p

RAHAAR
The final hit to UPSC Exam
Comprehensive, Integrated and Current Linked Notes for CSE Mains 2021

GS PAPER - I I

I N D I A N C O NST IT UT I O N
Summary

JUDICIAL EXECUTIVE LEGISLATURE MEDIA

ONE
STOP
SOLUTION

          
                             

                 

                  

 +91-7007-931-912 

PRAHAAR- Summary of Indian Constitution (GS 2) OnlyIAS Nothing Else
Ø Criticism of the Constituent Assembly: Not represent
HISTORICAL BACKGROUND mass, restricted adult franchise, Hindu dominated
body, Congress domination,
Ø True Nature of Representation of the
EVOLUTION OF INDIAN CONSTITUTION Assembly/Countering Above Criticism: Constituent
Ø Regulating Act of 1773 : It recognised, for the first Assembly represented different shades of opinions
time, the political and administrative functions of the and religious communities of India. There was hardly
Company any shade of opinion not represented in the
Ø Pitt’s India Act of 1784 : The Company’s territories in Assembly”. The Constituent Assembly sought to
India were for the first time called the ‘British address concerns of every person irrespective of their
possessions in India.’ social and cultural orientations
Ø Charter Act of 1833: The act created, for the first time, Ø Objectives Resolution: Moved by Jawaharlal Nehru. It
a Government of India having authority over the entire stated following principles : Independent Sovereign
territorial area possessed by the British in India led to Republic, Justice and Rights for people, Safeguards for
centralisation of administration in British India certain sections, The Preamble
Ø Charter Act of 1853: legislation was treated as a Ø Enactment & Enforcement of Constitution: Date of its
special function of the government commencement , January 26 1950 is celebrated as the
Ø Government of India Act of 1858: abolished the rule Republic Day.
of East India Company, India was to be governed by
and in the name of the Crown, ended the system of SALIENT FEATURES OF INDIAN CONSTITUTION
double government , transfer of power from the
Company to Crown
Ø Indian Councils Act of 1861: Nomination of Indians,
Restoration of legislative powers, Issuance of • Written • Parliamentary • Directive
ordinances, The ‘Portfolio' system, associating Indians Constitution Democracy Principles
with the law-making process • Parliamentary • Independence of State
Ø Indian Councils Act, 1892: Official majority was Democracy of the Policy
maintained, given the power of discussing the budget • Independence Judiciary • A Secular
to the house, limited and indirect provision for the use of the • Unitary Bias State
of election in filling up some of the non-official seats, • Universal
Judiciary • Fundamental
Ø Indian Councils Act, 1909/Morley-Minto Reforms: Adult
• Unitary Bias Rights
concept of ‘separate electorate’, Government of India Franchise
• Written • Fundamental
Act, 1919, bicameral legislature, Dyarchy at provinces • Single
Constitution Duties
Ø Simon Commission: establishment of representative
Citizenship
government in the provinces.
• Emergency
Ø Nehru Report: first attempt by Indians themselves to
Provisions
prepare a Constitution of India, responsible
government, Universal suffrage for adults, idea of
Dominion Status , fundamental rights Criticism of the Constitution
Ø Government of India Act of 1935: All-India
Federation, Bicameralism, Responsible government, • Borrowed constitution.
Federal Court, Federal Public Service Commission, • Carbon Copy of the 1935 Act.
completely responsible government in India. • Too bulky and too detailed.
Ø Indian Independence Act of 1947: ended the British • Lawyer’s paradise.
rule, two independent dominions of India and Pakistan
were to be created, Constituent Assemblies of the two
dominions CONSTITUTIONAL AMENDMENT

CONSTITUENT ASSEMBLY Recent Context

Ø Constituent Assembly: first time idea was put forth by
M. N. Roy, a pioneer of communist movement in India.
August Offer of 1940 failed to satisfy the demand,
Cripps mission failed.
Ø Cabinet Mission 1946: Rejected the idea of two
Constituent Assemblies, Composition of the
Constituent Assembly, comprised of indirectly elected
members and nominated
• Centre is planning to bring constitutional amendment
to “restore” the right of state governments to identify
and notify SEBCs.
• Constitution (104th Amendment) Act, 2020 to
extend SC/ST reservation.
Introduction

To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
PRAHAAR- Summary of Indian Constitution (GS 2)
• Article 368 in Part XX- powers of Parliament to
amend the Constitution
• neither flexible nor rigid but a synthesis of both.
• cannot amend ‘basic structure’ of the Constitution
• procedure to amend constitution àsouth Africa
Procedure of amendment
Under Article 368 :
1. initiated in either House of Parliament
2. introduced either by a minister or by a private
member without prior permission of the president.
3. must be passed in each House by a special majority.
4. Each House must pass the bill separately. no
provision for holding a joint sitting.
5. federal provisions of the Constitution. must ratified
by the legislatures of half of the states by a simple
majority.
6. After duly passed by both the Houses, president for
assent.
7. president must give his assent to the bill.
8. After the president’s assent, the bill becomes an Act.
TYPES OF AMENDEMENT
By Special Majority of Parliament
• Fundamental Rights
• Directive Principles of State Policy
• All other provisions
By Simple Majority of Parliament
• Admission or establishment of new states.
• Formation of new states and alteration of areas,
boundaries or names of existing states.
• Abolition or creation of legislative councils in states.
• Second Schedule, Quorum in Parliament, Salaries and
allowances of the members of Parliament.
• Rules of procedure in Parliament, Privileges of the
Parliament, its members and its committees.
• Use of English language in Parliament, Elections to
Parliament and state legislatures.
• Number of puisne judges in the Supreme Court,
Conferment of more jurisdiction on the Supreme
Court.
• Use of official language, Citizenship—acquisition and
termination, Delimitation of constituencies, Union
territories.
• Fifth Schedule—administration of scheduled areas
and scheduled tribes, Sixth Schedule—administration
of tribal areas.
By Special Majority of Parliament and Consent of
State
• Election of the President and its manner.
• Extent of the executive power of the Union and the
states.
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
• Supreme Court and high courts.
• Distribution of legislative powers between the Union
and the states.
• Any of the lists in the Seventh Schedule.
• Representation of states in Parliament.
• Power of Parliament to amend the Constitution and its
procedure (Article 368 itself)..
Informal way of amending the constitution
1. Judicial Pronouncements and constitutional
amendments
2. Conventions and constitutional changes
Amendability provides flexibility and adaptability.
Necessity of amendment
• To make constitution more relevant document.
• To align it with changing needs and aspirations of
society.
• synchronisation between constitutional setup and
policy and programmes .
• To meet unforeseen exigencies of situation .
• To ensure social, economic, political justice.
• To achieve the goal of inclusive and equitable society.
Dangers of frequent amendments
• Frequent amendments to the constitution will lead to
erosion of the credibility of the constitution.
• Recurrent changes to the constitution could lead to
instability in institutional setup.
• Frequent changes could result into confusion and
conflict .
• This will also create possibility of infringement of upon
the basic text and core philosophy of the constitution.
• Could kickstart tussle between judiciary and executive
.
• This tendency will set in wrong and unhealthy
precedence for coming governments.
Power of Parliament to amend Constitution
• Basic Structure - under Article 368 does not enable it
to alter the ‘basic structure’.
• Limited Power – The Constitution had conferred a
limited amending power on the Parliament.
• Amendability of Fundamental Rights - under Article
368 can amend any part of the Constitution including
the Fundamental rights.
• Amendability of Preamble - The Preamble is a part of
the Constitution and can amended,
Criticism of the amendment procedure :
• No provision for a special body like Constitutional
Convention (as in USA).
PRAHAAR- Summary of Indian Constitution (GS 2)
• The constituent power is vested in the Parliament.
• State legislatures cannot initiate any bill or proposal
for amending.
• Only in few cases, the consent of the state
legislatures is required.
• No time frame within which the state legislatures
should ratify or reject.
• The provisions relating to the amendment procedure
are too sketchy.
Way Forward
• Joint parliamentary committee (JPC) could setup.
• Considering separate committee/body (as in USA) for
amendment.
• Amendment should be limited to the part which
doesn’t form core philosophy and basic text of the
constitution
IMPORTANT AMANEDMENTS
FIRST CONSTITUTIONAL AMENDMENT, 1951
Amendments :
• Amended article 15 advancement of socially and
economically backward classes. (Article 15 (3)).
• Inserted articles 31A and 31B along with the ninth
schedule.
• Amended Article 19
• Added three more grounds of restrictions on
freedom of speech and expression - public order,
friendly relations with foreign states and incitement
to an offense.
Significance of the amendment :
• Restriction on Freedom of Speech and Expression –
• Caste-based reservation - The Act also enabled caste-
based reservations..
• Right to Property - It circumscribed the right to
property and validated zamindari abolition
• Parliament & Judiciary Tussle - Amendment set the
precedent of amending the Constitution to overcome
judicial judgements .
• Social Justice - It secured the constitutional validity of
abolition of zamindari laws to distribute the land
among the poor .
• Restricted scope of Judicial Review – Added ninth
schedule and laws under the ninth schedule were
protected from judicial scrutiny.
Look for 42nd CA at the next page
44 TH CONSTITUTIONAL AMENDMENT, 1977
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
Amendments & Significance of the 44th amendment
act :
● The 44th amendment undo several changes that had
been made by the 42nd Amendment
● Restored Check and Balance between the judiciary,
executive and legislative.
● Empowered the president to send back once the
advice of the cabinet for reconsideration.
● Deleted the provision satisfaction of the president,
governor, and administrators final in issuing
ordinances.
● Omitted the provisions which took away the power
of the court .
● Protected the freedom and liberties enjoyed by the
citizens.
● Provided adequate safeguards against misuse of
emergency provisions
● The term ‘internal disturbance’ by ‘armed rebellion’
in respect of national emergency.
● Declaration of emergency by President only on
written recommendation of cabinet.
● The proclamation by a two-thirds majority of the
members of both Houses within a month.
52 ND CONSTITUTIONAL AMENDMENT, 1985
Significance of the amendment :
• strengthen the fabric of Indian parliamentary
democracy
• stability to the government
• It facilitates democratic and ideological
realignment of parties.
• reducing non-developmental expenditure incurred
on irregular elections
• constitutional recognition to the existence of
political parties.
• promotes party discipline.
PRAHAAR- Summary of Indian Constitution (GS 2) OnlyIAS Nothing Else
42ND CONSTITUTIONAL AMENDMENT, 1976 (THE
MINI CONSTITUTION)

