Indian Constitution - Final

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RAHAAR
The final hit to UPSC Exam
Comprehensive, Integrated and Current Linked Notes for CSE Mains 2021
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PRAHAAR- The final hit to UPSC Exam-2021
PREFACE
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OnlyIAS team wish you all the best for your preparation with all humility and
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Note: Although our team has tried best, yet if any important issue we found
which needs updating we will do the same and current issues of last few months
will be updated and a supplementary of few issues will be compiled and will be
released soon.
OnlyIAS Nothing Else PRAHAAR: Indian Constitution
Historical Background _________________________________________________________________5

Introduction ___________________________________________________________________________________ 5
A brief sequence of Events from Regulating Act (1773) to Independence Act (1947) _________________________ 5
1. Regulating Act of 1773 ____________________________________________________________________ 5
2. Pitt’s India Act of 1784 ____________________________________________________________________ 5
Charter Act of 1833___________________________________________________________________________ 6
Charter Act of 1853___________________________________________________________________________ 6
Government of India Act of 1858: _______________________________________________________________ 6
Developments after 1858: ___________________________________________________________________ 7
Indian Councils Act of 1861 ____________________________________________________________________ 7
Indian Councils Act, 1892 ______________________________________________________________________ 7
Indian Councils Act, 1909/Morley-Minto Reforms __________________________________________________ 7
Government of India Act, 1919/ Montagu-Chelmsford Reforms _______________________________________ 8
Simon Commission ___________________________________________________________________________ 8
Nehru Report: _______________________________________________________________________________ 8
Government of India Act of 1935 ________________________________________________________________ 8
Indian Independence Act of 1947 _______________________________________________________________ 9
Constituent Assembly ___________________________________________________________________________ 9
Cabinet Mission 1946 _________________________________________________________________________ 9
Objectives Resolution: _______________________________________________________________________ 10
Enactment & Enforcement of Constitution _________________________________________________________ 10
Salient features of Indian Constitution __________________________________________________________ 11
Criticism of the Constitution ________________________________________________________________ 12
Constitutional amendment ____________________________________________________________13

Types of amendement _________________________________________________________________________ 14
Criticism of the amendment procedure ____________________________________________________________ 15
important amanedments ___________________________________________________________________16
First constitutional amendment, 1951 _____________________________________________________________ 16
42nd constitutional amendment, 1976 _____________________________________________________________ 16
44th constitutional amendment, 1977 _____________________________________________________________ 18
52nd constitutional amendment, 1985 ____________________________________________________________ 18
73rd & 74th constitutional amendment, 1992 ________________________________________________________ 19
basic structure of constitution _______________________________________________________________21
ORIGIN AND EVOLUTION OF BASIC STRUCTURE IN INDIA __________________________________________________ 21
Shankari Prasad case 1951 ____________________________________________________________________ 21
Golakhnath case 1967 _______________________________________________________________________ 21
24th Amendment Act (1971) ___________________________________________________________________ 21
Kesavananda Bharati case (1973) ______________________________________________________________ 21
42nd Amendment Act (1976) __________________________________________________________________ 22
Minerva Mills case (1980) ____________________________________________________________________ 22
Waman Rao case (1981) ______________________________________________________________________ 22
eLEMENTS OF BASIC STRUCTURE _________________________________________________________________ 22
significance OF BASIC STRUCTURE ________________________________________________________________ 23
criticism OF BASIC STRUCTURE ___________________________________________________________________ 23
conclusion ___________________________________________________________________________________ 24
Significant Provisions in the Indian Constitution ___________________________________________25

Preamble ________________________________________________________________________________25
Sovereign ________________________________________________________________________________________ 25
Socialist __________________________________________________________________________________________ 26
Secular __________________________________________________________________________________________ 26
Relevance of word ‘secular’ in Preamble ___________________________________________________________ 27
Democratic _______________________________________________________________________________________ 27
Republic _________________________________________________________________________________________ 27
Justice ___________________________________________________________________________________________ 27
Liberty ___________________________________________________________________________________________ 28
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Equality __________________________________________________________________________________________ 28
Fraternity ________________________________________________________________________________________ 28
Significance of Preamble ____________________________________________________________________________ 29
Amendability of Preamble ___________________________________________________________________________ 29
Fundamental Rights (Part III, Article 12-35) _______________________________________________31

Introduction _______________________________________________________________________________ 31
Why fundamental rights are necessary? _________________________________________________________ 31
Relation between FR and Democracy: ___________________________________________________________ 31
Features of FRs _____________________________________________________________________________ 31
Detailed analysis of FR’s ______________________________________________________________________ 32
Article 12 ________________________________________________________________________________ 32
Does judiciary fall under definition of state under article 12? ____________________________________ 32
United Nations not a State under Article 12 __________________________________________________ 32
Article 13 ________________________________________________________________________________ 33
Whether personal laws can be brought under the ambit of Article 13. ____________________________ 33
Right to Equality (Article 14-18) ______________________________________________________________ 33
Article 14 (Equality before law) ______________________________________________________________ 33
CAA and Article 14 ______________________________________________________________________ 34
COVID Vaccine Policy and Article 14 ________________________________________________________ 35
Protesting is a Fundamental Right: UN ______________________________________________________ 35
Article 15 (Prohibition of discrimination on CERTAIN grounds) _____________________________________ 35
Reservation Policy ______________________________________________________________________ 36
Justice G Rohini Commission (2017) ________________________________________________________ 36
100% reservation for STs _________________________________________________________________ 36
Maratha Reservation ____________________________________________________________________ 37
Caste discrimination in USA_______________________________________________________________ 37
Article 16 (Equality of opportunity in matters of public employment) _______________________________ 37
Issue of Local Reservation in Private Sector Jobs ______________________________________________ 37
Creamy Layer Criteria for SC/ST in Promotions _______________________________________________ 37
Reservation in Promotion not a Fundamental Right ___________________________________________ 38
Reservations Based on Place of Birth _______________________________________________________ 38
Article 17: Abolition of Untouchability ________________________________________________________ 38
Protection of Civil Rights Act, 1955 _________________________________________________________ 38
Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 ________________________________ 39
Maharashtra's law against social boycott ____________________________________________________ 39
Article 18: Abolition of titles ________________________________________________________________ 39
Right to Freedom (Article 19-22) _____________________________________________________________ 39
Article 19 (Protection of certain rights regarding freedom of speech, etc.) ___________________________ 39
Shreya Singhal Case (2015):_______________________________________________________________ 40
Eight biggest threats to freedom of speech & expression in India by Ramchandra Guha ______________ 40
Sedition Law ___________________________________________________________________________ 41
Access to internet is a Fundamental Right ___________________________________________________ 42
Article 20 (Protection in respect of conviction for offences) _______________________________________ 42
Article 21 (Protection of life and personal liberty) _______________________________________________ 42
Puttaswamy judgment (2017) _____________________________________________________________ 43
Right to Privacy & Legitimate State Interest __________________________________________________ 43
Article 21A (Right to education, 86TH Amendment Act 2002) ______________________________________ 44
Digital Divide and RTE: ___________________________________________________________________ 44
Article 22 ProteCtion against arrest and detention in certain cases) _________________________________ 44
Right Against Exploitation (Article 23-24) ______________________________________________________ 45
Article 23 (Prohibition of traffic in human beings and forced labour) ________________________________ 45
Recent issues concerning rights of labours: __________________________________________________ 45
Article 24 (Prohibition of employment of children in factories, etc.)_________________________________ 45
Child Labour Amendment Act, 2016 ________________________________________________________ 45
Child labour increased during COVID-19: ____________________________________________________ 46
Dilution of labour law puts children at risk ___________________________________________________ 46
World Day Against Child Labour ___________________________________________________________ 46
Right to Freedom of Religion (Article 25-28) ____________________________________________________ 46

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Article 25 (Freedom of conscience and free profession, practice and propagation of religion) ____________ 46
Sabarimala Issue _______________________________________________________________________ 46
Article 26 (Freedom to manage religious affairs) ________________________________________________ 47
Article 27 (Freedom as to payment of taxes for promotion of any particular religion) __________________ 47
Article 28 (Freedom as to attendance at religious instruction or religious worship in certain educational
institutions)______________________________________________________________________________ 47
Cultural and Educational Rights (Article 29-30) _________________________________________________ 47
Article 29 (Protection of interests of minorities) ________________________________________________ 47
Introduction of mother tongue as medium __________________________________________________ 48
Identification of Minorities _______________________________________________________________ 48
Demand to recognize minorities at state level ________________________________________________ 48
Article 30 (Right of minorities to establish and administer educational institutions) ____________________ 49
Can state regulate minority institutions? ____________________________________________________ 49
Remedies for enforcement of rights conferred by this Part (Article 32) ______________________________ 50
Writs Power ___________________________________________________________________________ 50
Armed forces and Fundamental rights ________________________________________________________ 50
Martial Laws and Fundamental rights _________________________________________________________ 50
Legislation to give effect to the provisions of this Part (Article 35) __________________________________ 50
Right to property _________________________________________________________________________ 51
Exceptions to fundamental rights ______________________________________________________________ 51
Amendability of Fundamental rights ____________________________________________________________ 51
Significance of Fundamental rights _____________________________________________________________ 52
Issues and challenges pertaining to implementation of FR: __________________________________________ 52
Criticisms of Fundamental rights _______________________________________________________________ 52
Conclusion _________________________________________________________________________________ 53
DPSP (PART IV, ARTICLE 36-51) _________________________________________________________54

Introduction _____________________________________________________________________________ 54
Constitutional provisions for DPSP ___________________________________________________________ 54
Conflict between DPSP and FR _______________________________________________________________ 54
Utility of DPSP ____________________________________________________________________________ 55
Criticism of DPSP _________________________________________________________________________ 55
Implementation of DPSP so far ______________________________________________________________ 55
Contemporary issues concerning DPSP ________________________________________________________ 56
Uniform Civil Code Debate _______________________________________________________________ 56
Lockdown and Right of people to their livelihoods ____________________________________________ 58
Right to Health _________________________________________________________________________ 58
Accessible and Affordable Judicial System ___________________________________________________ 58
Decriminalising Begging __________________________________________________________________ 59
Issue of cow slaughter: (Article 48) _________________________________________________________ 59
Other issues in brief _____________________________________________________________________ 59
Conclusion ______________________________________________________________________________ 60
Fundamental Duties (PART IVA, ARTICLE 51A) _____________________________________________61

Conflict between Fundamental duties & Fundamental rights ________________________________________ 61
Should FD be added in curriculum? _____________________________________________________________ 62
Campaign to create awareness on fundamental duties _____________________________________________ 62
Fundamental rights and duties are not isolated: PM Modi __________________________________________ 62
Breach of fundamental duties led to the spread of Corona __________________________________________ 63
Fundamental duties as important as rights during the Covid-19 pandemic: Bombay HC ___________________ 63
Citizenship (Part II, Article 5-11) ________________________________________________________64

Citizenship Act, 1955 ________________________________________________________________________ 64
Citizenship (Amendment) Act, 2019 __________________________________________________________ 64
National Register of Citizens (NRC) _____________________________________________________________ 65
National Population Register (NPR) _____________________________________________________________ 65
Rights of Overseas Citizens of India _____________________________________________________________ 65
Centre Extends Powers Related to Citizenship Application __________________________________________ 65
Myanmar Refugees Can Approach UNHCR _______________________________________________________ 66

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ScheduleD and Tribal Areas (pART x, Article 244-244A)______________________________________67

Introduction _______________________________________________________________________________ 67
Fifth schedule ____________________________________________________________________________67
Constitutional provisions related to FIFTH Schedule________________________________________________ 67
The criteria for declaring an area as Scheduled Area _______________________________________________ 68
Issues and Challenges in Fifth Schedule areas _____________________________________________________ 70
Samatha judgment (1997) __________________________________________________________________ 70
Scheduled Tribes and Other Traditional Forest Rights Act, 2006 ____________________________________ 70
Other issues in news _________________________________________________________________________ 70
Pathalgadi Movement (2017) _______________________________________________________________ 70
Way Forward _______________________________________________________________________________ 71
SIXTH Schedule ___________________________________________________________________________71
Constitutional provisions _____________________________________________________________________ 71
Recent Context _____________________________________________________________________________ 72
Demand for Sixth Schedule Status in Arunachal Pradesh __________________________________________ 72
ILP and CAA issue in Assam _________________________________________________________________ 73
Gurkha Rights in Assam ____________________________________________________________________ 73
NRC Re-verification in Assam ________________________________________________________________ 73
Meghalaya and the Sixth Schedule ___________________________________________________________ 74
Demand for Autonomy in Assam _____________________________________________________________ 74
Bodoland Statehood Movement _____________________________________________________________ 74
The Constitution (125th Amendment) Bill, 2019 ________________________________________________ 75
Issues and Challenges in Sixth Schedule areas ____________________________________________________ 75
Way Forward _______________________________________________________________________________ 75
Conclusion _________________________________________________________________________________ 76

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HISTORICAL BACKGROUND
Introduction
• Democratic rights: The Constitution of India embodies provisions providing basic democratic rights of human
beings including the persons who are not Indian citizens.
• It presents a vision for social transformation and deepening of democracy in India.
• It is important to note that the roots of the Indian Constitution goes back to the British Colonial rule in India.
• Evolved features: Although the Indian Constitution was the result of the deliberations (from December 9,
1947 to November 26, 1949) of the Constituent Assembly, some of its features had evolved over centuries
through various Acts, i.e., from 1773 to 1947.
• Principles of national movements: Besides various acts passed by the British, the Indian efforts including the
demands for a more representative and accountable governance structure and the principle of democratic
governance upheld by the Indian National movement shaped the process of making of the Constitution of
India.
• Thus the Constitution of India is the product of a long drawn process and deliberations.
• Contradictory purposes: However it must be underlined that the features of democratic institutions and
values which were introduced during the colonial period were meant to serve the colonial interests in contrast
to the purpose of the provisions of the Constitution made by the Constituent Assembly of India.
A brief sequence of Events from Regulating Act (1773) to Independence Act (1947)
1. Regulating Act of 1773

• It was the first step taken by the British Government to control and regulate the affairs of the East India
Company in India.
Salient features of the Act:
• It designated the Governor of Bengal as the ‘Governor-General of Bengal’ and created an Executive Council
of four members to assist him. The first such Governor-General was Lord Warren Hastings.
• It made the governors of Bombay and Madras presidencies subordinate to the governor-general of Bengal.
• It provided for the establishment of a Supreme Court at Calcutta (1774).
Significance:
• This act holds significance on two fronts: first it recognised, for the first time, the political and
administrative functions of the Company and second it laid the foundations of central administration in
India.
2. Pitt’s India Act of 1784

• The Pitt’s India Act was passed to ensure a greater measure of control of the British government over the
Company’s affairs.
• A Board of Control was established to exercise control over the Company’s civil, military and revenue
affairs.
• In India, the governor-general was to have a council of three (including the commander-in-chief), and the
presidencies of Bombay and Madras were made subordinate to the governor-general.
Significance
• The Company’s territories in India were for the first time called the ‘British possessions in India.’
• The act gave the British Government the supreme control over Company’s affairs and its administration in
India.
Era of Charter Acts

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• Pitts India act was further followed by a series of Charter acts starting from the Charter Acts of 1793.
• The Charter Act Of 1793 and the Charter Act of 1813 mainly dealt with regulating the trading and
commercial functions of the Company.
• The Charter Act of 1793: The Act renewed the Company’s commercial privileges for the next 20 years.
• The Charter Act of 1813: As per this act the Company’s monopoly over trade in India ended, but the Company
retained the trade with China and the trade in tea.
o The regulations made by the Councils of Madras, Bombay and Calcutta were now required to be laid
before the British Parliament.
• The constitutional position of the British territories in India was thus explicitly defined for the first time.
Charter Act of 1833
• It made the Governor-General of Bengal as the Governor-General of India and vested in him all civil and
military powers.
• It deprived the governor of Bombay and Madras of their legislative powers.
• The Governor-General of India was given exclusive legislative powers for the entire British India.
• The Company’s monopoly over trade with China and in tea also ended.
• It attempted to introduce a system of open competition for selection of civil servants.
• The administration was urged to take steps to ameliorate the conditions of slaves and to ultimately abolish
slavery. (Slavery was abolished in 1843.)
Significance:
• The act created, for the first time, a Government of India having authority over the entire territorial area
possessed by the British in India.
• This act further led to centralisation of administration in British India as the Governments of Bombay and
Madras were subordinated to the government of Bengal.
Charter Act of 1853

• It separated, for the first time, the legislative and executive functions of the Governor-General’s council.
• The separate Governor-General’s legislative council came to be known as the Indian (Central) Legislative
Council.
• However, a law to be promulgated needed the assent of the governor-general, and the governor general
could veto any Bill of the legislative council
• It introduced an open competition system of selection and recruitment of civil servants.
• It introduced, for the first time, local representation in the Indian (Central) Legislative Council
Significance:
• For the first time, legislation was treated as a special function of the government, requiring special
machinery and special process.
• The covenanted civil service was thrown open to the Indians also.
• Accordingly, the Macaulay Committee (the Committee on the Indian Civil Service) was appointed in 1854.
Government of India Act of 1858:

• The act was passed in the context of the revolt of 1857. The revolt had exposed the limitations of the system
of administration under the East India Company.
• The act of 1858, thus abolished the rule of East India Company, and transferred the powers of government,
territories and revenues to the British Crown.
• It thus came to be known as the Act for the Good Government of India.

