life or liberty should have an enforceable right to compensation,

d) law must ensure the right to rural wage employment for a minimum of 80 days in a year,

e) right of access to Courts and Tribunals should be guaranteed to everyone and should include the right to reasonably speed) and effective justice,

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f) right to equal justice and free legal aid should become fundamental rights,

g) every child should have the right to care and assistance and the right of free education up to 14 years of age,

h) Everyone should be guaranteed safe drinking water, protection of environment, prevention of pollution and ecological degradation, promotion of conservation, use of natural resources, etc.

9.14.1 Present Position of Right to Property Originally, the right to property was one of the seven fundamental rights under Part III of the Constitution. It was

dealt by Article 19(1) (f) and Article 31. Article 19(1) (f) guaranteed to every citizen the right to acquire, hold and dispose of property.

Article 31, on the other hand, guaranteed to every person, whether citizen or non- citizen, right against

deprivation of his property. It provided that no person shall be deprived of his property except by authority of

law. It empowered the State to acquire or requisition the property of a person on two conditions:

(a) it should be for public purpose, and

(b) it should provide for payment of compensation (amount) to the owner.

Since the commencement of the Constitution, the Fundamental Right to Property has been the most

controversial. It has caused confrontations between the Supreme Court and the Parliament. It has led to a number of Constitutional amendments, that is, 1st, 4th, 7th, 25th, 39th, 40th and 42nd Amendments.

Through these amendments, Articles 31A, 31B and 31C have been added and modified from time to time to

nullify the effect of Supreme Court judgements and to protect certain laws from being challenged on the

grounds of contravention of Fundamental Rights.

Most of the litigation centered on the obligation of the state to pay compensation for acquisition or requisition of private property.

Therefore, the 44th Amendment Act of 1978 abolished the right to property as a Fundamental Right by repealing

Article 19(1) (f) and Article 31 from Part III. Instead, the Act inserted a new Article 300A in Part XII under the

heading 'Right to Property'.

It provides that no person shall be deprived of his property except by authority of law. Thus, the right to

property still remains a legal right or a constitutional right, though no longer a fundamental right. It is not a part of the basic structure of the Constitution.

The right to property as a legal right (as distinct from the Fundamental Rights) has the following implications:

a) It can be regulated i.e., curtailed, abridged or modified without constitutional amendment by an ordinary law of the Parliament.

b) It protects private property against executive action but not against legislative action

c) In case of violation, the aggrieved person cannot directly move the Supreme Court under Article 32 (right

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to constitutional remedies including writs) for its enforcement. He can move the High Court under Article 226.

d) No guaranteed right to compensation in case of acquisition or requisition of the private property by the state.

Though the Fundamental Right to Property under Part III has been abolished, the Part I II still carries two

provisions which provide for the guaranteed right to compensation in case of acquisition or requisition of the private property by the state. These two cases where compensation has to be paid are:

a) When the State acquires the property of a minority educational institution (Article 30); and

b) When the State acquires the land held by a person under his personal cultivation and the land is within the statutory ceiling limits (Article 31 A).

The first provision was added by the 44th Amendment Act (1978), while the second provision was added by the 17th Amendment Act (1964).

Further, Articles 31A, 31B and 31C have been retained as exceptions to the fundamental rights.

9.15 Rights outside Part-III Besides the Fundamental Rights included in Part III, there are certain other rights contained in other parts of the Constitution. These rights are known as constitutional rights or legal rights or non-fundamental rights. They are:

1. No tax shall be levied or collected except by authority of law (Article 265 in Part XII).

2. No person shall be deprived of his property save by authority of law ( Article 300-A in Part XII).

3. Trade, commerce and intercourse throughout the territory of India shall be free (Article 301 in Part XIII).

4. The elections to the Lok Sabha and the State Legislative Assembly shall be on the basis of adult suffrage (Article 326 in Part XV). Even though the above rights are also equally justiciable, they are different from the Fundamental Rights.

In case of violation of a Fundamental Right, the aggrieved person can directly move the Supreme Court for its enforcement under Article 32, which is in itself a fundamental right. But, in case of violation of the above rights, the aggrieved person cannot avail this constitutional remedy. He can move the High Court by an ordinary suit or under Article 226 (writ jurisdiction of high court).

5. Part IV mostly consists of Community/class rights inspired from Liberalism, Socialism and Gandhism

Note:

A fundamental right under article 19 is automatically suspended during national emergency (article 359)

and others except those in articles 20 and 21 can be suspended by separate presidential order.

Fundamental rights under article 17, article 23 and article 24 are absolute.

Fundamental rights under article 15, article 16, article 19, article 29 and article 30 are meant exclusively for citizens. Article 30 is meant for only minorities’ citizens.

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10. Directive Principles of State Policy (Art. 36-51) (Part IV)

10.1 Introduction and Features The Directive Principles of State Policy are enumerated in Part IV of the Constitution from Articles 36 to 51. The framers of the Constitution borrowed this idea from the Irish Constitution of 1937, which had copied it from the Spanish Constitution. Dr. B. R. Ambedkar described these principles as 'novel features' of the Indian Constitution.

The Directive Principles along with the Fundamental Rights contain the philosophy of the Constitution and is the soul of the Constitution. Granville Austin has described the Directive Principles and the Fundamental Rights as the 'Conscience of the Constitution’.

10.2 Features of the Directive Principles

1. The phrase 'Directive Principles of State Policy' denotes the ideals that the State should keep in mind while formulating policies and enacting laws. These are the constitutional instructions or recommendations to the State in legislative, executive and administrative matters.

According to Article 36, the term 'State' in Part IV has the same meaning as in Part III dealing with Fundamental Rights. Therefore, it includes the legislative and executive organs of the central and state governments, all local authorities and all other public authorities in the country.

2. The Directive Principles resemble the 'Instrument of Instructions' enumerated in the Government of India Act of 1935. In the words of Dr. B. R. Ambedkar, 'the Directive Principles are like the instrument of instructions, which were issued to the Governor-General and to the Governors of the colonies of India by the British Government under the Government of India Act of 1935.

What is called Directive Principles is merely another name for the instrument of instructions. The only difference is that they are instructions to the legislature and the executive'.

3. The Directive Principles constitute a very comprehensive economic, social and political program for a modern democratic State. They aim at realizing the high ideals of justice, liberty, equality and fraternity as outlined in the Preamble to the Constitution. They embody the concept of a 'welfare state' and not that of a 'police state', which existed during the colonial era. In brief, they seek to establish economic and social democracy in the country.

4. The Directive Principles are non-justiciable in nature, that is, they are not legally enforceable by the courts for their violation. Therefore, the government (Central, state and local) cannot be compelled to implement them. Nevertheless, the Constitution (Article 37) itself says that these principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

5. The Directive Principles, though non-justiciable in nature, help the courts in examining and determining the constitutional validity of a law. The Supreme Court has ruled many a times that in determining the

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constitutionality of any law, if a court finds that the law in question seeks to give effect to a Directive Principle, it may consider such law to be 'reasonable' in relation to Article 14 (equality before law) or Article 19 (six freedoms) and thus save such law from unconstitutionality.

10.3 Classification of the Directive Principles The Constitution does not contain any classification of Directive Principles. However, on the basis of their content and direction, they can be classified into three broad categories, viz, socialistic, Gandhian and liberal - intellectual.

10.3.1 Socialistic Principles These principles reflect the ideology of socialism. They lay down the framework of a democratic socialist state, aim at providing social and economic justice, and set the path towards welfare state. They direct the state:

1. To promote the welfare of the people by securing a social order permeated by justice – social, economic and political – and to minimize inequalities in income, status, facilities and opportunities4 (Article 38).

2. To secure (a) the right to adequate means of livelihood for all citizens; (b) the equitable distribution of material resources of the community for the common good; (c) prevention of concentration of wealth and means of production; (d) equal pay for equal work for men and women; (e) preservation of the health and strength of workers and children against forcible abuse; and (f) opportunities for healthy development of children (Article 39).

3. To promote equal justice and to provide free legal aid to the poor6 (Article 39 A).

4. To secure the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement (Article 41).

5. To make provision for just and humane conditions of work and maternity relief (Article 42).

6. To secure living wages, a decent standard of life and social and cultural opportunities for all workers (Article 43).

7. To take steps to secure the participation of workers in the management of industries (Article 43 A).

8. To provide early childhood care and education for all children until they complete the age of six years (Article 45).

9. To raise the level of nutrition and the standard of living of people and to improve public health (Article 47).

10. To organize agriculture and animal husbandry on modern and scientific lines (Article 48).

10.3.2 Gandhian Principles

These principles are based on Gandhian ideology. They represent the programmer of reconstruction enunciated by Gandhi during the national movement. In order to fulfil the dreams of Gandhi, some of his ideas were included as Directive Principles. They require the State:

1. To organize village panchayats and endow them with necessary powers and authority to enable them to function as units of self-government (Article 40).

2. To promote cottage industries on an individual or co-operation basis in rural areas (Article 43).

3. To promote voluntary formation, autonomous functioning, democratic control and professional

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management of co-operative societies8a (Article 43B).

4. To promote the educational and economic interests of SCs, STs, and other weaker sections of the society and to protect them from social injustice and exploitation (Article 46).

5. To prohibit the consumption of intoxicating drinks and drugs which are injurious to health (Article 47).

6. To prohibit the slaughter of cows, calves and other milch and draught cattle and to improve their breeds (Article 48).

10.3.3 Liberal-Capitalist Principles

The principles included in this category represent the ideology of liberalism. They direct the state:

1. To secure for all citizens a uniform civil code throughout the country (Article 44).

2. To protect and improve the environment and to safeguard forests and wild life10 (Article 48 A)

3. To protect monuments, places and objects of artistic or historic interest which are declared to be of national importance (Article 49).

4. To separate the judiciary from the executive in the public services of the State (Article 50).

5. To promote international peace and security and maintain just and honorable rel ations between nations; to foster respect for international law and treaty obligations, and to encourage settlement of international disputes by arbitration (Article 51).

10.4 New Directive Principles The 42nd Amendment Act of 1976 added four new Directive Principles to the original list. They require the State:

1. To secure opportunities for healthy development of children (Article 39).

2. To promote equal justice and to provide free legal aid to the poor (Article 39 A).

3. To take steps to secure the participation of workers in the management of industries (Article 43 A).

4. To protect and improve the environment and to safeguard forests and wild life (Article 48 A).

The 44th Amendment Act of 1978 added one more Directive Principle, which requires the State to minimize inequalities in income, status, facilities and opportunities (Article 38).

The 86th Amendment Act of 2002 changed the subject-matter of Article 45 and made elementary education a fundamental right under Article 21 A. The amended directive requires the State to provide early childhood care and education for all children until they complete the age of six years.

The 97th Amendment Act of 2011 added a new Directive Principle relating to co-operative societies. It requires the state to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies (Article 43B).

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In 2021, SC declared this amendment void partially on grounds of procedure. However, provisions related to multistate co-operatives still remains valid. And other provisions are declared void as provisions related to co-operatives would be under State purview.

10.5 The Relationship between the Preamble, the Fundamental Rights and

the Directive Principles It should be remembered that the Preamble, the Fundamental Rights and the Directive Principles are all integral parts of the same constitutional edifice. They are all equally important and have to be read with each other.

The emphasis in the entire scheme of the Constitution under the headings of the Preamble, the Fundamental

Rights and the Directive Principles is on building an egalitarian society and on the concept of socio -economic justice.

In as much as the Directive Principles though declared to be fundamental as guiding principles f or making and

administering laws were not made enforceable in courts of law, they represented a subtle compromise

between what the framers, as the leaders of the freedom struggle, looked upon as the ideal or the goal and

what, as realists, they found to be immediately feasible. The Fundamental Rights and the Directive Principles together constituted the soul of the Constitution.

It is now clearly understood that there is no essential dichotomy between Rights and Duties or between the Fundamental Rights and the Directive Principles. They complement and supplement each other.

If the Fundamental Rights represent the don'ts for the Government and the legislature, the Directive Principles

represent the do's. There is no conflict.

While moving for the reference of the Constitution (First) Amendment Bill, 1951 to a Select Committee,

Jawaharlal Nehru referred to the possibility of a conflict between the Fundamental Rights and the Directive

Principles and explained the difficulty thus: The real difficulty which has come before us is this: The Constitution

lays down certain Directive Principles of State Policy and after long discussion we agreed to them and they point out the way we have got to travel.

The Constitution also lays down certain Fundamental Rights. Both are important. The Directive Principles of State Policy represent a dynamic move towards a certain objective.

The Fundamental Rights represent something static, to preserve certain rights which exist. Both again are right.

But somehow and sometime it might so happen that that dynamic movement and that static standstill do not quite fit into each other.

A dynamic movement towards a certain objective necessarily means certain changes taking place: that is the

essence of movement. Now, it may be that in the process of dynamic movement certain existing relationships

are altered, varied or affected.

In fact, they are meant to affect those settled relationships and yet if you come back to the Fundamental Rights

they are meant to preserve, not indirectly, certain settled relationships. There is a certain conflict in the two approaches, not inherently, because that was not meant, I am quite sure.

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But there is that slight difficulty and naturally when the courts of the land have to consider these matters they

have to lay stress more on the Fundamental Rights than on the Directive Principles of State Policy. The result is

that the whole purpose behind the Constitution, which was meant to be a dynamic Constitution leading to a

certain goal step by step, is somewhat hampered and hindered by the static element being emphasized a little more than the dynamic element and we have to find out some way of solving it.

... If in the protection of individual liberty you protect also individual or group inequality, then you come i nto

conflict with that Directive Principle which wants, according to your own Constitution, a gradual advance, or let us

put it in another way, not so gradual but more rapid advance, wherever possible to a state where there is less and less inequality and more and more equality.

If any kind of an appeal to individual liberty and freedom is construed to mean as an appeal to the continuation

of the existing inequality, then you get into difficulties. Then you become static, unprogressive and cannot change and you cannot realize that ideal of an egalitarian society which I hope most of us aim at.

While speaking on the Constitution Fourth Amendment in the Lok Sabha, Nehru declared that the

responsibility for the economic and social welfare policies of the nation should lie with Parliament and not with the courts.

In so far as the decisions of courts had shown that there was some inherent contradiction between the

Fundamental Rights and the Directive Principles, it was for Parliament to remove the contradiction and "make Fundamental Rights to serve the Directive Principles of State Policy.

Freedom of trade does not mean freedom to exploit. The provisions of the Constitution are not erected as

barriers to progress. They provide a plan for orderly progress towards the social order contemplated by the

preamble to the Constitution. They do not permit any kind of slavery, social, economic or political. It is a fallacy to think that under our Constitution there are only rights and no duties.

While rights conferred under Part III are fundamental in the governance of the country, we see no conflict on

the whole between the provisions contained in Part III and Part IV. They are complementary and supplementary

to each other.

The provisions of Part IV enable the Legislature and the Government to impose various duties on the citizens.

The provisions therein are deliberately made elastic because the duties to be imposed on the citizens depend on the extent to which the directive principles are implemented.

The mandate of the Constitution is to build a welfare society in which justice, social, economic and political, shall

inform all institutions of our national life. The hopes and aspirations aroused by the Constitution will be bel ied if the minimum needs of the lowest of our citizens are not met.

Again, in Keshavanand Bharti's case, Justice Mathew made the following significant observations:

The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgment, curtailment, and even abrogation of these rights in circumstances not visualized by the Constitution-makers might become necessary; their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV.

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Whether at a particular moment in the history of the nation, a particular fundamental right should have priority over, the moral claim embodied in Part IV or must yield to them is a matter which must be left to be decided by each generation in the light of its experience and its values.

And, if Parliament in its capacity as the amending body, decides to amend the Constitution in such a way as to take away or abridge a Fundamental Right to give priority value to the moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution-makers has been made dominant.

Judicial review of a constitutional amendment for the reason that it gives priority value to the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III is impermissible.

A distinction is sometimes sought to be made between what may be called 'positive rights' and 'negative

rights'. Broadly speaking, while Part III deals with areas of individual freedom and the extent to which the State

can restrain it, Part IV deals with positive duties cast upon the State to attain the ideal of social and economic

justice.

Even among the fundamental rights, however, there are some positive injunctions which seek to protect the

interests of the society and the rights of the poor citizens from encroachment by entrenched sections. Thus, article 17 abolishes untouchability and makes its practice in any form an offence punishable by law.

Article 15 inter alia provides that no citizen shall be discriminated against in the use of public places like shops,

wells, roads, eating hotels etc. on account of his religion, race, caste, sex or place of birth.

Article 23 prohibits another great social evil, that of forced labor. The whole effort has been to ensure that the

fundamental rights of the citizens do not degenerate into the liberties of the few against the interests of the many.

The National Commission to Review the Working of the Constitution (2002) inter alia recommended:

1. A strategic plan of action to create a large number of employment opportunities,

2. Setting up a National Education Commission every five years to report on compulsory education etc.

3. Promoting through civil society initiatives interfaith and inter-religious harmony and social solidarity, and

4. Establishing a high status body to review the implementation of Directive Principles.

10.6 Conflict between Fundamental Rights and Directive Principles The justiciability of Fundamental Rights and non-justiciability of Directive Principles on the one hand and the

moral obligation of State to implement Directive Principles (Article 37) on the other hand have led to a conflict between the two since the commencement of the Constitution.

In the Champakam Dorairajan case (1951), the Supreme Court ruled that in case of any conflict between the

Fundamental Rights and the Directive Principles, the former would prevail. It declared that the Directive Principles have to conform to and run as subsidiary to the Fundamental Rights.

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But, it also held that the Fundamental Rights could be amended by the Parliament by enacting constitutional

amendment acts. As a result, the Parliament made the First Amendment Act (1951), the Fourth Amendment Act

(1955) and the Seventeenth Amendment Act (1964) to implement some of the Directives.

The above situation underwent a major change in 1967 following the Supreme Court's judgement in the

Golaknath case (1967). In that case, the Supreme Court ruled that the Parliament cannot take away or abridge

any of the Fundamental Rights, which are 'sacrosanct' in nature. In other words, the Court held that the

Fundamental Rights cannot be amended for the implementation of the Directive Principles.

The Parliament reacted to the Supreme Court's judgement in the Golaknath Case (1967) by enacting the 24th

Amendment Act (1971) and the 25th Amendment Act (1971). The 24th Amendment Act declared that the

Parliament has the power to abridge or take away any of the Fundamental Rights by enacting Constitutional

Amendment Acts.

The 25th Amendment Act inserted a new Article 31C which contained the following two provisions

1. No law which seeks to implement the socialistic Directive Principles specified in Article 39 (b) and (c) shall be void on the ground of contravention of the Fundamental Rights conferred by Article 14 (equality before law and equal protection of laws), Article 19 (protection of six rights in respect of speech, assembly, movement, etc.) or Article 31 (right to property).

2. No law containing a declaration for giving effect to such policy shall be questioned in any court on the ground that it does not give effect to such a policy

10.6.1 Distinction between Fundamental Rights and Directive Principles

Fundamental Rights Directive Principles

1. These are negative as they prohibit the State from doing certain things.

1. These are positive as they require the State to do certain things.

2. These are justiciable, that is, they are legally enforceable by the courts in case of their violation.

2. These are non-justiciable, that is, they are not legally enforceable by the courts for their violation.

3. They aim at establishing political democracy in the country.

3. They aim at establishing social and economic democracy in the country.

4. These have legal sanctions. 4. These have moral and political sanctions.

5. They promote the welfare of the individual. Hence, they are personal and individualistic.

5. They promote the welfare of the community. Hence, they are socialistic.

6. They do not require any legislation for their implementation. They are automatically enforced.

6. They require legislation for their implementation. They are not automatically enforced.

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7. The courts are bound to declare a law violates of

any of the Fundamental Rights as unconstitutional and invalid.

7. The courts cannot declare a law violates of any of

the Directive Principles as unconstitutional and

invalid. However, they can uphold the validity of a law

on the ground that it was enacted to give effect to a directive.

In the Kesavananda Bharati case (1973), the Supreme Court declared the above second provision of Article

31C as unconstitutional and invalid on the ground that judicial review is a basic feature of the Constitution and

hence, cannot be taken away. However, the above first provision of Article 31C was held to be constitutional

and valid.

Later, the 42nd Amendment Act (1976) extended the scope of the above first provision of Article 31C by including

within its protection any law to implement any of the Directive Principles and not merely those specified in Article 39 (b) and (c).

In other words, the 42nd Amendment Act accorded the posi tion of legal primacy and supremacy to the Directive

Principles over the Fundamental Rights conferred by Articles 14, 19 and 31. However, this extension was

declared as unconstitutional and invalid by the Supreme Court in the Minerva Mills case (1980).