To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
PRAHAAR- Summary of Indian Constitution (GS 2)
73 RD & 74 TH CONSTITUTIONAL AMENDMENT,
1992
• 73rd CAA constitutional status to the PRIs, added a
new Part-IX as ‘the panchayats and a new Eleventh
Schedule.
• 74thCAA Constitutional status to the municipalities,
New Part IX A ‘The Municipalities’- Article 243-P to
Article 243 ZG.
Significance :
• PRI’s come under justiciable part of the
constitution and mandates states to adopt the
system.
• creating democratic institutions at the grassroots
level in the country, representative democracy to
participatory democracy.
• are extension and deepening of democracy in
India.
greater decentralisation and increase the
involvement of the community.
• It improved representation and enabled political
empowerment of women, SCs and STs.
Conclusion :
• Amendment procedure provided in the constitution
itself is one of most the important provision of the
constitution. As said by the Dr. Babasaheb Ambedkar
Indian constitution is a living document, thus it has to
align with changing time, challenges and aspiration of
the nation. If it is not allowed to change with time
constitution also can affect the growth of nation.
BASIC STRUCTURE OF CONSTITUTION
Recent context
• Kesavananda Bharati died in 2020.
• He was the petitioner in the Kesavananda Bharati Vs.
State of Kerala case in which the SC ruled that the
basic structure of the Constitution is inviolable, and
cannot be amended by Parliament.
Introduction
• basic and core building blocks of constitution. term is
not mentioned in the constitution
• It’s a Judicially innovated doctrine originated in
Kesavananda Bharti case 1973.however SC is yet to
clarify what basic structure constitutes.
Origin of Basic structure
• The origins found in the German Constitution,
original Weimar Constitution
• Learning from that experience, the new German
Constitution introduced ‘basic law’.
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
ORIGIN AND EVOLUTION OF BASIC STRUCTURE IN
INDIA
Shankari Prasad case 1951
• It challenged the first CAA on the ground of violation
of FR.
• The SC àParliament can abridge or take away any of
the FR such law won’t be void under Art 13.
Golakhnath case 1967
• The SC said , the Parliament cannot abridge FR.
• A constitutional amendment act is also a law within
the meaning of Article 13 .
24th Amendment Act (1971)
• It declared that the Parliament has the power to
abridge or take away any of the Fundamental Rights
under Article 368 and such an act will not be a law
under the meaning of Article 13.
Kesavananda Bharati case (1973)
• It upheld the validity of the 24th Amendment Act
(1971.
• Laid doctrine of the ‘basic structure’
• Under 368 parliament. Cannot alter basic structure
and FR is basic structure .
42nd Amendment Act (1976).
• It mended Article 368 and declared that there is no
limitation on the constituent power of Parliament .
Minerva Mills case (1980)
• The SC, invalidated 42nd Amendment Act as it excluded
judicial review which is a ‘basic feature’ of the
Constitution.
• Constitution had conferred a limited amending power
on the Parliament
• Indeed, a limited amending power is one of the basic
features of the Constitution.
Waman Rao case (1981)
• It adhered to the doctrine of the ‘basic structure’ and
further clarified that it would apply to constitutional
amendments enacted after April 24, 1973 (i.e., the
date of the judgement in the Kesavananda Bharati
case)
Case/Judgement Basic Feature
Central Coal Fields • Effective access to justice
Ltd. Case (1980)
PRAHAAR- Summary of Indian Constitution (GS 2) OnlyIAS Nothing Else
Bhim Singhji Case • Welfare State (Socio- Bangladesh, Pakistan, etc. it is bedrock of judicial
(1981) economic justice) review . It acts as a safety valve against
S.P. Sampath Kumar • Rule of law and Judicial majoritarianism and authoritarianism and thus,
Case (1987) review protect the constitution and democracy in India..
Delhi Judicial Service • Powers of the Supreme
Association Case Court under Articles 32, SIGNIFICANT PROVISIONS IN THE INDIAN
(1991) 136, 141 and 142 CONSTITUTION
Indra Sawhney Case • Rule of law
(1992) Introduction
Kumar Padma Prasad • Independence of
Case (1992) judiciary • India Sovereign Socialist Secular Democratic Republic
state ,the Constitution which is adopted by the
Kihoto Hollohon • Free and fair elections
Constituent Assembly on 26th November, 1949 and
Case (1993) and Sovereign, came into force on 26th January, 1950.. The
democratic, republican constitutional head of the Executive is the President.
structure. The real executive power is vested in the Council of
Raghunath Rao Case • Principle of equality, Ministers with the Prime Minister as its head.
(1993) Unity and integrity of
India. SIGNIFICANT PROVISIONS OF THE INDIAN
L. Chandra Kumar • Powers of the High Courts CONSTITUTION ARE
Case (1997) under Articles 226 and
227
PREAMBLE :
Kuldip Nayar Case • Democracy, Free and fair
(2006) elections
Previous year question on this topic :
Ram Jethmalani Case • Powers of the Supreme
(2011) Court under Article 32 1. What can France learn from the Indian
Namit Sharma Case • Freedom and dignity of Constitution’s approach to secularism? (2019)
(2013) the individual 2. Discuss each adjective attached to the word
‘Republic’ in the ‘Preamble’. Are they
defendable in the present circumstances? (2016)
SIGNIFICANCE OF BASIC STRUCTURE
• Maintaining supremacy of the Constitution ,prevented Introduction:
its destruction by a temporary majority in Parliament.
• preserve constitutional principles and basic ideals • The ‘Preamble’ is a brief introductory statement .
envisioned by founding fathers. • The Preamble gives the overview of the nature of
• Privileges uncertain democracy over certain tyranny.
Indian State and objectives of the Constitution .
• In the absence of the doctrine, India would most
certainly have degenerated into a totalitarian State or
had one party rule. Keywords in the Preamble :
• Judiciary applied doctrine responsibly and threshold
has set very high. • Sovereign : Independent authority of state.
Internal sovereignty and external sovereignty
CRITICISM OF BASIC STRUCTURE pertaining to law making and territory. Includes
digital sovereignty.
• Infringement of judiciary over legislature
• Socialist(by 42nd AA) : Indian brand of
• No constitutional basis.
'democratic socialism' holds faith in mixed
• Matter of subjectivity
economy. Various efforts to ensure socialismà
• Translates judiciary into third decisive chamber of
parliament Atmanirbhar Package, MGNREGA,etc
• Amending the Constitution even to change the original • Secular : State protects all religions equally and
intention of the Constitution framers does not uphold any religion as the State religion.
• Democratic: Authority from the will of the
CONCLUSION people expressed in an election.
• Justice : Preamble embraces three distinct forms
It is one of most appreciated judicial innovation.,It
of justice.: social, economic and political justice
has been accepted by many other countries such as

To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
PRAHAAR- Summary of Indian Constitution (GS 2)
• Liberty : Absence of restraints on the activities of
individuals. Preamble provides for the liberty of
thought, expression, belief, faith, and worship.
Provided through FR
• Equality : Absence of privileges or discrimination
against any section of the society.
• Fraternity : The feeling of brotherhood, dignity of
the individual and the unity and integrity of the
nation.
SIGNIFICANCE OF PREAMBLE :
• Source of the Constitution: i.e. the people of
India.
• Philosophy: It reflects the dreams and aspirations
of the founding fathers of the Constitution.
• Gandhian ideals: the Gandhian ideals are aimed
to be secured by the incorporation of the word
‘Socialist’ in the Preamble by the 42nd
Amendment.
• Aim of the Constitution: It recites aim of the
Constitution is to constitute India into a Sovereign
Democratic Republic and to secure to “all its
citizens” justice — social, economic and political
— liberty and equality.
• Values of the freedom struggle: It reminds values
that guided our freedom struggle, — that is, to
ensure justice, liberty, equality and fraternity to
the people of India.
• Reminder to lawmakers: acts as a constant
reminder to lawmakers and policy-makers
AMENDABILITY OF PREAMBLE :
• Berubari Case (1960)-- Preamble not be a part
,cannot amend.
• Kesavananda Bharati Case (1973): Preamble is a
part of the Constitution and can amend.
• 42nd Constitutional Amendment—added words
Socialist, Secular, Integrity, hence can amend .
• Union Government Vs LIC of India Case (1995): it
is apart ,but not directly enforceable.
Conclusion :
• President Ram Nath Kovind, on the eve of Republic
Day, mention that the Preamble to build the
foundation on which the edifice of our democracy
rests. In fact, these were the values that guided our
freedom struggle.”
FUNDAMENTAL RIGHTS (PART III, ARTICLE
12-35)
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
INTRODUCTION :
• Part III is known as the Magna Carta of India. There
are six Fundamental rights which uphold equality and
dignity of all individuals, unity of the nation and
controls arbitrariness of government.
Why fundamental rights are necessary?
• For of political democracy, protect the liberties and
freedom , essential for the all-round development
,prevent the establishment of the authoritarian and
dictatorial rule ,operate as limitations on the tyranny
of the executive ,They aim at establishing ‘a
government of laws and not of men’.
RELATION BETWEEN FR AND DEMOCRACY:
• Concept of democracy includes human rights. The
fundamental rights are the core human rights. FR are
justiciable in nature.
• The degree to enjoy FR give the frame of reference of
a democracy, as these FRs are executed by the
government which is elected by people.
FEATURES OF FRS :
• Availability – some available to citizens , foreigners ,
companies
• Reasonable Restrictions - They are not absolute but
qualified.
• Checks authoritarian tendencies - Most of them are
available against the arbitrary action of the State,
• Positive and Negative character
• Justiciable in nature - They are justiciable and
guaranteed by SC
• Enforceability - Most of them are directly enforceable
(.
• Restrictions – article 33,34
• Neither sacrosanct nor permanent - The Parliament
can curtail or repeal them.
• Limitations - Their scope of operation is limited by
o Article 31A - Saving of laws providing for
acquisition of estates, etc.
o Article 31B - Validation of certain acts and
regulations included in the 9th Schedule.
o Article 31C - Saving of laws giving effect to
certain directive principles.
DETAILED ANALYSIS OF FR’S :
ARTICLE 12 :
• Defined the term ‘state’ for the purposes of Part III .
• State has been defined in a wider sense to include all
its agencies.
DOES JUDICIARY FALL UNDER DEFINITION OF
STATE UNDER ARTICLE 12?
PRAHAAR- Summary of Indian Constitution (GS 2) OnlyIAS Nothing Else
• Judicial & Non- Judicial Function - When the Judiciary RIGHT TO EQUALITY (ARTICLE 14-18) :
is discharging Judicial functions, it is not regarded as a
State whereas the non-judicial function brings it under • Article 14 “equal
the definition of ‘State’. ARTICLE 14 protection of law” to all
• Naresh Shridhar Mirajkar case (1966) - Judiciary (EQUALITY BEFORE its citizens.
should be put under the ambit of Article 12. LAW) : • But when it comes to
• Rupa Ashok Hurra v. Ashok Hurra case (2002) when it personal issues
• Equality before Law
performs any administrative or similar functions e.g. (marriage, divorce,
or Equal Protection
conducting examination, it will fall under the inheritance, custody of
of Law within the
definition of “state” children, etc), Muslims in
territory of India.
• Riju Prasad Sarmah Case (2015) -, its administrative India are governed by
action is amenable to the writ jurisdiction. Rule of Law the Muslim Personal Law
which came into force in
• The concept of 1937.
UNITED NATIONS NOT A STATE UNDER ARTICLE
‘equality before law’
12 :
is an element of the concept of ‘Rule of Law’,
• The Delhi High Court has ruled that the United propounded by A.V. Dicey, the British jurist.
Nations is not a State under Article 12 • It has 3 elements of which two are applicable to
Indian System. That are Absence of arbitrary power
Conclusion : and Equality before the law.
• The third – “The constitution is the result of the rights
• Giving blanket immunity to any organization, the UNO of the individual as defined and enforced by the
in this case, makes it a judge in its own cause and is, courts” is not applicable to India as the constitution is
therefore, against the basic tenets of justice delivery the source of the individual right in India.
system. • The SC held that the ‘Rule of Law’ as embodied in
Article 14 is a ‘basic feature’ of the constitution.
ARTICLE 13 :
• All laws that are inconsistent with or in derogation of Difference bet equality before law & equal
any of the fundamental rights shall be void. protection of laws
• The term’ ‘Law’ has a wider meaning and any of the
following can be challenged in the courts as violating a • The concept of ‘equality before law’ is of British origin.
Fundamental Right and hence, can be declared as void. It connotes:
o Permanent laws enacted by the Parliament or o The absence of any special privileges in
the state legislatures. o No person is above the law.
o Temporary laws like ordinances issued by the o Negative concept
president or the state governors. • The concept of ‘equal protection of laws’ has been
o Statutory instruments delegated legislation taken from the American Constitution and it connotes
(executive legislation) like order, bye-law, rule, o The equality of treatment under equal
regulation or notification. circumstances.
o Non-legislative sources of law such as custom o The like should be treated alike without any
or usage having the force of law. discrimination.
• A constitutional amendment is not a law and hence o Positive concept
cannot be challenged. However, the Supreme Court
held in the Kesavananda Bharati case (1973) that a Exceptions :
Constitutional amendment can be challenged on the
ground that it violates a fundamental right that forms • The state can make any special provision for women
a part of the ‘basic structure’ of the Constitution. and children, socially and economically backward
classes, SC and ST in public and private educational
institutions except minority institutions (1st CAA
WHETHER PERSONAL LAWS CAN BE BROUGHT
1951) (93rd CAA 2005).
UNDER THE AMBIT OF ARTICLE 13. • Can make provisions for EWS (103CAA).
• Shayara Bano Case (2017) the court declared that • PRIVILEGESà Members of Parliament (MPs) and
as the Shariat Act would fall within the expression State Assemblies(Art 105,104)
“laws in force” in Article 13(3)(b).
RECENT CONTEXT :