• Crown rule: India was to be governed by and in the name of the Crown through a secretary of state.
• Viceroy of India: It changed the designation of the Governor-General of India to that of Viceroy of India.
• It ended the system of double government by abolishing the Board of Control and Court of Directors.
• It established a 15-member Council of India to assist the secretary of state for India.

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Significance:
• The transfer of power from the Company to Crown was formal and not substantive.
• The Company was already deprived of its powers through the series of acts passed since the late 18th
century.
• Thus the act did not alter the administrative system that prevailed in India before the revolt of 1857.
Developments after 1858:
• Growth of political consciousness: After the revolt of 1857, there was growth of political consciousness
among the Indians and the demand for more representation of Indians in the administration grew day by
day.
• Need for cooperation: Besides the above pressure the British also realised the need for cooperation of
Indians for better administration and to avoid situations like 1857.
• Policy of association: In pursuance of this policy of association, three acts were enacted by the British
Parliament in 1861, 1892 and 1909.
Indian Councils Act of 1861

Salient Features of Act:
• Nomination of Indians: It provided that the viceroy should nominate some Indians as non-official
members of his expanded council.
• Restoration of legislative powers: It restored the legislative powers to the Bombay and Madras
Presidencies thus began a process of decentralisation.
• Issuance of ordinances: It empowered the Viceroy to issue ordinances, without the concurrence of the
legislative council, during an emergency.
• The ‘Portfolio' system, introduced by Lord Canning in 1859 was given recognition by this act.
Significance:
• It made a beginning of representative institutions by associating Indians with the law-making process.
• The policy of legislative devolution resulted in the grant of almost complete internal autonomy to the
provinces in 1937.
Indian Councils Act, 1892

Salient Features of Act:
• Official majority: It increased the number of additional (non-official) members in the Central and
provincial legislative councils, but maintained the official majority in them.
• The legislative councils were given the power of discussing the budget.
• The universities, district boards, municipalities, zamindars, trade bodies and chambers of commerce were
empowered to recommend members to the provincial councils.
• Significance: Though the term ‘election’ was not used in the Act, it made limited and indirect provision for
the use of election in filling up some of the non-official seats both in the Central and provincial legislative
council.
Indian Councils Act, 1909/Morley-Minto Reforms

Salient Features of the Act:
• It increased the size of the legislative councils, both Central and provincial.
• It provided (for the first time) for the association of Indians with the executive Councils of the Viceroy and
Governors.
• It introduced a system of communal representation for Muslims by accepting the concept of ‘separate
electorate’.
Significance:
• The Act introduced communal representation in Indian politics.
• On this provision Mahatma Gandhi said, “The Morley- Minto reforms have been our undoing. Had it not
been for a separate Electorate then established, we should have settled our differences by now”.

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Government of India Act, 1919/ Montagu-Chelmsford Reforms

Salient Features:
• It required that the three of the six members of the Viceroy’s executive Council (other than the commander-
in-chief) were to be Indian.
• A bicameral legislature was set up with two houses – Legislative Assembly (forerunner of the Lok Sabha)
and the Council of State (forerunner of the Rajya Sabha).
• The central and provincial legislatures were authorised to make laws on their respective list of subjects.
• It introduced Dyarchy at provinces: Accordingly the provincial subjects into two parts—transferred and
reserved.
• The transferred subjects were to be administered by the governor with the aid of ministers responsible to
the legislative Council.
• The reserved subjects, on the other hand, were to be administered by the governor and his executive
council without being responsible to the legislative Council.
• It provided for the establishment of a public service commission. Accordingly, a Central Public Service
Commission was set up in 1926 for recruiting civil servants.
Significance:
• It relaxed the central control over the provinces by demarcating and separating the central and provincial
subjects.
• Creation of elected Legislative bodies at the centre and in the provinces was a significant step in the
evolution of Parliamentary democracy in India.
Simon Commission
Important Recommendations:
• It rejected parliamentary responsibility at the centre.
• It proposed establishment of representative government in the provinces.
• It recommended that separate communal electorates be retained.
• It opined that in order to cope with the diversity of the country the ultimate character of the Indian
government had to be federal, but the exact time frame for this was not stated.
However the commission was met with great opposition from many political parties.
Nehru Report:
This was the first attempt by Indians themselves to prepare a Constitution of India.
Salient Features/Demands
• It demanded responsible government both in the centre and in the provinces.
• It demanded Universal suffrage for adults.
• It supported the idea of Dominion Status for India.
• It also prepared a list of central and provincial subjects, and fundamental rights.
Government of India Act of 1935

Salient Features:
• All-India Federation: It provided for the establishment of an All-India Federation in which Governors’
Provinces and the Chief Commissioners’ Provinces and those Indian states which might accede to be united
were to be included.
• Bicameralism: The Federal Legislature was to have two chambers (bicameral)—the Council of States and
the Federal Legislative Assembly. The Council of States (the Upper House) was to be a permanent body.
• Responsible government: It introduced responsible governments in provinces, that is, the governor was
required to act with the advice of ministers responsible to the provincial legislature.
• The Act also provided for a Federal Court (which was established in 1937), with original and appellate
powers, to interpret the 1935 Act and settle inter-state disputes.
• It provided for the establishment of the Federal Public Service Commission, a Provincial Public Service
Commission and Joint Public Service Commission for two or more provinces.
Significance:
• It marked a milestone towards a completely responsible government in India.

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• The Act gave first taste and practice of parliamentary self-government and established good parliamentary
conventions.
• It was an endeavour to give India a written constitution, even though Indians were not involved in its
creation.
Indian Independence Act of 1947

Salient Features:
• It ended the British rule in India and declared India as an independent and sovereign state from August
15,1947.
• It provided for the creation of two independent dominions of India and Pakistan with effect from August
15, 1947.
• The Constituent Assemblies of the two dominions were given the powers to frame and adopt any
constitution for their respective nations and to repeal any act of the British Parliament.
• It designated the Governor-General of India and the provincial governors as constitutional (nominal) heads
of the states.
Constituent Assembly
• The demand for the Constituent assembly was put forward in 1934 for the first time by M. N. Roy, a pioneer
of communist movement in India.
• Initially, the colonial authorities resisted the demand for creation of a Constitution of India however it was
accepted in principle in the August Offer of 1940.
• In 1942, the British government sent its cabinet member – Sir Stafford Cripps with the draft declaration on
proposals (regarding formation of constitution for Indians) to be implemented at the end of World War II.
• The draft proposals of the Cripps Mission recommended the Constitution of India should be framed by an
elected Constituent Assembly of Indian people.
• However both the Indian National Congress and the Muslim League did not accept the proposals of the Cripps
Mission.
Cabinet Mission 1946

• The Cabinet Mission was sent to India in 1946.
• The Cabinet Delegation also failed to bring the Indian National Congress and the Muslim League to an
agreement.
• It, however, made its own proposal which was announced simultaneously on 16 May, 1946 in England as
well as in India.
• While it rejected the idea of two Constituent Assemblies, it put forth a scheme for the Constituent
Assembly.
• According to the plan the members of the Constituent Assembly were to be elected by the Provincial
Legislative Assemblies.
Composition of the Constituent Assembly

• As per the provisions of the Cabinet Mission Plan the Constituent Assembly was constituted in November
1946.
• The Constituent Assembly was indirectly elected by the provincial assemblies.
• The representatives of princely states were to be nominated by the heads of the princely states.
Criticism of the Constituent Assembly

• Not represent mass: It is often argued that the Constituent Assembly of India did not represent the masses
of India because its representatives were not elected through the universal adult franchise.
• The restricted adult franchise was confined to the elite sections of society – the educated and taxpayers.
• According to some critics, the Constituent Assembly was a Hindu dominated body.
o Winston Churchill commented that the Constituent Assembly represented ‘only one major
community in India’.

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• Congress domination: The critics charged that the Constituent Assembly was dominated by the Congress
party.
• According to the critics, the Constituent Assembly took an unduly long time to make the Constitution.
• In this context, Naziruddin Ahmed, a member of the Constituent Assembly, coined a new name for the
Drafting Committee to show his contempt for it. He called it a “Drifting Committee”.
True Nature of Representation of the Assembly/Countering Above Criticism
• According to Granville Austin the reasons for the restricted franchise and indirect election were to avoid
the cumbersome and slow progress in the process of Constitution making.
• Despite having been elected through the restricted adult franchise, the Constituent Assembly represented
different shades of opinions and religious communities of India.
• The Constituent Assembly consisted of members with different ideological orientations, and three religious
communities -Sikhs, Muslims and General. In words of K. Santaram “There was hardly any shade of opinion
not represented in the Assembly”
• Though the majority of the Constituent Assembly members belonged to the Indian National Congress. It
also included more than a dozen non-Indian National Congress members. Some of these were A.K. Ayyer,
H.N. Kunzru, N.G. Ayyanger, S.P. Mukherjee and Dr. B.R. Ambedkar.
Conclusion: The Constituent Assembly sought to address concerns of every person irrespective of their social
and cultural orientations. Thus, the members of the Constituent Assembly could overcome the limitations of
having been elected by the restricted franchise.
Objectives Resolution:
On December 13, 1946, Jawaharlal Nehru moved the historic ‘Objectives Resolution’ in the Assembly.
Content of the Objectives Resolution:
• Independent Sovereign Republic: It asserted the firm resolve of the Constituent assembly in proclaiming
India as a Preamble India as an Independent Sovereign Republic.
• Justice and Rights for people: It stressed on securing socio-economic and political justice for people and
the fundamental rights of freedom, equality etc.
• Safeguards for certain sections: It stressed for adequate safeguards for minorities, backward and tribal
areas, and depressed and other backward classes.
• Honoured Place for India: Finally it read that “this ancient land attains its rightful and honoured place in
the world and makes its full and willing contribution to the promotion of world peace and the welfare of
mankind.”
Significance of the Objectives Resolution:
• Jawaharlal Nehru said that the purpose of the resolution was to “send out a message to show what we
have resolved to attempt to do”.
• The Preamble to the Constitution was based on the Objectives Resolution.
• The Objectives Resolution identified “Fundamentals” which were guidelines for the structure of
Constitutions which the Constituent Assembly has gathered to meet.
These “Fundamentals” laid foundations about nature of political system, its territorial boundaries, division of power
between union and its constituent units, supremacy of the people as source of all power and authority, social justice
to all, and safeguarding interests of minorities.
Enactment & Enforcement of Constitution

• The Constitution of India was adopted and enacted on 26 November 1949. It contained a Preamble, 395
Articles and 8 Schedules.
• Some provisions of the Constitution pertaining to citizenship, elections, provisional parliament, temporary
and transitional provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380,
388, 391, 392 and 393 came into force on November 26, 1949 itself.

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• The major part of the Constitution came into force on January 26, 1950.
• This day is referred to in the Constitution as the ‘date of its commencement’, and celebrated as the
Republic Day.
• January 26 was specifically chosen as the ‘date of commencement’ of the Constitution because of its
historical importance.
• It was on this day in 1930 that Purna Swaraj day was celebrated, following the resolution of the Lahore
Session (December 1929) of the INC.
Salient features of Indian Constitution

• The Constitution of India is a lengthy, voluminous document that deals with various aspects of Statecraft.
• It has several salient features that distinguish it from the constitutions of other countries.
1. Written Constitution: The Constitution of India is the lengthiest of all the written constitutions of the
world. It has more than 460 Articles (465 Articles in 2016), 12 Schedules and 8 Parts.
2. Parliamentary Democracy : The Constitution of India provides for parliamentary democracy based on the
Westminster model of the United Kingdom.
In this system the head of the government is the Prime Minister who has a Council of Ministers to Political
and Administrative System coordinate with him and to assist him in the day-to-day task of the
administration.
3. Independence of the Judiciary : Judicial independence is another hallmark of our Constitution. The
provisions of the Constitution have ensured that the judges are able to discharge their official duties
without fear or favour.
4. Federal System with Unitary Bias: The Constitution of India establishes a federal system of government.
It contains all the usual features of a federation, viz., two governments, division of powers, written
Constitution, supremacy of the Constitution, etc.
It also contains a large number of unitary features, viz., a strong Centre, single Constitution, single
citizenship, etc.
▪ The Indian Constitution thus has been variously described by scholars ‘quasi-federal’ by K C
Wheare, ‘bargaining federalism’ by Morris Jones, ‘co-operative federalism’ by Granville Austin,
‘federation with a centralising tendency’ by Ivor Jennings, and so on.
5. Fundamental Rights: The Constitution guarantees certain rights to its citizens considered fundamental for
their well-being.
These rights are enforceable by the courts of law (unlike the Directive Principles of State Policy). They are
the bedrock of an Indian citizen's life, liberty and property.
6. Fundamental Duties: These were added by the 42nd Constitutional Amendment Act of 1976 on the
recommendation of the Swaran Singh Committee. The Fundamental Duties enshrined in the Constitution
are intended to obligate all the citizens to strive for the common benefit of all.
7. Directive Principles of State Policy: The directive principles are meant for promoting the ideal of social
and economic democracy. They are enumerated in Part IV of the Constitution.
According to Dr B R Ambedkar, the Directive Principles of State Policy is a ‘novel feature’ of the Indian
Constitution.
8. A Secular State : The Constitution of India stands for a secular state. Hence, it does not uphold any particular
religion as the official religion of the Indian State.
9. Universal Adult Franchise: The Indian Constitution adopted universal adult franchise as a basis of elections
to the Lok Sabha and the state legislative assemblies.
10. Single Citizenship: Though the Indian Constitution is federal in nature it provides for only a single
citizenship, that is, the Indian citizenship.
11. Emergency Provisions: The Indian Constitution contains elaborate emergency provisions to enable the
President to meet any extraordinary situation effectively.
The Constitution envisages three types of emergencies:
▪ Article 352: National emergency on the ground of war or external aggression or armed rebellion
▪ Article 356: State emergency (President’s Rule) on the ground of failure of Constitutional
machinery.