It means that the Directive Principles were once again made subordinate to the Fundamental Rights. But the

Fundamental Rights conferred by Article 14 and Article 19 were accepted as subordinate to the Directive Principles specified in Article 39 (b) and (c).

Further, Article 31 (right to property) was abolished by the 44th Amendment Act (1976) In the Minerva Mills case

(1980), the Supreme Court also held that 'the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles’.

They together constitute the core of commitment to social revolution. They are like two wheels of a chariot, one

no less than the other. To give absolute primacy to one over the other is to disturb the harmony of the

Constitution. This harmony and balance between the two is an essential feature of the basic structure of the Constitution.

The goals set out by the Directive Principles have to be achieved without the abrogation of the means provided

by the Fundamental Rights'. Therefore, the present position is that the Fundamental Rights enjoy supremacy

over the Directive Principles. Yet, this does not mean that the Directive Principles cannot be implemented.

The Parliament can amend the Fundamental Rights for implementing the Directive Principles, so long as the amendment does not damage or destroy the basic structure of Constitution

10.7 Directives outside Part-IV Apart from the Directives included in Part IV, there are some other Directives contained in other Parts of the Constitution. They are:

a) Claims of SCs and STs to Services: The claims of the members of the Scheduled Castes and the Scheduled

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Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or a State (Article 335 in Part XVI).

b) Instruction in mother tongue: It shall be the endeavor of every state and every local authority within the state to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups (Article 350-A in Part XVII).

c) Development of the Hindi Language: It shall be the duty of the Union to promote the spread of the Hindi language and to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India (Article 351 in Part XVII).

The above Directives are also non-justiciable in nature. However, they are also given equal importance and attention by the judiciary on the ground that all parts of the constitution must be read together.

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11. Fundamental Duties (Art.51A) (Part IV A)

11.1 Introduction

Fundamental Duties at a glance are:

1. To abide by the Constitution and respect its ideals and institutions, the National Flag, and the National Anthem;

2. To cherish and follow the noble ideals which inspired our national struggle for freedom;

3. To uphold and protect the sovereignty, unity and integrity of India;

4. To defend the country and render national service when called upon to do so;

5. To promote harmony and spirit of common brotherhood among all people of India transcending religious, linguistic, and regional or sectional diversities;

6. To value and preserve the rich heritage of our composite culture;

7. To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;

8. To develop scientific temper, humanism, and spirit of inquiry and reform;

9. To safeguard public property and to abjure violence and to renounce practices derogatory to the dignity of women

10. To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement;

11. Parents or guardian should provide opportunities for education to their children or wards, between the ages of six and fourteen years (86th Amendment, 2002).

Fundamental duties are obligations of citizens in relation to the nation state. Rights and duties are two faces of the same coin. Rights cannot be safe guarded without corresponding duties.

Even though brought in by the Constitution (Forty-Second Amendment) Act, 1976 during the operation of the

proclamation of Emergency, Part IV A, laying down certain duties of the citizens, is one of the most valuable parts of the Constitution. It is also the most neglected.

The fundamental duties enshrined in article 51A now are in consonance with article 29(1) of the Universal Declaration of Human Rights which says:

Everyone has duties to the community in which alone the free and full development of his personality is

possible.

While the Fundamental Rights provisions covered the rights of the individual and the Directive Principles the

duties of the State, there were until 1976 no provisions in our Constitution laying down the duties of the

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individual even though the traditions and temper of Indian thought through the ages laid greater emphasis on duties. As the Verma Committee (HRD Min. GOI, 1999) on Fundamental Duties said:

Essentially all that is contained in the Fundamental Duties is just a codification of tasks integral to the Indian way

of life. A close scrutiny of the clauses of article 51A indicate that a number of these clauses basically refer to such values as have been a part of the Indian tradition, mythology, religions and practices.

At this juncture of history, the nation realizes an urgent need to re-emphasize these in a manner that would be

acceptable to and be imbibed by all generations. To achieve these objectives, it would be essential to create

public awareness of the need to appreciate and internalize the concept and practice of Fundamental Duties with

particular emphasis on the necessity of creating a harmonious society with a scientific outlook, free from tensions and turmoil.

The Supreme Court of India has in several cases relied on Fundamental Duties contained in article 51A to determine the duty of the State, and when necessary, give directions or frame guidelines to achieve the purpose. This has been done in several cases relating to preservation and conservation of environment, ecology, and prevention of degeneration of forests, wild life, flora and fauna, etc.

The court has observed that preservation of environment and maintenance of the ecological balance are the responsibility not only of the Government but also the Fundamental Duty of every citizen.

Even though belatedly, it was thought appropriate that citizenship must carry with it certain fundamental

obligations and that these should be specifically and explicitly incorporated in the Constitution. It does not mean

that before the Forty-second Amendment the citizens had no duty.

There was a specific provision in article 33 regarding the need "to ensure the proper discharge of the duties

and the maintenance of discipline among the armed forces etc”. Also, each of the Fundamental Rights of

individual citizens and others embodied in Part III of the Constitution implied a corresponding duty and

obligation.

In fact, there can be no rights in a society where there are no duties. Rights and duties are not only reconcilable

but inseparable. For every right, there is a corresponding duty. Duty is an inalienable part of right; the two represent the two sides of the same coin.

What is duty for one is another's right and vice versa. If all men have a right to life, a duty is also cast upon all

men to respect human life and not to injure another person. The right to freedom implies that the citizens must

create conditions and so fashion society that freedom for every individual is assured.

Freedom by its very nature requires self-discipline and promotion of social and political harmony. For the freedom of one individual is limited by the similar freedom of other individuals.

And each individual comes to have a duty to accord the same rights to others which he wants for himself.

Freedom for each individual can endure when one respects the freedom of all other individuals. Discharge of

duties by them strengthens their own rights.

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11.2 Swaran Singh Committee Recommendations In 1976, the Congress Party set up the Sardar Swaran Singh Committee to make recommendations about

fundamental duties, the need and necessity of which was felt during the operation of the internal emergency

(1975-1977). The committee recommended the inclusion of a separate chapter on fundamental duties in the

Constitution. It stressed that the citizens should become conscious that in addition to the enjoyment of rights, they also have certain duties to perform as well.

The Congress Government at Centre accepted these recommendations and enacted the 42nd Constitutional

Amendment Act in 1976. This amendment added a new part, namely, Part IVA to the Constitution.

This new part consists of only one Article, that is, Article 51A which for the first time specified a code of ten

fundamental duties of the citizens. The ruling Congress party declared the non-inclusion of fundamental duties

in the Constitution as a historical mistake and claimed that what the framers of the Constitution failed to do was

being done now.

The Fundamental Duties in the Indian Constitution are inspired by the Constitution of erstwhile USSR. Notably,

none of the Constitutions of major democratic countries like USA, Canada, France, Germany, and Australia and so on specifically contain a list of duties of citizens.

Japanese Constitution is, perhaps, the only democratic Constitution in world which contains a list of duties of

citizens. The socialist countries, on the contrary, gave equal importance to the fundamental rights and duties of

their citizens. Hence, the Constitution of erstwhile USSR declared that the citizen's exercise of their rights and freedoms was inseparable from the performance of their duties and obligation.

11.3 Features of the Fundamental Duties Following points can be noted with regard to the characteristics of the Fundamental Duties.

1. Some of them are moral duties while others are civic duties. For instance, cherishing noble ideals of freedom struggle is a moral precept and respecting the Constitution, National Flag and National Anthem is a civic duty.

2. They refer to such values which have been a part of the Indian tradition, mythology, religions and practices. In other words, they essentially contain just a codification of tasks integral to the Indian way of life.

3. Unlike some of the Fundamental Rights which extend to all persons whether citizens or foreigners, the Fundamental Duties are confined to citizens only and do not extend to foreigners.

4. Like the Directive Principles, the fundamental duties are also non-justiciable. The Constitution does not provide for their direct enforcement by the courts. Moreover, there is not legal sanction against their violation. However, the Parliament is free to enforce them by suitable legislation.

11.4 Fundamental Duties

(1) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem:

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The first and the foremost duty assigned to every citizen of India are to abide by the Constitution and respect its

ideals and institutions, the National Flag and the National Anthem. These are the very physical foundations of

our citizenship.

All of us are supposed to maintain the dignity of the Constitution by not indulging in any activities in violation of

the letter or spirit of the Constitution. Ours is a vast country with many languages, sub-cultures and religious and

ethnic diversities, but the essential unity of the country is epitomized in the one Constitution, one flag, one

people and one citizenship.

We are all governed and guided by this Constitution irrespective of caste, religion, race, sex etc. The Constitution

was the result of the many commitments, promises and pledges made by nationalist leaders to the people of India. Also, it embodied efforts at reconciliation, accommodation and compromise.

All of us and the Fundamental Rights of each of us are protected by it. Similarly the National Flag and the

National Anthem are symbols of our history, sovereignty, unity and pride. If a citizen of India by any overt or

covert act shows disrespect to the Constitution, the National Anthem or the National Flag, it would be not only

an anti-social and anti-national activity but it would also spell doom to all our rights and our very existence as citizens of a sovereign nation.

Each citizen must therefore not only refrain from any such activity but also do his best to prevent any miscreant

trying to show disrespect to our national symbols. Every nation is proud of its citizens because of their dedication, sincerity and patriotism.

We, the citizens of India, have to be equally proud of our nation, our Constitution, our Flag and our Anthem. We

must put the nation above our narrow personal interests and then only we will be able to protect our hard -

earned freedom and sovereignty.

(2) To cherish and follow the noble ideals which inspired our national struggle for freedom: The citizens of India must cherish and follow the noble ideals which inspired the national struggle for freedom.

The battle of freedom was a long one where thousands sacrificed their lives for our freedom. It becomes our duty to remember the sacrifices made by our forefathers for the cause of the country.

But, what is much more important is to remember, imbibe and follow the ideals which pervaded our unique

struggle. It was not a struggle merely for political freedom of India. It was for the social and economic

emancipation of the people all over the world.

Its ideals were those of building a just society and a united nation, of freedom, equality, non -violence,

brotherhood and world peace. If we, the citizens of India remain conscious of and committed to these ideals, we

will be able to rise above the various fissiparous tendencies raising their ugly heads how and then here and

there.

(3) To uphold and protect the sovereignty, unity and integrity of Indi a: To protect the sovereignty, unity and integrity of India is a pre-eminent national obligation of all citizens of India. In a democratic system of governance, sovereignty lies with the people.

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To defend our sovereignty is our own responsibility. If the freedom and unity of the country are jeopardized, the nation ceases to exist and if there is no nation, who lives?

(4) To defend the country and render national service when called upon to do so: The primordial origins of the State are said to be in the need to defend ourselves against external enemies. In

modern nation- States, it is considered axiomatic that every citizen is bound to be ready to defend the country

against war or external aggression.

Present-day wars are not fought on the battlefield only nor are they won only by the armed forces; the citizens

at large play a most vital role in a variety of ways. Sometimes, civilians may be required also to take up arms in

defense of the country, if the situation warrants it. By fighting to defend the country, the citizens are fighting

only to defend their own liberty and that of their posterity.

Here, mention may be made of article 23(2) where under State is allowed to impose "compulsory service for

public purposes" subject to the condition that no discrimination is made on grounds of religion, race, caste or class or any of them.

(5) To promote harmony and the 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:

To promote harmony and the spirit of common brotherhood amongst all the people of India essentially flows from the basic value of fraternity enshrined in the Preamble to the Constitution.

India is a country of different castes, languages, religions and many cultural streams but we are one people with

one Constitution, one flag and one citizenship. Spirit of brotherhood should come very normally among the

citizens of a country like India where the norm has been to consider the entire world as one family.

The Constitution also casts upon us the Fundamental Duty of ensuring that all practices derogatory to the dignity

of women are renounced. This again should come normally to a country where the ideals said that gods res ide where women are worshipped, (yatra naryastu pujyante ramante tatra devata).

It is for us to rise above the later day degenerations and aberrations which tarnished the image of our society.

Incidentally, it may be noted that under Article 23(1) of the Fundamental Rights, traffic in human beings is prohibited.

(6) To value and preserve the rich heritage of our composite culture: To preserve the rich heritage of our composite culture is another Fundamental Duty of every citizen. Our cultural

heritage is one of the noblest and the richest. Also, it is part of the heritage of the earth. What we have inherited from the past, we must preserve and pass on to the future generations intact.

Each generation leaves its footprints on the sands of time. We must hold pre cious and dear what our fore-

fathers have created and their successive generations bequeathed to us as symbols of their artistic excellence

and achievements. Generations to come always draw inspiration from past history which stimulates them to aim at ever greater heights of achievement and excellence.

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It becomes the ardent duty of every citizen to ensure that these monuments and pieces of art are not in any way damaged, disfigured, scratched or subjected to vandalism or greed of unscrupulous traders and smugglers.

One of the most ancient civilizations of the world, India can take legitimate pride in having been a civilizational

unity without a break for more than five thousand years. We all are part of this great civilization and culture. Our contributions in the fields of art, sculpture, architecture, mathematics, science, medicine etc. are well -known.

Some of the oldest, deepest and most sublime philosophical thought and literature was born in India. We have

several historical monuments of great archaeological value spread over the entire country. These include forts,

palaces, temples, etc.

Also, this territory had-the honour of being the birth place of several great religions like Hinduism, Buddhism, Jainism and Sikhism. Our past has shown us the path of peace, love, non-violence and truth.

As citizens of this-country, it is the responsibility of all of us to work for the preservation of this rich heritage and its cultural values and live in love and harmony.

The Directive Principle under article 49 similarly enjoins the State to protect monuments and places and objects

of national, artistic or historic importance.

(7) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures:

In the face of menace of the increasing pollution and environmental degradation, it is the duty of every citizen to

protect and improve natural environment including forests, lakes, rivers and wild life and to have compassion

for living creatures.

The rising air, water and noise pollution and large-scale denudation of forests are causing immense harm to all

human life on earth. The mindless and wanton deforestation in the name of the needs of development is causing havoc in the form of natural calamities and imbalances.

By protecting our forest cover, planting new trees, cleaning rivers, conserving water resources, reforesting

wastelands, hills and mountains and controlling pollution in cities, villages and industrial units, we can help save the future of our fellow citizens and of planet earth itself.

What is needed is a concerted effort at an awareness campaign and a planned strategy to move forward through

voluntary citizen initiatives. Governmental steps alone cannot help bring about a pollution-free atmosphere to

live now and in the future.

The mention of protection of environment etc. as a duty of citizens is intended to reinforce the other

constitutional provision – Article 48A – under the Directive Principles which enjoins the State to protect and improve environment and safeguard the forests and wild life.

Earth is the common heritage of man and animals. We have no right to annihilate or drive away from their

territory or natural habitat the wild denizens. Ancient Indian thought talks of Sarvesham Shantir bhavatu (peace

unto all living beings and entire environment) or Ahimsa paramodharma, Ahimsa paramo tapah (non-violence is the greatest duty and the greatest penance).

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(8) To develop the scientific temper, humanism and the spirit of inquiry and reform: One of our great Founding Fathers, Jawaharlal Nehru always laid great emphasis on the need for Indian citizens

developing a scientific temper and a spirit of inquiry – an inquisitiveness for learning from developments around the world.

This was particularly necessary because of the most revolutionary scientific advances during this century and in

the context of our background of superstitions and obscurantism. Nehru laid the foundations of the modern industrialized India by building the necessary scientific and technological infrastructures.

Now, it is the bounden duty of every citizen to preserve and promote a scientific temper and a spirit of inquiry to

keep pace with the fast changing world. Also, the Constitution ordains that science and technology mus t be

tempered with a sense of humanism because ultimately the end of all progress is the human being and the quality of life and relationships that is developed.

(9) To safeguard public property and to abjure violence: It is most unfortunate that in a country which preaches nonviolence to the rest of the world, we see from time to time spectacles of senseless violence and destruction of public property indulged in by a few of its citizens.

This is why it became necessary to prescribe the responsibility "to safeguard public property and abjure violence" as a fundamental citizenship duty.

(10) To strive towards excellence in all spheres of individual and collective activity, so that

the nation constantly rises to higher levels of endeavor and achievement: The drive for excellence in all spheres of individual and collective activity is the demand of times and a basic

requirement in a highly competitive world. Nothing but the best would have survival potential in tomorrow's world.

This would include respect for professional obligations and excellence. Whatever work we take up either as

individual citizens or as groups, our effort should be directed to achieving the goal of excellence.

Also, special emphasis is called for in the area of collective activity. It is often said that the performance of

individual Indians is excellent but we lack team spirit. If this drawback can be remedied we can put India on the map as a fast developing country.

(11) Every parent or guardian to provide opportunities for education to his child or ward between the age of 6 and 14 years:

The National Commission to Review the Working of the Constitution had recommended making education a

fundamental right for all children up to the age of 14. The Constitution (Eighty-sixth Amendment) Act 2002

however provided for free and compulsory education as a legally enforceable fundamental right for all

children between the age of 6 and 14 years.

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To meet the criticism of not covering the children below 6 years, the Act amended Directive Principles to say

that the State shall endeavor to provide early childhood care and education for all children below the age of

six years.

Also, it added a new clause (k) to chapter. IVA, Article 51A to cast on parents and guardians a duty to provide opportunities for education to children between the age of 6 and 14 years.

11.5 Legal provisions for Fundamental duties For the implementation of at least some of the fundamental duties of citizens as the Verma Committee (1999) has stated, legal provisions exist:

a) The Emblems and Names (Prevention of Improper Use) Act, 1950 was enacted soon after independence,

b) Inter alia, to prevent improper use of the National Flag and the National Anthem.

c) In order to ensure that no disrespect is shown to the National Flag, Constitution of India and the National Anthem, the Prevention of Insults to National Honour Act 1971 was enacted.

d) In order to ensure that correct usage regarding display of the National Flag is well understood, the instructions issued from time to time on the subject have been embodied in Flag Code India which has been made available to all the State Governments and Union Territory Administrations (UTs).

e) There are a number of provisions in the existing criminal laws to ensure that the activities which encourage enmity between different groups of people on grounds of religion, race, place of birth, residence, language, etc. are adequately punished.

Writings, speeches, gestures, activities, exercises, drills, etc. aimed at creating a feeling of insecurity or ill will among the members of other communities, etc. have been prohibited under Section 153A of the Indian Penal Code (IPC).

f) Imputations and assertions prejudicial to national integration constitute a punishable offence under section 153B of the IPC.

g) A communal organization can be declared unlawful association under the provisions of unlawful Activities (Prevention) Act 1967.

h) Offences related to religion and caste are covered in Sections 295 298 of the IPC (Chapter XV) and provisions of the Protection of Civil Rights Act, 1955 (earlier the Untouchability (Offences) Act 1955).

i) Sections 123(3) and (3A) of the Representation of People Act, 1951 declare that soliciting of votes on the ground of religion and the promotion or attempt to promote feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community or language is a corrupt practice.

A person indulging in a corrupt practice can be disqualified for being a Member of Parliament or a State Legislature under Section 8A of the Representation of People Act, 1951.

11.6 Significance of Fundamental Duties In spite of criticisms and opposition, the fundamental duties are considered significant from the following viewpoints:

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(1) They serve as a reminder to the citizens that while enjoying their rights, they should also be conscious of duties they owe to their country, their society and to their fellow citizens.

(2) They serve as a warning against the anti-national and antisocial activities like burning the national flag, destroying public property and so on.

(3) They serve as a source of inspiration for the citizens and promote a sense of discipline and commitment among them. They create a feeling that the citizens are not mere spectators but active participants in the realization of national goals.

(4) They help the courts in examining and determining the constitutional validity of a law. In 1992, the Supreme Court ruled that in determining the constitutionality of any law, if a court finds that the law in question seeks to give effect to a fundamental duty, it may consider such law to be 'reasonable' in relation to Article 14 (equality before law) or Article 19 (six freedoms) and thus save such law from unconstitutionality.

(5) They are enforceable by law. Hence, the Parliament can provide for the imposition of appropriate penalty or punishment for failure to fulfil any of them.

H. R. Gokhale, the then Law Minister, gave the following reason for incorporating the fundamental duties in the Constitution after twenty-six years of its inauguration:

'In post-independent India, particularly on the eve of emergency in June 1975, a section of the people showed

no anxiety to fulfil their fundamental obligations of respecting the established legal order the provisions of

chapter on fundamental duties would have a sobering effect on these restless spirits who have had a host of anti-national subversive and unconstitutional agitations in the past'.

Indira Gandhi, the then Prime Minister, justified the inclusion of fundamental duties in the Constitution and argued that their inclusion would help to strengthen democracy.

She said, 'the moral value of fundamental duties would be not to smoother rights but to establish a democratic

balance by making the people conscious of their duties equally as they are conscious of thei r rights'.