CAA and Article 14 :

To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
PRAHAAR- Summary of Indian Constitution (GS 2)
• The Citizenship (Amendment) Act, 2019
• It amended the Citizenship Act, 1955 to Indian
citizenship for pd religious minorities
from Afghanistan, Bangladesh and Pakistan who are
Hindus, Sikhs, Buddhists, Jains, Parsis or Christians,
and arrived December 2014.
• The law does not grant such eligibility to Muslims from
those countries.
Arguments in favour :
• CAA is not violative of Article 14, as article permits
“reasonable classification”.
• The three countries under CAA are either Islamic
states or countries where Muslims are in majority.
Criticism :
• Treating people unequally without reason.
• The treatment meted towards an atheist or agnostic
gets completely ignored under the CAA.
• It is against the secular nature of the country.
Supreme Court Previous judgements :
• S. R. Bommai Case (1994): The Supreme Court held
that no law can be enacted by the Parliament or by a
state legislature on the basis of religion.
• Sarbananda Sonowal Case (2005): Assam Accord of
1985 was not implemented for 30 years until the
Supreme Court’s judgment in this case.
• Assam Sanmilita Mahasangha Case 2015: SC direct
government to take necessary steps to deal with the
issue of migration.
COVID VACCINE POLICY AND ARTICLE 14
• The Supreme Court of India observed
that Government’s vaccine policy, released on 21st
April 2021, is prima facie detrimental to the right to
public health and equality.
• Digital Divide –
o The policy does not allow the option of walk-
in and cohort registration for those without
Internet access
o low level of digital literacy in rural areas and
has deepened the existing urban-rural divide
in India.
• Internet penetration rate in rural India is a mere
29.1% against the national average of 51% in 2020
later, Centre came with centralised procurement
policy.
Earlier Vaccine Policy
• The Centre was supposed to procure half of all
vaccines produced in India and the remaining, state
and private hospitals had to procure them on the
open market.
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
• The prices of vaccines were different for centre,
state and private hospitals and also for age group
18-44 and 45 + violating the right to equal
treatment.
PROTESTING IS A FUNDAMENTAL RIGHT: UN
• UN Human Rights committee reaffirmed that
protesting peacefully, online or in person, is a
fundamental human right.
• International Covenant on Civil and Political
Rights (ICCPR), which under Article 21 guarantees
the right to peaceful assembly.
• India is a state party to the International
Covenant on Civil and Political Rights (ICCPR).
• In Indian Constitution, Article 19 confers the right
to protest with some reasonable restrictions.
ARTICLE 15 (PROHIBITION OF DISCRIMINATION
ON CERTAIN GROUNDS) :
• The first provision prohibits discrimination only by
the State and second provision prohibits
discrimination both by the State and private
individuals.
• The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth
or any of them.
• No citizen shall, on above grounds be subject to any
disability, liability, restriction or condition with regard
to:
o Access to shops, public restaurants, hotels and
places of public entertainment; or
o The use of wells, tanks, bathing ghats, roads and
places of public resort maintained wholly or
partly out of State funds or dedicated to the use
of the general public.
Exceptions to Article 15 :
o The state is permitted to make any special
provision for women and children.
o The state is permitted to make any special
provision for the advancement of any socially
and educationally backward classes
RESERVATION POLICY :
• Current reservation status: SC (15%), ST (7.5%), OBC
(27%), PwD (3%) and EWS (10%)
• Indra Sawhney Case (1992): The Supreme Court held
that 27% quota in government jobs for backward
classes with elimination of Creamy Layer, total
reservations shall not exceed 50 per cent.
• M. Nagaraj Case (2006): It extended reservations for
SCs and STs to include promotions with three
conditions:
o Proof for the backwardness, collection of
quantifiable data showing inadequacy of
PRAHAAR- Summary of Indian Constitution (GS 2)
representation, reservations in
promotions would bring further
administrative efficiency.
• Jarnail Singh Case (2018): It stated that government
need not to collect quantifiable data to demonstrate
backwardness of public employees.
• SC upheld Karnataka Extension of Consequential
Seniority to Government Servants Promoted on the
Basis of Reservation (to the Posts in the Civil Services
of the State) Act, 2018.
RECENT CONTEXT
JUSTICE G ROHINI COMMISSION (2017)
• sub-categorisation of Other Backward Classes (OBCs),
• To examine the extent of inequitable distribution of
benefits of reservation among the castes
• Article 340 deals with the appointment of a
commission to investigate the conditions of backward
classes.
100% RESERVATION FOR STS
• Andhra Pradesh governor absolute reservation for
members of the STs for teaching jobs in the scheduled
areas.
• SC held 100% reservation for Scheduled Tribes in
scheduled areas of a State is not permissible.
MARATHA RESERVATION
• Supreme Court unanimously declared reservation
Maratha community, taking the quota limit in the
State in excess of 50%, as unconstitutional.
Caste discrimination in USA
• Swaminarayan Temple raid shows US has to reckon
with caste discrimination imported from India.
• Allegation against CISCO for caste based
discrimination at work place.
ARTICLE 16 (EQUALITY OF OPPORTUNITY IN
MATTERS OF PUBLIC EMPLOYMENT) :
• No discrimination against any employment
on grounds of only religion, race, caste, sex,
descent, place of birth or residence.
• Few exceptions –
o residence ,reservation for backward
class, Religious or denominational
institutions members, scientific and
technical posts.
Recent Context
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
ISSUE OF LOCAL RESERVATION IN PRIVATE
SECTOR JOBS
• Demand for local reservation - is rising in private
sector jobs and various states have passed a law that
gives 75% of the jobs in the private sector. E.g. Andhra
Pradesh, Haryana etc.
CREAMY LAYER CRITERIA FOR SC/ST IN
PROMOTIONS
• Review of Jarnail Singh Case - The Centre asked SC to
review is decision in Jarnail Singh Case (2018) that had
applied the creamy layer for SC/ST in government jobs.
• Reasons for appeal –
o Asking states “to collect quantifiable data
showing backwardness is contrary to the
Indra Sawhney case
o The creamy layer concept not applied in the
Indra Sawhney case; the Nagaraj judgment,
“has misread” the Indra Sawhney judgment .
RESERVATION IN PROMOTION NOT A
FUNDAMENTAL RIGHT
• SC Judgement
o There is no fundamental right to reservations
in appointments and promotions.
o No mandamus can be issued by the court
directing state for reservation .
RESERVATIONS BASED ON PLACE OF BIRTH
• Madhya Pradesh Law – Recently CM of MP
announced that jobs will be reserved for the
“children” of the state .
• Distinction bet birth place and domicile -
Domicile or status of residence is a fluid concept
that can change from time to time, unlike place
of birth.
• SC Judgement - Article 16(3), allows for making
provisions in government appointments with
respect to residence (not place of birth).
ARTICLE 17: ABOLITION OF UNTOUCHABILITY
• Article 17 abolishes ‘untouchability’ and forbids its
practice in any form. The SC said that the right under
Article 17 is available against private individuals.
• Untouchability has not been defined either in
Constitution or in the Act.
• It refers to social disabilities imposed on certain
classes of persons by reason of their birth in certain
caste.
Acts enacted to provide protection against
untouchability :
• PROTECTION OF CIVIL RIGHTS ACT, 1955
PRAHAAR- Summary of Indian Constitution (GS 2)
• Scheduled Castes and Tribes (Prevention of Atrocities)
Act, 1989
• SC and ST (Prevention of Atrocities) Amendment Act,
2018.
ARTICLE 18: ABOLITION OF TITLES
• No title, not being a military or academic distinction,
shall be conferred by the State.
• The hereditary titles of nobility like Maharaja, Raj
Bahadur, etc conferred by colonial States are banned
by Article 18.
• In Balaji Raghavan case (1994), the SC allowed the
State to give Bharat Ratna and Padma awards.
RIGHT TO FREEDOM (ARTICLE 19-22)
ARTICLE 19 (PROTECTION OF CERTAIN RIGHTS
REGARDING FREEDOM OF SPEECH, ETC.)
• Article 19(1): guarantees to all citizens the six
rights. These are:
• Right to freedom of speech and expression, Right
to assemble peaceably, form associations, move
freely throughout the territory of India, to reside
and settle in any part in India.
• These six rights are protected against only state
action and not private individuals .rights are
available only to the citizens. .
• Article 19(2): The State can impose ‘reasonable
restrictions’ on the enjoyment .
• Restrictions on freedom of speech and
expression – State can impose restriction on the
grounds of sovereignty and integrity of India he
security of the State, friendly relations with
foreign States, public order, decency or morality,
contempt of court, defamation, and incitement
to an offence.
• Restrictions on Freedom of Assembly - State can
impose
reasonable Protection of Tribal Interests
restrictions on
the grounds of • The right of outsiders to reside
sovereignty and settle in tribal areas is
and integrity of restricted to protect the
India and public
distinctive culture, language,
order including
customs and manners of
the
scheduled tribes and to
maintenance of
safeguard their traditional
traffic in the
vocation and properties
area
against exploitation.
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
concerned. This right does not include the right to
strike.
• Restrictions on Freedom of Association - Reasonable
restrictions can be imposed on the grounds of
sovereignty and integrity of India, public order and
morality.
• Restrictions on freedom of movement & Freedom of
Residence –In the interests of general public and the
protection of interests of any scheduled tribe
restrictions can be imposed.
• Restrictions on Freedom of Profession - The State can
impose restrictions in the interest of the general
public.
Shreya Singhal Case (2015):
• Section 66A of the Information Technology Act, 2000
punishes for any person to 'menacing' information
using a computer resource or communication device.
• The vague and arbitrary terms used in act led to its
misuse .
• The Supreme Court struck down Section 66A. and held
that the Section was not saved by virtue of being a
'reasonable restriction' .
• It held that online intermediaries would only be
obligated to take down content on receiving an order
from a court or government authority.
• The case is considered a watershed moment for online
free speech in India.
Kerala Govt Ordinance, 2020
• Kerala passed similar ordinance, or punishing the
“making, expressing, publishing or disseminating”
of any “matters” which could be constructed
“threatening, abusive, humiliating or defamatory”.
Freedom of movement
• It has two dimensions, i.e., internal) and external (
• Article 19 protects only the first dimension. The
second dimension is dealt by Article 21 (right to life
and personal liberty).
EIGHT BIGGEST THREATS TO FREEDOM OF
SPEECH & EXPRESSION IN INDIA BY
RAMCHANDRA GUHA
• Retention of archaic colonial laws.
• Imperfections in our judicial system.
• Rise of identity politics.
• Behaviour of the police force.
• Mendacity of politicians.
• Dependence of the media on government
advertisements.
• Dependence of media on commercial
advertisements.
• Careerist or ideologically driven writers.
PRAHAAR- Summary of Indian Constitution (GS 2)
RECENT CONTEXT
SEDITION LAW :
Why in news :
• Recently, the SC said that every journalist is entitled
to protection under the Kedar Nath Singh judgment.
• In another case the SC said that section 124A of the
IPC needs interpretation.
Section 124 A :
• It defines sedition as - Whoever, by words, either
spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to
bring into hatred or contempt, or excites or attempts
to excite disaffection towards, the Government
established by law in India.
• It was added to IPC in 1870 to suppress the freedom
struggle of India.
Kedar Nath Singh Case 1962
• In the landmark 1962 Kedar Nath case, the Supreme
Court upheld the constitutional validity of the
sedition law, but also attempted to restrict its scope
for misuse.
Conviction under sedition Law (NCRB) :
• Cases under sedition law are continuously increasing
since 2017.
Need of Sedition Law :
• To protect the government , To protect the unity ,
protect the democracy
Criticism of the Law :
• Curtails Freedom of Speech.
• Colonial Legacy.