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▪ Article 360: Financial emergency on the ground of threat to the financial stability or credit of India
Criticism of the Constitution

The Constitution of India has been criticized on the following grounds:
• ‘Bag of borrowings’: The Indian Constitution is often described by the critiques as ‘borrowed Constitution’,
a ‘patch work’, a ‘bag of borrowings’ that contains nothing new and original.
o However it is evident that the Constitution of India is not a patch work and though some features
are borrowed they are well adopted and designed to serve the Indian needs.
o In the words of Dr. B. R. Ambedkar this criticism was based on an inadequate study of the
Constitution.
• Carbon Copy of the 1935 Act: Sir Ivor Jennings, a British Constitutionalist, said that “the constitution
derives directly from the Government of India Act of 1935 from which, in fact, many of its provisions are
copied almost textually”.
o To the above criticism the answer of Dr. B.R. Ambedkar was “ …. that the provisions taken from the
Government of India Act, 1935, relate mostly to the details of administration”.
• Too bulky and too detailed: The Critics observe that the Indian Constitution is too bulky in size.
• Lawyer’s paradise: Sir Ivor Jennings opined that the legal language and phraseology adopted in the
constitution makes it a complex document hence he called it a “lawyer’s paradise”.

12
CONSTITUTIONAL AMENDMENT
While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in a
constitution. There should be a certain flexibility. If you make any Constitution rigid and permanent, you stop
the nation’s growth, the growth of a living, vital, organic people.
Pandit Jawaharlal Nehru
Recent Context
• Recently, The SC dismissed the Centre’s plea seeking a review of its May 5 ruling that the power to identify
Socially and Educationally Backward Classes (SEBC) lies exclusively with the Central government and not
states for granting quota in jobs and education.
• According to newspaper reports, The Centre is considering moving Parliament to bring in a constitutional
amendment to “restore” the right of state governments to identify and notify SEBCs.
• The Constitution (104th Amendment) Act, 2020 extended the reservation for seats for SCs & STs in the
LokSabha and states assemblies and it removed reservation for the Anglo-Indians in Lok Sabha & assemblies.
Introduction
• Like any other written Constitution, the Constitution of India also provides for its amendment in order to adjust
itself to the changing conditions and needs.
• Article 368 in Part XX of the Constitution deals with the Key Facts
powers of Parliament to amend the Constitution and
its procedure. • The Constitution has been amended 104 times
• The procedure laid down for its amendment is neither so far
as easy as in Britain nor as difficult as in USA. Thus, the • The 99th amendment for setting up of a
Indian Constitution is neither flexible nor rigid but a National Judicial Commission was held
synthesis of both. unconstitutional by the Supreme Court
• The Parliament cannot amend those provisions which • A maximum of 32 amendments were related
form the ‘basic structure’ of the Constitution (1973 to the matters of states including
Kesavananda Bharati case). reorganisation, transfer of territories, inclusion
• Procedure for amendment of constitution is borrowed of some languages in the Eighth Schedule of
from constitution of South Africa. the Constitution, etc.
• Twelve amendments were aimed at extending
reservation for SCs, STs and Anglo-Indians in
Procedure for amendment Parliament and state legislatures.
The procedure for the amendment of the Constitution as • Eight each related to reservations in
laid down in Article 368 is as follows: educational institutions and employment,
including in promotions.
1. An amendment of the Constitution can be initiated
• Six amendments related to taxation including
only by the introduction of a bill for the purpose in
introduction of the GST.
either House of Parliament and not in the state
legislatures.
2. The bill can be introduced either by a minister or by a private member and does not require prior permission
of the president.
3. The bill must be passed in each House by a special majority, i.e., Majority of the total membership of each
House and a majority of two-thirds of the members of each House present and voting.
4. Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no
provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
5. If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures
of half of the states by a simple majority.
6. After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the
bill is presented to the president for assent.

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7. The president must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill
for reconsideration of the Parliament.
8. After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment act) and the
Constitution stands amended.
TYPES OF AMENDEMENT
• The Indian Constitution can be amended in three ways

1. Amendment by simple majority of the Parliament.
2. Amendment by special majority of the Parliament (Under Article 368)
3. Amendment by special majority of the Parliament and the ratification (simple majority) of half of the
state legislatures (Under Article 368).
By Simple Majority of Parliament By Special Majority of Parliament
• Admission or establishment of new states. • Fundamental Rights
• Formation of new states and alteration of areas, • Directive Principles of State Policy
boundaries or names of existing states. • All other provisions which are not covered by the
• Abolition or creation of legislative councils in first and third categories.
states.
• Second Schedule, Quorum in Parliament, Salaries
and allowances of the members of Parliament.
• Rules of procedure in Parliament, Privileges of the By Special Majority of Parliament and Consent of
Parliament, its members and its committees. State
• Use of English language in Parliament, Elections to • Election of the President and its manner.
Parliament and state legislatures. • Extent of the executive power of the Union and the
• Number of puisne judges in the Supreme Court, states.
Conferment of more jurisdiction on the Supreme • Supreme Court and high courts.
Court. • Distribution of legislative powers between the
• Use of official language, Citizenship—acquisition Union and the states.
and termination, Delimitation of constituencies, • Any of the lists in the Seventh Schedule.
Union territories. • Representation of states in Parliament.
• Fifth Schedule—administration of scheduled areas • Power of Parliament to amend the Constitution
and scheduled tribes, Sixth Schedule— and its procedure (Article 368 itself).
administration of tribal areas.
Informal way of amending the constitution

• Constitution undergoes amendments informally in two ways i.e., Judicial pronouncements and Conventions
and constitutional changes.
1. Judicial Pronouncements and constitutional amendments
In Indian democratic setup, Supreme Court has contributed immensely to amendment of constitution
through its judicial pronouncements in following ways –
o Kesavananda Bharati case 1973 - Introduction of basic structure of constitution doctrine and their
non-amendability.
o Minerva mill case 1980 - FR and DPSPs are complementary. They both constitute part of basic
structure and hence are non-amendable.
o Berubari case 1960 - Territory cannot be ceded except by an amendment act –.
2. Conventions and constitutional changes
Conventions are set of unwritten rules that have come to be accepted as having the force of law. Some
conventions in India in the field of constitution and governance are –
o PM hails from the Lok Sabha (although could also from Rajya Sabha).
o President dissolves Lok Sabha on the advice of union council of ministers.

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Necessity of amendment Dangers of frequent amendments

• To make constitution (fundamental law of the land) • Frequent amendments to the constitution will lead
more relevant document w.r.t. changing to erosion of the credibility of the constitution.
conditions and contemporary realities. • Recurrent changes to the constitution could lead to
• To align it with changing needs and aspirations of instability in institutional setup.
society. • Frequent changes could result into confusion and
• To ensure synchronisation between constitutional conflict among various organs of the political setup
setup and policy and programmes of incumbent as experienced in the constitution of Nepal and Sri
government. Lanka.
• To meet unforeseen exigencies of situation such as • This will also create possibility of infringement of
CAA 2019, Bangladesh enclave exchanges (100th upon the basic text and core philosophy of the
CAA), extending reservation to SC/ST for next 10 constitution.
years (upto 2030). • Could kickstart tussle between judiciary and
• To ensure social, economic, political justice as executive organ as experienced through 24th
enshrined in preamble of the constitution. amendment act and before Kesavananda Bharati
• To achieve the goal of inclusive and equitable judgement.
society. • This tendency will set in wrong and unhealthy
• Amendability provides flexibility and adaptability precedence for coming governments.
to constitutional framework.
Power of Parliament to amend Constitution

• Basic Structure - The constituent power of Parliament under Article 368 does not enable it to alter the ‘basic
structure’ of the Constitution (Kesavananda Bharati case (1973).
• Limited Power – The Constitution had conferred a limited amending power on the Parliament and this limited
power is a basic structure of the constitution, thus, the Parliament cannot exercise its limited power to enlarge
that very power into an absolute power Minerva Mills case (1980).
• Amendability of Fundamental Rights - The Parliament under Article 368 can amend any part of the Constitution
including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution. (Kesavananda
Bharati case (1973).
• Amendability of Preamble - The Preamble is a part of the Constitution and held that Preamble can be amended,
subject to the condition that no amendment is done to the ‘basic features (Kesavananda Bharati case (1973).
CRITICISM OF THE AMENDMENT PROCEDURE
• No provision for a special body like Constitutional Convention (as in USA) or Constitutional Assembly for
amending the Constitution.
• The constituent power is vested in the Parliament and only in few cases, in the state legislatures.
• State legislatures cannot initiate any bill or proposal for amending the Constitution except in one case -
passing a resolution requesting the Parliament for the creation or abolition of legislative councils in the states.
Here also, the Parliament can either approve or disapprove such a resolution or may not take any action on it.
• Only in few cases, the consent of the state legislatures is required and that too, only half of them (In USA-
three-fourths of the states).
• No time frame within which the state legislatures should ratify or reject an amendment submitted to them.
Also, it is silent on the issue whether the states can withdraw their approval after according the same.
• No provision for holding a joint sitting (Art.108) of both the Houses of Parliament if there is a deadlock over
the passage of a constitutional amendment bill.
• The provisions relating to the amendment procedure are too sketchy. Hence, they leave a wide scope for
taking the matters to the judiciary.
Way Forward
• Joint parliamentary committee (JPC) could setup for in-depth deliberation and building consensus.

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• Considering separate committee/body (as in USA) for considering amendment to the constitution.
• 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
• The First amendment was enacted to remove difficulties created by Judicial judgements in State of Madras v.
Champakam Dorairajan case, Romesh Thappar vs The State of Madras on 26 May, 1950 etc.
Amendments
• Amended article 15 - Empowered the state to make the advancement of socially and economically backward
classes. (Article 15 (3)).
• Inserted articles 31A and 31B along with the ninth schedule. Provided for the saving of laws providing for the
acquisition of estates etc.
• Amended Article 19
o Added three more grounds of restrictions on freedom of speech and expression - public order, friendly
relations with foreign states and incitement to an offense.
o Provided that state trading and nationalisation of any trade or business by the state is not to be invalid
on the ground of violation of the right to trade or business.
Significance of the amendment
• Restriction on Freedom of Speech and Expression – It increased restrictions on the freedom of speech and
expression in the name of “public order”, the “interests of the security of the state” and “relations with foreign
states”.
• Caste-based reservation - The Act also enabled caste-based reservations by restricting Article 15 from applying
to government provisions for the advancement of backward classes.
• Right to Property - It circumscribed the right to property and validated zamindari abolition by allowing the state
to acquire property without paying equitable compensation.
• Parliament & Judiciary Tussle - Amendment set the precedent of amending the Constitution to overcome
judicial judgements impeding fulfilment of the government's perceived responsibilities to particular policies
and programmes.
• Social Justice - It secured the constitutional validity of abolition of zamindari laws to distribute the land among
the poor and agrarian reform measures and other related state acts.
• Restricted scope of Judicial Review – Added ninth schedule and laws under the ninth schedule were protected
from judicial scrutiny.
42 ND CONSTITUTIONAL AMENDMENT, 1976
• It was enacted during the period of internal emergency. The 42nd Amendment is regarded as the most
controversial constitutional amendment in history.
• It curtailed the many provisions as well added large no of amendments to the constitution, thus it is also known
as the mini constitution.
Key Amendments
Changes/ Amendment Significance/issue
addition
• Newly added DPSPs showed the path
and laid principles that India as a
country would achieve in the future.
Preamble • Added three words - socialist, secular and
integrity to the preamble.
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• It enabled the GOI to deal with anti-

national activities by individuals or
institutions.
• Empowered the parliament to make
FR & DPSP • Directive principles of state policy were given laws for better implementation of the
importance over the fundamental rights. directive principles of state policy and
thus a bringing a social and economic
revolution by uplifting the poor.
• It made government policies immune
from the judicial scrutiny.
• It sought to establish a democratic
New Part • Added 10 fundamental duties for the citizens. balance by making the people
IV A conscious of their duties equally as they
are conscious of their rights’.
• To secure opportunities for healthy • It enabled the government to work for
development of children (Article 39). overall development of the children
• To promote equal justice and to provide free and secure their future i.e.,
legal aid to the poor (Article 39 A). demographic dividend of the future.
Added 4 • To take steps to secure the participation of • It ensured the protection of industrial
new DPSPs workers in the management of industries workers and ensured justice for all.
(Article 43 A). • Attempted to address the issue of
• To protect and improve the environment and to degradation of environment and loss of
safeguard forests and wild life (Article 48 A). biodiversity and thus provided way for
sustainable development in the future.
• Froze any delimitation of constituencies for • For the first time it stressed on the
elections of Lok Sabha and state legislative importance of controlling population of
assemblies until after the 2001 census. the country. Successive centre/state
Lok Sabha
• Raised the tenure of Lok Sabha and state governments have worked on
&
legislative assemblies from 5 to 6 years. population control measures.
Assembly
• Made the president bound by the advice of the • Gave unrestricted power to Parliament
cabinet. • Amendment established beyond doubt
• It gave Parliament unrestrained power to the supremacy of Parliament over the
Parliament
amend any parts of the Constitution, without other wings of Government.
judicial review.
• Curtailed the power of judicial review and writ
jurisdiction of the Supreme Court and high • Undermined the power and
courts. jurisdiction of the judiciary.
Judiciary
• No Constitutional Amendment could be • Limited the scope of Judicial Review.
questioned in any court of law.
• Revoked the courts power to determine what
constitutes an office of profit.
• Transferred five subjects from the state list to • Transferred more power from the state
Federalism the concurrent list: Education, Forests, Weights governments to the central
& Measures, Protection of Wild Animals and government, eroding India's federal
Birds, Administration of Justice. structure.
• Authorised the use of Central armed forces in
any State to deal with law-and-order problems.
• Facilitated the proclamation of national • It curtailed democratic rights in the
Emergency emergency in a part of the territory of India. country.

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• Extended the one-time duration of the • It also soured the centre-state

President’s rule in a state from 6 months to relations and made states more
one year. vulnerable to the misuse of article
356.
44 TH CONSTITUTIONAL AMENDMENT, 1977
• It was enacted by the Janata Party Government which had won the 1977 general elections campaigning on a
promise to "restore the Constitution to the condition it was in before the Emergency".
Amendments & Significance of the 44th amendment act