The Opposition in the Parliament strongly opposed the inclusion of fundamental duties in the Constitution by

the Congress government. However, the new Janata Government headed by Morarji Desai in the post - emergency period did not annul the Fundamental Duties.

Notably, the new government sought to undo many changes introduced in the Constitution by the 42nd

Amendment Act (1976) through the 43rd Amendment Act (1977) and the 44th Amendment Act (1978). This

shows that there was an eventual on the necessity and desirability of including the Fundamental Duties in the Constitution. This is clearer with the addition of one more Fundamental Duty in 2002 by the 86th Amendment Act

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12. The Panchayats (Part-IX) (Art.243-243O)

12.1 History THE village Panchayat was a unit of local administration since the early British days, but they had to work under

Government control. When Indian leaders pressed for local autonomy at the national level, the British

Government sought to meet this demand by offering concession at the lowest level, at the initial stage, by giving

powers of self-government to Panchayats in rural area and municipalities in urban areas, under various local

names under different enactments, e.g. the Bengal Local Self-Government Act, 1885; the Bengal Village Self-Government Act, 1919; the Bengal Municipal Act, 1884.

In the Government of India Act, 1935, the power to enact legislation was specifically given to the Provincial

Legislature by Entry 12 in the Provincial Legislative List. By virtue of this power, new Acts were enacted by many other States vesting powers of administration, including criminal justice, in the hands of the Panchayats.

Notwithstanding such existing legislation, the makers of the Constitution of Independent India were not much

satisfied with the working of these local bodies as institutions of popular government and, therefore, a Directive

was included in the Constitution of 1949 in Art. 40 as follows:

"The state shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self -government."

But notwithstanding this Directive in Article 40, not much attention was given to hold elections in these local units as a unit of representative democracy in the country as a whole.

During the time of Mr. Rajeev Gandhi it was considered necessary to further the organization of these local units

by inserting specific provisions in the Constitution itself on the basis of which the Legislatures of the various

States might enact detailed laws according to the guidelines provided by the Constitutional provisions.

12.2 The 73rd And 74th Constitution Amendment Acts The ideas so evolved, culminated in the passing of Constitution 73rd and 74th Amendment Acts, 1992 which

inserted in Constitution – While Part IX relates to the Panchayats, containing Articles 243 to 243-0, Part IXA

relates to the Municipalities, containing Articles 243P to 243ZG. The provisions in Parts IX and IXA are more or less parallel or analogous.

12.2.1 Special features of the new system:

Before entering into details, it may be pointed out that new system contained certain novel provisions, for

example, direct election by the people in the same manner as at the Union and State levels; reservation of seats

for women; an Election Commission to conduct election, a Finance Commission to ensure financial viability of

these institutions.

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Another striking feature is that the provisions inserted in the Constitution by Arts. 243-243ZG are in the nature of

basic provisions which are to be supplemented by laws made by the respective State Legislatures, which will

define the details as to the powers and functions of the various organs, just mentioned.

It is to be recalled that 'local Government' including self-Government institutions in both urban and rural areas

is an exclusive State subject under Entry 5 of List II of the 7th Sch., so that the Union cannot enact any law to

create rights and liabilities relating to these subjects. What the Union has, there fore, done is to outline the

scheme which would be implemented by the several States by making laws, or amending their own existing laws to bring them in conformity with the provisions of the 73rd and 74th Constitution Amendment Acts.

After implementing legislation was enacted by the States, elections have taken place in most of the States and

the Panchayats and Municipalities have started functioning under the new law. These amendments do not apply

to Jammu & Kashmir, Meghalaya, Mizoram, Nagaland and National Capital Territory of Delhi.

12.3 73rd Amendment Act Of 1992 12.3.1 Significance of the Act:

This act has added a new Part-IX to the Constitution of India. This part is entitled as 'The Panchayats' and

consists of provisions from Articles 243 to 243 O. In addition, the act has also added a new Eleventh Schedule to

the Constitution. This schedule contains 29 functional items of the panchayats. It deals with Article 243-G.

The act has given a practical shape to Article 40 of the Constitution which says that. "The State shall take steps

to organize village panchayats and endow them with such powers and authority as may be necessary to

enable them to function as units of self-government." This article forms a part of the Directive Principles of State Policy.

The act gives a constitutional status to the panchayati raj institutions. It has brought them under the purview of

the justiciable part of the Constitution. In other words, the state governments are under constitutional obligation to adopt the new panchayati raj system in accordance with the provisions of the act.

Consequently, neither the formation of panchayats nor the holding of elections at regular intervals depends on the will of the state government any more.

The provisions of the act can be grouped into two categories – compulsory and voluntary. The compulsory

(mandatory or obligatory) provisions of the act have to be included in the state laws creating the new panchayati raj system.

The voluntary provisions, on the other hand, may be included at the discretion of the states. Thus the voluntary

provisions of the act ensure the right of the states to take local factors like geographical, politico-administrative

and others, into consideration while adopting the new panchayati raj system.

The act is a significant landmark in the evolution of grassroots democratic institutions in the country. It transfers

the representative democracy into participatory democracy. It is a revolutionary concept to build democracy at the grassroots level in the country.

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12.3.2 SALIENT FEATURES:

The salient features of the act are:

Gram Sabha: The act provides for a Gram Sabha as the foundation of the panchayati raj system. It is a body

consisting of persons registered in the electoral rolls of a village comprised within the area of Panchayat at the

village level. Thus, it is a village assembly consisting of all the registered voters in the area of a panchayat. It may exercise such powers and perform such functions at the village level as the legislature of a state determines.

Three-Tier System: The act provides for a three-tier system of panchayati raj in every state, that is, panchayats

at the village, intermediate, and district levels. Thus, the act brings about uniformity in the structure of

panchayati raj throughout the country. However, a state having a population not exceeding 20 lakh may not

constitute panchayats at the intermediate level.

Election of Members and Chairpersons: All the members of panchayats at the village, intermediate and district

levels shall be elected directly by the people. Further, the chairperson of panchayats at the intermediate and

district levels shall be elected indirectly – by and from amongst the elected members thereof. However, the

chairperson of a panchayat at the village level shall be elected in such manner as the state legislature

determines.

Reservation of Seats: The act provides for the reservation of seats for scheduled castes and scheduled tribes in

every panchayat (i.e., at all the three levels) in proportion of their population to the total population in the

panchayat area. Further, the state legislature shall provide for the reservation of offices of chairperson in the panchayat at the village or any other level for the SCs and STs.

The act provides for the reservation of not less than one-third of the total number of seats for women (including

the number of seats reserved for women belonging the SCs and STs). Further, not less than one - third of the total number of offices of chairpersons in the panchayats at each level shall be reserved for women.

The act also authorizes the legislature of a state to make any provision for reservation of seats in any panchayat or offices of chairperson in the panchayat at any level in favour of backward classes.

Duration of Panchayats: The act provides for a five-year term of office to the panchayat at every level.

However, it can be dissolved before the completion of its term. Further, fresh elections to constitute a

panchayat shall be completed

(a) Before the expiry of its duration of five years; or

(b) In case of dissolution, before the expiry of a period of six months from the date of its dissolution.

But, where the remainder of the period (for which the dissolved panchayat would have continued) is less than six months, it shall not be necessary to hold any election for constituting the new panchayat for such period.

Moreover, a panchayat constituted upon the dissolution of a panchayat before the expiration of its duration

shall continue only for the remainder of the period for which the dissolved panchayat would have continued had

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it not been so dissolved. In other words, a panchayat reconstituted after premature dissolution does not enjoy the full period of five years but remains in office only for the remainder of the period.

Disqualifications: A person shall be disqualified for being chosen as or for being a member of panchayat if he is

so disqualified,

a) Under any law for the time being in force for the purpose of elections to the legislature of the state

concerned, or

(b) Under any law made by the state legislature. However, no person shall be disqualified on the ground that he

is less than 25 years of age if he has attained the age of 21 years. Further, all questions of disqualifications shall be referred to such authority as the state legislature determines.

12.3.3 State Election Commission:

The superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections

to the panchayats shall be vested in the state election commission. It consists of a state election commissioner to be appointed by the governor.

His conditions of service and tenure of office shall also be determined by the governor. He shall not be removed

from the office except in the manner and on the grounds prescribed for the removal of a judge of the state high court. His conditions of service shall not be varied to his disadvantage after his appointment.

The state legislature may make provision with respect to all matters relating to elections to the panchayats.

12.3.4 Powers and Functions:

The state legislature may endow the Panchayats with such powers and authority as may be necessary to enable

them to function as institutions of self-government. Such a scheme may-contain provisions for the devolution of

powers and responsibilities upon Panchayats at the appropriate level with respect to

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social justice as may be entrusted to them, including those in relation to the 29 matters listed in the Eleventh Schedule

12.3.5 Finances:

The state legislature may

(a) authorize a panchayat to levy, collect and appropriate taxes, duties, tolls and fees;

(b) assign to a panchayat taxes, duties, tolls and fees levied and collected by the state government;

(c) provide for making grants-in-aid to the panchayats from the consolidated fund of the state; and

(d) provide for constitution of funds for crediting all moneys of the panchayats.

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12.3.6 Finance Commission:

The governor of a state shall, after every five years, constitute a finance commission to review the financial

position of the panchayats. It shall make the following recommendations to the Governor:

(a) The principles that should govern:

(b) The distribution between the state and the panchayats of the net proceeds of the taxes, duties, tolls and fees levied by the state.

(c) The determination of taxes, duties, tolls and fees that may be assigned to the panchayats.

(d) The grants-in-aid to the panchayats from the consolidated fund of the state.

(e) The measures needed to improve the financial position of the panchayats.

(f) Any other matter referred to it by the governor in the interests of sound finance of the panchayats.

The state legislature may provide for the composition of the commission, the required qualifications of its members and the manner of their selection.

The governor shall place the recommendations of the commission along with the action taken report before the

state legislature.

The Central Finance Commission shall also suggest the measures needed to augment the consolidated fund of a

state to supplement the resources of the panchayats in the states (on the basis of the recommendations made by the finance commission of the state).

12.3.7 Audit of Accounts:

The state legislature may make provisions with respect to the maintenance of accounts by the panchayats and

the auditing of such accounts.

12.3.8 Application to Union Territories:

The president of India may direct that the provisions of this act shall apply to any union territory subject to such exceptions and modifications as he may specify.

12.3.9 Exempted States and Areas:

The act does not apply to the states of Jammu and Kashmir, Nagaland, Meghalaya and Mizoram and certain other areas. These areas include,

(a) The scheduled areas and the tribal areas in the states;

(b) The hill area of Manipur for which a district council exists; and

(c) Darjeeling district of West Bengal for which Darjeeling Gorkha Hill Council exists.

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However, the Parliament may extend the provisions of this Part to the scheduled areas and tribal areas subject to such exceptions and modifications as it may specify.

12.3.10 Continuance of Existing Laws and Panchayats:

All the state laws relating to panchayats shall continue to be in force until the expiry of one year from the

commencement of this act. In other words, the states have to adopt the new panchayati raj system based on

this act within the maximum period of one year from 24 April, 1993, which was the date of the commencement

of this act.

However, all the panchayats existing immediately before the commencement of act shall continue till the expiry of their term, unless dissolved by the state legislature sooner.

Consequently, majority of states passed the panchayati raj acts in 1993 and 1994 to adopt the new system in accordance with the 73rd Constitutional Amendment Act of 1992.

12.3.11 Bar to Interference by Courts in Electoral Matters:

The act bars the interference by courts in the electoral matters of panchayats. It declare s that the validity of any

law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be questioned in any court.

It further lays down that no election to any panchayat is to be questioned except by an elect ion petition presented to such authority and in such manner as provided by the state legislature.

12.4 Eleventh Schedule

It contains the following-29 functional items placed within the purview of panchayats:

1. Agriculture, including agricultural extension

2. Land improvement, implementation of land reforms, land consolidation and soil conservation

3. Minor irrigation, water management and watershed development

4. Animal husbandry, dairying and poultry

5. Fisheries

6. Social forestry and farm forestry

7. Minor forest produce

8. Small-scale industries, including food processing industries

9. Khadi, village and cottage industries

10. Rural housing

11. Drinking water

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12. Fuel and fodder

13. Roads, culverts, bridges, ferries, waterways and other means of communication

14. Rural electrification, including distribution of electricity

15. Non-conventional energy sources

16. Poverty alleviation program

17. Education, including primary and secondary schools

18. Technical training and vocational education

19. Adult and non-formal education

20. Libraries

21. Cultural activities

22. Markets and fairs

23. Health and sanitation including hospitals, primary health centers and dispensaries

24. Family welfare

25. Women and child development

26. Social welfare, including welfare of the handicapped and mentally retarded

27. Welfare of the weaker sections, and in particular, of the scheduled castes and the scheduled tribes

28. Public distribution system

29. Maintenance of community assets.

12.5 Compulsory and Voluntary Provisions Now, we will identify separately the compulsory (obligatory or mandatory) and voluntary (discretionary or

optional) provisions (features) of the 73rd Constitutional Amendment Act (1992) or the Part IX of the Constitution:

A. Compulsory Provisions

1. Organization of Gram Sabha in a village or group of villages.

2. Establishment of panchayats at the village, intermediate and district levels.

3. Direct elections to all seats in panchayats at the village, intermediate and district levels.

4. Indirect elections to the post of chairperson of panchayats at the intermediate and district levels.

5. 21 years to be the minimum age for contesting elections to panchayats.

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6. Reservation of seats (both members and chairpersons) for SCs and STs in panchayats at all the three levels.

7. Reservation of one-third seats (both members and chairpersons) for women in panchayats at all the three levels.

8. Fixing tenure of five years for panchayats at all levels and holding fresh elections within six months in the event of supersession of any panchayat.

9. Establishment of a State Election Commission for conducting elections to the panchayats.

10. Constitution of a State Finance Commission after every five years to review the financial position of the panchayats.

B. Voluntary Provisions

1. Giving representation to members of the Parliament (both the Houses) and the state legislature (both the Houses) in the panchayats at different levels falling within their constituencies.

2. Providing reservation of seats (both members and chairpersons) for backward classes in panchayats at any level.

3. Granting powers and authority to the panchayats to enable them to function as institutions of self- government (in brief, making them autonomous bodies).

4. Devolution of powers and responsibilities upon panchayats to prepare plans for economic development and social justice; and to perform some or all of the 29 functions listed in the Eleventh Sched ule of the Constitution.

5. Granting financial powers to the panchayats, that is, authorizing them to levy, collect and appropriate taxes, duties, tolls and fees.

12.6 PESA Act of 1996 (Extension Act) The provisions of Part IX of the constitution relating to the Panchayats are not applicable to the Fifth Schedule

areas. However, the Parliament may extend these provisions to such areas, subject to such exceptions and modifications as it may specify.

Under this provision, the Parliament has enacted the "Provisions of the Panchayats (Extension to the Scheduled Areas) Act", 1996, popularly known as the PESA Act or the Extension Act.

At present (2016), ten states have Fifth Schedule Areas. These are: Andhra Pradesh, Telangana, Chhattisgarh,

Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan. All the ten states have enacted requisite compliance legislations by amending the respective Panchayati Raj Acts.

12.6.1 Objectives of the Act:

The objectives of the PESA Act are as follows –

1. To extend the provisions of Part IX of the Constitution relating to the panchayats to the scheduled areas with certain modifications

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2. To provide self-rule, for the bulk of the tribal population

3. To have village governance with participatory by democracy and to make the Gram Sabha a nucleus of all activities

4. To evolve a suitable administrative framework consistent with traditional practices

5. To safeguard and to reserve the traditions and customs of tribal communities

6. To empower panchayats at the appropriate levels with specific powers conducive to tribal requirements.

7. To prevent panchayats at the higher level from assuming the powers and authority of panchayats at the lower level of the Gram Sabha

12.6.2 Features of the Act:

The features (or the provisions) of the PESA Act are as follows –

1. A state legislation on the Panchayats in the Scheduled Areas shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources.

2. A village shall ordinarily consist of a habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs.

3. Every village shall have a Gram Sabha consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level.

4. Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.

5. Every Gram Sabha shall –

(i) approve of the plans, programs and projects for social and economic development before they are taken up for implementation by the Panchayat at the village level; and

(ii) Be responsible for the identification of beneficiaries under the poverty alleviation and other programs.

6. Every Panchayat at the village level shall be required to obtain from the Gram Sabha a certification of Utilization of funds or the above plans, programs and projects.

7. The reservation of seats in the Scheduled Areas in every Panchayat shall be in proportion to the population of the communities for whom reservation is sought to be given under Part IX of the Constitution. However, the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats. Further, all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes.

8. The state government may nominate such Scheduled Tribes which have no representation in the Panchayat at the intermediate level or the Panchayat at the district level. But such nomination shall not exceed one-tenth of the total members to be elected in that Panchayat.

9. The Gram Sabha or the Panchayat at the appropriate level shall be consulted before marking the acquisition of land in the Scheduled Areas for development projects and before resettling or rehabilitating persons affected by such projects in the Scheduled Areas. However, the actual planning and

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implementation of the projects in the Scheduled Areas shall be coordinate d at the state level.

10. Planning and management of minor water bodies in the Scheduled Areas shall be entrusted to Panchayats at the appropriate level.

11. The recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be mandatory for grant of prospecting license or mining lease for minor minerals in the Scheduled Areas.

12. The prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be mandatory for grant of concession for the exploitation of minor minerals by auction.

13. While endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with –

(i) the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant

(ii) the ownership of minor forest produce

(iii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe

(iv) the power to manage village markets

(v) the power to exercise control over money lending to the Scheduled Tribes

(vi) the power to exercise control over institutions and functionaries in all social sectors

(vii) the power to control local plans and resources for such plans including tribal sub-plans

14. The State Legislations shall contain safeguards to ensure that Panchayats at the higher level do not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha.

15. The State Legislature shall endeavor to follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas.

16. Any provision of any law (relating to Panchayats in the Scheduled Areas) which is inconsistent with the provisions of this Act shall cease to be in force at the expiry of one year from the date on which this Act receives the assent of the President. However, all the Panchayats existing immediately before such date shall continue till the expiry of their term, unless dissolved by the State Legislature sooner.

12.6.3 Finances of Panchayati Raj:

The Second Administrative Reforms Commission of India (2005-2009) has summarized the sources of revenue of the Panchayati Raj Institutions (PRIs) and their financial problems in the following way:

1. A major portion of Part IX of the Constitution deals with structural empowerment of the PRIs but the real strength in terms of both autonomy and efficiency of these institutions is dependent on their financial position (including their capacity to generate own resources). In general, Panchayats in our country receive funds in the following ways:

(i) Grants from the Union Government based on the recommendations of the Central Finance Commission

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as per Article 280 of the Constitution.

(ii) Devolution from the State Government based on the recommendations of the State Finance Commission as per Article 243-1.

(iii) Loans/grants from the State Government.

(iv) Program-specific allocation under Centrally Sponsored Schemes and Additional Central Assistance.

(v) Internal Resource Generation (tax and non-tax).

2. Across the country, States have not given adequate attention to fiscal empowerment of the Panchayats. The Panchayats own resources are meager. Kerala, Karnataka and Tamil Nadu are the states which are considered to be progressive in PRIs empowerment but even there, the Panchayats are heavily dependent on government grants. One can draw the following broad conclusions:

(i) Internal resource generation at the Panchayat level is weak. This is partly due to a thin tax domain and partly due to Panchayats own reluctance in collecting revenue.

(ii) Panchayats are heavily dependent on grants from Union and State Governments.

(iii) A major portion of the grants both from Union as well as the State Governments is scheme specific. Panchayats have limited discretion and flexibility in incurring expenditure.

(iv) In view of their own tight fiscal position, Slate Governments are not keen to devolve funds to Panchayats

(v) In most of the critical Eleventh Schedule matters like primary education, healthcare, water supply, sanitation and minor irrigation even now, it is the State Government which is directly responsible for implementation of these programs and hence expenditure.

(vi) Overall, a situation has been created where Panchayats have responsibility but grossly inadequate resources.

3. Though, in absolute terms, the quantum of funds the Union/State Government transfers to a Panchayat forms the major component of its receipt, the PRI's own resource generation is the soul behind its financial standing. It is not only a question of resources; it is the existence of a local taxation system which ensures people's involvement in the affairs of an elected body. It also makes the institution accountable to its citizens.

4. In terms of own resource collection, the Gram Panchayats are comparatively in a better position because they have a tax domain of their own, while the other two tiers are dependent only on tolls, fees and non- tax revenue for generating internal resources.

5. State Panchayati Raj Acts have given most of the taxation powers to Village Panchayats. The revenue domain of the intermediate and District Panchayats (both tax as well as nontax) has been kept much smaller and remains confined to secondary areas like ferry services, markets, water and conservancy services, registration of vehicles, cess on stamp duty and a few others.