• Law Commission - asked for a possible amendment or
repeal of the law.
• Misuse - The sedition law is used against activists,
protestors and students, Dalit and tribal activists and
people of minority communities
Way Forward :
• Dissent, criticism of the government are essential
aspects of vibrant democracy. Need fresh examination
of the remit of the sedition law ,The Supreme Court
must settle the law once and for all.
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
ACCESS TO INTERNET IS A FUNDAMENTAL
RIGHT
• At the backdrop of internet shut downs in J&K and
Delhi Riots.
• The Supreme Court held that access to Internet is a
fundamental right under Article 19 and SC said
freedom of press is a valuable. It said
magistrates follow doctrine of proportionality.
• The SC sync with the United Nations
recommendation .
• In India, Kerala first state in 2017 to declare access to
Internet "a basic human right".
ARTICLE 20 (PROTECTION IN RESPECT OF
CONVICTION FOR OFFENCES) :
Article 20 àprotection against arbitrary and
excessive punishment to an accused person, whether
citizen or foreigner or legal person like a company or
a corporation.
• No ex-post-facto law.
• No double jeopardy.
• No self-incrimination.
Recent Context:
• The Uttar Pradesh government decided to conduct
polygraph and narco-analysis tests of the accused and
all involved police personnel Haathras case.
• In Selvi vs. State of Karnataka (2010), SC has put
restrictions on narco analysis and brain mapping.
However, DNA testing and other samples can be
taken.
ARTICLE 21 (PROTECTION OF LIFE AND
PERSONAL LIBERTY) :
• No person shall be deprived of his life or personal
liberty except according to procedure established by
law.
• Menaka Gandhi Case (1978):. Article 21 not only
against arbitrary executive action but also
against arbitrary legislative action. expression
'due process of law'.
• SC said ‘right to life’ as embodied in Article 21 is
not merely confined to animal existence or
survival but it includes right to live with human
dignity .
RIGHT TO PRIVACY:
PUTTASWAMY JUDGMENT (2017)
PRAHAAR- Summary of Indian Constitution (GS 2)
• The landmark verdict privacy was intrinsic to freedom
of life and personal liberty which is guaranteed under
Article 21.
• It overruled previous judgements of the SC , which
held that there is no fundamental right to privacy.
RIGHT TO PRIVACY & LEGITIMATE STATE
INTEREST
• Recently, the Centre said, right to privacy is
“sacred fundamental right” .
• The government was responding to a petition
seeking permanent halting of the Centre’s
surveillance projects
• The government said the interest of sovereignty
or integrity of India, defence of the country, fall
under “legitimate state interest”.
• The grave threats to the country cannot be
understated or ignored .
• The government said there is no blanket
permission to any agency for interception or
monitoring or decryption. Every proposal
received from authorized law enforcement
agencies are scrutinized by the dedicated unit of
the Ministry of Home Affairs .
• K.S. Puttaswamy v. Union of India (2017): Right
to Privacy is a fundamental right under Article 21.
Recent Context :
• Social Media and Aadhar Number:. SC said there
should be balance between right to online privacy and
right of state to trace the origins of hateful messages
and fake news.
• Internet as Basic Right: Recently Kerala High Court
held that Right to Internet access as a FR. The same
opinion was expressed by SC in Sabu Mathew George
Case (2018).
• Right to free Vaccine: The right to health flows directly
from Article 21 and has been held consistently by the
Supreme Court in various judgments.
ARTICLE 21A (RIGHT TO EDUCATION, 86TH
AMENDMENT ACT 2002) :
• The State shall provide free and compulsory education
to all children of the age of six to fourteen years in
such manner as the State may, by law, determine.
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
Report by digital rights and privacy organisation
Access
• India witnessed the highest number of Internet
shutdowns in the year 2020.
• A total of 155 internet shutdowns were imposed
globally out of which India had 109 shutdowns.
• In 2019 also India had led the highest number of
internet shutdowns with 121 shutdowns.
The Right of Children to Free and Compulsory
Education Act, 2009 :
• The Act makes education a fundamental right of
every child between the ages of 6 and 14 and
specifies minimum norms in elementary schools.
Recent Context :
• National Education Policy 2020: restructured school
curriculum to 5+3+3+4 design (3-18 years).
• Online Education and RTE: The Delhi High Court said
that online education was covered under the Right to
Education (RTE) Act
DIGITAL DIVIDE AND RTE :
• The closure of schools during COVID has highlighted
the inequities in the Indian education system, This has
hampered the right to education .
• The National Education Policy (NEP) has added a new
section on digital education to ensure “equitable use
of technology”.
ARTICLE 22( PROTECTION AGAINST ARREST
AND DETENTION IN CERTAIN CASES) :
The Article 22 has two parts—
the first àordinary law and second àpreventive
detention law.
• The first part àrights on a person who is arrested or
detained under an ordinary law:
o Right to be informed of the grounds of arrest,
consult and be defended by a legal practitioner,
produced before a magistrate within 24 hours,
released after 24 hours unless the magistrate
authorises further detention.
• The second part àprotection to persons who are
arrested or detained under a preventive
detention law.
PRAHAAR- Summary of Indian Constitution (GS 2)
o The detention of a person cannot exceed
three months unless an advisory board
reports sufficient cause for extended
detention, The grounds of detention
should be communicated to the detenu,
detenu should be afforded an opportunity
to make a representation against the
detention order.
• Parliament has exclusive authority to make a law
of preventive detention .
• Both Parliament as well as state legislatures can
concurrently make a law of preventive detention
for security of state.
RECENT CONTEXT
• Article 22 guarantees the right to a lawyer for an
arrestee, but there is no national/state scheme for
legal aid at the police station.
RIGHT AGAINST EXPLOITATION (ARTICLE 23-
24)
ARTICLE 23 (PROHIBITION OF TRAFFIC IN
HUMAN BEINGS AND FORCED LABOUR)
• Article 23 prohibits traffic in human beings, begar
(forced labour) and forms of forced labour.
• PUDR vs. Union of India : Court held right against
forced labour included the right to a minimum wage.
RECENT ISSUES CONCERNING RIGHTS OF
LABOURS:
• Labour Law Tweaked: The steps being taken by
various States, removing labour laws are against the
rights of labours
• Issue with this: As a result the economic power
exercised by capital will be left unchecked.
• Migrants Labours: Migrant workers were among the
worst-affected by the lockdown.
• This is violative of Article 14 [equality]and Article 21
[right to life and dignity]
ARTICLE 24 (PROHIBITION OF EMPLOYMENT OF
CHILDREN IN FACTORIES, ETC.) :
• 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.
CHILD LABOUR AMENDMENT ACT, 2016 :
• Prohibits the employment of children below 14 years
in all, adolescents (14-18 years) in certain hazardous
a occupations
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
RECENT CONTEXT :
CHILD LABOUR INCREASED DURING COVID-19 :
• Campaign Against Child Labour (CACL) revealed that
there has been a significant increase in the proportion
of working
• The ILO and UNICEF warned that globally millions
more children could be forced into child labour as
family incomes drop.
RIGHT TO FREEDOM OF RELIGION (ARTICLE 25-
28) :
ARTICLE 25 (FREEDOM OF CONSCIENCE AND
FREE PROFESSION, PRACTICE AND
PROPAGATION OF RELIGION)
• Article 25 of the Constitution guarantees that all
persons are equally entitled to freedom of conscience
and the right to freely profess, practice and propagate
religion .
• Article 25 àreligious beliefs + religious practices
• Further, the State is permitted to :
o Regulate or restrict any economic, financial,
political or other secular activity associated with
religious practice.
o Provide for social welfare and reform Hindu
religious institutions.
RECENT CONTEXT
SABARIMALA ISSUE:
Why in news ?
• Recently, the SC said its objective was not to review
the Sabarimala women entry case but examine “larger
issues” of law arising from practices such as the
prohibition of women from entering mosques and
temples.
Indian Young Lawyers Association Case (2018) :
• The Travancore Devaswom Board said that prohibition
of entry of women during menstruating age is
'essential religious practice' of Lord Ayappa devotees.
• In its judgment, SC stated that 'devotion cannot be
subjected to gender discrimination'.
• SC said that menstruating women are "polluted and
impure" is a form of untouchability and the notions of
purity and pollution stigmatized women.
• Dissent Opinion :
o Justice Indu Malhotra held the determination of
what constituted an essential practice in a
religion should not be decided by judges on
personal viewpoints.
PRAHAAR- Summary of Indian Constitution (GS 2) OnlyIAS Nothing Else
o Essentiality of a religious practice or custom had • Right of an individual: No citizen shall be denied
to be decided within the religion and it is a matter admission into any educational institution maintained
of personal faith. by the State .
• Article 29 grants protection to both religious
ARTICLE 26 (FREEDOM TO MANAGE RELIGIOUS minorities as well as linguistic minorities.
AFFAIRS) :
Kerala High Court (1991)
• Article 26 (subject to public order, morality, and • It had upheld the prohibition on young women
health) confers a right on every religious entry in Sabarimala Shrine.
denomination or any section of such religious • The High Court had pointed out that the ‘Naisthik
denomination of:
Brahmachari’ nature of the deity was “a vital reason
o Establishing and maintaining institutions for for imposing this restriction on young women”.
religious and charitable purposes; Managing its
affair with regard to religion; Owing and
acquiring property (movable and immovable); RECENT CONTEXT:
Owing and acquiring property (movable and
immovable); Administering the property in
accordance with the law. INTRODUCTION OF MOTHER TONGUE AS
• Article 26 protects collective freedom of religion. MEDIUM :
• NEP 2020 focuses on “multilingualism”. It recognises
ARTICLE 27 (FREEDOM AS TO PAYMENT OF the power of local languages to help young children
TAXES FOR PROMOTION OF ANY PARTICULAR “learn and grasp non-trivial concepts more quickly”.
• The Ministry said an order was issued on September,
RELIGION) : 2020 to academic authorities, including CBSE, NCERT
• Article 27 of the Constitution prevents a person from and NCTE, to initiate the implementation of the
being compelled to pay any taxes for the promotion or National Education Policy (NEP) which promotes
maintenance of any particular religion or religious “multilingualism” and use of “home language” as a
denomination. mode of instruction.
• This provision prohibits the State from favouring,
patronising and supporting one religion over the IDENTIFICATION OF MINORITIES
other.
What is issue ?
ARTICLE 28 (FREEDOM AS TO ATTENDANCE AT
RELIGIOUS INSTRUCTION OR RELIGIOUS • Recently, the Supreme Court has sought the
WORSHIP IN CERTAIN EDUCATIONAL Central government's response on a PIL
INSTITUTIONS) : challenging provisions of the National
Commission for Minority Education Institution
• Article 28 prohibits giving religious instructions in
(NCMEI) Act, 2004.
any educational institutions that are maintained
wholly by the state funds. • The plea has
• Any person attending state recognized or state- argued that the TMA Pai Foundation case 2002
funded educational institution is not required to Act identifies
take part in religious instruction . minorities at the • The Supreme Court held that
national level the unit of determining
and not at the religious and linguistic
CULTURAL AND EDUCATIONAL RIGHTS (ARTICLE minorities would be 'State'.
29-30) state level.
It also authorised the state
government to regulate
DEMAND TO minority educational
ARTICLE 29 (PROTECTION OF INTERESTS OF
RECOGNIZE institutions.
MINORITIES) :
MINORITIES AT
• Right of a group: Any section of the citizens residing
in the territory of India or any part thereof having a STATE LEVEL
distinct language, script or culture of its own shall have • This was against the spirit of the Supreme Court
the right to conserve the same. judgment in the TMA Pai case (2002).
• This right is an absolute right • The term "Minority" is not defined in the
• The Supreme Court also held right to agitate for Indian Constitution.
the protection of the language.