• The 44th amendment undo several changes that had been made to the
Constitution by the 42nd Amendment and restored the constitution as Other amendments
it was before the emergency. • Deleted the right to
• Restored Check and Balance between the judiciary, executive and property from the list of
legislative by Restoring some of the powers of the Supreme Court and Fundamental Rights and
high courts. made it only a legal right.
o Empowered the president to send back once the advice of the • Restored the original
cabinet for reconsideration. But the reconsidered advice is to term of the Lok Sabha
be binding on the president. and the state legislative
o Deleted the provision which made the satisfaction of the assemblies (i.e., 5 years).
president, governor, and administrators final in issuing • Restored the provisions
ordinances. with regard to the
o Omitted the provisions which took away the power of the quorum in the
court to decide the election disputes of the president, the vice- Parliament and state
president, the prime minister and the Speaker of the Lok Sabha. legislatures.
• Protected the freedom and liberties enjoyed by the citizens
o Gave constitutional protection to publication in a newspaper of true reports of the proceedings of
the Parliament and the state legislatures.
o Provided that the fundamental rights guaranteed by Articles 20 and 21 cannot be suspended during
a national emergency.
• Provided adequate safeguards against misuse of emergency provisions
o Replaced the term ‘internal disturbance’ by ‘armed rebellion’ in respect of national emergency.
o Made the President to declare a national emergency only on the written recommendation of the
cabinet, not by PM alone.
o The proclamation will have to be adopted by a two-thirds majority of the members of both Houses of
Parliament within a month.
• Overall, the 44th Amendment restored the democratic and constitutional values and provides safeguards
against future subversion of the Constitution for establishing an authoritarian regime.
52 ND CONSTITUTIONAL AMENDMENT, 1985
• It was enacted to address the problem of instability caused by democratically elected legislators frequently
shifting allegiance and defecting from one party to another.
• It added 10th Schedule to the Constitution which laid down the process by which legislators may be
disqualified on grounds of defection
Significance of the amendment
• Anti-Defection law is intended to strengthen the fabric of Indian parliamentary democracy by curbing
unprincipled and unethical political defections.
• It provides stability to the government by preventing shifts of party allegiance.
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• It ensures that candidates elected with party support and on the basis of
party manifestoes remain loyal to the party policies. 91st amendment, 2001
• It facilitates democratic and ideological realignment of parties in the • Strengthened the anti-
legislature. defection law.
• It helps in reducing non-developmental expenditure incurred on • It omitted the exception
irregular elections. provision i.e., disqualification
• For the first time, it gave clear-cut constitutional recognition to the on grounds of defection not
existence of political parties. applicable in case of split.
• It promotes party discipline and also prevents breach of trust of people • It provided that legislator
due to defection. disqualified on the ground of
defection is ineligible to be a
73 RD & 74 TH CONSTITUTIONAL AMENDMENT, 1992 minister.
• 73rd amendment act granted constitutional status to the PRIs. It has added a new Part-IX entitled as ‘the
panchayats and a new Eleventh Schedule containing 29 functional items of the panchayats.
• 74th amendment act accorded Constitutional status to the municipalities. It added New Part IX A ‘The
Municipalities’- Article 243-P to Article 243 ZG, containing 18 functional items of the municipalities.
Significance
• Panchayati Raj systems come under the purview of justiciable part of the constitution and mandates states to
adopt the system.
• The act is milestone step in creating democratic institutions at the grassroots level in the country. The act has
transformed the representative democracy to participatory democracy.
• These provisions combine representative and direct democracy into a synergy and are expected to result in an
extension and deepening of democracy in India.
• Both acts brought greater decentralisation and increase the involvement of the community in planning and
implementing schemes and, thus, increase accountability.
• It improved representation and enabled political empowerment of women, SCs and STs.
Other amendments
Amendment act Key provision Significance
The Constitution (61st • It amended article 326 to lower the • It led to political empowerment of
Amendment) Act, voting age from 21 to 18. youth and widened the base of
1989 democracy
The Constitution (86th • Inserted Art. 21-A – State shall provide • Recognised education as
Amendment) Act, free and compulsory education for all fundamental right of every child.
2002 children between the age of 6 and 14 • It made education inclusive and
years (FR). increased gross enrollment ratio of
• “Art. 45(Substituted): State shall weaker sections in primary and
endeavour to provide early childhood secondary education.
care and education to children below the • It sought to provide quality
age of 6 years” (DPSP). education for all children, in align
• “Art. 51-A(k): It shall be the duty of with the SDG 4 to to ensure inclusive
parent or guardian to provide and equitable quality education and
opportunities for education to his child promote lifelong learning
or ward between the age of 6 and 14 opportunities for all'
years” (Fundamental duty)
The Constitution • GST replaced the erstwhile multiple
(101th Amendment) taxes levied by the central and state
Act, 2017 governments and provided for the

19
• Introduced the Goods and Services Tax unification and simplification of

in the country since 1 July 2017. indirect taxes to establish one
nation one tax regime in the
country.
The Constitution • Article 338B provided authority to
(102th Amendment) • It gave Constitutional status to National NCBC to examine complaints and
Act, 2018 Commission for Backward Classes. welfare measures regarding socially
• Act inserted new Articles 338 B and and educationally backward classes.
342 A. • Article 342 empowered the
president to specify SEBCs in various
states & UTs.
The Constitution • The act promotes the welfare of the
(103th Amendment) poor not covered by the 50%
Act, 2019 • Inserted Article 15 (6) and Article 16 reservation policy for SCs, STs and
(6) in the Constitution to provide SEBC.
reservation for unreserved category. • It provides maximum of 10%
Reservation for Economically
Weaker Sections (EWSs) among the
general category.
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.

20
BASIC STRUCTURE OF CONSTITUTION
“The temporary will of majority cannot overwhelm or neutralise permanent and fundamental building blocks
and vision of our founding fathers”.
Recent context
• Kesavananda Bharati, whose petition in the Supreme Court led to the landmark verdict of 1973 that
outlined the basic structure doctrine of the Constitution, died in 2020.
• He was the petitioner in the Kesavananda Bharati Vs. State of Kerala case in which the Supreme Court
ruled that the basic structure of the Constitution is inviolable, and cannot be amended by Parliament.
• The petition was heard by a 13-member bench, the largest-ever bench in the history of the Supreme Court.
Introduction
• Basic and fundamental provisions which constitutes basic and core building blocks of constitution. However,
the term “Basic structure” is not mentioned in the constitution.
• It’s a Judicially innovated doctrine originated in Kesavananda Bharti case 1973. However, Supreme Court is yet
to define or clarify as to what constitutes the ‘basic structure’ of the Constitution.
Origin of Basic structure

• The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime,
was amended to protect some basic laws.
• The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority,
was in fact used by Hitler to his advantage to made radical changes.
• Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s
powers to amend certain parts of the Constitution which it considered ‘basic law’.
ORIGIN AND EVOLUTION OF BASIC STRUCTURE IN INDIA

Shankari Prasad case 1951
• The validity of the first constitutional amendment was challenged on the ground of it purported to abridge the
Fundamental rights under the constitution.
• The SC held that Parliament can abridge or take away any of the FR by enacting a constitutional amendment
act and such a law will not be void under Art. 13 (‘law’ in Art. 13 includes only ordinary laws and not constituent
laws)
Golakhnath case 1967
• The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’ position and
hence, the Parliament cannot abridge or take away any of these rights.
• A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for
violating any of the Fundamental Rights.
24th Amendment Act (1971)
• The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967) by enacting the 24th
Amendment Act (1971).
• This Act amended Articles 13 and 368. 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) and stated that Parliament is empowered to abridge
or take away any of the Fundamental Rights.
• At the same time, it laid down a new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution.

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• It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic
structure’ of the Constitution and Fundamental Right forms a part of the ‘basic structure’ of the Constitution,
thus the Parliament cannot abridge or take away them.
42nd Amendment Act (1976)
• Parliament reacted to Kesavananda Bharati judgement by enacting the 42nd Amendment Act (1976).
• It mended Article 368 and declared that there is no limitation on the constituent power of Parliament and no
amendment can be questioned in any court on any ground including that of the contravention of any of the
Fundamental Rights.
Minerva Mills case (1980)
• The SC, invalidated 42nd Amendment Act as it excluded judicial review which is a ‘basic feature’ of the
Constitution.
• The also SC held that the Constitution had conferred a limited amending power on the Parliament and, the
Parliament cannot exercise its limited power to enlarge that very power into an absolute power.
• Indeed, a limited amending power is one of the basic features of the Constitution.
Waman Rao case (1981)
• The Supreme Court 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).
ELEMENTS OF BASIC STRUCTURE

• The Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution.
From the various judgements, the following have emerged as ‘basic features’ of the Constitution.
Kesavananda Bharati case (1973) Minerva Mills case (1980)

• Supremacy of the Constitution • Limited power of Parliament to amend the
• Separation of powers between the legislature, the constitution
executive and the judiciary • Judicial review
• Republic and democratic form of government • Harmony and balance between fundamental rights
• Secular character of the constitution and directive principles
• Federal character of the constitution S.R. Bommai Case (1994) \
• Sovereignty and unity of India
• Federalism
• Freedom and dignity of the individual
• Secularism
• Mandate to build a welfare state 9. Parliamentary
• Democracy
System
• Unity and integrity of the nation
• Social justice
Indira Nehru Gandhi case (1975) • Judicial review
• India as a sovereign democratic republic I.R. Coelho Case (2007)
• Equality of status and opportunity of an individual
• Rule of law
• Secularism and freedom of conscience and religion
• Separation of powers
• Government of laws and not of men (i.e., Rule of
Law) • Principles (or essence) underlying fundamental
rights Judicial review
• Judicial review
• Principle of equality
• Free and fair elections which is implied in
democracy
Other Elements of basic structure

Case/Judgement Basic Feature
Central Coal Fields Ltd. Case (1980) • Effective access to justice

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Bhim Singhji Case (1981) • Welfare State (Socio-economic justice)

S.P. Sampath Kumar Case (1987) • Rule of law and Judicial review
Delhi Judicial Service Association • Powers of the Supreme Court under Articles 32, 136, 141 and 142
Case (1991)
Indra Sawhney Case (1992) • Rule of law
Kumar Padma Prasad Case (1992) • Independence of judiciary
Kihoto Hollohon Case (1993) • Free and fair elections and Sovereign, democratic, republican
structure.
Raghunath Rao Case (1993) • Principle of equality, Unity and integrity of India.
L. Chandra Kumar Case (1997) • Powers of the High Courts under Articles 226 and 227
Kuldip Nayar Case (2006) • Democracy, Free and fair elections
Ram Jethmalani Case (2011) • Powers of the Supreme Court under Article 32
Namit Sharma Case (2013) • Freedom and dignity of the individual
SIGNIFICANCE OF BASIC STRUCTURE

• The Basic Structure doctrine is one of the biggest contributions of Indian Judiciary to theory of
constitutionalism.
• The doctrine has helped in maintaining supremacy of the Constitution and has prevented its destruction by a
temporary majority in Parliament.
• Seeks to preserve constitutional principles and basic ideals envisioned by founding fathers.
• Privileges uncertain democracy over certain tyranny.
o It acts as a limitation upon the constituent power and has helped in arresting the forces which may
destabilize the democracy. Parliament does not and should not have an unlimited power to amend
the Constitution. This basic structure doctrine, as future events showed, saved Indian democracy.
• In the absence of the doctrine, India would most certainly have degenerated into a totalitarian State or had
one party rule. For example, the amendments that were made during the Emergency would have derailed the
democratic set up of our Constitution.
• Judiciary applied doctrine responsibly and threshold has set very high.
o 99th CAA 2015 of NJAC had struck down on grounds of violation of basic structure of constitution,
doctrine applied almost gap of 35 years.
CRITICISM OF BASIC STRUCTURE
• No constitutional basis - The doctrine does not have a textual basis. There is no provision stipulating that this
Constitution has a basic structure and that this structure is beyond the competence of amending power.
• Infringement of judiciary over legislature - The attempt by a constitutional court to review the substance of
the constitutional amendments would be dangerous for a democratic system in which the amending power
belongs to the people or its representatives, not to judges.
• Matter of subjectivity - Each judge defines the basic structure concept according to his own subjective
satisfaction. This leads to the fact that the validity of invalidity of the Constitution Amendment lies on the
personal preference of each judge and the judges will acquire the power to amend the Constitution.
• Translates judiciary into third decisive chamber of parliament - Amending the Constitution is the duty of the
two houses of the Parliament. But by invoking the basic structure doctrine the Judiciary acts as the third house
and thereby renders the work done by the Parliament meaningless.
• Amending the Constitution even to change the original intention of the Constitution framers - An amendment
to a constitution in present times may be necessary even to change the original intention of the Constitution
framers, which may not augur well for the subsequent generation which is to work with the Constitution.

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Therefore, to hold that an amendment not falling in the line with the original intention of the founding fathers
is not valid.
CONCLUSION
The Basic Features doctrine is one of most appreciated judicial innovation across the world. It has been accepted
by many other countries such as Bangladesh, Pakistan, Uganda etc. In India, the basic structure doctrine has formed
the bedrock of judicial review of all laws passed by Parliament. It acts as a safety valve against majoritarianism
and authoritarianism and thus, protect the constitution and democracy in India. But there are certain issues
around the doctrine like its subjectivity, these issues must be resolved by the judiciary itself or both judiciary and
parliament cooperate for codification of basic features.
Previous year question on this topic

1. “Parliament’s power to amend the constitution is a limited power and it cannot be enlarged into absolute
power”. In the light of this statement explain whether parliament under article 368 of the constitution can
destroy the Basic structure of the constitution by expanding its amending power? -15 marks (2019)
2. What was held in the Coelho case? In this context, can you say that judicial review is of key importance
amongst the basic features of the Constitution? (2016)

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SIGNIFICANT PROVISIONS IN THE INDIAN CONSTITUTION

Introduction
India, also known as Bharat, is a Union of States. It is a Sovereign Socialist Secular Democratic Republic with a
parliamentary system of government. The Republic is governed in terms of the Constitution of India which was
adopted by the Constituent Assembly on 26th November, 1949 and came into force on 26th January, 1950. The
Constitution provides for a Parliamentary form of government which is federal in structure with certain unitary
features. The constitutional head of the Executive of the Union is the President. The real executive power is vested
in the Council of Ministers with the Prime Minister as its head.
Significant provisions of the Indian constitution are:

● Preamble
● Fundamental Rights
● Fundamental Duties
● Directive Principles of State Policy
● Universal Adult Franchise
● Single Citizenship
● Separation of Powers
PREAMBLE

1. What can France learn from the Indian Constitution’s approach to secularism? (2019)
2. Discuss each adjective attached to the word ‘Republic’ in the ‘Preamble’. Are they defendable in the present
circumstances? (2016)
Introduction:
The ‘Preamble’ of the Constitution of India is a brief introductory statement that sets out the guiding purpose and
principles of the document, and it indicates the source from which the document which derives its authority,
meaning, the people. The ideals behind the Preamble were laid down by Jawaharlal Nehru’s Objectives Resolution.
The Preamble was adopted on 26 November 1949 by the Constituent Assembly of India and came into effect on
26th January 1950. The Preamble gives the overview of the nature of Indian State (Sovereign, Socialist, Secular,
Democratic and Republic) and objectives of the Constitution (Justice, Liberty, Equality and Fraternity).
Keywords in the Preamble

Sovereign
● The term Sovereignty refers to the independent authority of a State. It means that the State has the power to
legislate on any subject; and that it is not subject to the control of any external power.
● Sovereignty or independent authority has the aspects of internal sovereignty and external sovereignty
pertaining to law making and territory respectively. Both should be exercised in the spirit of Parens Patriae i.e.
Welfare of the people.
● In the age of social media, the scope of sovereignty also includes the digital sovereignty of the country. Hence
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 was enacted.
o Also, India banned several Chinese apps and Huawei and ZTE from participating in 5G trials to protect
its digital sovereignty.
● Threat to territorial sovereignty includes border issues with neighbours (Pakistan and China) and recent USA
warship in India’s exclusive economic zone without consent.

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Socialist
● The term Socialist has been inserted in the Constitution by 42nd Amendment Act, 1976. Even prior to this
amendment the idea was implicit in the constitution, in the form of directive principles of state policy and in
the words of Preamble, ‘Justice social, economic and political’ as well as ‘Equality of status and opportunity.’
● Indian brand of socialism is a 'democratic socialism'. Democratic socialism holds faith in a 'mixed economy'
where both public and private sectors co-exist side by side.
● As per Supreme Court, democratic socialism aims to end poverty, ignorance, disease and inequality of
opportunity.
● The government has taken various efforts to ensure socialism. E.g. Atmanirbhar Package during pandemic,
MGNREGA, National Food Security Mission, Ayushman Bharat Yojana to achieve the vision of Universal Health
Coverage (UHC), free vaccination to eligible citizens against COVID, implementation of Corporate Social
Responsibility etc. However the full potential of democratic socialism is not yet achieved. E.g.
o Poverty: India’s middle class may have shrunk by a third due to 2020’s pandemic-driven recession,
while the number of poor people earning less than ₹150 per day, more than doubled, according to an
analysis by the Pew Research Center.
o Inequality: Indian billionaires increased their wealth by 35% during the lockdown: Oxfam report (2021)
● Recently a Private Member’s Bill was moved seeking the removal of the phrase “socialism” from the preamble
of the Constitution, arguing that the word is “redundant” in the current scenario, and that the word should be
dropped to create space for “economic thinking without a particular thought”.
o During Constituent Assembly debate Ambedkar had argued that the Constitution is just a mechanism
to regulate the work of the various arms of the states, and that the matters like how the policy of the
state and the society’s organisation in the social and economic side should be matters which must be
decided by people according to the time and circumstances.
Secular
A secular state, in the context of India, means that the State protects all religions equally and does not uphold any
religion as the State religion. This is unlike western secularism where there is no relation between the state and
religion.
Recent Context: The petition filed in the Supreme Court challenged the insertion of the words ‘secular’ and
‘socialist’ in section 29A(5) of the Representation of People Act that makes it compulsory for the political parties,
applying for registration before Election Commission of India, to make specific provision in its memorandum or
rules and regulations that the association or body shall bear true faith and allegiance to the Constitution of India as
by law established and to the principles of ‘Socialism’ and ‘Secularism’ and democracy and would uphold the
sovereignty and integrity of India.
Constitutional provisions regarding secularism:

● Preamble: The term 'secular' 42nd Amendment Act 1976, secures to all citizens of India liberty of belief,
faith and worship.
● Fundamental Rights: Article 14, 15, 16, 25, 26, 27, 28, 29, and 30.
● DPSP: Uniform Civil Code (Article 44)
Secularism in the Constituent Assembly debates:

● Prof K T Shah demanded the inclusion of the word ‘secular’ in the preamble.
● H C Mookherjee stated that “are we really honest when we say that we are seeking to establish a secular state?
If your idea is to have a secular state it follows inevitably that we cannot afford to recognise minorities based
upon religion.”
● Nehru along with B R Ambedkar were also most opposed to the idea of including the word ‘secular’ in the
preamble of the constitution. Nehru and Ambedkar were strongly committed to the ideal of secularism. For
Jawaharlal Nehru, having a secular state was a crucial mark of modernity.