6. A study of various State Legislations indicates that a number of taxes, duties, tolls and fees come under the jurisdiction of the Village Panchayats. These interalia include octroy, property/house tax, profession tax,

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land tax/cess, taxes/tolls on vehicles, entertainment tax/ fees, license fees, tax on non-agriculture land, fee on registration of cattle, sanitation/drainage/conservancy tax, water rate/ tax, lighting rate/tax, education cess and tax on fairs and festivals.

7.

12.6.4 Reasons for Ineffective Performance:

Even after conferring the constitutional status and protection through the 73rd Amendment Act (1992), the

performance of the Panchayati Raj Institutions (PRIs) has not been satisfactory and not up to the expected level. The various reasons for this sub-optimal performance are as follows:

1. Lack of adequate devolution: Many States have not taken adequate steps to devolve 3Fs (i.e., functions, funds and functionaries) to the PRIs to enable them to discharge their - constitutionally stipulated function. Further, it is imperative that the PRIs have resources to match the responsibilities entrusted to them. While SFCs (State Finance Commissions) have submitted their recommendations, not many few States have implemented these or taken steps to ensure the fiscal viability of the PRIs.

2. Excessive control by bureaucracy: In some States, the Gram Panchayats have been placed in a position of subordination. Hence, the Gram Panchayat Sarpanches have to spend extraordinary amount of time visiting Block Offices for funds and/or technical approval. These interactions with the Block staff office distort the role of Sarpanches as elected representatives.

3. Tied nature of funds: This has two implications. The activities stated under a certain scheme are not always appropriate for all parts of the district. This results in unsuitable activiti es being promoted or an under-spend of the funds.

4. Overwhelming dependency on government funding: A review of money received and owns source funds show the overwhelming dependence of Panchayats on government funding. When Panchayats do not raise resources and instead receive funds from outside, people are less likely to request a social audit.

5. Reluctance to use fiscal powers: An important power devolved to GP (Gram Panchayat) is the right to

levy tax on property, business, markets, fairs and also for services provided, like street lighting or public

toilets, etc. Very few Panchayats use their fiscal power to levy and collect taxes. The argument pushed

by Panchayat heads is that it is difficult to levy tax on your own constituency, especially when you live in

the community.

6. Status of the Gram Sabha: Empowering the Gram Sabha’s could have been a powerful weapon for transparency, accountability and for involvement of the marginalized sections. However, a number of the State Acts have not spelt the powers of Gram Sabha’s nor have any procedures been laid down for the functioning of these bodies or penalties for the officials.

7. Creation of Parallel Bodies: Often, Parallel Bodies (PBs) are created for supposedly speedy implementation and greater accountability. However, there is little evidence to show that such PBs has avoided the evils including that of partisan politics, sharing of spoils, corruption and elite capture. Missions (in particular) often bypassing mainstream programs, create disconnect, duality, and alienation between the existing and the new structures and functions. PBs usurps the legitimate space of PRIs and demoralizes the PRIs by virtue of their superior resource endowments.

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8. Poor Infrastructure: A large number of Gram Panchayats in the country do not have even full time Secretary. Around 25 percent of the Gram Panchayats do not have basic office buildings. The database for planning, monitoring etc., are lacking in most of the cases.

A large number of elected representatives of PRIs are semi-literate or literate and know little about their roles &

responsibilities, programs, procedures, systems. Often for want of good, relevant and periodic training, they are not able to perform their functions properly.

Although all the District and Intermediate Panchayats are connected with computers, only around 20% Gram

Panchayats reported to be having computing facility. In some States, Village Panchayats do not have any

computing facility.

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13. The Municipalities (Part-IXA) (Art. 243P-

243ZG) 13.1 Introduction The term 'Urban Local Government' in India signifies the governance of an urban area by the people through

their elected representatives. The jurisdiction of an urban local government is limited to a specific urban area

which is demarcated for this purpose by the state government.

There are eight types of urban local governments in India – Municipal Corporation, municipality, notified area committee, town area committee, cantonment board, township, port trust and special purpose agency.

The system of urban government was constitutionalized through the 74th Constitutional Amendment Act of 1992. At the Central level, the subject of 'urban local government' is dealt with by the following three ministries:

1. Ministry of Urban Development, created as a separate ministry in 1985

2. Ministry of Defence in the case of cantonment boards

3. Ministry of Home Affairs in the case of Union Territories

13.2 Evolution of Urban Bodies

13.2.1 Historical Perspective The institutions of urban local government originated and developed in modern India during the period of British rule. The major events in this context are as follows:

(i) In 1687-88, the first municipal corporation in India was set up at Madras.

(ii) In 1726, the municipal corporations were set up in Bombay and Calcutta.

(iii) Lord Mayo's Resolution of 1870 on financial decentralization visualized the development of local self- government institutions.

(iv) Lord Ripon's Resolution of 1882 has been hailed as the 'Magna Carta' of local self -government. He is called as the father of local-self-government in India.

(v) The Royal Commission on decentralization was appointed in 1907 and it submitted its report in 1909. Its chairman was Hobhouse.

(vi) Under the dyarchical scheme introduced in Provinces by the Government of India Act of 1919, local self- government became a transferred subject under the charge of a responsible-Indian minister.

(vii) In 1924, the Cantonments Act was passed by the Central legislature.

(viii) Under the provincial autonomy scheme introduced by the Government of India Act of 1935, local self- government was declared a provincial subject.

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13.3 Committees and Commissions on Urban Local Governments

Sl. No. Year Name of the Committee / Commission Chairman

1. 1949-51 Local Finance Enquiry Committee P.K. Wattal

2. 1953-54 Taxation Enquiry Commission John Matthai

3. 1963-65 Committee on the Training of Municipal Employees Nur-Ud-din Ahmed

4. 1063-66 Rural-Urban Relationship Committee A.P Jain

5. 1963 Committee of Ministers on Augmentation of Financial Resources of Urban Local Bodies

Rafiq Zakaria

6. 1965-68 Committee on Service Conditions of Municipal Employees –

7. 1974 Committee on Budgetary Reform in Municipal Administration Girijapati Mukharji

8. 1982 Study Group on Constitution, Powers and Laws of Urban Local

Bodies and Municipal Corporations

K.N. Sahaya

9. 1985-88 National Commission on Urbanization CM. Correa

13.4 Constitutionalization:

In August 1989, the Rajiv Gandhi government introduced the 65th Constitutional Amendment Bill (i.e.,

Nagarpalika Bill) in the Lok Sabha. The bill aimed at strengthening and revamping the municipal bodies by

conferring a constitutional status on them. Although the bill was passed in the Lok Sabha, it was defeated in the

Rajya Sabha in October 1989 and hence, lapsed.

The National Front Government under V P Singh introduced the revised Nagarpalika Bill in the Lok Sabha again in September 1990. However, the bill was not passed and finally lapsed due to the dissolution of the Lok Sabha.

P. V. Narasimha Rao's Government also introduced the modified Municipalities Bil l in the Lok Sabha in

September 1991. It finally emerged as the 74th Constitutional Amendment Act of 1992 and came into force on 1

June 1993.

13.5 74TH Amendment Act Of 1992 This Act has added a new Part IX-A to the Constitution of India. This part is entitled as ‘The Municipalities' and

consists of provisions from Articles 243-P to 243-ZG. In addition, the act has also added a new Twelfth Schedule

to the Constitution. This schedule contains eighteen functional items of municipalities. It deals with Article 243-

W.

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The act gave constitutional status to the municipalities. It has brought them under the purview of justiciable part

of the Constitution. In other words, state governments are under constitutional obligation to adopt the new

system of municipalities in accordance with the provisions of the act.

The act aims at revitalizing and strengthening the urban governments so that they function effectively as units of local government.

13.5.1 Salient Features:

The salient features of the act are –

Three Types of Municipalities: The act provides for the constitution of the following three types of

municipalities in every state.

1. A Nagarpanchayat (by whatever name called) for a transitional area, that is, an area in transition from a rural area to an urban area.

2. A municipal council for a smaller urban area.

3. A municipal corporation for a larger urban area.

13.5.2 Composition All the members of a municipality shall be elected directly by the people of the municipal area. For this purpose,

each municipal area shall be divided into territorial constituencies to be known as wards. The state legislature

may provide the manner of election of the chairperson of a municipality. It may also provide for the representation of the following persons in a municipality.

1. Persons having special knowledge or experience in municipal administration without the right to vote in the meetings of municipality.

2. The members of the Lok Sabha and the state legislative assembly representing constituencies that comprise wholly or partly the municipal area.

3. The members of the Rajya Sabha and the state legislative council registered as electors within the municipal area.

4. The chairpersons of committees (other than wards committees).

13.5.3 Wards Committees:

There shall be constituted a wards committee, consisting of one or more wards, within the territorial area of a municipality having population of three lakh or more.

The state legislature may make provision with respect to the composition and the territorial area of a wards

committee and the manner in which the seats in a wards committee shall be filled. It may also make any provision for the constitution of committees in addition to the wards committees.

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13.5.4 Reservation of Seats:

The act provides for the iteration of seats for the scheduled castes and the scheduled tribes in every

municipality in proportion of their population to the total population in the municipal area. Further, it provides

for the reservation of not less than one-third of the total number of seats for women (including the number of seats reserved for woman belonging-to the SCs and the STs).

The state legislature may provide for the manner of reservation of offices of chairpersons in the municipalities for

SCs, STs and women. It may also make any provision for the reservation of seats in any municipality or offices of chairpersons in municipalities in favour of backward classes.

13.5.5 Duration of Municipalities:

The act provides for a five-year term of office for every municipality. However, it can be dissolved before the completion of its term. Further, the fresh elections to constitute a municipality shall be completed

(a) before the expiry of its duration of five years; or

(b) in case of dissolution, before the expiry of a period of six months from the date of its diss olution.

But, where the remainder of the period (for which (he dissolved municipality would have continued) is less than

six months, it shall not be necessary to hold any election for constituting the new municipality for such period.

Moreover, a municipality constituted upon the dissolution of a municipality before the expiration of its duration

shall continue only for the remainder of the period for which the dissolved municipality would have continued

had it not been so dissolved. In other words, a municipality reconstituted after premature dissolution does not

enjoy the full period of five years but remains in office only for the remainder of the period.

13.5.6 Disqualifications:

A person shall be disqualified for being chosen as or for being a member of a municipality if he is so disqualified

(a) under any law for the time being in force for the purposes of elections to the legislature of the state concerned; or

(b) under any law made by the state legislature.

However, no person shall be disqualified on the ground that he is less than 25 years of age if he has attained the

age of 21 years. Further, all questions of disqualifications shall be referred to such authority as the state

legislature determines.

13.5.7 State Election Commission:

The superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections to the municipalities shall be vested in the state election commission.

The state legislature may make provision with respect to all matters relating to elections to the municipalities.

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13.5.8 Powers and Functions:

The state legislature may endow the municipalities with such powers and authority as may be necessary to

enable them to function as institutions of self-government. Such a scheme may contain provisions for the devolution of powers and responsibilities upon municipalities at the appropriate level with respect to

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social justice as may be entrusted to them, including those in relation to the eighteen matters listed in the Twelfth Schedule.

13.5.9 Finances:

The state legislature may

(a) Authorize a municipality to levy, collect and appropriate taxes, duties, tolls and fees;

(b) Assign to a municipality taxes, duties, tolls and fees levied and collected by state government;

(c) Provide for making grants-in-aid to the municipalities from the consolidated fund of the state; and (d) provide

for constitution of funds for crediting all moneys of the municipalities.

13.5.10 Finance Commission: The finance commission (which is constituted for the panchayats) shall also,

for every five years, review the financial position of municipalities and make recommendation to the gove rnor

as to:

1. The principles that should govern:

(a) The distribution between the state and the municipalities, the net proceeds of the taxes, duties, tolls and fees levied by the state.

(b) The determination of the taxes, duties, tolls and fees that may be assigned to the municipalities.

(c) The grants-in-aid to the municipalities from the consolidated fund of the state.

2.The measures needed to improve the financial position of the municipalities.

3.Any other matter referred to it by the governor in the interests of sound finance of municipalities.

The governor shall place the recommendations of the commission along with the action taken report before the state legislature.

The central finance commission shall also suggest the measures needed to augment the consolidated fund of a

state to supplement the resources of the municipalities in the state (on the basis of the recommendations made by the finance commission of the state).

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13.5.11 Audit of Accounts:

The state legislature may make provisions with respect to the maintenance of accounts by municipalities and the

auditing of such accounts.

13.5.12 Application to Union Territories:

The president of India may direct that the provisions of this act shall apply to any union territory subject to such exceptions and modifications as he may specify.

13.5.13 Exempted Areas:

The act does not apply to the scheduled areas and tribal areas in the states. It shall also not affect the functions

and powers of the Darjeeling Gorkha Hill Council of the West Bengal

13.5.14 District Planning Committee:

Every state shall constitute at the district level, a district planning committee to consolidate the plans prepared

by panchayats and municipalities in the district, and to prepare a draft development plan for the district as a

whole. The state legislature may make provisions with respect to the following:

1. The composition of such committees;

2. The manner of election of members of such committees;

3. The functions of such committees in relation to district planning; and

4. The manner of the election of the chairpersons of such committees.

The act lies down that four-fifths of the members of a district planning committee should be elected by the elected members of the district panchayat and municipalities in the district from amongst themselve s.

The representation of these members in the committee should be in proportion to the ratio between the rural

and urban populations in the district.

The chairperson of such committee shall forward the development plan to the state government.

In preparing the draft development plan, a district planning committee shall

(a) Have regard to –

(i) matters of common interest between the Panchayats and the Municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;

(ii) the extent and type of available resources whether financial or otherwise; and

(b) Consult such institutions and organizations as the Governor may specify.

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13.5.15 Metropolitan Planning Committee:

Every metropolitan area shall have a metropolitan planning committee to prepare a draft development plan.

The state legislature may make provisions with respect to the following:

1. The composition of such committees;

2. The manner of election of members of such committees:

3. The representation in such committees of the Central government, state government and other organizations;

4. The functions of such committees in relation to planning and coordination for the metropolitan area; and

5. The manner of election of chairpersons of such committees.

The act lays down that two-thirds of the members of a metropolitan planning committee should be elected by

the elected members of the municipalities and chairpersons of the panchayats in the metropolitan area from amongst themselves.

The representation of these members in the committee should be in proportion to the ratio between the population of the municipalities and the panchayats in that metropolitan area.

The chairpersons of such committees shall forward the development plan to the state government.

In preparing the draft development plan, a metropolitan planning committee shall

(a) Have regard to –

(i) the plans prepared by the Municipalities and the Panchayats in the Metropolitan area;

(ii) matters of common interest between the Municipalities and the Panchayats, including coordinated spatial planning of the area, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation.

(iii) the overall objectives and priorities set by the Government of India and the government of the state;

(iv) the extent and nature of investments likely to be made in the Metropolitan area by agencies of the Government of India and of the Government of the State and other available resources whether financial or otherwise; and

(b) Consult such institutions and organizations as the Governor may specify.

13.6 Continuance of Existing Laws and Municipalities:

All the state laws relating to municipalities shall continue to be in force until the expi ry of one year from the

commencement of this act. In other words, the states have to adopt the new system of municipalities based on

this act within the maximum period of one year from 1 June, 1993, which is the date of commencement of this

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act. However, all municipalities existing immediately before the commencement of this shall continue till the expiry of their term, unless dissolved by the state legislature sooner.

13.7 Bar to Interference by Courts in Electoral Matters:

The act bars the interference by courts in the electoral matters of municipalities; it declares that the validity of

any law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be

questioned in any court. It further lays down that no election to any municipality is to be questioned except by an election petition presented to such authority and in such manner as provided by the state legislature.

13.8 Twelfth Schedule:

It contains the following 18 functional items placed within the purview of municipalities:

1. Urban planning including town planning;

2. Regulation of land use and construction of buildings;

3. Planning for economic and social development;

4. Roads and bridges;

5. Water supply for domestic, industrial and commercial purposes;

6. Public health, sanitation, conservancy and solid waste management;

7. Fire services;

8. Urban forestry, protection of the environment and promotion of ecological aspects;

9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded;

10. Slum improvement and upgradation;

11. Urban poverty alleviation;

12. Provision of urban amenities and facilities such as parks, gardens, playgrounds;

13. Promotion of cultural, educational and aesthetic aspects;

14. Burials and burial grounds, cremations and cremation grounds and electric crematoriums;

15. Cattle ponds, prevention of cruelty to animals;

16. Vital statistics including registration of births and deaths;

17. Public amenities including street lighting, parking lots, bus stops and public conveniences; and

18. Regulation of slaughter houses and tanneries.

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13.9 Types of Urban Governments The following eight types of urban local bodies are created in India for the administration of urban areas:

Municipal Corporation

Municipality

Notified Area Committee

Town Area Committee

Cantonment Board

Township

Port Trust

Special Purpose Agency

13.9.1 Municipal Corporation: Municipal corporations are created for the administration of big cities like Delhi, Mumbai, Kolkata, Hyderabad,

Bangalore and others. They are established in the states by the acts of the concerned state legislatures, and in

the union territories by the acts of the Parliament of India.

There may be one common act for all the municipal corporations in a state or a separate act for each municipal corporation.

A municipal corporation has three authorities, namely, the council, the standing committees and the commissioner.

The Council is the deliberative and legislative wing of the corporation. It consists of the Councilors directly

elected by the people, as well as a few nominated persons having knowledge or experience of municipal administration.

In brief, the composition of the Council including the reservation of seats for SCs, STs and women is governed by the 74th Constitutional Amendment Act.

The Council is headed by a Mayor. He is assisted by a Deputy Mayor. He is elected in a majority of the states for

a one-year renewable term. He is basically an ornamental figure and a formal head of the corporation. His main function is to preside over the meetings of the Council.

The standing committees are created to facilitate the working of the council, which is too large in size. They deal with public works, education, health, taxation, finance and so on. They take decisions in their fields.

The municipal commissioner is responsible for the implementation of the decisions taken by the council and its

standing committees. Thus, he is the chief executive authority of the corporation. He is appointed by the state

government and is generally a member of the IAS.

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13.9.2 Municipality: The municipalities are established for the administration of towns and smaller cities. Like the corporations,

they are also set up in the states by the acts of the concerned state legislatures and in the union territory by the acts of the Parliament of India.

They are also known by various other names like municipal council, municipal committee, municipal board,

borough municipality, city municipality and others.

Like a municipal corporation, a municipality also has three authorities, namely, the council, the standing committees and the chief executive officer.

The council is the deliberative and legislative wing of the municipality; it consists of the councilors directly elected by the people.

The council is headed by a president/chairman. He is assisted by a vice-president/vice-chairman. He presides

over the meetings of the council. Unlike the Mayor of a municipal corporation, he plays a significant role and is

the pivot of the municipal administration. Apart from presiding over the meetings of the Council, he enjoys executive powers.

The standing committees are created to facilitate the working of the council. They deal with public works,

taxation, health, finance and so on. The chief executive officer/chief municipal officer is responsible for day -to-

day general administration of the municipality. He is appointed by the state government.

13.9.3 Notified Area Committee: A notified area committee is created for the administration of two types of areas – a fast developing (own due

to industrialization, and a town which does not yet fulfil all the conditions necessary for the constitution of a municipality, but which otherwise is considered important by the state government.

Since it is established by a notification in the government gazette, it is called as notified area committee. Though

it functions within the framework of the State Municipal Act, only those provisions of the act apply to it which is

notified in the government gazette by which it is created.

It may also be entrusted to exercise powers under any other act. Its powers are almost equivalent to those of a

municipality. But unlike the municipality, it is an entirely nominated body, that is, all the members of a notified

area committee including the chairman are nominated by the state government. Thus, it is neither an elected

body nor a statutory body.

13.9.4 Town Area Committee: A town area committee is set up for the administration of a small town. It is a semi-municipal authority and is

entrusted with a limited number of civic functions like drainage, roads, street lighting, and conservancy. It is

created by a separate act of a state legislature. Its composition, functions and other patters are governed by the

act. It may be wholly elected or wholly nominated by the state government or partly elected and partly nominated.

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13.9.5 Cantonment Board: A cantonment board is established for municipal administration for civilian population in the cantonment area 7.

It is set up under the provisions of the Cantonments Act of 2006 – a legislation enacted by the Central

government. It works under the administrative control of the defense ministry of the Central government. Thus,

unlike the above four type of urban local bodies, which are created and administered by the state government, a cantonment board is created as well as administered by the Central government.

The Cantonments Act of 2006 was enacted to consolidate and amend the law relating to the administration of

cantonments with a view to impart greater democratization, improvement of their financial base to make

provisions for developmental activities and for matters connected with them. This Act has repealed the Cantonments Act of 1924.