To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
PRAHAAR- Summary of Indian Constitution (GS 2)
Response of SC
• The Supreme Court dismissed the petition to
recognise Hindus as minorities in the States
where they are low in population.
• The Court observed that the States have
been carved language-wise. But religion is
beyond all borders.
ARTICLE 30 (RIGHT OF MINORITIES TO
ESTABLISH AND ADMINISTER EDUCATIONAL
INSTITUTIONS)
• All minorities, religion or language, shall have the
right to establish and administer educational
institutions of their choice.
o It also includes the right of a minority to
impart education to its children in its
own language.
o The right to establish and administer
educational institutions is not absolute.
• Article 30(1A) deals with the fixation of the
amount for acquisition of property of any
educational institution established by minority
groups.
Recent Context
CAN STATE REGULATE MINORITY
INSTITUTIONS?
SC Judgement
• Recently, The Supreme Court held that the state
is well within its rights to introduce a regulatory
regime in the “national interest” .
Key points of Judgement
• Regulatory law should balance the dual
objectives of ensuring standard of excellence as
well as preserving the right of the minorities .
• The court broadly divided education into two
categories ie. Secular education and education
directly aimed protection of special
characteristics of a religious or a linguistic
minority.
o When it comes to education related
to minorities, the court advocated
maximum latitude to be given to the
management to appoint teachers.
o However, minority institutions
where the curriculum was purely
secular, the intent must be to impart
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
education availing the best possible
teachers.
• The judgment came after the validity of the West
Bengal Madrasah Service Commission Act of 2008
was challenged. This Act mandated that the process of
appointment of teachers in aided madrasahs would be
done by a Commission, whose decision would be
binding.
• The SC upheld the validity of the 2008 Act and said
that the Commission is composed of people who have
profound knowledge in Islamic Culture and Islamic
Theology.
REMEDIES FOR ENFORCEMENT OF RIGHTS
CONFERRED BY THIS PART (ARTICLE 32)
• Article 32 confers the right to remedies for the
enforcement of the fundamental rights of an
aggrieved citizen. Supreme Court has ruled that Article
32 is a basic feature of the Constitution.
• That is why Dr Ambedkar called this Article 32 ‘an
article without which this constitution would be a
nullity.’
• The Constitution provides that the President can
suspended the right to move any court for the
enforcement of the FR during National Emergency
(Article 359).
Writs Power :
• 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.
• Habeas Corpus - a person who has detained another
person, to produce the body of the latter before it. It
can be issued against both public authorities as well as
private individuals.
• Mandamus - It is a command issued by the court to a
public official asking him to perform his official duties.
It can also be issued against any public body, a
corporation, an inferior court, a tribunal or
government for the same purpose.
• Prohibition - It is issued by a higher court to a lower
court or tribunal to prevent the latter from exceeding
its jurisdiction
• Certiorari - It is issued by a higher court to a lower
court or tribunal either to transfer a case pending with
the
• Quo-Warranto - It is issued by the court to enquire
into the legality of claim of a person to a public office.
LEGISLATION TO GIVE EFFECT TO THE
PROVISIONS OF THIS PART (ARTICLE 35) :
PRAHAAR- Summary of Indian Constitution (GS 2) OnlyIAS Nothing Else
• Article 35 lays down that the power to make laws, • Intellectua • Suspension • Too many
to give effect to certain specified fundamental l restrictions
rights shall vest only in the Parliament which Wellbeing
includes : • Individual • Immunities • Missing
o Prescribing residence as a condition for Dignity Rights
certain employments
• Equality • Article 31C is • Constitutio
o Empowering courts other than the
without an exception n vs
Supreme Court and the high courts to
discrimina Implement
issue writs
tion ation
o Restricting or abrogating the application
of Fundamental Rights to members of • Protection • False sense of • Justice
armed forces. against implementati delayed is
o Indemnifying any government servant or individuals on justice
any other person for any act done during too denied
the operation of martial law in any area. • Delayed
judicial
RIGHT TO PROPERTY : remedy
• The 44th Amendment Act of 1978 abolished the
right to property as a Fundamental Right .
CONCLUSION :
• The Act inserted a new Article 300A in Part XII
under the heading ‘Right to Property’. It is legal • The true democracy could not exist without
right or a constitutional right ensuring the dignity and equality of individuals
against the state as well as from social majorities.
It was only with fundamental rights that an
AMENDABILITY OF FUNDAMENTAL RIGHTS :
individual can rise from the status of subject to
• Shankari Prasad Case 1951: power of the that of ‘citizen’.
Parliament to amend the Constitution under
Article 368 also includes the power to amend DPSP (PART IV, ARTICLE 36-51)
Fundamental Rights.
• Golaknath Case 1967: the Parliament cannot
abridge or take away any of these rights. INTRODUCTION :
• Kesavananda Bharati Case 1973: can take away • (DPSP) has taken from the Irish constitution. They
any of the Fundamental Rights. At the same time, are an ‘instrument of instructions’ , ‘Welfare
it laid down a new doctrine of the ‘basic State’. ,to establish economic and social
structure’. democracy,novel features’ of the
o Parliament cannot abridge or take away Constitution.. DPSPs are not legally enforceable
a Fundamental Right that forms a part by the courts for their violation.
of the ‘basic structure’ of the
Constitution.
CONFLICT BETWEEN DPSP AND FR :

Champakam The Supreme Court held that

Dorairajan Case Article 37 expressly says that
SIGNIFICAN ISSUES AND CRITICISMS
1951 the directive principles are not
CE OF CHALLENGES OF
enforceable by court. The
FUNDAMEN PERTAINING FUNDAMENT
Supreme Court mandated that
TAL RIGHTS TO AL RIGHTS
the chapter on Fundamental
IMPLEMENTAT
rights in the constitution is
ION OF FR:
sacrosanct and the directive
principles have to conform to
and run subsidiary to the
• Safeguardi • Interpretatio • Evolving chapter on Fundamental
ng n issue interpretati
Rights.
people’s ons
interests

To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
PRAHAAR- Summary of Indian Constitution (GS 2) OnlyIAS Nothing Else
• Reflection of • Constitutional clash:.
This means that Fundamental
Preamble:
Rights were given superiority • Four pillars: DPSP are
over the Directive principles. enlisted to attain
Justice, Liberty,
Equality and fraternity
are also known as the
Golak Nath Case The court in this case laid four pillars of the
1967 down that Fundamental Indian Constitution.
Rights cannot be abridged/
diluted to implement the IMPLEMENTATION OF DPSP SO FAR
directive principles.
Article The 73rd Amendment Act for 3rd tier i.e.
40 village panchayat
Kesavananda The Supreme Court ruled that
Bharati Case Parliament could amend any Article Code on Social Security, 2020- provides
1973 and every part of the 42 for maternity leaves
Constitution including
Fundamental Rights but it Article Right of Children to Free and
could not destroy the basic 45 Compulsory Education Act, 2009
structure of the Constitution.

Article Mahatma Gandhi National Rural

Minerva Mills The Supreme Court held that
Case 1980 the Constitution exists on the
balance of Part III and Part IV.
Giving absolute primacy to one
over other will disturb the
harmony of the Constitution.
The Constitution Bench had
held that the Fundamental
Rights and the Directive
Principles are two wheels of
the chariot in establishing the
egalitarian social order.
• After the Minerva Mills Case, SC said there is no
conflict between the Fundamental Rights and the
DPSP and they were complimentary of each other
• If there is a arises ,Fundamental Rights and the
Directive Principles of State Policy needed to be
balanced and harmonised .
UTILITY OF DPSP CRITICISM OF DPSP
• Fundamental to the • Non-justifiable:
governance: • Illogical
• Idea of the welfare arrangement:.
state: • Reactionary and
• Guide to legislatures: regressive:. E.g. UCC
implementation
43 Employment Guarantee Act for wages
Article There have been various discussions
44 from bodies like the Law Commission
etc. on implementation of Uniform Civil
Code. In Goa it is already in place.
Article Gujarat and Bihar have prohibited sale
47 and consumption of liquor within their
states
CONTEMPORARY ISSUES CONCERNING DPSP :
UNIFORM CIVIL CODE DEBATE :
RECENT CONTEXT:
• Recently, a petition has been filed in the Supreme
Court against Uniform Civil Code (UCC) on divorce
and alimony.
What is UCC?
• A Uniform Civil Code is one that would provide for one
law for the entire country, applicable to all religious
communities in their personal matters such as
marriage, divorce, inheritance, adoption etc.