26
● However, all the members agreed, of course, on the necessity of establishing a secular state. Most shared an
understanding of history in which the movement for the separation of religion and state was irrevocably a part
of the project for the democratisation of the latter.
RELEVANCE OF WORD ‘SECULAR’ IN PREAMBLE

• During Constituent Assembly debates all the members agreed on the necessity of establishing a secular state.
The connection between secularism and effective functioning of democracy had been well established in
Europe, and since India was to follow the ideals of democracy, secularism was deemed absolutely essential.
• Nehru and Ambedkar were strongly committed to the ideal of secularism. Yet when it came to including
‘secular’ both were wary of its usage. Both were aware that western secularism concept cannot be applied to
India where rulers and religious publics had been interacting from time immemorial, it was better not to use
the term at all, than to use it fraudulently.
• The debates saw Dr. B.R. Ambedkar reason that there was no need to include the term ‘secular’ as the entire
Constitution embodied the concept of secular state, which meant non-discrimination on grounds of religion
and equal rights and status to all citizens.
• Consequently, the Constituent Assembly adopted Articles 25, 26 and 27 of the Constitution with the intention
of furthering secularism. Though not formally inserted in the document, secularism was definitely embedded
in the constitutional philosophy.
• Prime Minister Indira Gandhi introduced the two words for political reasons in the 42nd Constitution
Amendment of 1976. Constitutional expert Subhash Kashyap said: “The word ‘socialist’ was added to send a
message politically that she stood for the poor. The word ‘secular’ was obviously meant for the minorities in
the context of the birth control programmes of the emergency period.
Democratic
● The term Democratic indicates that the Constitution has established a form of government that gets its
authority from the will of the people expressed in an election.
● In the Preamble, the term democracy is used for political, economic and social democracy.
● Recent Context: Three global democracy watchers, Freedom House of the US, the Economist’s Democracy
Index and V Dem of Sweden have downgraded the quality of Indian democracy to “partly free”, “flawed
democracy” or even an “electoral autocracy”.
o These reports have thrown up a set of larger questions: over methods to assess democratic robustness,
the internal and external variables that shape democratic health, and the roots of the crisis of liberal
democracy.
o As BR Ambedkar warned, political democracy can only be sustained with the foundation of social and
economic democracy. Hence need of the hour is to work on socio-economic aspects of the democracy
to gain political democracy.
Republic
● In a Republic, the head of the state is elected by the people directly or indirectly. In India, the President is the
head of the state.
● Republic also means all public offices being opened to every citizen without any discrimination.
● Moreover, in a republic, political sovereignty is vested in the people rather than a monarch.
● A democratic polity can be classified into two categories – monarchy and republic. In a monarchy, the head of
the state enjoys a hereditary position (e.g. Britain, Japan). In a republic, the head of the state is always elected
directly or indirectly for a fixed period (e.g. US, India).
Justice
● The term Justice in the Preamble embraces three distinct forms: social, economic and political justice.
● Justice is provided through fundamental rights and directive principles for state policy.
● Social justice means to create a more equitable society based on equal social status.
● Economic justice means equitable distribution of wealth among the individual members of the society.
● Political Justice means that all citizens have equal rights in political participation. It is provided through
universal adult suffrage and equal value for each vote.

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Recent Context:
● "Right to access to justice”, guaranteed under Article 21 of the Constitution encompasses the right to access
live court proceedings. Therefore the project of live streaming of court proceedings has been undertaken on
priority during pandemic.
● Social Justice: Madras High Court’s Justice N.Anand Venkatesh, while issuing a slew of directions to allow the
LGBTQIA+ community to lead a safe and secure life, revealed that he had no hesitation in accepting that he too
belonged to a majority of people who are yet to comprehend homosexuality completely.
● Economic Justice: To achieve economic justice, more women and people of SCs/STs need to become
entrepreneurs and build businesses that can have a positive impact on communities.
o E.g. Stand-Up India Scheme.
o SDG Index: India slips two spots to rank 117 because major challenges like ending hunger and achieving
food security (SDG 2), achieving gender equality (SDG 5) and building resilient infrastructure, promoting
inclusive and sustainable industrialisation and fostering innovation (SDG 9) remain in the country.
Liberty
● Liberty means the absence of restraints on the activities of individuals, and providing opportunities for the
development of individual personalities.
● The Preamble provides for the liberty of thought, expression, belief, faith, and worship.
● Liberty is provided through fundamental rights.
Recent Context
● Article 21: Husband is the natural guardian of minor Hindu girl who is married to him with her own free will:
Punjab & Haryana HC quashes kidnapping charges against man. The Court observed that that the constitutional
rights of protection of life and liberty was granted under Article 21.
● In another case Punjab & Haryana HC dismisses plea seeking protection to live-in couple. Reason being "entire
social fabric of society would get disturbed".
o This is at the backdrop of the apex court being quite clear on the point that live-in relationship is not
an offence and fundamental rights of a person can’t be violated at any cost.
Equality
● Equality means the absence of privileges or discrimination against any section of the society. The Constitution
strives to provide social, economic and political equality in the country.
● Social equality: Article 14, 15, 16, 17, 18
● Political equality: Article 325 and 326
● Economic equality: Article 39 secures to men and women equality right to an adequate means of livelihood
and equal pay for equal work.
Recent Context
● SDG India Index 2020-21: The country’s overall SDG score improved by 6 points - from 60 in 2019 to 66 in
2020–21. However, poor performance in gender inequality (SDG-5) as compared to world and issue
pertaining to parameters of inequality i.e. Gini Coefficient and Palma Ratio for measuring inequality
missing in 2020 Index which were used in earlier indexes.
● Oxfam Report: Inequality in India has risen to levels last seen when it was colonised. The additional wealth
acquired by India’s 100 billionaires since March when the lockdown was imposed is enough to give every
one of the 138 million poorest ₹94,045.
● Navtej Singh Johar Case (2018): decriminalisation of homosexuality waved the wave for social equality.
● The Transgender Persons (Protection of Rights) Act: has taken steps for more inclusive society.
● FRA, 2006 and Hrusikesh Panda Committee (Habitat Rights): aims to restore untoward discrimination
against tribal and other forest dwellers.
Fraternity
● Fraternity means the feeling of brotherhood. The Preamble seeks to promote fraternity among the people
assuring the dignity of the individual and the unity and integrity of the nation.

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● Single citizenship and fundamental duties aims for fraternity among the people.
● Dignity of the individual:
o Implemented through Fundamental rights and Directive State of State Policy
o Article 51-A(e): To promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;
● Unity and Integrity of the nation:
o Article 51-A(c): to uphold and protect the sovereignty, unity and integrity of India.
o Article 1 (Union of States): no right to secede.
Dr. B R Ambedkar said: “The Drafting Committee has added a clause about fraternity in the preamble, although it
does not occur in the Objectives Resolution. The committee felt that the need for fraternal concord and goodwill
in India was never greater than now and that this particular aim of the new Constitution should be emphasised by
special mention in the preamble.”
Ambedkar laid great stress on fraternity. “Fraternity” means a sense of common brotherhood of all Indians—if
Indians are seen as being one people. It is the principle which gives unity and solidarity to social life.
Recent Context
● Micro-view of fraternity: It was seen from the demand of prioritising vaccination process from various
sections like judiciary and legal fraternity etc. that holistic feeling of ‘we’ was missing from the nation during
the pandemic. There were also instances where non-eligible persons were administered vaccine because
of political clout. Overall, initial approach should have been to vaccinate frontline personnel and there after
another most vulnerable citizens like tribals, migrant workers, transgender etc.
● Pandemic and factionalism: During the COVID, there has been labelling of community and people of
northeast with derogatory names which is out of the line as envisaged in the Constitution. ‘We’ the people
need to be aware of Ambedkar’s view that without fraternity, equality and liberty will be no deeper than
coats of paint.
Significance of Preamble
● Source of the Constitution: the significance of the Preamble lies in its components. It embodies the source of
the Constitution i.e. the people of India.
● Philosophy: the use of various keywords in the Preamble shows it embodies the basic philosophy and
fundamental values on which the Constitution is based. It very well 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.
● Gives direction and purpose: the Preamble gives direction and purpose to the Constitution which is reflected
in the Fundamental Rights and Directive Principles of State Policy.
● Aim of the Constitution: the Preamble recites that the 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: The Preamble reminds the values that guided our freedom struggle, to the
present generation. The freedom struggle had common aspirations — that is, to ensure justice, liberty, equality
and fraternity to the people of India.
● Reminder to lawmakers: The Preamble acts as a constant reminder to lawmakers and policy-makers while
formulating legislation and public policies.
Amendability of Preamble
● Berubari Case (1960): the Supreme Court held that Preamble cannot be a part of the constitution. So cannot
be amended.

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● Kesavananda Bharati Case (1973): the Supreme Court said that Preamble is a part of the Constitution and is
subject to the amending power of the parliament (Article 368) as are any other provisions of the Constitution,
provided the basic structure of the Constitution is not destroyed.
● In 1976, the Preamble was amended by the 42nd Constitutional Amendment Act. Three new terms Socialist,
Secular, and Integrity were added to the Preamble. The Supreme Court held this amendment validly.
● Union Government Vs LIC of India Case (1995): The Supreme Court has once again held that Preamble is the
integral part of the Constitution but is not directly enforceable in a court of justice in India.
Conclusion
President Ram Nath Kovind, in his address to the nation on the eve of Republic Day, mentioned that “the wise men
and women who framed the Constitution of India chose to insert key terms at the very beginning of the Constitution
that is in 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.”

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FUNDAMENTAL RIGHTS (PART III, ARTICLE 12-35)

3. Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right
to Privacy. (2017)
4. Does the right to clean the environment entail legal regulations on burning crackers during Diwali? Discuss
in the light of Article 21 of the Indian Constitution and Judgement(s) of the Apex Court in this regard. (2015)
5. What do you understand by the concept “freedom of speech and expression”? Does it cover hate speech
also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss.
(2014)
6. Discuss Section 66A of IT Act, with reference to its alleged violation of Article 19 of the Constitution. (2013)
Introduction
• Fundamental Rights are defined in Part III of the Constitution and are guaranteed to all persons without any
discrimination. Part III of the Constitution is also known as the Magna Carta of India.
• There are six Fundamental Rights provided in the constitution: Right to Equality, Right to Freedom, Right
against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights and Right to Constitution
Remedies.
• They uphold the equality of all individuals, the dignity of the individual, the larger public interest and unity of
the nation.
Why fundamental rights are necessary?
• The Fundamental Rights are essential for promoting the ideal of political democracy.
• Fundamental Rights protect the liberties and freedom of the citizens against any invasion by the state.
• They are very essential for the all-round development of the individuals and the country.
• FRs prevent the establishment of the authoritarian and dictatorial rule in the country.
• They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. They aim at
establishing ‘a government of laws and not of men’.
Relation between FR and Democracy:
• The idea and concept of democracy includes human rights. The fundamental rights are the core human rights
which are mentioned in our constitution and are justiciable in nature.
• The degree to which these FRs are enjoyed by the citizens give the frame of reference of a democracy, as these
FRs are executed by the government which got its authority from the will of the people expressed in an election.
Features of FRs
• Availability - Some of them are available only to the citizens while others are available to all persons
whether citizens, foreigners or legal persons like corporations or companies.
• Reasonable Restrictions - They are not absolute but qualified. The state can impose reasonable restrictions
on them. However, whether such restrictions are reasonable or not is to be decided by the courts.
• Checks authoritarian tendencies - Most of them are available against the arbitrary action of the State, with
a few exceptions like those against the State’s action and against the action of private individuals.
• Positive and Negative character - Some of them are negative in character, that is, place limitations on the
authority of the State, while others are positive in nature, conferring certain privileges on the persons.
• Justiciable in nature - They are justiciable and are defended and guaranteed by the Supreme Court. Hence,
the aggrieved person can directly go to the Supreme Court.
• Enforceability - Most of them are directly enforceable (self-executory) while a few of them can be enforced
on the basis of a law made for giving effect to them.
• Restrictions – Their application is/can be restricted -
o To the members of armed forces, para-military forces, police forces, intelligence agencies and
analogous services can be restricted or abrogated by the Parliament (Article 33).
o While martial law is in force in any area (Article 34).
• Neither sacrosanct nor permanent - The Parliament can curtail or repeal them but only by a constitutional
amendment act and without affecting the ‘basic structure’ of the Constitution.

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• 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
• Article 12 has defined the term ‘state’ for the purposes of Part III. According to it, the State includes the
following -
o Government and Parliament of India, that is, executive and legislative organs of the Union
government.
o Government and legislature of states, that is, executive and legislative organs of state government.
o All local authorities such as municipalities, panchayats, district boards, improvement trusts, etc.
o All other authorities like, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
• State has been defined in a wider sense to include all its agencies. According to the SC, even a private body
or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12.
• Any actions of these agencies which violates the Fundamental Rights, can be challenged in the courts.
Does judiciary fall under definition of state under article 12?

• Judicial & Non- Judicial Function - It depends on the judicial and non-judicial functions of the Judiciary. When
the Judiciary is discharging Judicial functions, it is not regarded as a State whereas the non-judicial function
brings it under the definition of ‘State’.
• Naresh Shridhar Mirajkar case (1966) - Justice Hidayatullah in its dissenting opinion opined that the Judiciary
should be put under the ambit of Article 12, otherwise the courts would be allowed to make rules which violate
the fundamental rights of the citizens.
• Rupa Ashok Hurra v. Ashok Hurra case (2002) - The Apex Court reaffirmed and ruled that no judicial proceeding
could be said to violate any of the Fundamental rights and that it is a settled position of law that superior courts
of justice did not fall within the ambit of ‘state’ or ‘other authorities’ under Article 12.
o This gave the rationale that a Superior Judicial body when acting “Judicially” would not fall under the
definition of State but when it performs any administrative or similar functions e.g. conducting
examination, it will fall under the definition of “state” and that remedy could be sought in that context
only in case of violation of fundamental rights.
• Riju Prasad Sarmah Case (2015) - The court again held that when a court is acting in its judicial capacity, it
cannot be regarded as a State. However, its administrative action is amenable to the writ jurisdiction.
o The reasoning behind the court’s ruling was that: “The judicial forum will then lose its impartiality
because petitioners will make a demand that court itself should act as the State and deliver all reliefs
in a dispute where the executive or the legislature is not at all involved as a party.”
United Nations not a State under Article 12

• Recently, the Delhi High Court has ruled that the United Nations is not a State under Article 12 and is not
amenable to its jurisdiction under Article 226.
• A former UNO employee who was found guilty of misconduct claimed that due process was not followed in his
case.
• He had written a letter to the Ministry of External Affairs seeking a grant of permission to initiate legal action
against the UNO under section 86 of Civil Procedure Code, 1908. The provision provides that a foreign State
may be sued in any Court with the consent of the Central government.
• The Ministry replied that the consent of the Government of India is not required to initiate a legal suit against
UNO as it is not a foreign state and is only an International Organization.
o Moreover, UNO and its officials enjoy immunity under the United Nations (Privileges and Immunities)
Act, 1947.