At present (2016), there are 62 cantonment boards in the country. They are grouped into four categories on the basis of the civil population. This is shown below in Table

Category Civil Population

I above 50,000

II 10,000 to 50,000

III 2,500 to 10,000

IV Below 2,500

A cantonment board consists of partly elected and partly nominated members. The elected members hold

office for a term of five years while the nominated members (i.e., ex-officio members) continue so long as they

hold the office in that station. The military officer commanding the station is the ex -officio president of the

board and presides over its meetings. The vice-president of the board is elected by the elected members from amongst themselves for a term of five years.

The Category I cantonment board consists of the following members:

1. A military officer commanding the station

2. An executive engineer in the cantonment

3. A health officer in the cantonment

4. A first class magistrate nominated by the district magistrate

5. Three military officers nominated by the officer commanding the station

6. Eight members elected by the people of the cantonment area

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7. Chief Executive Officer of the cantonment board

The functions performed by a cantonment board are similar to those of a municipality. These are statutorily

categorized into obligatory functions and discretionary functions. The sources of income include both, tax

revenue and non-tax revenue.

The executive officer of the cantonment board is appointed by the president of India. He implements all the

resolutions and decisions of the board and its committees. He belongs to the central cadre established for the purpose.

13.9.6 Township:

This type of urban government is established by the large public enterprises to provide civic amenities to its

staff and workers who live in the housing colonies built near the plant.

The enterprise appoints a town administrator to look after the administration of the township. He is assisted by some engineers and other technical and non-technical staff.

Thus, the township form of urban government has no elected members. In fact, it is an extension of the bureaucratic structure of the enterprises.

13.9.7 Port Trust: The port trusts are established in the port areas like Mumbai, Kolkata, Chennai and so on for two purposes:

(a) to manage and protect the ports; and

(b) to provide civic amenities. A port trust is created by an Act of Parliament.

It consists of both elected and nominated members. Its chairman is an official. Its civic functions are more or

less similar to those of a municipality.

13.9.8 Special Purpose Agency: In addition to these seven area-based urban bodies (or multipurpose agencies), the states have set up certain

agencies to undertake designated activities or specific functions that 'legitimately' belong to the domain of municipal corporations or municipalities or other local urban governments.

In other words, these are function-based and not area-based. They are known as 'single purpose', 'uni-purpose'

or 'special purpose' agencies or 'functional local bodies'. Some such bodies are:

1. Town improvement trusts.

2. Urban development authorities.

3. Water supply and sewerage boards.

4. Housing boards.

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5. Pollution control boards.

6. Electricity supply boards.

7. City transport boards.

These functional local bodies are established as statutory bodies by an act of state legislature or as

departments by an executive resolution.

They function as autonomous bodies and deal with the functions allotted to them independently of the local

urban governments, that is, municipal corporations or municipalities and so forth. Thus, they are not

subordinate agencies of the local municipal bodies.

13.9.9 Municipal Personnel :

There are three types of municipal personnel systems in India. The personnel working in the urban

governments may belong to any one or all the three types. These are –

13.9.9.1 Separate Personnel System :

Under this system, each local body appoints, administers, and controls its own personnel. They are not

transferable to other local bodies. It is the most widely prevalent system. This system upholds the principle of local autonomy and promotes undivided loyalty.

13.9.9.2 Unified Personnel System :

In this system, the state government appoints, administers, and controls the municipal personnel. In other

words, state-wide services (cadres) are created for all the urban bodies in the state. They are transferable

between the local bodies in the state. This system is prevalent in Andhra Pradesh, Tamil Nadu, Uttar Pradesh,

Rajas-than, Madhya Pradesh and so on.

13.9.9.3 Integrated Personnel System :

Under this system, the personnel of the state government and those of the local bodies form part of the same

service. In other words, the municipal personnel are the members of the state services. They are transferable

not only between the local bodies in the state but also between local bodies and departments of state

government. Thus, there is no distinction between local civil service and state civil service. This system is prevalent in Odisha, Bihar, Karnataka, Punjab, Haryana and others.

The various national level institutions providing training to the municipal personnel are –

1. All-India Institute of Local Self-Government (Mumbai) constituted in 1927; it is a private registered society

2. Centre for Urban and Environmental Studies (New Delhi) set up in 1967 on the recommendation of Nur-ud-din Ahmed Committee on Training of Municipal Employees (1963-1965)

3. Regional Centres for Urban and Environmental Studies (Kolkata, Lucknow, Hyderabad and Mumbai) set up in 1968 on the recommendation of Nur-ud-din Ahmed Committee on Training of Municipal Employees (1963-1965)

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4. National Institute of Urban Affairs, established in 1976

5. Human Settlement Management Institute, established in 1985

13.10 Municipal Revenue:

There are five sources of income of the urban local bodies. These are as follows –

13.10.1 Tax Revenue:

The revenue from the local taxes include property tax, entertainment tax, taxes on advertisements, professional

tax, water tax, tax on animals, lighting tax, pilgrim tax, market tax, toll on new bridges, octroi and so on.

In addition, the municipal bodies impose various cesses like library cess, education cess, and beggary cess and so

on. Octroi (i.e., taxes on the entry of goods into a local area for consumption, use or sale therein) has been abolished in most of the states. Property tax is the most important tax revenue.

13.10.2 Non-Tax Revenue:

This source include rent on municipal properties, fees and fines, royalty, profits and dividends, interest, user

charges and miscellaneous receipts. The user charges (i.e., payment for public utilities) include water charges, sanitation charges, and sewerage charges and so on.

13.10.3 Grants:

These include the various grants given to municipal bodies by the Central and State Governments for several development programs, infrastructure schemes, and urban reform initiatives and so on.

13.10.4 Devolution :

This consists of the transfer of funds to the urban local bodies from the state government. This devolution is

made on the basis of the recommendations of the state finance commission

13.10.5 Loans:

The urban local bodies raise loans from the state government as well as financial institutions to meet their

capital expenditure. They can borrow from the financial institutions or other bodies only with the approval of

the state government.

13.11 Central Council of Local Government:

The Central Council of Local Government was set up in 1954. It was constituted under Article 263 of the

Constitution of India by an order of the President of India.

Originally, it was known as the Central Council of Local Self-Government. However, the term 'self-government' was found to be superfluous and hence was replaced by the term 'government' in the 1980s.

Till 1958, it dealt with both urban as well as rural local governments, but after 1958 it has been dealing with matters of urban local government only.

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The Council is an advisory body. It consists of the Minister for Urban Development in the Government of India and the ministers for local self-government in states. The Union minister acts as the Chairman of the Council.

The Council performs the following functions with regard to local government:

(i) Considering and recommending the policy matters

(ii) Making proposals for legislation

(iii) Examining the possibility of cooperation between the Centre and the states

(iv) Drawing up a common program of action

(v) Recommending Central financial assistance

(vi) Reviewing the work done by the local bodies with the Central financial assistance

Note:

1. 'Local Government' is a subject mentioned in the State List under the 7th Schedule of the Constitution.

2. The bill was passed in both the Lok Sabha and the Rajya Sabha in December 1992. After that, the bill was approved by the required number of state legislatures. It was assented by the president in April 1993.

3. A transitional area, a smaller urban area or a larger urban area means such area as the governor may specify by public notification for this purpose with regard to the following factors:

(a) Population of the area;

(b) Density of Population;

(c) Revenue generated for local administration;

(d) Percentage of employment in non-agricultural activities; and

(e) Economic importance or such other factors as the governor may deem fit.

4. At present (2016), ten states of India have scheduled areas. These are: Andhra Pradesh, Telangana, Jharkhand, Chhattisgarh, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa and Rajasthan. Presently (2016), there are a total of ten tribal areas (autonomous districts) in the four states of Assam (3), Meghalaya (3), Tripura (1) and Mizoram (3).

5. Metropolitan area means an area having a population of 10 lakh or more, in one or more districts and consisting of two or more municipalities or panchayats or other contiguous areas.

6. The Rural-Urban Relationship Committee (1963-66) headed by A P Jain recommended that small town area committees should be merged with the panchayati raj institutions to avoid multiplicity in the pattern of local bodies.

7. A cantonment area is a delimited area where the military forces and troops are permanently stationed.

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14. Public Services

14.1 Position of Civil Servants in a Parliamentary System of Government One of the matters which do not usually find place in a constitutional, document but have been included in our

Constitution is the Public Services.

The wisdom of the makers of our Constitution in giving a constitutional basis to such matters as are left to

ordinary legislation and administrative regulations under other Constitution may be appreciated if we properly assess the importance of public servants in a modern democratic government.

A notable feature of the Parliamentary system of government is that while the policy of the administration is

determined and laid down by ministers responsible to the Legislature, the policy is carried out and the administration of the country is actually run by a large body of officials who have no concern with politics.

In the language of Political Science, the officials form the 'permanent' Executives as distinguished from the

Ministers who constitute the 'political' Executive. While the political Executive is chosen from the party in

majority in the Legislature and loses office as soon as that party loses its majority, the permanent Executive is

appointed by a different procedure and does not necessarily belong to the party in power.

It maintains the continuity of the administration and of the neutrality in politics that characterizes the civil

servants who constitute the permanent Executive and accounts for their efficiency. While the Ministers,

generally, cannot claim any expert knowledge about the technique of administration and the details of the

administrative departments, the civil servants, as a body, are supposed to be experts in the detailed working of government.

One inherent vice in this system of carrying on the administration with the help of these 'permanent' civil

servants is that they tend to be more and more tied to red-tape and routine and lack that responsiveness to

fresh ideas which the political Executive is sure to maintain owing to their responsibility to the Legislature. But with all this inherent vice, the civil servants are indispensable to the Parliamentary form of Government.

As the Joint Select Committee on Indian Constitutional Reforms observed:

"The system of responsible Government, to be successful in practical working, requires the existence of a

competent and independent Civil Service staffed by persons capable of giving to successive Ministers advice

based on long administrative experience secure in their positions, during good behavior, but required to carry out the policy upon which the Government and Legislature eventually decide."

The reason is that in the modern age, government is not only an art but also a science and, to that extent a business for experts.

It has, therefore, naturally fallen into the hands of a very large army of people who have taken up the business of

government, being in service of the Government, itself – as their professional career. Since they cannot be

dispensed with, the problem of a modern democracy is how to prevent them from converting the democratic

system into a 'bureaucracy' or officialdom. The remedy lies not in the assumption of the work of government by

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the Legislature, for a direct democracy as prevailed in the ancient State is an impossibility under modem conditions.

Nor does remedy lie in the assumption of the actual work of administration, as distinguished from the laying

down of policies, by the Ministers or the political heads of the Departments, for, as has been already stated, the

task is not only technical but enormous, and the Ministers might lose sight of the broader and serious questions of national urgency if they were to enter into the details of the day-to-day administration.

14.2 Matters which call for regulation The proper solution of the problem, therefore is –

firstly, to select the right type of men who shall be not only efficient but also honest and who can be trusted with

confidence that they would not abuse their position and would be strictly impartial, having no personal or

political bias of their own and would be ready to faithfully carry out the policy once it is formulated by the government for the time being in power;

secondly, to keep them under proper discipline so that they maintain the proper relationship with their

employer, viz., the State; and thirdly, to ensure that for breaches of the rules of discipline, they can be brought under proper departmental action and for breach of law, made answerable before the Courts of law.

Once the interests of the State are thus secured, it is equally essential that the security of tenure of public

servants who do not contravene the foregoing principles should be ensured. For, the best av ailable talents

would never be attracted unless there is a reasonable security against arbitrary action by superior officials who exercise the governmental power as to removal and discipline.

All the aforesaid objects can be achieved only if there are definite rules and proper safeguards in respect of what

is broadly known as the 'conditions of service' of public servants and our Constitution seeks to lay down some

basic principles in this behalf.

14.3 Power to prescribe conditions of Service It is not that our Constitution seeks to make detailed provisions relating to every matter concerning the Public

Service. The makers of the Constitution realized that that was not practicable and therefore left the recruitment

and conditions of service of the public servants of the Union and of the State to be regulated by Acts of the

appropriate Legislatures.

Pending such legislation, however, these matters were to be regulated by Rules made by the President or by

the Governor in connection with the services under the Union and the States respectively [Art. 309]. Once the

legislature intervenes to enact a law, the power of the executive (the President/the Governor) is totally

displaced and the Act of the legislature would have precedence over any rule made by the execut ive under Art. 309 but no rule can be framed which affects or impairs the vested rights.

However, these rules have equal force of law. Though already some Acts have been passed, for instance, the All-

India Services Act, 1951, the larger part of the field is still covered by Rules made by the Government, not only

under the Constitution, but also those existing from before (that is, made under the Government of India Acts),

which are to continue to be in force until superseded by the appropriate authority.

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It is to be noted, however, that neither a Rule nor any Act of the Legislature made in this behalf can have any

validity if its provisions are contrary to those of the Constitution. As a matter of fact, our courts have already

annulled a number of Service Rules on the ground of contravention of some of the constitutional provisions.

For instance, if any rule or order enables the Government to dismiss a Government servant without giving him an

opportunity to be heard, such rule would be struck down as unconstitutional owing to contravention of the requirement in Art. 311(2).

The two matters which are substantively dealt with by our Constitution are:

(a) Tenure of office of the public servants and disciplinary action against them;

(b) The constitution and functions of the Public Service Commissions, which are independent bodies to advise the Government on some of the vital matters relating to Services.

14.4 Tenure of office We have inherited from the British system the maxim that all service is at the pleasure of the Crown, and our

Constitution, therefore, primarily declares that anybody who holds a post (civil or military) under the Union or a State holds his office during the pleasure of the President or the Governor, as the case may be [Art. 310(1)].

The power to compulsory retire a government servant is one of the facets of the doctrine of pleasure

incorporated in this Article.

This means that any Government employee may be dismissed at any time and on any ground, without giving rise

to any cause of action for wrongful dismissal, except where the dismissal is in contravention of the constitutional safeguards to be mentioned just now.

14.5 Cannot be fettered by Contract This right of the Government to dismiss a Government servant at its pleasure cannot be fettered b y any contract

and any contract made to this effect would be void for contravention of Art. 310(1) of the Constitution which embodies the principle of service at pleasure.

This rule is, however, subject to one exception specified in Art. 310(2) namely, that where Government is

obliged to secure the services of technical personnel or specialists, not belonging to the regular Services, by

entering into a special contract, without which such persons would not be available for employment under

the Government. In such cases, compensation would be payable for premature termination of the service if the

contract provides for such payment.

But even in such cases, no compensation would be payable under the clause if the service is terminated within the contractual period, on the ground of his misconduct. It will be payable only –

(a) if the post is abolished before the expiration of the contractual period; or,

(b) If the person is required to vacate his post before the expiry of the contractual period, for reasons unconnected with misconduct.

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14.6 Limitations upon exercise of the Pleasure While, however, the pleasure of the Crown in England is absolutely unfettered, the Constitution of India subjects the above pleasure to certain exceptions and limitations:

14.6.1 Exceptions in the case of some high officials In the case of certain high officials, the Constitution lays down specific procedures as to how their service may

be terminated. Thus, as has been noted in their proper places earlier, the Supreme Court Judges, the Auditor-

General, the High Court Judges and the Chief Election Commissioner shall not be removed from their offices

except in the manner laid down in Arts. 124, 148, 218, 324, respectively. These offices thus constitute exceptions to the general rule of tenure 'during pleasure' of Government servants.

14.7 Safeguards for civil servants

A. Though all other Government servants hold office during the pleasure of the President or the Governor

(as the case may be), two procedural safeguards are provided for the security of tenure of ‘civil’ servants

as distinguished from military personnel , namely, that –

(a) A civil servant shall not be dismissed or removed by any authority subordinate to that by which he was appointed. In other words, if he is to be removed from service, he is entitled to the consideration of his appointing authority or any other officer of corresponding rank before he is so removed. The object of this provision [Art. 311(1)] is to save a public servant from the caprices of officers of inferior rank.

(b) The other security which is guaranteed by the Constitution is that no dismissal, removal or reduction in rank shall be ordered against a civil servant unless he has been given a reasonable opportunity of being heard in respect of the charges brought against him.

B. Prior to 1976, this opportunity had to be given at two stages – (a) at the stage of inquiry into the charges; and (b) to make representation against the penalty (such as dismissal, removal, reduction in rank, censure) proposed to be imposed, after the inquiry had been concluded, holding the employee guilty of the charges.

C. But the Constitution (42nd Amendment) Act, 1976, has omitted the right of the employee to make a representation against the penalty proposed, retaining, however, the safeguard that the penalty can be proposed only on the basis of the evidence adduced at the inquiry stage. The result is that the judicial decisions prior to 1976, which required that the 'opportunity' under Art. 311(2) must be of fered at two stages, have been superseded by the 42nd Amendment.

Hence, after this amendment of 1976, the expression 'reasonable opportunity' must be interpreted to imply that the Government or other authority proceeding against a civil servant must give him –

(i) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(ii) An opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence.

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Hence, the authority must

(i) frame specific charges with full particularity,

(ii) intimate those charges to the Government servant concerned,

(iii) give him an opportunity to answer those charges;

(iv) after considering his answers, take its decision; and

(v) the rules of natural justice should be observed in coming to the finding against the accused.

But no 'inquiry' need be held where the employee is given sufficient opportunity to explain his conduct but he does not willfully avail himself of that opportunity as was done in the case of dismissal of an absconder who failed to respond to show cause why his services be not terminated by way of dismissal as his further retention in service was not desirable.

This would not, however, apply where he fails to attend the inquiry owing to default of the Government in allowing him subsistence allowance.

(iii) When the inquiry officer is not the disciplinary authority the delinquent employee has a right to receive a copy of the inquiry officer’s report before the disciplinary authority arrives at its conclusions. It is a part of the right to defence.

14.8 In which cases the opportunity must be given The inquiry must be held and the opportunity to be heard must be given if two conditions are satisfied:

(i) The employee is a member of a civil service of the Union or an all -India service or a civil service of a State or holds a civil post under the Union or a State.

(ii) Such employee is sought to be dismissed, removed or 'reduced in rank'.

While a person "dismissed" is ineligible for re-employment under the Government, no such disqualification attaches to a person 'removed'. But two elements are common to 'dismissal' and 'removal':

(a) Both the penalties are awarded on the ground that the conduct of the Government servant is blameworthy or deficient in some respect.

(b) Both entail penal consequences, such as the forfeiture of the right to salary, allowances or pension already acquired, for past services.

14.9 What Constitutes Dismissal, Removal and Reduction in Rank Where no such penal consequence is involved, it would not constitute ‘dismissal’ or ‘removal’, e.g., where a

Government servant is 'compulsorily retired', without any further penal consequence attached to such order

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.As would appear from the decisions of the Supreme Court, the term actually used in the order terminating the

officer's services is not conclusive. Words such as ‘discharged’ or ‘retrenched’ may constitute ‘dismissal’ or

‘removal’, if the order entails penal consequences, as referred to above.

Termination of the services of a temporary employee during the pendency of his criminal trial, for the same assault, was held to be punitive amounting to dismissal.

It is also clear that in order to attract Art. 311(2), the termination of services must be against the will of the civil

servant. Hence, the following orders of termination of service have been held not to constitute ‘dismissal’ or

‘removal’.

(a) Termination in accordance with the terms of the contract of employment.

(b) Termination in terms of the conditions of service as embodied in the relevant Department Rules applicable to the Government servant provided such conditions are not inconsistent with the provisions of the Constitution.

(c) Fixing an age for superannuation or compulsory retirement, and enforcement thereof. Reduction in rank means the degradation in rank or status of the officer, directed by way of penalty. It thus

involves two elements –

(1) Reduction in the physical sense, meaning degradation;

(2) Such degradation or demotion must be by way of penalty.

(1) Reduction in rank in the physical sense takes place where the Government servant is reduced to a lower

post or to a lower pay-scale. Even reduction to a lower state in the pay-scale (ordered by way of penalty)

would involve a reduction in rank, for the officer loses his rank or seniority in the gradation list of his

substantive rank.

(2) As regards the penal nature of the reduction, the Supreme Court has applied the test of ‘right to the rank’ in question, in the same manner as the ‘right to the post’ test has been applied in the case of dismissal or removal. Reduction in rank takes place only when a person is reduced from his substantive rank. Hence,

(i) Where a Government servant has a right to a particular rank, the very reduction from that rank will be deemed to be by way of penalty and Art. 311(2) will be attracted, without more. Thus, an officer, who holds a permanent post in a substantive capacity, cannot be transferred to a lower pos t, without complying with Art. 311(2).

(ii) On the other hand, where a Government servant has no title to a particular rank, under the contract of his employment or conditions of service – there will ordinarily be no reduction in rank within the meaning of Art. 311(2), e.g., where a person, who had been promoted to a higher post on an officiating basis or contrary to the statutory recruitment rules, is reverted to his substantive post as it is neither punitive nor illegal.