To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
PRAHAAR- Summary of Indian Constitution (GS 2)
Constitutional backing to UCC:
• Article 44 of the Constitution lays down that the state
shall endeavour to secure a UCC for the citizens
throughout the territory of India.
Constituent Assembly debate over UCC:
• Sardar Vallabhbhai Patel the Uniform Civil Code was
made less important than freedom of religion.
• Alladi Krishnaswami, who was in favour of a Uniform
Civil Code.
• Gender justice was not mentioned in these debates.
• Dr. Ambedkar had said a UCC is desirable but for the
moment should remain voluntary.
Merits of implementing UCC: Equality of status, Bring
consistency in personal laws, Reforms to personal laws,
Gender justice.
Demerits of implementing UCC: Clashes with FR,
Homogenise culture.
Challenges in implementing : Need a common code,
Article 25, UCC violates FR, Not enforceable, the secular
state, Article 43, personal laws are mentioned in the
Concurrent List.
Stand of judiciary:
• Shah Bano case : A common Civil Code will help the
cause of national integration
• Shabnam Hashmi v. Union of India(2014): The issue
of the Uniform Civil Code on personal law matters
like adoption was raised by the Court as the need.
• Shayara Bano v. Union of India/ triple talaq case
(2017): The question of the Uniform Civil Code to
stop personal law practices like triple talaq was again
raised.
Way Forward :
• According to the Commission, to preserve the
diversity of personal laws but at the same time
ensure that they do not contradict fundamental
rights.
LOCKDOWN AND RIGHT OF PEOPLE TO THEIR
LIVELIHOODS :
• Lockdown deprived rights:, have deprived the right of
people to their livelihoods, and therefore their Right
to Life.
• Unreasonable restrictions:
• Article 38 State shall strive to promote welfare of the
people by securing effectively for economic justice .
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
• Article 39 direct its policy towards securing that the
citizens have the right to an adequate means of
livelihood.
RIGHT TO HEALTH :
• Articles 38, 39, 42, 43, & 47 put the obligation on the
state in order to ensure the effective realization of the
right to health.
Efforts towards right to health in recent times
• The Chief Minister of Rajasthan Model of Public Health
that would include a Right to Health and curative care
as envisioned by the World Health Organisation
(WHO).
Govt efforts to ensure Right to health:
• Budget 2021-22 announced various Aatmanirbhar
Bharat Abhiyaan packages
• Production-Linked Incentive schemes to boost
domestic manufacture of pharmaceuticals and
medical devices.
• Mission COVID Suraksha launched to promote the
development and testing of indigenous vaccine
candidates.
• To ensure food and nutrition Pradhan Mantri
Garib Kalyan Package for providing free
foodgrains
ACCESSIBLE AND AFFORDABLE JUDICIAL SYSTEM
• Article 39A legal system promotes justice on a basis of
equal opportunity and shall, in particular, provide free
legal aid by suitable legislation or schemes or in any
other way.
Recent context: The Vice President of India raised
concerns over judicial system more accessible to
common man.
• Issue: Cost of legal processes is one of the major
impediments in securing justice to all.
• How to ensure Accessible and affordable judicial
system:
o Innovations like Lok Adalats and mobile
courts be leveraged
o Streamlining free legal aid mechanisms and
lawyers offering ‘pro-bono’ services for poor
litigants can help in reducing out-of-pocket
expenditure for the underprivileged
o Local language: System needs to be brought
closer to the people by conducting court
proceedings and delivering judgments in the
language of local people.
o Resolve pendency: We need to find systemic
solutions to solve pending cases.
PRAHAAR- Summary of Indian Constitution (GS 2) OnlyIAS Nothing Else
§ Appointments to the courts must also be • Every citizen should be conscious of their rights
expedited and vacancies must be filled in a time- and their duties.
bound manner. • The Concept of fundamental duties is inspired
from USSR.
DECRIMINALISING BEGGING : • Swaran Singh Committee in 1976 recommended
• Decriminalise begging: The Supreme Court has asked fundamental duties, the necessity of which was
the Centre to direction to repeal the provisions felt during the internal emergency of 1975-77.
criminalising begging. It has been argued that a
person, who is compelled to beg due to certain Constitutional provisions :
circumstances, cannot be faulted for his actions.
• Social security: The government is mandated to ● 42nd Amendment Act of 1976 added 10
provide social security to everyone and ensure that all Fundamental Duties to the Indian Constitution.
have basic facilities 86th Amendment Act 2002 later added 11th
Fundamental Duty to the list.
ISSUE OF COW SLAUGHTER: (ARTICLE 48) ● confined to citizens only and do not extend to
• Recent context: Several state governments hastened foreigners.
to enact laws prohibiting the killing of cows. At
Fundamental Duties: Article 51 -A
present, 24 states in India have laws criminalising cow
killing.
a. To abide by the g. To protect and
• In its final form Article 48 carefully excluded the
question of religious sentiments. Constitution and improve the natural
• Nor did it require the state to ban cow slaughter respect its ideals environment
outright. and institutions, including forests,
• Instead, under the heading “Organisation of the National Flag lakes, rivers, wildlife
Agriculture and Animal Husbandry” and the National and to have
• Article 48 says the state shall “organise agriculture and Anthem; compassion for
animal husbandry on modern and scientific lines and b. To cherish and living creatures;
prohibiting the slaughter, of cows and calves and other follow the noble h. To develop the
milch and draught cattle.” ideals which scientific temper,
inspired our humanism and the
CONCLUSION : national struggle spirit of inquiry and
• To conclude, constitution makers had no intention to for freedom; reform;
introduce directive principles of state policy as mere c. To uphold and i. To safeguard public
pious declarations. It was the intention of the protect the property and to
Constituent Assembly that in future both the sovereignty, unity abjure violence;
legislature and the executive should not merely pay lip
and integrity of j. To strive towards
service to these principles enacted in this part, but that
India; excellence in all
they should be made the basis of all executive and
legislative action that may be taken hereafter in the d. To defend the spheres of
matter of the governance of the country. country and render individual and
national service collective activity so
FUNDAMENTAL DUTIES (PART IVA, ARTICLE when called upon that the nation
51A) to do so; constantly rises to
e. To promote higher levels of
harmony and the endeavour and
Context:
spirit of common achievement;
• CJI Bobde drown attention to the Fundamental brotherhood k. Who is a parent or
Duties chapter from Gandhi’s Hind Swaraj which amongst all the guardian, to provide
states that “real rights are a result of the people of India opportunities for
performance of duty”. transcending education to his
• President Kovind on the occasion of Constitution Day religious, linguistic child, or as the case
said Fundamental Duties remind the people of their and regional or may be, ward
moral responsibilities. sectional between the age of
diversities; to 6-14 years. (86th
Introduction :
renounce practices CAA 2002)

To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
PRAHAAR- Summary of Indian Constitution (GS 2) OnlyIAS Nothing Else
derogatory to the people even if assertions that are
dignity of women; they were not in prejudicial to the
f. To value and the Constitution. nation’s integrity and
preserve the rich ● Importance unity are considered
heritage of our diminished: The as punishable
composite culture; importance of offences under
fundamental various sections of
duties has been the IPC, 1860.
diminished by ● Wildlife (Protection)
adding them as an Act, 1972: protects
CONFLICT BETWEEN FUNDAMENTAL DUTIES &
appendix to Part and prohibits the
FUNDAMENTAL RIGHTS
IV. They should be trade in the case of
● The Supreme Court, after the judgment in the after Part III, on rare and endangered
Kesavananda Bharati case both are par with animals.
complementary to each other, Fundamental ● Forest
Rights. (Conservation) Act,
Criticism of Implementation of
1980: was
Fundamental Duties Fundamental Duties implemented to
make sure that
● List of duties isn't Article 51A(g) was
exhaustive: The legal utility of
properly
● Non-justiciable: fundamental duties is
implemented.
Critics have similar to that of the
referred to them directives; while the
as a code of moral Directives are addressed
guidelines
to the state, so are the BREACH OF FUNDAMENTAL DUTIES LED TO THE
because they are
non-justiciable. duties addressed to the SPREAD OF CORONA :
(Swaran Singh citizens, without any • The Supreme Court has asserted that under Article 47,
Committee legal sanction for their the State shall regard the improvement of public
proposed a violation. However health as among its primary duties.
penalty or fundamental duties have • The State has an obligation to protect the health of the
punishment for people. Apart from the State, every individual has an
been enforced through obligation to regulate his/her conduct We Indians
failure to
legislations like: have failed in both these aspects.
undertake
Fundamental • The apex court had expanded the concept of “Right to
● Prevention of Insults Life.” When the constitutional right to manage
Duties.)
to National Honour religious affairs came up for discussion before the
● Confusing Duties: drafting committee, the Chairman had proposed to
Act, 1971: No person
Some of the duties make the said right, subject to public order, morality
can disrespect the
are unclear, and health.
National flag,
confusing, and • Mahatma Gandhi had said on the aspect of a person’s
Constitution of India
difficult to duty towards society that “the true source of right is
and the National
comprehend for duty.” If we all discharge our duties, rights will not be
Anthem under 1971 far to seek.
the common
Act.
citizen.
● The Protection of
● Need not be FUNDAMENTAL DUTIES AS IMPORTANT AS
Civil Rights
mentioned: Critics RIGHTS DURING THE COVID-19 PANDEMIC:
Act (1955): provided
argue that their BOMBAY HC :
for punishments in
inclusion in the
case of any offence • HC held that duty to maintain peace, harmony and
Constitution is
related to caste and the spirit of brotherhood, especially during the Covid-
unnecessary 19 pandemic.
religion.
because these • Often, citizens show serious concern about
● Indian Penal Code,
duties would be fundamental rights but they forget about the duties.
1860: The
carried out by the
imputations and

To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
PRAHAAR- Summary of Indian Constitution (GS 2)
• it expects that citizens would remind themselves
fundamental duties and would discharge them to deal
with the outbreak of Covid-19 pandemic.”
Conclusion :
• The Ramayana depicts the duty-bound society where
everyone, from the king to the general public, prefers
duties to rights and had a peaceful living even at odd
times. On the other hand, Mahabharata delineates
the rights-based society where everyone, from the
king to the general public, prefers rights to duties.
Consequently, everybody went restless which
culminated in a great war. In the modern times,
fundamental duties has reminded us of our duties to
balance our lives.
CITIZENSHIP (PART II, ARTICLE 5-11)
Introduction :
• The Constitution of India provides for a single
citizenship for the whole of India. Every person who
was at the commencement of the Constitution (26
January 1950) domiciled in the territory of India, and
(a) who was born in India, or (b) either of whose
parents was born in India, or (c) who has been
ordinarily resident in India for not less than five years,
became a citizen of India.
• The Citizenship Act, 1955 deals with matters relating
to acquisition, determination and termination of
Indian citizenship after the commencement of the
Constitution.
Citizenship Act, 1955 :
• Acquisition of Citizenship: by birth, descent,
registration, naturalisation, incorporation of territory
and special provisions as to Citizenship of Persons
covered by the Assam Accord.
• Loss of Citizenship: by renunciation, termination and
deprivation.
Citizenship (Amendment) Act, 2019 :
• Provide Indian citizenship to illegal refugees from 6
communities coming from Pakistan, Bangladesh, and
Afghanistan.
• These 6 communities include; Hindu, Buddhist, Sikh,
Christian, Jain, and Parsi.
• The Act will not apply to areas under Sixth Schedule
and the Inner Line Permit.
• Under The Act, one of the requirements for citizenship
by naturalisation is that the applicant must have
resided in India during the last 12 months, as well as
for 11 of the previous 14 years.
o The amendment relaxes the second
requirement from 11 years to 5 years as a
specific condition .
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
• The Act provides that the central government may
cancel the registration of Overseas Citizens of India
(OCIs) on certain grounds.
National Register of Citizens (NRC) :
• The NRC is an official record of those who are legal
Indian citizens.
• The register was first prepared after the 1951 Census
of India &not updated till now.
• So far, such a database has only been maintained for
the state of Assam. However, now register would be
extended to the entire country.
• The proposed nationwide NRC if implemented will
target illegal immigrants in India.
• But Hindus, Christians, Sikhs, Buddhist, Jains and Parsis
coming from Afghanistan, Pakistan and Bangladesh
won't be affected, if they claim they have arrived in
India after fleeing religious persecution (CAA 2019).
National Population Register (NPR) :
• The NPR is a register of the usual residents of the
country. It contains information collected at the local
(village/sub-town), sub district, district, state and
national level under provisions of the Citizenship Act,
1955 and the Citizenship (Registration of Citizens and
Issue of National Identity Cards) Rules, 2003.
• A usual resident is defined,as a person who has
resided in a local area for the past six months or more,
or a person who intends to reside in that area for the
next six months.
• The law compulsorily seeks to register every citizen of
India and issue a national identity card.
• NPR will be conducted across India, except Assam .
• NPR vs Census:
o While NPR only contains demographic
information
o NPR is a database of people living in India,
citizens or not, but NRC is a database of
Indian citizens.
o The NRC process demands proof of
citizenship from the respondents.. But in
NPR, there is no need to provide any
document.
• Use of NPR : The NPR data will help the government
design and adapt schemes like Ayushman Bharat, Jan
Dhan Yojna, or medium of instruction in schools as per
the current demographics, thus making the schemes
more effective.
RIGHTS OF OVERSEAS CITIZENS OF INDIA :
• Recently, the government has notified a consolidated
list of rights of the Overseas Citizens of India (OCI).
• The rights and restrictions are not new, they have
been notified previously in 2005, 2007, and 2009. They
PRAHAAR- Summary of Indian Constitution (GS 2)
were also mentioned in an OCI brochure published by
the Ministry of Home Affairs in November 2019.
• The Ministry of Home Affairs defines an OCI as a
person who:
o was a citizen of India on or after 26th January
1950; or
o was eligible to become a citizen of India on
26th January 1950; or
o is a child or grandchild of such a person,
among other eligibility criteria.
OnlyIAS Nothing Else
others (including Britishers) for the encroachment
on their lands.
• Interest of tribals: The framers of the Constitution
were conscious of the special need to safeguard
the interests of Tribals.
• 5th and 6th schedule: These two schedules (Fifth
and Sixth) provide for alternate or special
governance mechanisms for certain 'scheduled
areas' in mainland and certain 'tribal areas' in
north-eastern India.