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o It also said as per Section 2 of Article II of the Schedule of Act, 1947, UNO has immunity from every
form of legal process except insofar as in any particular case it has expressly waived its immunity.
• Conclusion: Giving blanket immunity to any organization, the UNO in this case, makes it a judge in its own cause
and is, therefore, against the basic tenets of justice delivery system.
Article 13
• Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental
rights shall be void. Thus, it expressively provides for the doctrine of judicial review.
• The power of Judicial Review has been conferred on the Supreme Court (Article 32) and the high courts
(Article 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of
the Fundamental Right.
• The term’ ‘Law’ has a wider meaning and any of the following can be challenged in the courts as violating
a Fundamental Right and hence, can be declared as void.
o Permanent laws enacted by the Parliament or the state legislatures.
o Temporary laws like ordinances issued by the president or the state governors.
o Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-
law, rule, regulation or notification.
o Non-legislative sources of law such as custom or usage having the force of law.
• A constitutional amendment is not a law and hence cannot be challenged. However, the Supreme Court
held in the Kesavananda Bharati case (1973) that a Constitutional amendment can be challenged on the
ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the Constitution.
Whether personal laws can be brought under the ambit of Article 13.
• The All-India Muslim Personal Law Board (AIMPLB) has argued that the Supreme Court does not have
jurisdiction to strike down provisions of personal law.
• However various organisations calling for reform and Muslim women • Article 14 of the Indian
from various walks of life across the country have urged the court to Constitution grants “equal
declare triple talaq and polygamy as “un-Islamic”. protection of law” to all its
• In State of Bombay versus Narasu Appa Mali (1951), the Bombay citizens.
High Court held that personal law is not ‘law’ under Article 13. The • But when it comes to personal
judgment was never challenged in the Supreme Court. issues (marriage, divorce,
• In Ahmedabad Women Action Group versus Union of India (1997), inheritance, custody of
the Supreme Court was asked to consider that unilateral divorce by children, etc), Muslims in India
talaq and polygamy violated Articles 14 and 15. The court rejected are governed by the Muslim
the claim, saying it was for the legislature to determine. Personal Law which came into
• Shayara Bano Case (2017) the court declared that as the Shariat Act force in 1937.
was a law made by the legislature before the Constitution came in
force, it would fall within the expression “laws in force” in Article 13(3)(b), and would be hit by Article 13(1) if
found to be inconsistent with Part III of the Constitution, to the extent of the inconsistency.
Right to Equality (Article 14-18)
Article 14 (Equality before law)

• The State shall not deny to any person Equality before Law or Equal Protection of Law within the territory of
India.
Difference bet equality before law & equal protection of laws.

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• The concept of ‘equality before law’ is of British origin. It

connotes: Rule of Law
• The concept of ‘equality before law’ is
o The absence of any special privileges in favour of any
person. an element of the concept of ‘Rule of
o The equal subjection of all persons to the ordinary law of
Law’, propounded by A.V. Dicey, the
the land. British jurist.
• It has 3 elements of which two are
o No person is above the law.
• The concept of ‘equal protection of laws’ has been taken from applicable to Indian System. That are
the American Constitution and it connotes – Absence of arbitrary power and
o The equality of treatment under equal circumstances.
Equality before the law.
• The third – “The constitution is the
o The similar application of the same laws to all persons who
are similarly situated. result of the rights of the individual as
o The like should be treated alike without any
defined and enforced by the courts” is
discrimination. not applicable to India as the
• The former is a negative concept while the latter is a positive constitution is the source of the
concept. However, both of them aim at establishing equality individual right in India.
• The SC held that the ‘Rule of Law’ as
of legal status, opportunity and justice.
• Article 14 forbids class legislation but permits reasonable embodied in Article 14 is a ‘basic
classification of persons, objects and transactions by the law. feature’ of the constitution.
But the classification should not be arbitrary, artificial or
evasive.
Exceptions
• The state can make any special provision for women and children.
• The State can make any special provision for the advancement of any socially and economically backward
classes, SC and ST in public educational institutions (1st CAA 1951)
• The State can make any special provision for any socially and economically backward classes, SC and ST for
their admission to educational institutions including private educational institutions whether aided or unaided
except minority education institutions. (93rd CAA 2005)
• The State can make special provisions for the advancement of any economically weaker section (EWS) of
citizens, including reservations in educational institutions. (103rd CAA 2019)
• The President of India and the Governor of States enjoy the immunities (Article 361).
• Members of Parliament (MPs) and State Assemblies enjoys privileges and immunities under Art. 105 and Art.
194 of the Indian Constitution.
Recent Context
CAA and Article 14
• The Citizenship (Amendment) Act, 2019
o It amended the Citizenship Act, 1955 to provide Indian citizenship for persecuted religious minorities
from Afghanistan, Bangladesh and Pakistan who are Hindus, Sikhs,
Buddhists, Jains, Parsis or Christians, and arrived in India before the end of December 2014.
o The law does not grant such eligibility to Muslims from those countries.
• Arguments in favour
o However, proponents claims that the CAA is not violative of Article 14, as this Article permits
“reasonable classification”.
o The three countries covered under CAA are either Islamic states or countries where Muslims are in
majority.
o It is a fact that the minorities in these three countries have faced persecution on religious lines.
• Criticism
o There is apprehension that the CAA violates Article 14 on all three counts of reasonable classification,
arbitrariness in state action and treating people unequally without reason.
o The treatment meted towards an atheist or agnostic gets completely ignored under the CAA.
o It is against the secular nature of the country.

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• Supreme Court Previous judgements

o 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.
o Sarbananda Sonowal Case (2005): Assam Accord of 1985 was not implemented for 30 years until the
Supreme Court’s judgment in this case.
o Assam Sanmilita Mahasangha Case 2015: the Supreme Court directed the government to take
necessary steps to deal with the problem of illegal immigration from Bangladesh.
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.
• The SC questioned the rationale of the sudden change in vaccine Earlier Vaccine Policy
policy (decentralised procurement) and said it needed to test it • The Centre was supposed to procure
on the touchstone of Article 14 (right to equal treatment) of the half of all vaccines produced in India
Constitution. and the remaining, state and private
• Digital Divide – hospitals had to procure them on the
o The policy does not allow the option of walk-in and open market.
cohort registration for those without Internet access as • The prices of vaccines were different
it requires mandatory registration on the Co-WIN for centre, state and private hospitals
platform (age group of 18-44 years). and also for age group 18-44 and 45
o This has given rise to a plethora of problems due to the + violating the right to equal
low level of digital literacy in rural areas and has treatment.
deepened the existing urban-rural divide in India.
o Studies show that the internet penetration rate in rural
India is a mere 29.1% against the national average of 51% in 2020 and thus it would exclude a large
class of citizens.
• After the court intervention, Centre came with centralised procurement policy.
o Now, the central government will buy 75% of all vaccines manufactured and the state governments will
receive their vaccines doses for free from the centre, instead of negotiating directly with manufacturers.
o All adults over the age of 18 will be vaccinated [for] free.
Protesting is a Fundamental Right: UN

• Recently, the UN Human Rights committee reaffirmed that protesting peacefully, online or in person, is a
fundamental human right.
• The Committee published a fresh interpretation of the right of peaceful assembly, offering comprehensive legal
guidance about where and how it applies and also outlining governments’ obligations.
• The Committee, made up of 18 independent experts, is tasked with monitoring how countries implement the
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)
• Article 15 has two provisions - The first provision prohibits discrimination only by the State and second
provision prohibits discrimination both by the State and private individuals.
1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them.
2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, 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

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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
There are three exceptions to this general rule of non-discrimination:
o The state is permitted to make any special provision for women and children. For example,
reservation of seats for women in local bodies or provision of free education for children.
o The state is permitted to make any special provision for the advancement of any socially and
educationally backward classes of citizens or SCs & STs. For example, reservation of seats or fee
concessions in public educational institutions.
o The state is empowered to make any special provision for the advancement of any socially and
educationally backward classes of citizens or for the SCs & STs regarding their admission to
educational institutions except the minority educational institutions.
Reservation Policy
• Current reservation status: SC (15%), ST (7.5%), OBC (27%), PwD (3%) and EWS (10%)
• Champakam Dorairajan Case (1951): The Supreme Court upheld decision of Madras High Court, which struck
down a Government Order of 1927 regarding caste-based reservation in government jobs and educational
institutions. This judgement also made basis of adding Article 15(4) by the First Constitutional Amendment Act,
1951.
• Indra Sawhney Case (1992): The Supreme Court held that 27% quota in government jobs for backward classes
with elimination of Creamy Layer, is constitutionally valid. The reservation of seats shall only confine to initial
appointments and not to promotions, and the total reservations shall not exceed 50 per cent.
• M. Nagaraj Case (2006): The Supreme Court validated parliament’s decision to extend reservations for SCs and
STs to include promotions with three conditions:
o State has to provide proof for the backwardness of the class benefitting from the reservation.
o State has to collect quantifiable data showing inadequacy of representation of that class in public
employment.
o State has to show how reservations in promotions would further administrative efficiency.
• Jarnail Singh Case (2018): The Supreme Court held that the government need not collect quantifiable data to
demonstrate backwardness of public employees belonging to the SC/STs to provide reservations for them in
promotions.
• Recently the Supreme Court 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. The enactment
provides for consequential seniority to SCs and STs with retrospective effect from 1978.
Recent Context
Justice G Rohini Commission (2017)
• The Union Cabinet has approved a six-month extension to the commission appointed to examine sub-
categorisation of Other Backward Classes (OBCs), up to 31st January 2021.
• To examine the extent of inequitable distribution of benefits of reservation among the castes or communities
included in the broad category of OBCs with reference to such classes included in the Central List.
• Article 340 deals with the appointment of a commission to investigate the conditions of backward classes.
100% reservation for STs

• Andhra Pradesh governor had provided absolute reservation for members of the STs for teaching jobs in the
scheduled areas.
• The Supreme Court held that providing 100% reservation for Scheduled Tribes in scheduled areas of a State is
not permissible.
• The apex court has reiterated the Indra Sawhney judgement, which capped reservations at 50%.

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Maratha Reservation
• A five-judge Constitution Bench of the Supreme Court unanimously declared a Maharashtra law which provides
reservation benefits to the Maratha community, taking the quota limit in the State in excess of 50%, as
unconstitutional.
• The Court found there was no “exceptional circumstances” or “extraordinary situation” in Maharashtra which
required the Maharashtra government to break the 50% ceiling limit to bestow quota benefits on the Maratha
community.
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 citizen can be discriminated against or be ineligible for any employment or office under the State on grounds
of only religion, race, caste, sex, descent, place of birth or residence.
• Few exceptions –
o Parliament can prescribe residence as a condition in employment.
o Reservation in favour of any backward class which is not adequately represented in the state services.
o Religious or denominational institutions members should belong to that particular religion or
denomination.
o the scientific and technical posts which satisfy some conditions can be exempted from the purview of
EWS reservation.
Recent Context
Issue of Local Reservation in Private Sector Jobs
• Demand for local reservation - There is rising demand from various states for local reservation in private sector
jobs and various states have passed a law mandating that 75% of the jobs in the private sector. E.g. Andhra
Pradesh, Haryana etc.
• Reasons: unemployment crisis, migration issue, agrarian distress, lack of participation of all sections in the
workforce etc.
• Challenges - However, the limit of 50% will stand critical as mentioned in Indra Sawney Case and as per Article
16(3), state government are not empowered, only Parliament can prescribe residence as a condition in
employment that too is limited to public sector.
• Other concern - Employers believe the local workers lack work discipline, are unwilling to learn new trades, are
inclined towards political and trade unions — seen as pressure tactics by businesses — and are insistent on the
implementation of the reservation quota.
Creamy Layer Criteria for SC/ST in Promotions

• Review of Jarnail Singh Case - The Centre urged the Supreme Court to refer to a larger Bench its decision in
Jarnail Singh Case (2018) that had applied the creamy layer principle to promotions for Scheduled Castes and
Scheduled Tribes in government jobs.
• Reasons for appeal –
o Asking states “to collect quantifiable data showing backwardness is contrary to the Indra Sawhney case
where it was held that SCs and STs are the most backward among backward classes and it is, therefore,
presumed that once they are contained in the Presidential List under Articles 341 and 342, there is no
question of showing backwardness of the SCs and STs all over again”.
o The creamy layer concept has not been applied in the Indra Sawhney case to the SCs and the STs; the
Nagaraj judgment, according to the government, “has misread” the Indra Sawhney judgment to apply
the concept to the SCs and STs.

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Reservation in Promotion not a Fundamental Right

• SC Judgement
o There is no fundamental right to reservations in appointments and promotions. Article 16(4) and 16(4A)
are in the nature of enabling provisions, vesting a discretion on the State Government to consider
providing reservations, if the circumstances so warrant.
o No mandamus can be issued by the court directing state governments to provide reservations. However,
if the state wishes to exercise its discretion and make such provision, it has to collect quantifiable data
showing ‘inadequacy of representation’ of that class in public services.
• The judgment was based in a batch of appeals pertaining to the reservations to SC and ST in promotions in the
posts of Assistant Engineer (Civil) in Public Works Department of Uttarakhand.
Reservations Based on Place of Birth

• Madhya Pradesh Law - Recently, the CM of Madhya Pradesh has announced that the government jobs will be
reserved for the “children” of the state and legal provisions will be made for the same.
• Domicile Reservation - The Constitution specifically prohibits discrimination based on place of birth [Article
16(2)], the Supreme Court has held domicile reservation especially in educational institutions as constitutional.
• Constitution Prohibits - On the other hand, the court have been cautious of applying such a reservation to
public employment because it would violate citizens' constitutional protections against discrimination.
• Distinction bet birth place and domicile -The SC has, in its rulings since 1955, underlined the distinction
between domicile status and place of birth. Domicile or status of residence is a fluid concept that can change
from time to time, unlike place of birth. The place of birth is one of several grounds on which domicile status is
conferred.
• SC Judgement - Article 16(3), allows for making provisions in government appointments with respect to
residence (not place of birth). In the context of reservation in education, the court had upheld a law providing
domicile reservation in Madhya Pradesh in 1955.
Article 17: Abolition of Untouchability

• Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability
arising out of “Untouchability” shall be an offence punishable in accordance with law.
• The Supreme Court held that the right under Article 17 is available against private individuals and it is the
constitutional obligation of the State to take necessary action to ensure that this right is not violated.
Protection of Civil Rights Act, 1955 Untouchability

• In 1976, the Untouchability (Offences) Act, 1955 has been • The term ‘untouchability’ has not
comprehensively amended and renamed as the Protection of been defined either in the
Civil Rights Act, 1955 to enlarge the scope and make penal Constitution or in the Act.
provisions more stringent. • The Mysore High Court held that
• A person convicted of an offence of untouchability is disqualified the untouchability means not in its
for election to the Parliament or state legislature. literal or grammatical sense but the
• Following acts declared as offences under the act - ‘practice as it had developed
o Preventing any person from entering any place of public historically in the country’.
worship or from worshipping therein. • It refers to the social disabilities
o Justifying untouchability on traditional, religious, imposed on certain classes of
philosophical or other grounds. persons by reason of their birth in
o Denying access to any shop, hotel or places of public certain caste.
entertainment. • Hence, it does not cover social
o Insulting a person belonging to scheduled caste on the boycott of a few individuals or their
ground of untouchability. exclusion from religious services,
o Refusing to admit persons in hospitals, educational etc.
institutions or hostels established for public benefit.
o Preaching untouchability directly or indirectly.