But even in this case, the order of reversion will amount to ‘reduction in rank’ so as to attract Art. 311(2), if the reversion entails penal consequences, such as postponement of future chances of promotion or the order contains a stigma which indicates that it was penal in nature; though, in the absence of such penal features, the motive of the authority would be irrelevant. Reversion of the employees from their

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confirmed posts by imposing additional qualifications and functions to their confirmed post would offend Art. 311.

14.10 Exceptions to the requirement of giving opportunity It is to be noted that even where a person holding a civil post is dismissed, removed or reduced in rank, no

inquiry need be held and no opportunity need be given in three classes of cases, which themselves explain the reasons for the exceptions –

(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; but such a charge must relate to a misconduct of such magnitude as would have deserved the penalty of dismissal, removal or reduction in rank.

(b) Where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry the Supreme Court upheld the concurrent view taken by the disciplinary authority and the appellate authority that holding inquiry into the case of a Head Constable who was working for terrorists and preparing to murder some senior police officers, was not practicable.; or

(c) Where the President or Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry [2nd Proviso to Art. 311 (2)]. In cases where the mere disclosure of the charge might affect the security of the State, the President or the Governor might exempt the holding of an inquiry but such satisfaction should not be mala fide?

However, the satisfaction need not be personal as such power is exercised in compl iance with Art. 166 but the Govt. is required to disclose the nature of activities of the employee which formed the basis of such satisfaction so that the court/tribunal may be able to determine whether there was any reasonable nexus between such activities and the security of the State or not without which the dismissal might be held to be ultra vi res.

14.11 Article 323a (Xiv A) Of the Constitution and the Administrative Tribunals

Act, 1985 A radical change has taken place in the constitutional law relating to Services by the 42nd Constitution

Amendment Act, 1976, which inserted into the Constitution Art. 323A, to take out the adjudication of disputes

relating to the recruitment and conditions of service of the public services of the Union and of the States from

the hands of the Civil Courts and the High Courts and to place it before an Administrative Tribunal for the

Union or of a State (as the case may be).

This provision of the Constitution was to come into effect only if it was implemented by a law made by

Parliament. That law has been enacted by Parliament in 1985 and brought into force on October 2, 1985, by setting up a Central Administrative Tribunal (with branches in the specified cities).

According to this Administrative Tribunal Act, 1985 (as amended in 1986), the Central Administrative Tribunal

will adjudicate disputes and complaints with respect to the 'recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union', excepting –

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(a) Members of the Defence Forces.

(b) Officers and servants of the Supreme Court or of any High Court.

(c) Members of the secretarial staff of Parliament, or of any Legislature of any State or Union Territory.

Excluding the above categories, any public servant of the Union who is aggrieved, in the matter of his

appointment, removal or reduction in rank or the like, shall have to be contented with administrative justice by

a Tribunal instead of by a Court of law.

The only Court, to which the aggrieved person might run, as a last resort, is the Supreme Court, under Articles

32 and 136.The decisions of the Administrative Tribunal can, therefore, be challenged only before the Supreme Court and the High Court shall not be competent to interfere under Articles 226 or 227.

But subsequently, the position turned out to be otherwise as the Supreme Court declared the Articles 323-A, CI.

2(d) and 323-B, CI. 3(d) and also the "exclusion of jurisdiction" clauses in all the legislations enacted in pursuance

of these Articles, unconstitutional to the extent they excluded the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32.

14.12 Public Service Commissions for the Union and the States There shall be a Public Service Commission for the Union; and a Public Service Commission for each State or a

Joint Public Service Commission for a group of States if the Parliament provides for the establishment of such a

Joint Public Service Commission in pursuance of a resolution to that effect being passed by the State Legislatures concerned.

The Union Public Service Commission also may, with the approval of the President, agree to serve the needs of a State, if so requested by the Governor of that State [Art. 315].

The number of members of the Commission and their conditions of service shall be determined

(a) by the President in the case of the Union or a Joint Commission, and

(b) by the Governor of the State in the case of a State Commission; provided that the conditions of service of a

member of a Commission shall not be altered to his disadvantage after his appointment.

14.13 Appointment and Term of office of Members The appointment of the Chairman and members of the Commission shall be made –

(a) in the case of the Union or a Joint Commission, by the President; and

(b) in the case of a State Commission, by the Governor of the State. Half of the members of a Commission shall be persons who have held office under the Government of India or of a State for at least ten years [Art. 316].

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The term of service of a member of a Commission shall be six years from the date of his entering upon office,

or until he attains the age of sixty five years in the case of the Union Commission or of sixty two years in die case

of a State or a Joint Commission.

But a member's office may be terminated earlier, in any of the following ways:

(i) By resignation in writing addressed to – the President in the case of the Union or a Joint Commission, or the Governor in die case of a State Commission.

(ii) By removal by the President –

(a) if the member is adjudged insolvent; or engages himself during his term in paid employment outside the duties of his office; or is in the opinion of the President infirm in mind or body;

(b) on the ground of misbehavior according to the report of the Supreme Court which shall hold an enquiry on this matter on a reference being made by the President.

Thus, even in the case of a State Commission, it is only the President who can make a reference to the Supreme

Court and make an order of removal in pursuance of the report of the Supreme Court.

The Governor has only the power to pass an interim order of suspension pending the final order of the President on receipt of the report of the Supreme Court [Art. 317(1) – (2)].

If a member's term comes to an end while a reference under Art. 317(1) is pending in the Supreme Court the reference does not become infructuous and the court must answer it.

A member shall be deemed to be guilty of misbehavior –

(i) if he is in any way concerned or interested in any contract made on behalf of the Government of India or of a State; or

(ii) if he participates in any way in the profit of such contract or agreement or in any benefit therefrom otherwise than as a member and in common with other members of an incorporated company [Art. 317(4)].

The Constitution seeks to maintain the independence of the Public Service Commission from the Executive in

several ways-

14.13.1 Independence of the Commission

1) The Chairman or a member of a Commission can De removed from office only in the manner and on the grounds specified in the Constitution (see above).

2) The conditions of service of a member of the Public Service Commission shall not be varied to his disadvantage after his appointment [Proviso to Art. 318].

3) The expenses of the Commission are charged on the Consolidated Fund of India or of the State (as the case may be) [Art. 322].

4) Certain disabilities are imposed upon the Chairman and members of the Commission with respect to

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future employment under the Government [Art. 319].

5) Thus, on ceasing to hold office –

Prohibition as to the holding of offices by Members of Commission on ceasing to be such members

a) The Chairman of the Union Public Service Commission shall be ineligible for further employment either under the Government of India or under the Government of a State;

b) The Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State;

c) A member other than the Chairman of the Union Public Service Commission shall be eligible for appointment as the Chairman of the Union Public Service Commission or as the Chairman of a State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State;

d) A member other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State.

In short, the bar against employment under the Government is absolute in die case of the Chairman of the Union Public Service Commission;

while in the case of the Chairman of a State Public Service Commission or of the other members of the Unio n or

State Commissions, there is scope of employment in a higher post within the Public Service Commission but not outside.

The Public Service Commissions are advisory bodies. It is open to the government to accept the recommendation or depart from it.

14.14 Functions of Public Service Commissions

1. To conduct examination for appointments to the services of the Union and the services of the State respectively.

2. To advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of a State may refer to the appropriate Commission [Article 320].

3. To exercise such additional functions as may be provided for by an act of Parliament or of the Legislature of a State – as respects the services of the Union or the State and also as respects the services of any local authority or other body corporate constituted by law or of any public institution [Art. 321].

4. To present annually to the President or the Governor a report as to the work done by the Union or the State Commission, as the case may be [Art. 323].

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5. It shall be the duty of the Union Public Service Commission, if requested by any two or more States so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required [Art. 320(2)].

6. The Public Service Commission for the Union, if requested so to do by the Governor of a State, may, with the approval of the President, agrees to serve all or any of the needs of the State.

The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be

consulted:

(a) On all matters relating to methods of recruitment to civil services and for civil posts;

(b) On the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;

(c) On all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;

(d) On any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;

(e) On any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award [Art. 320(3)].

But —

1) The President or the Governor, as the case may be, as respects the services and posts in connection with the affairs of the Union or of a State, may specify the matters in which either generally, or in any particular class of cases, or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.

But all such regulations must be laid before the appropriate Legislature and be subject to such modifications as may be made by the Legislature.

2) It has been held by the Supreme Court that the obligation of the Government to consult the Public Service Commission in any of the matters specified above does not confer any right upon any individual who may be affected by any act of the Government done without consulting the appropriate Commission as required by the Constitution.

The reason assigned by the Court is that the consultation prescribed by the Constitution is to afford proper assistance to the Government, in the matter of assessing the guilt of a delinquent officer, the merits of a claim for reimbursement of legal expenses and the like; and that the function of the Commission being purely advisory, if the Government fails to consult the Commission with respect to any of the specified matters, the resulting act of the Government is not invalidated by reason of such omission and no

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individual who is affected by such act can seek redress in a Court of law against the Government for such irregularity or omission.

14.15 Report of Public Service Commissions As stated already, it shall be the duty of the Union Commission to present annually to the President a report as

to the work done by the Commission and on receipt of such report the President shall cause a copy thereof

together with a memorandum explaining, as respect the cases, if any, where the advice of the Commission was

not accepted, the reason for such non-acceptance, to be laid before each House of Parliament [Art. 323(1)].

A State Public Service Commission has a similar duty to submit an annual report to the Governor and the latter

has a duty to lay a copy of such report before the State Legislature with a memorandum explaining the cases, if any, where the advice of die Commission was not accepted by the Government [Art. 323(2)].

14.16 How far Commission’s advice binding on the Government As stated earlier, the function of the Public Service Commission is only advisory and the Constitution has no provision to make it obligatory upon the Government to act upon the advice of the Commission in any case.

The reason is that, under the Parliamentary system of government, it is the Cabinet which is responsible for the

proper administration of the country and its responsibility is to Parliament. They cannot, therefore, abjure this ultimate responsibility by binding themselves by the opinion of any other body of persons.

On the other hand, in matters relating to the recruitment to the Services and the like, it would be profitable for

the Ministers to take the advice of a body of experts. It is in this light that Sir Samuel Hoare justified the parallel

provisions as to the Public Service Commissions in the Government of India Act, 1935 –

"Experience goes to show that they are likely to have more influence if they are advisory than if they have mandatory powers. The danger is that if you give them mandatory powers you then set up two governments."

But, though the Simon Commission was conscious of the fact that left alone, the Ministers might use their

position "to promote family or communal interests at the expense of the efficiency or just administration of the

services", no safeguard was prescribed in the Government of India Act, 1935 against a flagrant disregard of the recommendations of the Commissions by the Government.

In view of the possibility of such abuse, the Constitution has provided the safeguard (referred to above) of the

Commission's Report being laid before Parliament (or State Legislature), through the President (or the Governor) as the case may be.

The Government is under an obligation, while presenting such Report, to explain the reasons why in any

particular case the recommendation of the Commission has been overridden by the Government. In view of this

obligation to submit to Parliament an explanation for non-acceptance of the advice of the Commission, the number of such cases may be said to have been kept at a minimum.

Notwithstanding the above safeguard, there is criticism from certain quarters that patronage is still exercised by

die Government by resorting to some devices –

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(a) One of these is the system of making ad hoc appointments for a temporary period without consulting the Public Service Commission, and then approaching the Commission to approve of the appointment at a time when the person appointed has already been in service for some time and the recommendations of his superiors are available to him, in addition to the experience already gained by him in the work, which puts him at an advantage over the new candidates.

The Supreme Court has been deprecating this practice of making ad hoc appointments. The Supreme Court did not allow the services of the employees appointed de hors the rules, although officiating for a long period of 14 years; that of the ad hoc appointees by bypassing the process of recruitment through open competition and a temporary appointee on monthly basis during the period of strike, to be regularized.

(b) Sometimes the rules laying down the qualifications for the office to which such appointment has been made is changed retrospectively to fit in the appointee.

(c) Another complaint is that sometimes the Reports are presented before Parliament (or State Legislature

as the case may be) long after the year under review. This, however, does not appear to be

permissible under the Constitution. So far as the duty of the Commission to report to the President or

the Governor is concerned, the Constitution says – that it must be done 'annually'.

Hence, his obligation cannot be postponed for more than a few months from the end of the period

under Report. The duty of the President or the Governor is to present the Report to Parliament or the

State Legislature "on receipt of such Report".

Though no specific time-limit is imposed, it is clear that it must be done as soon as possible after the

receipt of the annual Report and it cannot be 'construed that the obligation is discharged by presenting

the Report two or three years after the receipt or by presenting the Reports for two or three years in a

lump.

The presentation before the Legislature must also be an annual affair, and, if the President or the

Governor makes delay, it should be the concern of the appropriate Legislature to demand an

explanation for such delayed presentation, apart from anything else. If the Legislature slumbers, the

entire machinery of Parliamentary government will succumb, not to speak of any particular object of

scrutiny by the Legislature.

14.17 All-India Services (Article 312) Another matter relating to the Services which are dealt with by the Constitution is the creation of All -India

Services. The All-India Services should be distinguished from Central Services.

The ‘Central services’ is an expression which refers to certain Services under the Union, maintained on an all -

India basis, for service throughout the country – for instance, the Indian Foreign Service, the Indian Audit and Accounts Service, the Indian Customs and Excise Service and the like.

The expression "All-India Service", on the other hand, is a technical one, used by the Constitution to indicate only

the Indian Administrative Service and the Indian Police Service and such other Services which may be included in

this category in the manner provided by Article 312 of the Constitution.

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That Article provides that if the Council of States declares by a resolution, supported by not less than two -third

of the members present and voting, that it is necessary and expedient in the national interest to create an All-

India Service, common to the Union and the States, Parliament may provide for its creation by making a law.

The practical incident of an All-India Service thus is that the recruitment to it and the conditions of service under

it can be regulated only by an Act of the Parliament. It must be noted that it is by virtue of this power that

Parliament has made the All-India Services Act, 1951 and that the conditions of service, recruitment, conduct,

discipline and appeal of the members of the All-India Services are now regulated by Rules made under this Act.

Since these Rules provide that the officers of the All -India Services shall be appointed and controlled by the

Union Government, these Services constitute an additional agency of control of the Union over the State, insofar as members of these Services are posted in key posts in the States.

14.18 Fundamental Rights of Civil Servants

1) Subject to the power of Parliament, under Art. 33, to modify the fundamental rights in their application to members of the Armed Forces and the Police Forces, the fundamental rights guaranteed by the Constitution are in favour of all 'citizens', which obviously include public servants.

2) It follows, therefore, that a civil employee of the Government is entitled to the protection of a fundamental right such as Articles 14, 15, 16, 19, 20 in the same manner as a private citizen. Thus –

If two sets of rules relating to disciplinary proceedings were in operation at the time when the inquiry was directed against a Government servant, and the inquiry was directed under the set of Rules which was more drastic and prejudicial to the interests of such Government servant, the proceedings against him are liable to be struck off as infringing Art. 14.

In other words, if against two public servants similarly circumstanced enquiries may be directed according to procedure substantially different at the discretion of the Executive authority, exercise whereof is not governed by any principles having any rational relation to the purpose to be achieved by the inquiry, the order selecting a prejudicial procedure, out of the two open for selection, is hit by Art. 14.

3) Restrictions upon the rights of the public servants under Art. 19 can, therefore, be imposed only on the grounds specified in Clause (2)-(6), and to the extent that the restriction is reasonable.

But while a public servant possesses the fundamental rights as a citizen, the State also possesses, under die Proviso to Article 309, the power to regulate their 'conditions of service.

Now, the interests of service under the State require efficiency, honesty, impartiality and discipline and like qualities on the part of the public servant.

The State has thus the constitutional power to ensure that every public se rvant possesses these qualities and to prevent any person who lacks these qualities from being in the public service.

It seems, therefore, that State regulation of the conditions of service of public servants so as to restrict their fundamental rights will be valid only to the extent that such restriction is reasonably necessary in the interests of efficiency, integrity impartiality, discipline, responsibility and the like which have a 'direct,

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proximate and rational' relation to the conditions of public service as well as the general grounds (e.g., public order, under Art. 19) upon which the fundamental rights of all citizens may be restricted.

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15. Weaker Sections (Part XVI) (Art.330-342)

15.1 Weaker Sections (SCs, STs, OBCs and Anglo-Indians)

This part derives its mandate from Article 46 of the D.P.S.P. meant for weaker sections namely SCs, STs, Anglo- Indians & Backward classes.

Article 330 – Reservation of seats for SCs & STs in Lok-Sabha (84 SCs & 47 STs at present)

Article 331 – Representation of Anglo-Indian in Lok-Sabha

Article 332 – Reservation of SCs & STs in Vidhan-Sabhas of states

Article 333 – Representation of Anglo-Indian in Vidhan-Sabhas of states

Article 334 – Reservation of seats & special representation to cease after 50 years

(Note: However it was periodically extended)

Article 335 – Claims of SCs & STs to services & posts

Article 336 – Special provision for Anglo-Indian community in certain services

Article 337 – Special provision with respect to educational grants for the benefit of Anglo-Indian community

Article 338 – National Commission for SCs

Article 338 (A) – National Commissions for STs

Article 338 (B) – National Commission for OBCs

Article 339 – Control of union over the administration of scheduled areas & welfare of STs.

Article 340 – Appointment of a commission to investigate the conditions of backward classes

Article 341 – SCs

Article 342 – STs

15.2 National Commissions for Scheduled Castes (Article 338) and Scheduled

Tribes (Article 338(A)) For effective implementation of various safeguards provided in the Constitution for the SCs & STs and various

other protective legislations, the original constitution had provided for appointment of a Special Officer under

Article 338 of the Constitution.

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This special officer, called Commissioner for SCs & STs was assigned the duty to investigate all matters relating

to the safeguards for SCs and STs in various statutes and to report to the President upon the working of these

safeguards.

In order to facilitate effective functioning of the office of the Commissioner for SCs & STs 17 regional offices of the Commissioner were set up in different parts of the country.

However, there was a concern of the politicians that that the Office of the Commissioner for SCs & STs alone

was not enough to monitor the implementation of Constitutional safeguards. So, it was proposed to amend the

Article 338 and put in place a Multi-Member Commission for the SC and STs.

But even before the amendment was passed, the government changed the system via administrative decision

and established the first Commission for SCs & STs in 1978 under Shri Bhola Paswan Shastri as Chairman and other four Members.

It was later renamed as National Commission for Scheduled Castes and Scheduled Tribes. It was set up as a

National Level Advisory Body to advise the Government on broad policy issues and levels of development of Scheduled Castes and Scheduled Tribes. However, till that time, it had no explicit constitutional backing.

Later, the National Commission for Scheduled Castes and Scheduled Tribes was given constitutional backing via

the Constitution (Sixty fifth Amendment) Act, 1990. The previous Bhola Paswan Shashtri commission was replaced by the NCSTST chaired by Shri Ram Dhan.

In 1995, second NCSCST was established under H. Hanumanthappa as Chairman. Third NCSCST was set up in 1998

under Dileep Singh Bhuria as the Chairman.

Fourth NCSCST was set up under Dr. Bizay Sonkar Shastri in 2002.

However, 89th amendment of the constitution in 2003 bifurcated the NCSCST and made provisions for NCSC under Article 338 and NCST under new Article 338A.

15.2.1 Structure of NCSC and NCST The commission consists of a chairman, vice-chairman and five other members. The chairman, vice- chairman

and members of the commission are appointed by the President. The conditions of service and tenure of the members of commission shall be such as the presidents may by rule determine.

15.2.2 Duties of NCSC and NCST

To investigate and monitor all matters relating to the safeguards for SC’s and ST’s under the constitution and any other law or any order of the government and to evaluate the working of such safeguards.

To inquire into specific complaints with respect to the deprivation of rights and safeguards of SC’s and ST’s.

To participate and advice on planning process of socio-economic developments of SC’s and ST’s and to evaluate the progress of their development under the union and any state.

To present to the president reports upon the working of those safeguards annually and at such other

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times as the commission deems fit.

To make recommendations as to the measures that should be taken by the centre and states for the effective implementation of those safeguards and other measures implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the SC’s and ST’s.

To discharge such other functions for protection, welfare and development and advancement of SC’s and ST’s as the president may, subject to the provisions of any law made by parliament by rule specify.

15.2.3 Power of NCSC and NCST The NCSC and NCST have the power to regulate their own procedures. While investigating any matter they have all the powers of a civil court in following matters:

Summoning and enforcing the attendance of any person from any part of India and examining him on oath.

Requiring the discovery and production of any document.

Receiving evidence on affidavit.