MYANMAR REFUGEES CAN APPROACH UNHCR FIFTH SCHEDULE :

• The High Court of Manipur has ordered safe passage • Article 244 (1): The
to seven Myanmar nationals, stranded at a border provisions of the Fifth
town in Manipur, to travel to the United Nations High Schedule shall apply
Commissioner for Refugees (UNHCR) in New Delhi to the administration
• The High Court observed that although India has no and control of the
clear refugee protection policy or framework, it does Scheduled Areas and
grant asylum to a large number of refugees from the Scheduled Tribes in
neighbouring country. any State other than
• India usually respects UNHCR’s recognition of the the States of Assam,
status of such asylum seekers, mainly from Meghalaya, Tripura
Afghanistan and Myanmar. and Mizoram.
• Though India is not a party to the UN Refugee • The Fifth Schedule
Conventions, it is a party to the Universal Declaration states at present are
of Human Rights of 1948 and the International (10): Andhra Pradesh,
Covenant on Civil and Political Rights of 1966. Telangana,
• Article 21 of the Constitution encompasses the right of Chhattisgarh, Gujarat,
non-refoulement. Non-refoulement is the principle Himachal Pradesh,
under international law which states that a person Jharkhand, MP,
fleeing persecution from his own country should not Maharashtra, Odisha,
be forced to return to his own country. and Rajasthan.
• Power of Governor
Conclusion : can declare any law
not applicable.
• Prof. K.T. Shah said that the privilege of citizenship of • Applicability of PESA:
India should not be regarded as something very The Provisions of
commonplace affair, cheap and easy. Panchayat (Extension
• Prof further continued: “I hope the time is coming to Scheduled Areas)
when the same proud boast may justly be made by Act, 1996 is
Indians, when the citizenship of India will not be applicable in Fifth
merely regarded as a burden of our 'nativity' but it Schedule Areas.
would be regarded as something to which the rest of • Tribal Advisory
the world will look up with respect”. Council: maximum 20
member of which
SCHEDULED AND TRIBAL AREAS (PART X, 3/4th ST MLAs. It is the
ARTICLE 244-244A) creation of the state
legislature and has
advisory power.
INTRODUCTION :
• Tribal and land: The Tribal people are associated
with a territory and depend on them for
Key features of administration of 5 scheduled areas
livelihood and their habitat. Tribals also have their
own system of governance and dispute redressal
• Declaration of Scheduled Areas: The president is
mechanisms.
empowered to declare an area to be a scheduled area.
• Land encroachment: There have been many
He can also increase or decrease its area
historical confrontations between tribals and
• Power of President:
The President is
empowered to
declare an area to be
a scheduled area. He
can also increase or
decrease its area,
alter its boundary
lines, make fresh
orders for such re-
designation on an
area in consultation
with the governor of
the state concerned.
• The President may at
any time and shall, at
the expiration of ten
years from the
commencement of
this Constitution by
order appoint a
Commission to report
on the administration
of the Scheduled
Areas and the welfare
of this Scheduled
Tribes in the States
(Article 339)
• Any amendment can
be done without
invoking Article 368
for both Fifth and
Sixth Schedule.