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o Refusing to sell goods or render services to any person.
Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989

• Its main objective is prevention of atrocities on SCs and STs by increased surveillance.
• Subhash Kashinath Mahajan case (2018):
o The Supreme Court banned immediate arrest of a person accused of insulting or injuring a SC/ST
member to protect innocents from arbitrary arrest.
o It allowed anticipatory bail to those booked for committing atrocities against SC/ST and preliminary
enquiry will not be required for registration of an FIR against any person.
• The Parliament passed the SC and ST (Prevention of Atrocities) Amendment Act, 2018, to bypass the ruling of
the Supreme Court of India laying down procedures for arrests under the Act.
• Prithvi Raj Chouhan Case (2020): The amendment Act, 2018 was upheld.
Maharashtra's law against social boycott

• The Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016
can serve as a template for similar legislation in other States.
• The Act lists over a dozen types of actions that may amount to ‘social boycott’, which has been made a criminal
offence punishable with imprisonment up to three years or a fine of ₹1 lakh or both.
• The law recognises the human rights dimension to issues of social boycott, as well as the varied forms in which
it occurs in a caste-based society.
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, Rai Bahadur, Rai Saheb, Dewan Bahadur, etc, which
were conferred by colonial States are banned by Article 18 as these are against the principle of equal status of
all.
• In Balaji Raghavan case (1994), the SC allowed the State to give Bharat Ratna and Padma awards but made it
clear that these couldn’t be used as a title.
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:
1. Right to freedom of speech and expression. Freedom of movement
2. Right to assemble peaceably and without arms.
• It has two dimensions, i.e.,
3. Right to form associations or unions [or co-operative
internal (right to move inside
societies].
the country) and external
4. Right to move freely throughout the territory of India.
(right to move out of the
5. Right to reside and settle in any part of the territory of India.
country and right to come back
6. Right to practise any profession, or to carry on any
to the country).
occupation, trade or business.
• Article 19 protects only the
o These six rights are protected against only state action and not
first dimension. The second
private individuals. Moreover, these rights are available only to
dimension is dealt by Article
the citizens and to shareholders of a company but not to
21 (right to life and personal
foreigners or legal persons like companies or corporations, etc.
liberty).
• Article 19(2): The State can impose ‘reasonable restrictions’ on the
enjoyment of these six rights only on the grounds mentioned in the
Article 19 itself and not on any other grounds.

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o Restrictions on freedom of speech and expression – State can impose restriction on the grounds of
sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public
order, decency or morality, contempt of court, defamation, and
incitement to an offence. Protection of Tribal Interests
o Restrictions on Freedom of Assembly - State can impose
• The right of outsiders to
reasonable restrictions on the grounds of sovereignty and
reside and settle in tribal
integrity of India and public order including the maintenance of
areas is restricted to protect
traffic in the area concerned.
the distinctive culture,
▪ This freedom can be exercised only on public land and
language, customs and
the assembly must be peaceful and unarmed.
manners of scheduled tribes
▪ This provision does not protect violent, disorderly,
and to safeguard their
riotous assemblies, or one that causes breach of public
traditional vocation and
peace or one that involves arms.
properties against
▪ This right does not include the right to strike.
exploitation.
o Restrictions on Freedom of Association - Reasonable restrictions
can be imposed on the grounds of sovereignty and integrity of
India, public order and morality.
o 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.
o Restrictions on Freedom of Profession - The State can impose restrictions in the interest of the general
public. The state can prohibit profession or business or trade or occupation that is immoral (trafficking in
women or children) or dangerous (harmful drugs or explosives, etc,
Shreya Singhal Case (2015):

• Section 66A of the Information Technology Act, 2000 prescribes the punishment for any person to send 'grossly
offensive' or 'menacing' information using a computer resource or communication device.
• The vague and arbitrary terms used in the Section led to much misuse
of both personal and political nature. Kerala Govt Ordinance, 2020
Several criminal cases were instituted against innocuous instances of • Kerala passed similar
online speech, including political commentary and humour. ordinance, or punishing the
• The Supreme Court struck down Section 66A. and held that the Section “making, expressing,
was not saved by virtue of being a 'reasonable restriction' on the publishing or disseminating”
freedom of speech under Article 19(2). of any “matters” which could
• It held that online intermediaries would only be obligated to take down be constructed “threatening,
content on receiving an order from a court or government authority. abusive, humiliating or
• The case is considered a watershed moment for online free speech in defamatory”.
India.
• Sadly, Section 66A, which was declared unconstitutional, has continued to be used as a punitive measure
against online speech in several cases.
Eight biggest threats to freedom of speech & expression in India by Ramchandra Guha
• Retention of archaic colonial laws - Several sections in IPC give the courts and the State itself, an
extraordinarily wide latitude in placing limits to the freedom of expression. Ex – Sedition (IPC), Defamation
(sec 499 & 500).
• Imperfections in our judicial system - lower courts in particular are too quick and too eager to entertain
petitions seeking bans on individual films, books, or works of art. These petitions tend to be frivolous, or
without substance, or politically motivated.
• Rise of identity politics - The life of a book or a work of art or a film has become increasingly captive to the ease
with which a community, any community at all, can complain that its sentiments, any sentiments, are hurt or
offended by it. The icons of each region, caste or community have, in the eyes of their celebrants or
worshippers, become flawless, beyond all criticism.

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• Behaviour of the police force - Even when courts take the side of writers and artists, the police generally side
with the mob who harass them. In the case of James Laine’s book on Shivaji, even after the Bombay HC struck
down the Maharashtra Government’s ban, the state police for protection they refused to give it.
• Mendacity of politicians - Indeed, no major or minor Indian politician, as well as no major or minor Indian
political party, has ever supported writers, artists or film-makers against thugs and bigots.
• Dependence of the media on government advertisements – Due to dependence it is unlikely that media will be
fearless in its criticism of the government’s failures.
• Dependence of media on commercial advertisements - Companies that make products that have damaging side-
effects are rarely criticised for fear that they will stop providing ads. Indeed, several major industrial houses
have pulled ads from magazines or channels when they have run stories critical of their companies.
• Careerist or ideologically driven writers - In India, tragically, too many writers, scholars, artists and editors
identify with a single party or even with a single politician, this association leading to the suppressing of facts
or the twisting of opinions.
Recent Context
Sedition Law
Why in news?
• Recently, the SC quashed the sedition case registered against journalist who had made comments made
on his YouTube show criticising the central government. The court said every journalist is entitled to
protection under the Kedar Nath Singh judgment.
• In another case, the SC said that section 124A of the IPC Kedar Nath Singh Case 1962
needs interpretation — especially on its application with • In the landmark 1962 Kedar Nath
regard to freedom of the press. case, the Supreme Court upheld the
Section 124 A constitutional validity of the sedition
law, but also attempted to restrict its
• It defines sedition as - Whoever, by words, either spoken or scope for misuse.
written, or by signs, or by visible representation, or • The court held that unless
otherwise, brings or attempts to bring into hatred or accompanied by an incitement or
contempt, or excites or attempts to excite disaffection call for violence, criticism of the
towards, the Government established by law in India. government cannot be labelled
• It was added to IPC in 1870 to suppress the freedom struggle sedition.
of India.
Conviction under sedition Law (NCRB)
• In 2017, 51 sedition cases were filed, 228 accused were arrested, and four persons were convicted.
• In 2018, two persons were convicted by court for sedition while 56 people were booked in 70 cases.
• In 2019, 93 sedition cases were registered against 96 people. Two were convicted of sedition.
Need of Sedition Law
• To protect the government elected form attempt to overthrow by unconstitutional and undemocratic
means.
• To protect the unity of the country by curbing anti-national, secessionist elements.
• To protect the democracy from the insurgency, naxalisam and terrorism.
Criticism of the Law
• Curtails Freedom of Speech - Sedition is an outdated law from the colonial era and it curtails the freedom
of speech and that it has no place in a modern democracy.
• Colonial Legacy - The law was introduced by the colonial government in India to curtail dissent and that
Britain has since abolished this law in 2009.
• Law Commission - In 2018, the Law Commission of India published a consultation paper that asked for a
possible amendment or repeal of the law.

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• Downgrading democracy - A report by Freedom House — Freedom in the World 2021: Democracy Under
Siege — downgraded India’s status from a free country to a partly free country. One of the reasons for the
fall is the rise in sedition cases against dissenters.
• Misuse - The sedition law is used against activists, protestors and students, Dalit and tribal activists and
people of minority communities on flimsy grounds. for ex in Karnataka parents and principal of a school
were charged with sedition for staging a play critical of the CAA.
Way Forward
Dissent, criticism of the government are essential aspects of vibrant democracy thus it should not deal by sedition
cases. The Supreme Court’s call for a fresh examination of the remit of the sedition law is enormously welcome.
The Supreme Court must settle the law once and for all, without leaving wiggle room for its continued distortion
and misuse.
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 of the Constitution,
subject to some restrictions and said freedom of press is a valuable and sacred right. It said magistrates, while
passing prohibitory orders (Section 144 CrPC), should apply their mind and follow doctrine of proportionality.
• The Supreme Court ruling is in sync with the United Nations recommendation that every country should make
access to Internet a fundamental right.
• In India, Kerala had become the first state in 2017 to declare access to Internet "a basic human right".
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.
Article 20 (Protection in respect of conviction for offences)

Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or
foreigner or legal person like a company or a corporation. It contains following provisions.
• No ex-post-facto law: No person shall be (i) convicted of any offence except for violation of a law in force at
the time of the commission of the act, nor (ii) subjected to a penalty greater than that prescribed by the law in
force at the time of the commission of the act.
• No double jeopardy: No person shall be prosecuted and punished for the same offence more than once.
• No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself.
Recent Context: the Uttar Pradesh government decided to conduct polygraph and narco-analysis tests of the
accused and all involved police personnel as part of the investigation in 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.
• In the D.K. Basu vs. State of West Bengal case, 1997, the SC ruled that involuntary administration of the
polygraph and narcos test will amount to cruel, inhuman, and degrading treatment in the context of Article 21
or the Right to Life and Liberty.
• The Supreme Court in Pt Parmanand Katara case (1995) held that the right to the dignity and fair treatment
enshrined under Article 21 is not only available to a living man but also to his body after the death.
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.

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• A K Gopalan Case (1950): The Supreme Court took narrow interpretation i.e. Article 21 is available only against
arbitrary executive action and not from arbitrary legislative action. This is because of the expression 'procedure
established by law' in Article 21.
• Menaka Gandhi Case (1978): the Supreme Court took wider interpretation i.e. Article 21 should be available
not only against arbitrary executive action but also against arbitrary legislative action. It has introduced
American expression 'due process of law'.
• The court held that the ‘right to life’ as embodied in Article 21 is not merely confined to animal existence or
survival but it includes within its ambit the right to live with human dignity and all those aspects of life which
go to make a man’s life meaningful, complete and worth living.
• In the subsequent Judgements SC has declared the many rights as part of Article 21: (1) Right to live with human
dignity. (2) Right to decent environment including pollution free water and air and protection against hazardous
industries. (3) Right to livelihood. (4) Right to privacy. (5) Right to shelter. (6) Right to health. (7) Right to free
education up to 14 years of age. (8) Right to free legal aid. (9) Right against solitary confinement. (10) Right to
speedy trial etc.
Right to Privacy:
Puttaswamy judgment (2017)
• The landmark verdict was passed unanimously by a nine-judge Constitution bench which held that privacy was
intrinsic to freedom of life and personal liberty which is guaranteed under Article 21 of the Constitution.
• It overruled previous judgements of the Supreme Court in Kharak Singh vs State of UP and M.P Sharma vs Union
of India, which held that there is no fundamental right to privacy.
• The judgment was interpreted as paving the way for the eventual decriminalisation of homosexuality in India
in Navtej Singh Johar v. Union of India (2018) and abolishing the provisions pertaining to crime of Adultery
under the Indian Legal System in the case of Joseph Shine v. Union of India (2018).
Right to Privacy & Legitimate State Interest
• Recently, the Centre told the Delhi High Court that though the right to privacy has been held to be a “sacred
fundamental right” and is being “respected” by the government, the “veil of privacy” can be lifted for certain
“legitimate state interest”.
• The government was responding to a petition seeking permanent halting of the Centre’s surveillance projects:
Centralized Monitoring System (CMS), Network Traffic Analysis (NETRA) and National Intelligence Grid
(NATGRID).
• The government said the interest of sovereignty or integrity of India, defence of the country, security of the
State, friendly relations with foreign states or public order fall under “legitimate state interest”.
• The grave threats to the country from terrorism, radicalization, cross-border terrorism, cybercrime, organized
crime, drug cartels cannot be understated or ignored and a strong and robust mechanism for timely and speedy
collection of actionable intelligence including digital intelligence, is imperative to counter threats to the national
security. This is undeniably legitimate State interest.
• 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 for interception and
monitoring, are scrutinized by the dedicated unit of the Ministry of Home Affairs with strict security and
confidentiality before consideration by the Central Government, for the approval as per the legal provisions.
• K.S. Puttaswamy v. Union of India (2017): Right to Privacy is a fundamental right under Article 21.
• Draft Personal Data Protection Bill 2019: regulates the processing of personal data of individuals (data
principals) by government and private entities (data fiduciaries) incorporated in India and abroad. Processing
is allowed if the individual gives consent, or in a medical emergency, or by the State for providing benefits.
Recent Context
• Swapnil Tripathi Case 2018: The Supreme Court held that Article 21 also includes the Right to Access Justice.
• Report by Commonwealth Human Rights Initiative: only five lawyers are empanelled for legal aid service on
per lakh population. Note: Right to free legal aid is a FR under Article 21.

43
• Social Media and Aadhar Number: Tamil Nadu government told SC that social media profiles of users be linked
to their Aadhar number. The Supreme Court 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).
• Health as a Fundamental Right: The COVID-19 epidemic has been unprecedented in its impact on society. India
has never spent more than 2% of its GDP on healthcare. The damaging epidemic has opened the eyes of people
to the importance of universal and robust public health services and the need for everybody to be covered by
quality healthcare, or for health services to be accessible to everyone.
• 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, starting from the 1984 Bandhua Mukti Morcha Case. This inviolable right
naturally encompasses the right to access affordable treatment, as iterated by the Supreme Court in a Suo-
moto case pertaining to the proper treatment of COVID-19 patients.
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.
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. It requires all private schools to reserve 25% of seats to children (to be
reimbursed by the state as part of the public-private partnership plan).
Recent Context
• National Education Policy 2020: NEP has expanded the horizon by restructuring school curriculum and
pedagogy in a new 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 and therefore, the private schools were providing the same as part of their responsibilities
under the statute and not as a voluntary or social service.
Digital Divide and RTE:
o The closure of schools during COVID has highlighted the inequities in the Indian education system, with
some students able to continue the learning process via online tools, while others being left out. This
has hampered the right to education envisaged under Article 21A.
o The Centre has directed State Education Departments to map the online access available to all their
students in order to adequately plan curriculum and teaching methods that can reach such students.
Although much of the focus has been on digital platforms, television and radio are also being used to
deliver lessons.
o 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 part deals with the cases of ordinary law and the second part deals with the
cases of preventive detention law.
• The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary
law:
o Right to be informed of the grounds of arrest.
o Right to consult and be defended by a legal practitioner.
o Right to be produced before a magistrate within 24 hours, excluding the journey time.
o Right to be released after 24 hours unless the magistrate authorises further detention.
• The second part of Article 22 grants protection to persons who are arrested or detained under a preventive
detention law.
o The detention of a person cannot exceed three months unless an advisory board reports sufficient
cause for extended detention. The board is to consist of judges of a high court.