Requisitioning any public record or copy thereof from any court or offices.

Issuing commissions for the examination of witness and documents.

Any other matter which the president may, by rule, determine.

15.2.4 Consultation by Union and State Governments The union and state governments need to consult the commissions on all major matters affecting SC’s and ST’s.

15.3 National Commission for Backward Classes (NCBC) (Article 338(B))

15.3.1 What is NCBC?

102nd Constitution Amendment Act, 2018 provides constitutional status to the National Commission for Backward Classes (NCBC).

It has the authority to examine complaints and welfare measures regarding socially and educationally backward classes.

Previously NCBC was a statutory body under the Ministry of Social Justice and Empowerment.

15.3.2 Background

Two Backward Class Commissions were appointed in 1950s and 1970s unde r Kaka Kalelkar and B.P. Mandal respectively.

In Indra Sawhney case of 1992, Supreme Court had directed the government to create a permanent body to entertain, examine and recommend the inclusion and exclusion of various Backward Classes for the purpose of benefits and protection.

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In pursuant to these directions parliament passed National Commission for Backward Classes Act in 1993 and constituted the NCBC.

123rd Constitution Amendment bill of 2017 was introduced in Parliament to safeguard the interests of backward classes more effectively.

Parliament has also passed a separate bill to repeal the National Commission for Backward Classes Act, 1993, thus 1993 act became irrelevant after passing the bill.

The bill got the President assent in August 2018 and provided the constitutional status to NCBC.

15.3.3 Structure of NCBC

The Commission consists of five members including a Chairperson, Vice-Chairperson and three other Members appointed by the President by warrant under his hand and seal.

The conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members is determined by President.

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15.3.4 Constitutional Provisions

Article 340 deals with the need to, inter alia, identify those "socially and educationally backward classes", understand the conditions of their backwardness, and make recommendations to remove the difficulties they face.

102nd Constitution Amendment Act inserted new Articles 338 B and 342 A.

Article 338(B) provides authority to NCBC to examine complaints and welfare measures regarding socially and educationally backward classes.

Article 342(A) empowers President to specify socially and educationally backward classes in various states and union territories. He can do this in consultation with Governor of concerned State. However, law enacted by Parliament will be required if list of backward classes is to be amended.

15.3.5 Powers and Functions

The commission investigates and monitors all matters relating to the safeguards provided for the socially and educationally backward classes under the Constitution or under any other law to evaluate the working of such safeguards.

It participates and advises on the socio-economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State.

It presents to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards. The President laid such reports before each House of Parliament.

Where any such report or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the State Government.

NCBC has to discharge such other functions in relation to the protection, welfare and development and advancement of the socially and educationally backward classes as the President may, subject to the provisions of any law made by Parliament, by rule specify.

It has all the powers of a civil court while trying a suit.

15.3.6 How Does The New Commission Be Different From Its Earlier Version?

The new act has recognized that BCs also need development in addition to reservations. There are provision in the act for development of socially and Educationally Backward Classes and the new NCBC’s role in the development process.

The new NCBC is entrusted with the additional function of grievance redress of backward classes.

Article 342(A) introduces greater transparency as it’s made mandatory to take the concurrence of Parliament for adding or deleting any community in the backward list.

Apart from list-inclusion and reservation, it requires comprehensive and holistic development and

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advancement of each community towards equality in all parameters of development and welfare.

15.3.7 Issues

It is apprehended that the new version of the National Commission for Backward Classes is unlikely to provide credible and effective social justice architecture.

The recommendation of new NCBC is not binding on the government.

Since it has no responsibility to define backwardness, it cannot address the current challenge of demands of various castes to be included as BCs.

By retaining the old generic name of NCBC and delinking the body from its soul (Article 340), the government set the stage for the whole scheme of special protections under the Constitution in danger.

Features of expert body, as directed by the Supreme Court, are not provided in the composition of the new NCBC.

Mere constitutional status and more acts will not solve the problem at grass root level as recent data revealed skewed representation of SC/ST and OBC categories.

Article 338B (5) is silent on the SC mandate on periodic revision of the backward class list in consultation with the NCBC.

15.3.8 Suggestions

The composition should reflect the feature of an expert body as mandated by the SC.

The government must put information in public domain regarding the findings of the caste census and recommendations of commission.

Composition of commission should reflect the gender sensitivity and representation of stakeholders.

Vote bank politics should give way to value based politics so that only truly backward sections of society will get the benefit of reservation

.

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16. Official Language Part XVII (Articles 343 to

351)

16.1 Introduction

Part XVII of the Constitution deals with the official language in Articles 343 to 351. Its provisions are divided into

four heads—Language of the Union, Regional languages, Language of the judiciary and texts of laws and

Special directives.

16.2 Articles related Article No. Subject-matter

Language of the Union

343. Official language of the Union

343 (1) Hindi in Devanagari Script to be used as official language

343 (2) English in Roman Script to be simultaneously used as official language

344. Commission and Committee of Parliament on official language

Regional Languages

345. Official language or languages of a state

346. Official language for communication between one state and another or between a state and the

Union

347. Special provision relating to language spoken by a section of the population of a state

Language of the Supreme Court, High Courts, etc.

348. Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc.

349. Special procedure for enactment of certain laws relating to language

Special Directives

350. Language to be used in representation for redress of grievances

350A. Facilities for instruction in mother-tongue at primary stage

350B. Special Officer for linguistic minorities

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351. Directive for development of the Hindi language

16.3 Language of the Union The Constitution contains the following provisions in respect of the official language of the Union.

1. Hindi written in Devanagari script is to be the official language of the Union. But, the form of numerals to be used for the official purposes of the Union has to be the international form of Indian numerals and not the Devanagari form of numerals.

2. However, for a period of fifteen years from the commencement of the Constitution (i.e., from 1950 to 1965), the English language would continue to be used for all the official purposes of the Union for which it was being used before 1950.

3. Even after fifteen years, the Parliament may provide for the continued use of English language for the specified purposes.

4. At the end of five years, and again at the end of ten years, from the commencement of the Constitution, the president should appoint a commission to make recommendations with regard to the progressive use of the Hindi language, restrictions on the use of the English language and other related issues.

5. A committee of Parliament is to be constituted to examine the recommendations of the commission and to report its views on them to the president.

Accordingly, in 1955, the president appointed an Official Language Commission under the chairmanship of B G

Kher. The commission submitted its report to the President in 1956.

The report was examined by a committee of Parliament constituted in 1957 under the chairmanship of Gobind

Ballabh Pant. However, another Official Language Commission (as envisaged by the Constitution) was not appointed in 1960.

Subsequently, the Parliament enacted the Official Language Act in 1963. The act provides for the continued use

of English (even after 1965), in addition to Hindi, for all official purposes of the Union and also for the transaction of business in Parliament.

Notably, this act enables the use of English indefinitely (without any time -limit). Further, this act was amended in 1967 to make the use of English, in addition to Hindi, compulsory in certain cases.

16.4 Regional Languages The Constitution does not specify the official language of different states. In this regard, it makes the following

provisions:

The legislature of a state may adopt any one or more of the languages in use in the state or Hindi as the official language of that state. Until that is done, English is to continue as official language of that state.

Under this provision, most of the states have adopted the major regional language as their official

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language. For example, Andhra Pradesh has adopted Telugu, Kerala—Malayalam, Assam—Assamese, West

Bengal—Bengali, Odisha—Odia. The nine northern states of Himachal Pradesh, Uttar Pradesh, Uttarakhand, Madhya Pradesh, Chhattisgarh, Bihar, Jharkhand, Haryana and Rajasthan have adopted Hindi. Gujarat has adopted Hindi in addition to Gujarati. Similarly, Goa has adopted Marathi in addition to Konkani. Jammu and Kashmir has adopted Urdu (and not Kashmiri).

On the other hand, certain north-eastern States like Meghalaya, Arunachal Pradesh and Nagaland have adopted English. Notably, the choice of the state is not limited to the languages enumerated in the Eighth Schedule of the Constitution.

For the time being, the official language of the Union (i.e., English) would remain the link language for communications between the Union and the states or between various states. But, two or more states are free to agree to use Hindi (instead of English) for communication between themselves. Rajasthan, Uttar Pradesh, Madhya Pradesh and Bihar are some of the states that have entered into such agreements.

The Official Language Act (1963) lays down that English should be used for purposes of communication between the Union and the non-Hindi states (that is, the states that have not adopted Hindi as their official language). Further, where Hindi is used for communication between a Hindi and a non-Hindi state, such communication in Hindi should be accompanied by an English translation.

When the President (on a demand being made) is satisfied that a substantial proportion of the population of a state desire the use of any language spoken by them to be recognized by that state, then he may direct that such language shall also be officially recognized in that state. This provision aims at protecting the linguistic interests of minorities in the states.

16.5 Language of the Judiciary and Texts of Laws The constitutional provisions dealing with the language of the courts and legislation are as follows:

1. Until Parliament provides otherwise, the following are to be in the English language only:

(i) All proceedings in the Supreme Court and in every high court.

(ii) The authoritative texts of all bills, acts, ordinances, orders, rules, regulations and bye -laws at the Central and state levels.

2. However, the governor of a state, with the previous consent of the president, can authorize the use of Hindi or any other official language of the state, in the proceedings in the high court of the state, but not with respect to the judgements, decrees and orders passed by it. In other words, the judgements, decrees and orders of the high court must continue to be in English only (until Parliament otherwise provides).

3. Similarly, a state legislature can prescribe the use of any language (other than English) with respect to bills, acts, ordinances, orders, rules, regulations or bye-laws, but a translation of the same in the English language is to be published.

The Official Language Act of 1963 lays down that Hindi translation of acts, ordinances, orders, regulations and

bye-laws published under the authority of the president are deemed to be authoritative texts. Further, every bill

introduced in the Parliament is to be accompanied by a Hindi translation.

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Similarly, there is to be a Hindi translation of state acts or ordinances in certain case s.

The act also enables the governor of a state, with the previous consent of the president, to authorize the use of

Hindi or any other official language of the state for judgements, decrees and orders passed by the high court of

the state but they should be accompanied by an English translation. For example, Hindi is used in Uttar Pradesh, Madhya Pradesh, Bihar and Rajasthan for this purpose.

However, the Parliament has not made any provision for the use of Hindi in the Supreme Court. Hence, the Supreme Court hears only those who petition or appeal in English.

In 1971, a petitioner insisted on arguing in Hindi a habeas corpus petition in the Supreme Court. But, the Court

cancelled his petition on the ground that the language of the Court was English and al lowing Hindi would be unconstitutional.

16.6 Special Directives The Constitution contains certain special directives to protect the interests of linguistic minorities and to promote the development of Hindi language.

There are:

16.6.1 Protection of Linguistic Minorities In this regard, the Constitution makes the following provisions:

1. Every aggrieved person has the right to submit a representation for the redress of any grievance to any officer or authority of the Union or a state in any of the languages used in the Union or in the state, as the case may be. This means that a representation cannot be rejected on the ground that it is not in the official language.

2. Every state and a local authority in the state should provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups. The president can issue necessary directions for this purpose.

3. The president should appoint a special officer for linguistic minorities to investigate all matters relating to the constitutional safeguards for linguistic minorities and to report to him. The president should place all such reports before the Parliament and send to the state government concerned.

16.6.2 Development of Hindi Language The Constitution imposes a duty upon the Centre to promote the spread and development of the Hindi language

so that it may become the lingua franca of the composite culture of India.

Further, the Centre is directed to secure the enrichment of Hindi by assimi lating the forms, style and expressions

used in Hindustani and in other languages specified in the Eighth Schedule and by drawing its vocabulary, primarily on Sanskrit and secondarily on other languages.

At present (2016), the Eighth Schedule of the Constitution specifies 22 languages (originally 14 languages).

These are Assamese, Bengali, Bodo, Dogri (Dongri), Gujarati, Hindi, Kannada, Kashmiri, Konkani, Mathili

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(Maithili), Malayalam, Manipuri, Marathi, Nepali, Odia, Punjabi, Sanskrit, Santhali, Sindhi, Tamil, Telugu and

Urdu. Sindhi was added by the 21st Amendment Act of 1967; Konkani, Manipuri and Nepali were added by the

71st Amendment Act of 1992; and Bodo, Dongri, Maithili and Santhali were added by the 92nd Amendment Act of 2003.

In terms of the Constitution provisions, there are two objectives behind the specification of the above regional languages in the Eighth Schedule:

1. the members of these languages are to be given representation in the Official Language Commission; and

2. The forms, style and expression of these languages are to be used for the enrichment of the Hindi language.

16.6.3 Committee of Parliament on Official Language The Official Language Act (1963) provided for the setting up of a Committee of Parliament on Official

Language to review the progress made in the use of Hindi for the official purpose of the Union.

Under the Act, this Committee was to be constituted after ten years of the promulgation of the Act (i.e., 26 th

January, 1965). Accordingly, this Committee was set up in 1976. This Committee comprises of 30 members of Parliament, 20 from Lok Sabha and 10 from Rajya Sabha.

The Act contains the following provisions relating to the composition and functions of the committee:

1. After the expiration of ten years from the date on which the Act comes into force, there shall be constituted a Committee on Official Language, on a resolution to that effect being moved in either House of Parliament with the previous sanction of the President and passed by both Houses.

2. The Committee shall consist of thirty members, of whom twenty shall be members of the House of the People and ten shall be members of the Council of States to be elected respectively by the members of the House of the People and the members of the Council of States in accordance with the system of proportional representation by means of the single transferable vote.

3. It shall be the duty of the Committee to review the progress made in the use of Hindi for the official purposes of the Union and submit a report to the President making recommendations thereon and the President shall cause the report to be laid before each House of Parliament and sent it to all the State Governments.

4. The President may, after consideration of the report, and the views, expressed by the State Governments thereon, issue directions in accordance with the whole or any part of the report.

The Chairman of the Committee is elected by the members of the Committee. As a convention, the Union Home Minister has been elected as Chairman of the Committee from time to time.

The Committee is required to submit its report along with its recommendations to the President after reviewing

the position regarding the use of Hindi in Central Government Offices on the basis of its observations.

Apart from adopting other methods for assessing the factual position, the Committee decided to inspect certain

Central Government offices representing various fields of activities to motivate the Central Government offices

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to adopt maximum usage of Hindi so that the objectives of the Constitution and Official Language Act provisions could be achieved.

With this end in view, the Committee set up three sub- Committees and for the purpose of inspection by the

three sub-Committees, the various Ministries/Departments etc. were divided into three dif ferent groups.

Further, in order to assess the use of Official Language for various purposes and other matters connected

therewith, it was also decided to invite eminent persons from various fields such as from education, judiciary, voluntary organizations and the Secretaries of the Ministries/Departments etc., for oral evidence.

The progressive use of Hindi in the Central Government offices is being reviewed by the Committee in the

background of the provisions relating to Official Language as provided by the Constitution; the Official Language Act, 1963 and the Rules framed thereunder.

The Committee also takes note of the circulars/instructions etc. issued by the Government in this regard from

time to time. The terms of reference of the Committee being comprehensive, it has also been examining other

relevant aspects like the medium of instructions in schools, colleges and the universities; mode of recruitment to Central Government services and medium of departmental examination etc.

Taking into consideration the magnitude of various aspects of the Official Language policy and keeping in view

the present circumstances, the Committee in its meeting held in June, 1985 and August, 1986 decided to

present its report to the President in parts; each part relating to a particular aspect of the Official Language

policy.

The Secretariat of the Committee is headed by the Secretary of the Committee. The Secretary is assisted by the

officers of the level of Under Secretary and other officials. They extend all required assistance in performing the

various activities of the Committee. For administrative purposes, this office is subordinate office of Department

of Official Language, Ministry of Home Affairs.

16.6.4 Classical Language Status In 2004, the Government of India decided to create new category of languages called as “classical languages”.

In 2006, it laid down the criteria for conferring the classical language status. So far (2016), the six languages are granted the classical language status. This is shown below in Table

Sl. No. Languages Year of Declaration

1. Tamil 2004

2. Sanskrit 2005

3. Telugu 2008

4. Kannada 2008

5. Malayalam 2013

6. Odia 2014

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16.6.5 Benefits Once a language is declared classical, it gets financial assistance for setting up a centre of excellence for the study of that language and also opens up an avenue for two major awards for scholars of eminence.

Besides, the University Grants Commission can be requested to create – to begin with at least in Central

Universities – a certain number of professional chairs for classical languages for scholars of eminence in the

language.

16.6.6 Criteria The criteria for declaring a language as classical mandates high antiquity of its early texts/recorded history over

a period of 1,500–2,000 years, a body of ancient literature/texts which is considered a valuable heritage by

generations of speakers and a literary tradition that is original and not borrowed from another speech

community.

Also since the classical language and literature is distinct from the modern, there can also be a discontinuity between the classical language and its later forms or its offshoots.

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17. Emergency Provisions Part XVIII (Art.352 to

360)

17.1 Introduction Federal government, according to Bryce, means weak government because it involves a division of power.

Every modem federation, however, has sought to avoid this weakness by providing for the assumption of larger

powers by the federal government whenever unified action is necessary by reason of emergent circumstances,

internal or external.

But while in countries like the United States this expansion of federal power takes place through the wisdom of

judicial interpretation, in India, the Constitution itself provides for conferring extraordinary powers upon the Union in case of different kinds of emergencies.

As has been stated earlier, the Emergency provisions of our Constitution enable the federal government to acquire the strength of a unitary system whenever the exigencies of the situation so demand.

17.2 Different Kinds of Emergencies The Constitution provides for three different kinds of abnormal situations which call for a departure from the

normal governmental machinery set up by the Constitution: – viz.,

(i) an emergency due to war, external aggression or armed rebellion 1 [Art. 352]. This may be referred to as 'national emergency', to distinguish it from the next category,

(ii) Failure of constitutional machinery in the States [Art. 356].

(iii) Financial emergency [Art. 360].

An 'armed rebellion' poses a threat to the security of the State as distinguished from 'internal disturbance' contemplated under Art. 355.

Where the Constitution simply uses the expression 'Proclamation of Emergency', the reference is [ Art. 366(18)] to a Proclamation of the first category, i.e., under Art. 352.

17.3 42nd and 44th Amendments The Emergency provisions in Part XVIII of the Constitution [Arts. 352360] have been extensively amended by the

42nd Amendment (1976) and the 44th Amendment (1978) Acts, so that the resultant position may be stated for the convenience of the reader, as follows:

I. A 'Proclamation of Emergency' may be made by the President at any time he is satisfied that the security of India or any part thereof has been threatened by war, external aggression or armed rebellion [Art. 352]. It may be made even before the actual occurrence of any such disturbance, e.g., when external

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aggression is apprehended.

17.3.1 Proclamation of Emergency An 'Emergency' means the existence of a condition whereby the security of India or any part thereof is

threatened by war or external aggression or armed rebellion. A state of emergency exists under the Constitution

when the President makes a 'Proclamation of Emergency'. The actual occurrence of war or any armed rebellion is not necessary to justify a Proclamation of Emergency of the President.

The President may make such a Proclamation it he is satisfied that there is an imminent danger of such external

aggression or armed rebellion. But no such Proclamation can be made by the President unless the Union

Ministers of Cabinet rank, headed by the Prime Minister, recommend to him, in writing, that such a Proclamation should be issued [Art. 352(3)].

While the 42nd Amendment made the declaration immune from judicial review, that fetter has been removed by

the 44th Amendment, so that the constitutionality of the Proclamation can be questioned in a Court on the

ground of mala f ides.

Every such Proclamation must be laid before both Houses of Parliament and shall cease to be in operation unless it is approved by resolutions of both Houses of Parliament within one month from the date of its issue.

Until the 44th Amendment of 1978, there was no Parliamentary control over the revocation of a Proclamation, once the issue of the Proclamation had been approved by resolutions of the Houses of Parliament.

After the 44th Amendment, a Proclamation under Art. 352 may come to an end in the following ways:

17.3.2 Question: How a Proclamation may terminate

(a) On the expiry of one month from its issue, unless it is approved by resolutions of both Houses of Parliament before the expiry of that period. If the House of the People is dissolved at the date of issue of the Proclamation or within one month thereof, the Proclamation may survive until 30 days from the date of the first sitting of die House after its reconstitution, provided the Council of States has in the meantime approved of it by a resolution [Cl. (4)].

(b) It will get a fresh lease of six months from the date it is approved by resolutions of both Houses of Parliament [Cl. 5], so that it will terminate at the end of six months from the date of last such resolution.

(c) Every such resolution under Cls. (4)-(5), must be passed by either House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting [Cl. (6)].

(d) The President must issue a Proclamation of revocation any time that the House of the People passes a resolution disapproving of the issue or continuance of the Proclamation [Cl. (7)].