To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
PRAHAAR- Summary of Indian Constitution (GS 2)
• Executive Power of State and Centre: The executive
power of a state extends to the scheduled areas
therein. But the governor has a special responsibility
regarding such areas.
• Tribes Advisory Council: Each state having scheduled
areas has to establish a tribes advisory council to
advise on welfare and advancement of the scheduled
tribes.
• Law applicable to Scheduled Areas: The governor is
empowered to direct that any particular act of
Parliament or the state legislature does not apply to a
scheduled area or apply with specified modifications
and exceptions.
• PESA, 1996 - is applicable in Fifth Schedule Areas.
• Appointment of commission - The President may at
any time and shall, at the expiration of ten years from
the commencement of this Constitution by order
appoint a Commission to report on the administration
of the Scheduled Areas and the welfare of this
Scheduled Tribes in the States (Article 339)
• Amendment to 5th & 6th schedule - Any amendment
can be done without invoking Article 368 for both fifth
and Sixth Schedule.
THE CRITERIA FOR DECLARING AN AREA AS
SCHEDULED AREA :
PESA
• 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.
(not mentioned in Constitution):
• Preponderance of tribal population, Compactness and
reasonable size of the area, Under-developed nature
of the area; and Marked disparity in economic
standard of the people.
Provisions of the Panchayats (Extension to the
Scheduled Areas) Act”, 1996 :
• PESA extended the provisions of part IX to
Constitution relating to the panchayats to the
scheduled areas with certain modifications.
Objectives of PESA :
• To provide self-rule for the bulk of the tribal
population.
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
• To have village governance with participatory
democracy and to make the gram Sabha a nucleus of
all activities.
• To evolve a suitable administrative framework
consistent with traditional practices.
• To safeguard and to preserve the traditions and
customs of tribal communities.
• To empower panchayats at the appropriate levels with
specific powers conducive to tribal requirements.
• To prevent panchayats at the higher level from
assuming the powers and authority of panchayats at
the lower level of the gram Sabha.
Commissions appointed by president
• First commission (Dhebar commission) was
appointed in 1960.
• The second commission was appointed in 2002 under
the chairmanship of Dilip Singh Bhuria
Provisions of the act :
• State legislation on the Panchayats– It shall be in
consonance with the customary law, social and
religious practices and traditional management
practices of community resources.
• Safeguard tribal identity & culture - Every village shall
have a Gram Sabha and it competent to safeguard and
preserve the traditions and customs of the people.
• Socio-economic development – Gram Sabha shall
approve of the plans, programmes and projects for
social and economic development .
• Reservation for STs - 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
• Consultation for Land acquisition - The Gram Sabha or
the Panchayats at the appropriate level shall be
consulted before making the acquisition of land in the
Scheduled Areas for development projects
• Exploitation of mineral resources - 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.
Issues with implementation of PESA :
• Poor Implementation.
• States laws inconsistence with PESA.
• Absence of 3 Fs - In the absence of the transfer of the
3 Fs, i.e., funds, functions and functionaries it shall be
very difficult to put PESA in operation.
• land acquisition without consent of gram sabha - In
the Korba district of Chhattisgarh.
• Attitude of officials officials have an upper hand and
they give the final verdict.
PRAHAAR- Summary of Indian Constitution (GS 2)
• Unawareness among common people - The Sarpanch
and other influential Gram Panchayat members
dominate the often irregular and scantily attended
Gram Sabha meetings.
• Unawareness among elected representatives - large
number of elected representatives of PRIs are semi-
literate or literate and know little about their roles &
responsibilities, programmes, procedures, systems.
• Poor Infrastructure -. Around 25 percent of the Gram
Panchayats do not have basic office buildings.
Rare Achievement of PESA
• In 2013, referring to the PESA, the SC, in a landmark
case, had asked the Odisha government to go to the
gram sabha to get permission for bauxite mining in
Kalahandi and Rayagada district of Odisha.
• Local forest dwellers were asked whether bauxite
mining will affect their religious and cultural rights
and they decided against the mining on Niyamgiri hills
which led to the cancellation of a huge project.
Suggestions :
• Adequate training shall be provided for the elected
representatives of Gram Sabhas.
• Legal awareness among all the primary stakeholders
must be provided for effective functioning of the Gram
Sabha. The role of women must be ensured in the
decision-making process at Gram Sabha.
• Civil society has to work more vibrantly on right based
approach to protect the rights of the tribal population
of the country.
• The Central Government should direct the States to
gear up the process of amendments to existing laws so
that it follows the provisions of PESA in letter and
spirit.
• Amend the Indian Forest Act, Land Acquisition Act,
and other related Acts so that the ownership on minor
forest produce, water bodies and land resources are
explicitly handed over to the Gram Sabhas of the PESA
areas.
Way Forward :
• The PESA was enacted to erase the historical injustice
done to the Adivasi community. It was perceived as
restoration of their dignity and tradition of self-
governance, symbolised by ‘Mava Nate Mava Raj’ (Our
Village Our Rule). But it has been given a cold shoulder
by those who were supposed to implement and
execute it.
ISSUES AND CHALLENGES IN FIFTH SCHEDULE
AREAS :
• Idle powers: Rarely do Governors invoke their power
leading to a situation.
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
• Missing Coverage Area: There are several tribal-
populated and tribal-dominant areas across the
country which are not Scheduled .
o E.g. Tribal habitations in the states of
Kerala, Tamil Nadu, Karnataka, West
Bengal, Uttar Pradesh and Jammu &
Kashmir have not been brought under
the Fifth or Sixth Schedule.
• Repetitive Governor’s reports:.
• Role of TACs: In all these years of its functioning, the
TACs have rarely made any significant policy.
• Issue of women’s representation: Both the Fifth and
Sixth Schedules have been silent on the issue of
women’s representation and gender justice.
• Participation of the tribal population: In the decision-
making apparatus remains very low.
o E.g. As seen in Pathalgadi Movement
while tweaking the laws.
• PESA: The 1996 PESA to provide greater autonomy
within the Fifth Schedule have not had the desired
results.to benefit not only the majority of tribals but
also extended to cover minority non-tribal
communities.
SAMATHA JUDGMENT (1997) :
• Bar purchase of tribal land: The Supreme Court ruled
that the Fifth Schedule enjoined Governors to bar
purchase of tribal land for mining activity by any entity
that was not state-owned.
• Opposition to judgment: This judgment however, led
to an opposite reaction from the Ministry of Mines,
and subsequent appeals from the Andhra Pradesh
government claiming that Samatha would have an
adverse effect not only on the mining sector but also
on non-agricultural activities especially industrial
activity and hence would impact the economic
development throughout the country.
• Undermined tribal autonomy: In response, the
Governors were then given unfettered authority in the
transfer of Scheduled Tribe land to the government
and allotment to non-tribals, altering the balance of
power and undermining the stated goal of tribal
autonomy.
SCHEDULED TRIBES AND OTHER TRADITIONAL
FOREST RIGHTS ACT, 2006 :
• The Act recognises the right of communities to protect
and manage their forests (as does PESA), but only if
the state decides whether a certain region is denoted
as Village Forest or Reserved Forest. In this process,
many communities are evicted without a proper
channel of rehabilitation.
OTHER ISSUES IN NEWS :
PRAHAAR- Summary of Indian Constitution (GS 2)
PATHALGADI MOVEMENT (2017) :
• Context: In 2019, the Jharkhand government had
decided to drop “all cases” related to the Pathalgadi
movement of 2017-2018. Currently, the state
government is still to send a requisition to the court
to withdraw the cases.
• Issue: The previous state government had attempted
to tweak Chhotanagpur Land Tenancy Act, 1908 and
the Santhal Pargana Tenancy Act, 1949.
• This led to protest, the tribals started erecting stones
in their villages with PESA provisions highlighting their
rights which came to be known as Pathalgadi
movement.
• Demarcation territories: Pathalgadi are basically a
way to demarcate territories and tell outsiders
(government officials) that the law of the land does
not apply here
• Inspired by PESA: Movement derives inspiration from
the provisions of the PESA. The leaders of the
movement decided to carve the key provisions of the
PESA as messages on huge stones in order to enlighten
Adivasi people about this law, which empowered a
village as an administrative unit.
• To empower people: This was done to empower
people belonging to the 5th Schedule area on their
legal and constitutional safeguards.
• Samatha judgement: The pathals also quoted several
orders of High Courts and Supreme Court such as
Samatha judgement which says to preserve the tribal
autonomy, their culture and economic empowerment,
to ensure social, economic and political justice, and
preservation of peace and good governance.
• P Rami Reddy vs Andhra Pradesh 1988 orders which
says that ‘special legislations cannot be held to be
unconstitutional on the ground of violation of other
fundamental rights, such as Article 14 and 19(1)(g)’
and others. These provisions and orders reiterate
supremacy of powers of traditional Gram Sabha and
traditional Adivasi governance system.
• Some of the demands of movement were:
o All the funds earmarked for the tribal sub-
plan should be given to the gram sabhas for
the development of tribal people;
o The government should stop sending tribal
people to jail on the pretext that they are
Naxals;
o Amendments to the land acquisition bills
should be scrapped; all police and
paramilitary camps should be withdrawn
from the Scheduled Areas.
WAY FORWARD :
• Increase Coverage Area: Bhuria Commission
• Governors be made more accountable: with regard
to schedule area.
• Governor’s Cell: The formation of the Governor’s Cell
is a longstanding necessity.
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
• Tribes Advisory, Protective and Developmental
Council (TAPDC): The scope and responsibilities of TAC
should be widened to transform it into the Tribes
Advisory, Protective and Developmental Council.
• Extending the pattern of the Sixth Schedule: There is
an urgent need for extending the pattern of the Sixth
Schedule in the form of Autonomous Councils in the
Fifth Schedule areas as has been provided for in the
PESA.
• E.g. many tribal voices are demanding
introduction of the Sixth Schedule in
Chhattisgarh’s Bastar district, which would give
them a special status to participate directly in
governance as in the North East States.
SIXTH SCHEDULE
• The sixth schedule contains special provisions for the
administration of tribal areas in the four north-eastern
states of Assam, Meghalaya, Tripura and Mizoram.
CONSTITUTIONAL PROVISIONS
• Article 244(2): The provisions of the Sixth Schedule
shall apply States of Assam, Meghalaya, Tripura and
Mizoram.
• Article 244A formation of an autonomous state
consisting of certain tribal areas in Assam and the
creation of a local legislature or Council of Ministers or
both therefor.
• By default central and State law does not apply, and
needs to be explicitly applied.
• Autonomous Districts (District Council) and
Autonomous Regions (Regional Council)
• District Council: 26 elected members + 4 nominated
by Governor.
Why these 4 states treated differently ?
• The tribes have not assimilated much the life and ways
of the other people in these states .
• The tribes in Assam, Meghalaya, Tripura and Mizoram,
still have their roots in their own culture, customs and
civilization.
Features of administration in 6th schedule areas
• Autonomous districts: The tribal areas in these states
have been constituted as autonomous districts, each
of which has an autonomous district council .
• Legislative power: The district and regional councils
can make laws on certain specified matters like land
forests, canal water, shifting cultivation, village
administration, inheritance of property, etc.
• Judicial power: Councils can constitute village councils
or courts for trial of suits and cases between the tribes
.
• Regulatory power: District council can establish,
construct or manage primary schools, dispensaries,
markets etc. in the district.
PRAHAAR- Summary of Indian Constitution (GS 2)
• Taxation power: District and regional councils are
empowered to assess and collect land revenue and to
impose certain specified taxes.
• The acts of Parliament or the state legislature do not
apply to autonomous districts and autonomous
regions or apply with specified modifications and
exceptions.
• Appointment of commission - The governor can
appoint a commission to examine and report on any
matter relating to the administration of the
autonomous districts .
RECENT CONTEXT
DEMAND FOR SIXTH SCHEDULE STATUS IN
ARUNACHAL PRADESH :
• What’s the demand: Arunachal Pradesh has decided
to appeal to the Centre for bringing the state under
the purview of the Sixth Schedule towards protecting
the rights of its indigenous peoples.
• The revival demand for the creation of two
autonomous councils — Non Autonomous Region in
the western part and Patkai Autonomous Council in
the eastern part.
Concerns of Arunachal Pradesh
• Currently, the state have no laws to protect tribal
rights and customary laws. It is the only state left out
without any protective provisions for its tribal
communities under the Indian constitution.
• The provisions of Article 371(H) for Arunachal Pradesh
do not grant tribal rights to the State’s people.
ILP AND CAA ISSUE IN ASSAM :
• Protected state under ILP: Arunachal Pradesh,
Nagaland, Mizoram and Manipur are protected by the
Inner Line. The concept originates from the Bengal
Eastern Frontier Regulation Act (BEFR), 1873.
• How ILP helps: The Inner Line separated the tribal-
populated hill areas in the Northeast from the plains.
• Issue now: The Citizenship Amendment Act, which
relaxes eligibility criteria for certain categories of
migrants from three countries seeking Indian
citizenship, exempts certain categories of areas,
including those protected by the Inner Line system.
• Amid protests against the CAA, the Adaptation of
Laws (Amendment) Order, 2019, issued by the
President, amended the BEFR, 1873, extending it to
Manipur and parts of Nagaland (Dimapur district) that
were not earlier protected by ILP.
• There was a petition against the Presidential order
because this is done to impose CAA in Assam because
under the BEFR, the state of Assam is entitled to get
an inner-line permit system, but the centre amended
the provision intentionally to impose CAA.
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
• Some groups in Assam are campaigning for long for
implementation of the ILP in Assam. The CAA has given
fresh legs to the demand.
GURKHA RIGHTS IN ASSAM :
• Recently, the Gurkha community in Assam has sought
gazette notification for constitutional safeguards
according to Clause 6 of the 1985 Assam Accord.
• Clause 6 of the Assam Accord envisages
constitutional, legislative and administrative
safeguards for protecting, preserving and promoting
the culture, social, linguistic identity and heritage of
the Assamese people.
• Biplab Kumar Sharma committee (2019) had defined
“Assamese people” as those who have been citizens of
India residing in the territory of Assam on or before
January 1, 1951. It says that all Gurkhas of Assam are
not indigenous Assamese people .
• The Clause 6, according to the committee report did
not mention anything about the constitutional,
legislative and administrative safeguards of local
Gorkhas who fought for Assam against the Burmese
invaders in 1826 resulting in the Treaty of Yandaboo.
• The Gurkhas were permanently settled in the
scheduled areas .They were declared as protected
class by the British in the tribal belts and blocks
according to the Assam Land and Revenue Regulation
Act, 1886, the organisation said.
• State Government’s promise: The Gurkhas in Assam
are “one of the ancient communities”. They would be
treated “on a par with other indigenous communities
and protect their constitutional rights while
implementing Clause 6”.
• Inclusion under clause 6: Gurkha Community
requested the government to issue a gazette
notification for the including the community within
the ambit of Clause 6 as this was promised before the
2016 Assembly elections.
• Current Status: In January 2019, the Ministry of Home
Affairs formed the Clause 6 panel headed by M.P.
Bezbaruah. some members of the committee in
August 2020 made their “confidential” report public
because of the government’s “disinterest” in
processing their recommendations.
MEGHALAYA AND THE SIXTH SCHEDULE :
Why the constitutional protection needs to be
revisited?
• To reverse historical wrong: Special constitutional
protections are needed to ensure that historical
wrongs done to them ,it has denied justice to the non-
tribals, who have lived in Meghalaya for generations
but ended up marginalised.
• Discrimination among tribal and non-tribal: The Sixth
Schedule, discriminates against the non-tribal
PRAHAAR- Summary of Indian Constitution (GS 2)
residents in various ways and infringes upon their
fundamental rights, like the right to equality before
law (Article 14), right against discrimination (Article
15), and the right to settle anywhere in India (Article
19).
• Victims: The victims belonged to all communities —
Bengalis, Biharis, Nepalese, Punjabis, Sindhis,
Marwaris, Assamese — who had lived in the state for
many generations.
• Majority presentation: The Sixth Schedule was
incorporated to protect the rights of the minority
tribals living within a larger state dominated by the
majority. But in these largely tribal-dominated states,
the indigenous enjoy overwhelming majority and a
major political voice, with 90 per cent of the Assembly
seats reserved for the tribals.
• Non tribals are minority: Indeed, it is now the rights
of minority non-tribals that need protection. The
existence of the Sixth Schedule in a full-fledged state
with all powers is thus not only unnecessary but also
illogical.
DEMAND FOR AUTONOMY IN ASSAM :
• There has been a demand for implementation of
Article 244A for the creation of an autonomous State
comprising certain tribal areas of Assam and creation
of local legislature or Council of Ministers.
• This has been a demand across three hill districts —
Karbi Anglong, West Karbi Anglong and Dima Hasao —
since the 1980s. Currently, these districts are
governed by two autonomous councils (Sixth
Schedule): Karbi Anglong and North Cachar hills.
• In Assam, the hill districts of Dima Hasao, Karbi
Anglong and West Karbi and the Bodo Territorial
Region are under Sixth Schedule provision.
• Reason: Article 244(A) inserted through 22nd
Amendment Act in 1969, accounts for more
autonomous powers to tribal areas. The most
important power is the control over law and order.
o In Autonomous Councils under the Sixth
Schedule, they do not have jurisdiction of
law and order.
BODOLAND STATEHOOD MOVEMENT :
• A new organisation (All India Bodo People’s National
League for Bodoland Statehood) has announced the
revival of the Bodoland statehood movement ahead of
the elections to the Bodoland Territorial Council (BTC).
• 1st Bodo Accord (1993)
o Bodoland became an auto administrative unit
under the Sixth Schedule and administered
by Bodoland Autonomous Council.
• 2nd Bodo Accord (2003)
o Bodoland Territorial Council (BTC) created, an
autonomous body under the Sixth Schedule
of the Constitution
To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in
OnlyIAS Nothing Else
o The area under the jurisdiction of BTC,
formed under the 2003 Accord, was called
the Bodo Territorial Autonomous District
(BTAD).
• 3rd Bodo Accord (2020)
o Now, the BTAD is renamed as Bodoland
Territorial Region (BTR).
• Present Revival of the Bodoland Statehood
Movement: According to the new organisation, the
new (2020) accord has been a betrayal of the Bodo
people. Besides being an inferior accord, it prescribes
a reduction of the area currently under the BTC. The
accord has a provision for excluding from the BTR
villages with more than 50% non-Bodos and including
villages with more than 50% Bodo people left out of
the BTC map after the 2003 accord.
THE CONSTITUTION (125TH AMENDMENT) BILL,
2019 :
• Finance Commission and the Sixth Schedule of the
Constitution.
• It provides for Village and Municipal Councils .
• Devolution of powers: The Bill states that the
Governor may make rules for devolution of powers
and responsibilities to the Village and Municipal
Councils.
• The Bill provides the appointment of a State Finance
Commission for these states,
• Finance Commission: The Bill states that the Finance
Commission will make recommendations on measures
to augment the Consolidated Fund of a state to
provide resources to District Councils, Village Councils,
and Municipal Councils.
• Elections: The Bill states that all elections to the
District Councils, Regional Councils, Village Councils,
and Municipal Councils will be conducted by the State
Election Commission appointed by the Governor.
• Disqualification: The Sixth Schedule provides that the
Governor may make rules for the constitution of
District and Regional Councils, including qualifications
for being elected as members of these councils. The
Bill adds that the Governor may make rules for the
disqualification of such members on the grounds of
defection.
ISSUES AND CHALLENGES IN SIXTH SCHEDULE
AREAS :
• Lack of financial autonomy:
• More than required powers to Governors:
Considerable powers have been handed over to the
Governor even in the Sixth Schedule areas which can
impede the autonomous functioning of the ADCs.
• Variation in the functions devolved:
o For e.g. the Bodoland Territorial Council
has more power and departments
compared to other Autonomous
Councils of the Northeast, though the
PRAHAAR- Summary of Indian Constitution (GS 2) OnlyIAS Nothing Else
latter have been in existence for several
decades more. This situation has
resulted in other areas demanding
greater powers and autonomy.
• Indefinite postponed elections: There is also no
mandatory time limit for the reconstitution of the ADC
once it is dissolved, and hence the election is
indefinitely postponed.
• Non-transfer of departments: Issue of non-transfer of
departments to Autonomous Councils.
• Women and small tribe’s participation: Absence of
provision for women and smaller tribal groups’
participation in Councils

WAY FORWARD :
• Women Reservation: Reservation of a certain number
of seats for women is mandatory .
• Funding: Autonomous Councils must be covered
under the State Finance Commission.
• Timely Election: The ADC should be reconstituted
within six months of its dissolution.
• Small Tribal Groups reservation: There should be
provision for reservation for smaller tribal groups in
the ADCs and other political institutions.
• Traditional political institutions: at the village/hamlet
level should be formally recognized by the State.

CONCLUSION :
• A restructuring of institutional frameworks for both
areas will go a long way in addressing the inequality,
dispossession and injustice faced by tribal groups since
self-governance, protective mechanisms, political
representation and autonomous decision-making are
critical components within the project to improve the
socio-economic status of tribes.

To Join 60 Days Rigorous Answer Writing Program click here: or visit: dpp.onlyias.in