For the purpose of convening a special sitting of the House of the People for passing such a resolution of disapproval, not less than 1/10 of the Members of the House may give a notice in writing to the Speaker or to the President (when the House is not in session) to convene a spe cial sitting of the House for this purpose.

A special sitting of the House shall be held within 14 days from the date on which the notice is received

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by the Speaker or as the case may be by the President [Cl. (8)].

It may be that an armed rebellion or external aggression has affected only a part of the territory of India which is

needed to be brought under greater control. Hence, it has been provided, by the 44th Amendment, that a

Proclamation under Art. 352 may be made in respect of the whole of India or only a part thereof.

The Executive and the Legislature of the Union shall have extraordinary powers during an emergency.

The effects of a Proclamation of Emergency may be discussed under four heads – (i) Executive; (ii) Legislative;

(iii) Financial; and (iv) As to Fundamental Rights.

(i ) Executive :

When a Proclamation of Emergency has been made, the executive power of the Union shall, during the

operation of the Proclamation, extend to the giving of directions to any State as to the manner in which the

executive power thereof is to be exercised [Art. 353(a)].

In normal times, the Union Executive has the power to give directions to a State, which includes only the matters specified in Arts. 256-257.

Effects of Proclamation of Emergency: But under a Proclamation of Emergency, the Government of India shall

acquire the power to give directions to a State on ''any' matter so that though the State Government will not be

suspended, it will be under the complete control of the Union Executive, and the administration of the country insofar as the Proclamation goes, will function as under a unitary system with local sub-divisions.

(i i)Legislative:

(a) While a Proclamation of Emergency is in operation, Parliament may, by law, extend the normal life of the House of the People (5 years) for a period not exceeding one year at a time and not extending in any case beyond a period of 6 months after the Proclamation has ceased to operate [Proviso to Art. 83(2), ante]. (This power also was used by Mrs. Gandhi in 1976 – Act 109 of 1976).

(b) As soon as a Proclamation of Emergency is made, the legislative competence of the Union Parliament shall be automatically widened and the limitation imposed as regards List II, by Art. 246(3), shall be removed. In other words, during the operation of the Proclamation of Emergency, Parliament shall have the power to legislate as regards List II (State List) as well [Art. 250(1)].

Though the Proclamation will not suspend the State Legislature, it will suspend the distribution of legislative powers between the Union and the State, so far as the Union is concerned – so that the Union Parliament may meet the emergency by legislation over any subject as may be necessary as if the Constitution were unitary.

(c) In order to carry out the laws made by the Union Parliament under its extended jurisdiction as outlined above, Parliament shall also have the power to make laws conferring powers, or imposing duties (as may be necessary for the purpose), upon the Executive of the Union in respect of any matter, even though such matter normally belonged to State jurisdiction [Art. 353(b)].

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(i ii) Financial:

During the operation of the Proclamation of Emergency the President shall have the constitutional power to modify the provisions of the Constitution relating to the allocation of f inancial resources [Arts. 268-279] between the Union and the States, by his own Order.

But no such Order shall have effect beyond the financial year in which the Proclamation itself ceases to operate, and, further, such Order of the President shall be subject to approval by Parliament [Art. 354].

(iv) As regards Fundamental Rights : Articles 358-359 lay down the effects of a Proclamation of Emergency upon fundamental rights. As amended up to 1978, by the 44th Amendment Act, the following results emerge –

(i) While Art. 358 provides that the State would be free from the limitations imposed by Art. 19, so that these rights would be non-existent against the State during the operation of a Proclamation of Emergency, under Art. 359, the right to move the Courts for the enforcement of the rights or any of them, may be suspended, by Order of the President.

(ii) While Art. 359 would apply to an Emergency declared on any of the grounds specified in Art. 352, i.e., war, external aggression or armed rebellion, the application of Art. 358 is confined to the case of Emergency on grounds of war or external aggression only.

(iii) While Art. 358 comes into operation automatically to suspend Art. 19 as soon as a Proclamation of Emergency on the ground of war or external aggression is issued, to apply Art. 359 a further Order is to be made by the President, specifying those Fundamental Rights against which the suspension of enforcement shall be operative.

(iv) Art. 358 suspends Art. 19; the suspension of enforcement under Art. 359 shall relate only to those Fundamental Rights which are specified in the President's Order, excepting Arts. 20 and 21. In the result, notwithstanding an Emergency, access to the Courts cannot be barred to enforce a prisoner's or detenu's right under Art. 20 or 21.4

(v) Neither Art. 358 nor 359 shall have the effect of suspending the operation of the relevant fundamental right unless the law which affects the aggrieved individual contains a recital to the effect that "such law is in relation to the Proclamation of Emergency". In the absence of such recital in the law itself, neither such law nor any executive action taken under it shall have any immunity from challenge for violation of a fundamental right during operation of the Emergency [Cl. (2) of Art. 358 and Cl. (IB) of Art. 359].

17.3.3 Use of the Emergency Powers

1. The first Proclamation of Emergency under Art. 352 were made by the President on October 26, 1962, in view of the Chinese aggression in the NEFA. It was also provided by a Presidential Order, issued under Art. 359, that a person arrested or imprisoned under the Defence of India Act would not be entitled to move any Court for the enforcement of any of his Fundamental Rights under Art. 14, 19 or 21. This Proclamation of Emergency was revoked by an order made by the President on January 10, 1968.

2. The second Proclamation of Emergency under Art. 352 was made by the President on December 3, 1971 when Pakistan launched an undeclared war against India.

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A Presidential Order under Art. 359 was promulgated on December 25, 1974, in view of certain High Court decisions releasing some detenu’s under the Maintenance of Internal Security Act, 1971 for smuggling operations.

This Presidential Order suspended the right of any such detenue to move any Court for the enforcement of his fundamental rights under Arts. 14, 21 and 22, for a period of six months or during the continuance of the Proclamation of Emergency of 1971, whichever expired earlier.

Though there was a ceasefire on the capitulation of Pakistan in Bangladesh in December, 1971, followed by the Shimla Agreement between India and Pakistan, the Proclamation of 1971 was continued, owing to the persistence of hostile attitude of Pakistan. It was thus in operation when the third Proclamation of June 25, 1975 was made.

3. While the two preceding Proclamations under Art. 352 were made on the ground of external aggression, the third Proclamation of Emergency under Art. 352 was made on June 25, 1975, on the ground of "internal disturbance".

The "internal disturbance", which was cited in the Press Note relating to the Proclamation, was that 'certain persons have been inciting the Police and the Armed Forces against the discharge of their duties and their normal functioning'. Both the second and third proclamations were revoked on 21st March, 1977.

17.3.3.1 Internal Disturbance no more ground of Emergency

It should be noted that after 1978, it is not possible to issue a Proclamation of Emergency on the ground of

'internal disturbance', short of an armed rebellion, for, the words 'internal disturbance' have been substituted by the words ‘armed rebellion', by the Constitution (44th Amendment) Act, 1978.

II. The Constitution provides for carrying on the administration of a State in case of a failure of the constitutional machinery.

17.3.4 Proclamation of Failure of Constitutional machinery in a State

(a) It is a duty of the Union to ensure that the government of every State is carried on in accordance with the provisions of the Constitution [Art. 355]. So, the President is empowered to make a Proclamation, when he is satisfied that the Government of a State cannot be carried on in accordance with the provisions of the Constitution, either on the report of the Governor of the State or otherwise [Art. 356(1)]. (For uses of this power, see below.)

(b) Such Proclamation may also be made by the President where any State has failed to comply with, or to give effect to, any directions given by the Union, in the exercise of its executive power to the State [Art. 365].

By such Proclamation, the President may –

(a) assume to himself all or any of the functions of the Executive of the State or of any other authority save the High Court; and

(b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. In short, by such Proclamation, the Union would assume control over all functions in the State

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administration, except judicial. When the State Legislature is thus suspended by the Proclamation, it shall by competent –

(a) for Parliament to delegate the power to make laws for the State to the President or any other authority specified by him;

(b) for the President to authorize, when the House of the People is not in session, expenditure from the

Consolidated Fund of the State pending the sanction of such expenditure from Parliament; and

(c) for the President to promulgate Ordinances for the administration of the State when Parliament is not in session [Art. 357].

The duration of such Proclamation shall ordinarily be for two months. If, however, the Proclamation was issued

when the House of the People was dissolved or dissolution took place during the period of the two months

above-mentioned, the Proclamation would cease to operate on the expiry of 30 days from the date on which

the reconstituted House of the People first met, unless the Proclamation is approved by Parliament.

The two months' duration of such Proclamation can be extended by resolutions passed by both Houses of

Parliament for a period of six months at a time, subject to a maximum duration of three years [ Art. 356(3)-(4)];

but if the duration is sought to be extended beyond one year, two other conditions, as inserted by the 44th

Amendment Act, 1978, have to be satisfied, namely, that –

17.3.5 Conditions for extension of duration beyond one year

(a) a Proclamation of Emergency is in operation, in the whole of India or as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and

(b) The Election Commission certifies that the continuance in force of the Proclamation approved under CI. (3) During the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned.

By the 42nd Amendment, 1976, the President's satisfaction for the making of a Proclamation under Art. 356 had

been made immune from judicial review; but the 44th Amendment of 1978 has removed that fetter, so that the

Courts may now interfere if the Proclamation is mala fide or the reasons disclosed for making the Proclamation have no reasonable nexus with the satisfaction of the President.

17.3.6 Judicial Review The Author's views expressed above have been upheld by the Supreme Court in S.R. Bommai's case where a nine Judge Bench held that the validity of a Proclamation under Art. 356 can be judicially reviewed to examine

(i) Whether it was issued on the basis of any material,

(ii) whether the material was relevant,

(iii) whether it was issued mala fide.

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The Proclamation in case of failure of the constitutional machinery differs from a Proclamation of 'Emergency' on the following points

17.3.7 Articles 352 and 356 compared

(i) A Proclamation of Emergency may be made by the President only when the security of India or any part thereof is threatened by war, external aggression or armed rebellion. A Proclamation in respect of failure of the constitutional machinery may be made by the President when the constitutional government of State cannot be carried on for any reasons, not necessarily connected with war or armed rebellion.

(ii) When a Proclamation of Emergency is made, the Centre shall get no power to suspend the State Government or any part thereof. The State Executive and Legislature would continue in operation and retain their powers. All that the Centre would get are concurrent powers of legislation and administration of the State.

But under a Proclamation in case of failure of the constitutional machinery, the State Legislature would be suspended and the executive authority of the State would be assumed by the President in whole or in part. [This is why it is popularly referred to as the imposition of the 'President's rule'.]

(iii) Under a Proclamation of Emergency, Parliament can legislate in respect of State subjects only by itself; by under a Proclamation of the other kind, it can delegate its powers to legi slate for the State – to the President or any other authority specified by him.

(iv) In the case of a Proclamation of failure of constitutional machinery, there is a maximum limitation to the power of Parliament to extend the operation of the Proclamation, name ly, three years [Art. 356(4), Proviso 1], but in the case of a Proclamation of Emergency, it may be continued for a period of six months by each resolution of the Houses of Parliament approving its continuance, so that if Parliament so approves, the Proclamation may be continued indefinitely as long as the Proclamation is not revoked or the Parliament does not cease to make resolutions approving its continuance [new Cl. (5) to Art. 352, inserted by the 44th Amendment Act, 1978].

17.3.8 Use of the Power It is clear that the power to declare a Proclamation of failure of constitutional machinery in a State has nothing to

do with any external aggression or armed rebellion; it is an extraordinary power of the Union to meet a political

breakdown in any of the units of the federation [or the failure by such Unit to comply with the federal directives (Art. 365)], which might affect the national strength.

It is one of the coercive powers at the hands of the Union to maintain the democratic form of government and

to prevent factional strife’s from paralyzing the governmental machinery, in the States.

The importance of this power in the political system of India can hardly be overlooked in view of the fact that it has been used not less than 119 times during the first 65 years of the working of the Constitution (till April 2015).

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17.3.9 Frequent and improper use of the power under Article 356, deprecated From the foregoing history of the use of the power conferred upon the Union under Art. 356, it is evident that it

is a drastic coercive power which takes nearly the substance away from the normal federal polity prescribed by the Constitution.

It is, therefore, to be always remembered that the provision for such drastic power was defended by Dr.

Ambedkar in the Constituent Assembly8 on the plea that the use of this drastic power would be a matter of the last resort:

. . . The proper thing we ought to expect is that such articles will never be called into operation and that

they would remain a dead- letter. If at all they are brought into operation, I hope the President who is

endowed with this power will take proper precautions before actually suspending the administration of

the Province.

It is natural, therefore, that the propriety of the use of this provision (which was envisaged by Dr. B.R. Ambedkar

to 'remain a dead-letter'), on numerous occasions (more than any other provision of the Constitution), has

evoked criticism from different quarters.

The judgment of the Supreme Court in the Raj as than case6 also did not lay down the law correctly. The views of

the Author were expressed in detail in the 16th Edition of this book (at pp. 336-37). In view of S.R. Bommai's

case (Nine Judge Bench) the comments have been replaced by the law as declared by the Supreme Court, which affirm the Author's view.

In 2005, a unique situation had arisen in Bihar where before even the first meeting of the Legislative Assembly,

its dissolution had been ordered on the ground that attempts were being made to cobble a majority by illegal

means and lay claim to form the Government in the State and if these attempts continued, it would amount to tampering with constitutional provisions.

It was alleged that the Governor made no genuine attempt to explore the possibility of forming a government

before recommending the dissolution of the House. Further the "indecent haste" with which the Governor

acted, showed that his only intention was to prevent Janata Dal (U) leader Nitish Kumar from staking his claim to form the government, as it did not suit the political ambitions of Rashtriya Janata Dal chief Lalu Prasad.

There was no explanation by the Government for the hurry sworn in getting the Proclamation signed by the

President (who was then in Moscow) at midnight. The main question before the court at the outset was whether

the dissolution of the Assembly under article 356(1) of the Constitution could be ordered on the said ground along with the another aspect of the matter raising important question of law that:

Is it permissible to dissolve the Legislative Assembly under Article 174(2) (b) of the Constitution without its first

meeting taking place? It was held that neither Article 172 nor Article 174 prescribe that dissolution of a State

Legislature can only be after commencement of its term or after the date fixed for its first meeting. Once the Assembly is constituted, it becomes capable of dissolution.

The Supreme Court declared the proclamation dated 23-05-2005 as unconstitutional and observed that if a

political party with the support of other political party or other MLA's stakes claim to form a Government and

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satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse formation of

Government and override the majority claim because of his subjective assessme nt that the majority was

cobbled by illegal and unethical means.

No such power has been vested with the Governor. Such a power would be against the democratic principles of

majority rule. Governor is not an autocratic political Ombudsman. If such a power is vested in the Governor

and/or the President, the consequences can be horrendous. The ground of maladministration by a State

Government enjoying majority is not available for invoking power under Article 356.

The remedy for corruption or similar ills and evils lies elsewhere and not in Article 356. In the same vein, it has to

be held that the power under Tenth Schedule for defection lies with the Speaker of the House and not with the

Governor. The power conferred by Art. 356 upon the President is a condi tioned power. It is not an absolute

power.

17.3.10 Power under Art. 356 must be used rarely In S.R. Bommai's case the Court has clearly subscribed to the view that the power under Art. 356 is an exceptional power and have to be resorted to only occasionally to meet the exigencies of special situations.

The Court quoted the Sarkaria Commission Report to give examples of situations when such power should not

be used. It made it clear that Art. 356 cannot be invoked for superseding a duly constituted ministry and

dissolving the Assembly on the sole ground that in the elections to the Lok Sabha, the ruling party in the State suffered a massive defeat.

After Bommai's case it is settled that the Courts possess the power to review the Proclamation on the grounds

mentioned above [see under 'JUDICIAL REVIEW", ante]. This will surely have a restraining effect on the tendency to use the power on flimsy grounds.

17.3.11 President not to take irreversible steps under Art. 356 (1) (a), 9(b) & (c). In S.R. Bommai's case it has been pronounced that till the Proclamation is approved by both Houses of

Parliament, it is not permissible for the President to take any irreversible action under Cls. (a), (b) and (c) of Art. 356(1).

Hence the Legislative Assembly of a State cannot be dissolved before the Proclamation is approved by both

Houses of Parliament.

17.3.12 Court’s Power to restore status quo ante If the Court holds the Proclamation to be invalid then in spite of the fact that it has been approved by the

Parliament, the Court has the power to restore, in its discretion, status quo ante i.e. Court may order that the

dissolved Ministry and Assembly will be revived.

17.3.13 Illustration of cases where resort to Art. 356 would not be proper Some of the situations which do not amount to failure constitutional machinery are given below. They are based

on the report of the Sarkaria Commission and have the approval of die Court in S.R. Bommai's case.

1) a situation of maladministration in a State, where a duly constituted ministry enjoys support of the

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Assembly.

2) Where a Ministry resigns or is dismissed on losing majority support and the Governor recommends imposition of President's Rule without exploring the possibility of installing an alternative government.

3) Where a Ministry has not been defeated on the floor of the House, the Governor on his subjective assessment recommends supersession and imposition of President's Rule.

4) Where in general elections to the Lok Sabha the ruling party in the State has suffered a massive defeat.

5) Where there is situation of internal disturbance but all possible measures to contain the situation by the Union in discharge of its duty, under Art. 355, have not been exhausted.

6) Where no prior warning or opportunity is given to the State Government to correct itself in cases where directives were issued under Arts. 256, 257 etc.

7) Where the power is used to sort out intra-party problems of the ruling party.

8) The power cannot be legitimately exercised on the sole ground of stringent financial exigencies of the State.

9) The power cannot be invoked merely on the ground that there are serious allegations of corruption against the Ministry.

10) Exercise of the power for a purpose extraneous or irrelevant to those which are permitted by the Constitution would be vitiated by legal mala f ides .

17.3.14 Proper occasions for use suggested A proper occasion for use of this power would, of course, be when a Ministry resigns after defeat in the

Legislature and no other Ministry commanding a majority in the Assembly can at once be formed. Dissolution of

the Assembly may be a radical solution, but, that being expensive, a resort to Art. 356 may be made to allow the state of flux in the Assembly to subside so as to obviate the need for dissolution, if possible.

A similar situation would arise where the party having a majority declines to form a Ministry and the Governor

fails in his attempt to find a coalition Ministry. Another obviously proper use is mentioned in Art. 365 of the Constitution itself; but curiously, none of the numerous past occasions specifically refers to this contingency.

The provision in Art. 365 relates to the failure of a State Government to carry out the directives of the Union

Government which the latter has the authority under the Constitution to issue (e.g., under Arts. 256, 257).

The Union may also issue such a directive under the implied power conferred by the latter part of Art. 355, "to

ensure that the government of every State is carried on in accordance with the provisions of this Constitution".

17.3.15 Effect of 44th Amendment on Article 356 The only change that the 44th Amendment Act, 1978 (sponsored by the Janata Government), has made in this

Article, is to substitute Cl. ( 5 ) to limit the duration of a Proclamation made under Article 356 to a period of

one year unless a Proclamation of Emergency under Art. 352 is in operation and the Election Commission

certifies that it is not possible to hold elections to the Legislative Assembly of the State concerned

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immediately, in which case, it may be extended up to three years, by successive resolutions for continuance being passed by both Houses of Parliament.

It is to be noted that the foregoing amendment has not specified any conditions or circumstances under which

the power under Art. 356 can be used. Hence, in the light of the Rajasthan decision, no legal challenge could be

offered when Mrs. Gandhi repeated the Janata experiment in February, 1980, in the same nine States, on the

same ground, viz., that the Janata Party, which was in power in those States, was routed in the Lok Sabha

election.

17.3.16 Proclamation of Financial Emergency

III. If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect [Art. 360(1)].

The consequences of such a declaration are:

a) During the period any such Proclamation is in operation, the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions.

b) Any such direction may also include –

(i) a provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State;

(ii) A provision requiring all Money Bills or other financial Bills to be reserved for the consideration of the President after they are passed by the Legislature of the State.

c) It shall be competent for the President during the period that any such Proclamation is in operation to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the Judges of the Supreme Court and the High Court’s [Art. 360(3)-(4)].

The duration of such Proclamation will be similar to that of a Proclamation of Emergency, that is to say, it shall

ordinarily remain in force for a period of two months, unless before the expiry of that period, it is approved by resolutions of both Houses of Parliament.

If the House of the People is dissolved within the aforesaid period of two months, the Proclamation shall cease

to operate on the expiry of thirty days from the date on which the House of the People first sits after its

reconstitution, unless before the expiry of that period of thirty days it has been approved by both Houses of Parliament.

It may be revoked by the President at any time, by making another Proclamation.

No use of Art. 360 has ever been made.

Indian Polity Notes- Part 1

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