44
o The grounds of detention should be communicated to the detenu. However, the facts considered to be
against the public interest need not be disclosed.
o The 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 for reasons connected with defence,
foreign affairs and security of India.
• Both Parliament as well as state legislatures can concurrently make a law of preventive detention for security
of state, maintenance of public order and maintenance of supplies & services essential to the community.
• The National Security Act (NSA), 1980 was enacted by the parliament to implement Article 22 of the
constitution that provides for Protection against Arrest and Detention.
• No democratic country in the world has made preventive detention as an integral part of the Constitution
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 other similar forms of forced labour.
• Article 23 also provides for an exception to this provision. It permits the State to impose compulsory service for
public purposes, as for example, military service or social service, for which it is not bound to pay.
PUDR vs. Union of India
• In a landmark judgment, PUDR vs. Union of India, the Court held that the right against forced labour included
the right to a minimum wage.
• The Court held that “the compulsion of economic circumstance which leaves no choice of alternatives to a
person in want and compels him to provide labour or service” was no less a form of forced labour than any
other, and its remedy lay in a constitutional guarantee of the minimum wage.
Recent issues concerning rights of labours:

• Labour Law Tweaked: The steps being taken by various States, under the cover of COVID-19, of removing labour
laws are against the rights of labours. E.g. Maharashtra has exempted industries registered under The Factories
Act, 1948, from four sections of this Act related to working hours of the staff, till June 30, 2020.
o 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. They were kept away
from their families, and probably, a source of shelter and livelihood at their villages. They were not treated at
equal terms while allocation of ration and other schemes.
o This is violative of Article 14 [equality] of the Constitution. Further, Article 21 [right to life and dignity]
envisages the right to live with dignity, and the same is being denied to migrant workers.
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 occupations and processes.
• Prohibits the employment of adolescents (14-18 years) in certain hazardous occupations and processes.
Recent Context

45
Child labour increased during COVID-19:

• The study conducted by Campaign Against Child Labour (CACL) revealed that there has been a significant
increase in the proportion of working children from 28.2% to 79.6% out of the 818 children who were surveyed,
mainly because of the COVID-19 pandemic and closure of schools.
• The ILO and UNICEF warned that globally millions more children could be forced into child labour as family
incomes drop. It highlighted that the COVID-19 pandemic threatens to reverse the gains made in the past 20
years to decrease child labour by 94 million.
Dilution of labour law puts children at risk

• The relaxation of labour laws across 11 States combined with closure of schools and reverse migration to rural
areas due to the nationwide lockdown will force lakhs of children into child labour, while those already
employed will be forced to work longer hours for meagre wages and under hazardous conditions. It will lead to
bondage and trafficking.
World Day Against Child Labour

• Ministry of Labour and Employment emphasised that it was more important than ever before to remain vigilant
towards the safety of children.
• The year 2021 is set to be marked as the International Year for the Elimination of Child Labour.
• India had reiterated its commitment to the goal of ending child labour when it ratified in 2017 the ILO’s
conventions on establishing a minimum age to work and ending the worst forms of child labour.
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 subject to public order, morality, health and other
provisions relating to fundamental rights.
• Article 25 covers not only religious beliefs (doctrines) but also religious practices (rituals).
• Further, the State is permitted to –
• Regulate or restrict any economic, financial, political or other secular activity associated with religious
practice.
• Provide for social welfare and reform or throw open Hindu religious institutions of a public character to all
classes and sections of Hindus
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,
female genital mutilation among Dawoodi Bohras and the ban on Parsi women who married inter-faith from
entering the fire temple.
Indian Young Lawyers Association Case (2018)
• The Travancore Devaswom Board had said that the prohibition on women of menstruating age from
entering the temple is a part of 'essential religious practice' of Lord Ayappa devotees.

46
• The ruling has allowed women of all ages to worship in Sabarimala

Temple, earlier there was a restriction of women of age group 10-50 Kerala High Court (1991)
years. • It had upheld the prohibition
• In its judgment, SC stated that 'devotion cannot be subjected to on young women entry in
gender discrimination'. It takes away the woman’s right against Sabarimala Shrine.
discrimination guaranteed under Article 15(1) of the Constitution. It • The High Court had pointed
also curtails the religious freedom assured by Article 25(1). out that the ‘Naisthik
• SC said that prohibition founded on the notion that menstruating Brahmachari’ nature of the
women are "polluted and impure" is a form of untouchability and deity was “a vital reason for
the notions of purity and pollution stigmatized women. imposing this restriction on
• Dissent Opinion: young women”.
o Justice Indu Malhotra held the determination of what
constituted an essential practice in a religion should not be decided by judges on the basis of their
personal viewpoints.
o Essentiality of a religious practice or custom had to be decided within the religion and it is a matter
of personal faith.
o She observed that the freedom to practice their beliefs was enshrined in Article 25 of the
Constitution. Harmonisation of fundamental rights with religion included providing freedom for
diverse sects to practice their customs and beliefs.
Article 26 (Freedom to manage religious affairs)
• Article 26 (subject to public order, morality, and health) confers a right on every religious denomination or
any section of such religious denomination of:
o Establishing and maintaining institutions for religious and charitable purposes;
o Managing its affair with regard to religion;
o Owing and acquiring property (movable and immovable);
o Administering the property in accordance with the law.
• Article 25 guarantees rights of individuals, while Article 26 protects collective freedom of religion.
Article 27 (Freedom as to payment of taxes for promotion of any particular religion)
• Article 27 of the Constitution prevents a person from being compelled to pay any taxes for the promotion or
maintenance of any particular religion or religious denomination.
• This provision prohibits the State from favouring, patronising and supporting one religion over the other. This
means that the taxes can be used for the promotion or maintenance of all religions.
• Article 27 prohibits only levy of a tax and not a fee because the purpose of a fee is to control secular
administration of religious institutions and not to promote or maintain religion.
Article 28 (Freedom as to attendance at religious instruction or religious worship in certain educational

institutions)
• Article 28 prohibits providing religious instructions in any educational institutions that are maintained wholly
out of the state funds.
• The above shall not apply to those educational institutions administered by the states but established under
endowment or trust requiring religious instruction to be imparted in such institution.
• Any person attending state recognized or state-funded educational institution is not required to take part in
religious instruction or attend any workshop conducted in such an institution or premises of such educational
institution.
Cultural and Educational Rights (Article 29-30)
Article 29 (Protection of interests of minorities)
• Right of a group: Any section of the citizens residing in the territory of India or any part thereof having a distinct
language, script or culture of its own shall have the right to conserve the same.

47
o This right is an absolute right and there are no ‘reasonable restrictions’ in the interest of the
general public here.
o The Supreme Court also held that the right to conserve the language includes the right to agitate
for the protection of the language. Hence, the political speeches or promises made for the
conservation of the language of a section of the citizens does not amount to corrupt practice under
the RPA, 1951.
• Right of an individual: No citizen shall be denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
• Article 29 grants protection to both religious minorities as well as linguistic minorities. However, the SC held
that the scope of this article is not restricted to minorities only, because the words ‘section of citizens’ in the
Article include minorities as well as majority.
Recent Context:
Introduction of mother tongue as medium
• Recently, Telangana High Court issued notices to State and central governments over a PIL petition seeking
implementation of Section 29 of Right to Education Act comprising different provisions, including the
introduction of mother tongue as medium of instruction in primary schools.
• The Union Ministry of Education has informed the Supreme Court that it is fully backing a push for “mother
tongue” as medium of instruction in schools. The use of “home language” for learning will bridge the gap
between the intelligentsia and the masses.
• The Ministry said an order was issued on September, 2020 to academic authorities, including CBSE, NCERT and
NCTE, to initiate the implementation of the National Education Policy (NEP) which promotes “multilingualism”
and use of “home language” as a mode of instruction.
• NEP 2020 focuses on “multilingualism”. It recognises the power of local languages to help young children “learn
and grasp non-trivial concepts more quickly”.
• The National Curriculum Framework of 2005 and Section 29 of the Right to Education Act of 2009 required the
medium of instruction, as far as practicable, to be in the child’s mother tongue.
• According to the 2011 census, there are 1,369 rationalised ‘mother tongues’ spoken by more than 10,000
people. While there are 22 national languages in the Eighth Schedule of the Constitution, there are only six
classical languages recognised in India.
Identification of Minorities
What is issue ?
• Recently, the Supreme Court has sought the Central government's response on a PIL challenging provisions of
the National Commission for Minority Education Institution (NCMEI) Act, 2004.
• The plea has argued that the Act identifies minorities at the national level and not at the state level, thereby
depriving deserving minorities in the states of their Constitutional rights.
TMA Pai Foundation case 2002
Demand to recognize minorities at state level • The Supreme Court held that
• The petition contended that under Section 2(f) of the Act, the Centre the unit of determining
notified Muslims, Christians, Sikhs, Buddhists and Parsis as minorities at religious and linguistic
the national level. This was against the spirit of the Supreme Court minorities would be 'State'. It
judgment in the TMA Pai case (2002). also authorised the state
• The plea argued that those who follow Hinduism, Judaism and Bahaism government to regulate
and are minorities in regions like Ladakh, Mizoram, Lakshadweep, minority educational
Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and institutions.
Manipur, cannot establish and administer educational institutions of
their choice (Article 29 and 30).
• The term "Minority" is not defined in the Indian Constitution. However, the Constitution recognises religious
and linguistic minorities.

48
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,
especially political borders. It has to be taken on a pan-India basis.
Article 30 (Right of minorities to establish and administer educational institutions)

• All minorities, whether based on 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. Nor does it include the
right to maladminister. There can be regulatory measures for ensuring educational character and
standards and maintaining academic excellence.
• The State shall not, in granting aid to educational institutions, discriminate against any educational institution
on the ground that it is under the management of a minority, whether based on religion or language.
• 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” to provide minority educational institutions with well-qualified teachers in order for them
to “achieve excellence in education.”
Key points of Judgement
• Regulatory law should however balance the dual objectives of ensuring standard of excellence as well as
preserving the right of the minorities to establish and administer their educational institutions.
• The court broadly divided education into two categories ie. Secular education and education directly aimed at
preservation and protection of the heritage, culture, script and 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. The court reasons that only teachers who believe in the
religious ideology or in the special characteristics of the concerned minority would alone be able to
imbibe in the students, what the minorities would like to preserve, profess and propagate.
o However, minority institutions where the curriculum was purely secular, the intent must be to impart
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. Madrasahs are recognised as minority institutions.
• 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.
• SC referred to the TMA Pai Foundation case, 2002 and said that Article 30(1) (Right of minorities to establish
and administer educational institutions of their choice) was neither absolute nor above the law. As per the laws
laid in the case a regulation framed in the national interest must necessarily apply to all institutions regardless
of whether they are run by majority or minority as the essence of Article 30(1) is to ensure equal treatment
between the majority and minority institutions.

49
Remedies for enforcement of rights conferred by this Part (Article 32)
• A mere declaration of fundamental rights in the Constitution is meaningless, useless and worthless without
providing an effective machinery for their enforcement, if and when they are violated.
• Hence, Article 32 confers the right to remedies for the enforcement of the fundamental rights of an aggrieved
citizen. Supreme Court has ruled that Article 32 is a basic feature of the Constitution.
• That is why Dr Ambedkar called Article 32 as the most important article of the Constitution ‘an article without
which this constitution would be a nullity.’ It is the very soul of the Constitution and the very heart of it’
• Parliament can empower any other court to issue directions, orders and writs of all kinds.
• 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).
• Recently, the Supreme Court had said that the right to approach the Supreme Court under Article 32 is itself a
fundamental right and that “there is no doubt that if a citizen of India is deterred in any case from approaching
this Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and
direct interference in the administration of justice in the country”.
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 - It is an order issued by the court to a person who has detained another person, to produce
the body of the latter before it. The court then examines the cause and legality of detention. 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
that he has failed or refused to perform. 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 or usurping a jurisdiction that it does not possess.
• Certiorari - It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the
latter to itself or to squash the order of the latter in a case. It is issued on the grounds of excess of jurisdiction
or lack of jurisdiction or error of law.
• Quo-Warranto - It is issued by the court to enquire into the legality of claim of a person to a public office.
Hence, it prevents illegal usurpation of public office by a person.
Armed forces and Fundamental rights
• Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed
forces, para-military forces, police forces, intelligence agencies and analogous forces. The objective of this
provision is to ensure the proper discharge of their duties and the maintenance of discipline among them.
Martial Laws and Fundamental rights

• Article 34 provides for the restrictions on fundamental rights while martial law is in force in any area within the
territory of India.
• It empowers the Parliament to indemnify any government servant or any other person for any act done by him
in connection with the maintenance or restoration of order in any area where martial law was in force.
Legislation to give effect to the provisions of this Part (Article 35)

• Article 35 lays down that the power to make laws, to give effect to certain specified fundamental rights shall
vest only in the Parliament and not in the state legislatures.
• It contains the following provisions:
o Prescribing residence as a condition for certain employments or appointments in a state or union
territory or local authority or other authority (Article 16).

50
o Empowering courts other than the Supreme Court and the high courts to issue writs of all kinds for
the enforcement of fundamental rights (Article 32).
o Restricting or abrogating the application of Fundamental Rights to members of armed forces, police
forces, etc. (Article 33).
o Indemnifying any government servant or any other person for any act done during the operation of
martial law in any area (Article 34).
• Parliament shall have (and the legislature of a state shall not have) powers to make laws for prescribing
punishment for those acts that are declared to be offences under the fundamental rights. for ex - Untouchability
(Article 17) & Traffic in human beings and forced labour (Article 23).
Right to property
• The 44th Amendment Act of 1978 abolished the right to property as a Fundamental Right by repealing Article
19(1)(f) and Article 31 from Part III.
• The Act inserted a new Article 300A in Part XII under the heading ‘Right to Property’. Thus, it is a legal right or
a constitutional right but not fundamental right.
• Though the Fundamental Right to Property under Part III has been abolished, the Part III still carries two
provisions. It guaranteed right to compensation –
o When the State acquires the property of a minority educational institution (Article 30)
o When the State acquires the land held by a person under his personal cultivation and the land is within
the statutory ceiling limits (Article 31 A).
Exceptions to fundamental rights

Articles 31A, 31B and 31C have been retained as exceptions to the fundamental rights.
• Article 31 A – It saves five categories of laws from being challenged and invalidated on the ground of
contravention of the fundamental rights conferred by Article 14 and Article 19 They are related to agricultural
land reforms, industry and commerce.
• Article 31B – It saves the acts and regulations included in the Ninth Schedule from being challenged and
invalidated on the ground of contravention of any of the fundamental rights.
o In I.R. Coelho case (2007), the Supreme Court ruled that there could not be any blanket immunity from
judicial review of laws included in the Ninth Schedule.
o laws placed under the Ninth Schedule after April 24, 1973, are open to challenge in court if they
violated fundamentals right or basic features of constitution.
• Article 31C, as inserted by the 25th Amendment Act of 1971, contained the following two provisions –
o No law that seeks to implement the socialistic directive principles specified in Article 39(b) 21 or (c)
shall be void on the ground of contravention of the fundamental rights conferred by Article 14 or Article
19.
o No law containing a declaration that it is for giving effect to such policy shall be questioned in any court
on the ground that it does not give effect to such a policy.
▪ In the Kesavananda Bharati case 23 (1973), the SC declared the above second provision of
Article 31C as unconstitutional and invalid on the ground that judicial review is a basic feature
of the Constitution and hence, cannot be taken away.
▪ However, the above first provision of Article 31C was held to be constitutional and valid.
Amendability of Fundamental rights

• Shankari Prasad Case 1951: The Supreme Court ruled that the power of the Parliament to amend the
Constitution under Article 368 also includes the power to amend Fundamental Rights.
• Golaknath Case 1967: The SC reversed its earlier stand and ruled that the Fundamental Rights are given a
‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these
rights.
• Kesavananda Bharati Case 1973: The SC ruled that Parliament is empowered to abridge or take away any of
the Fundamental Rights. At the same time, it laid down a new doctrine of the ‘basic structure’.

51
o It ruled that the power of Parliament under Article 368 does not enable it to alter the ‘basic
structure’ of the Constitution. This means that the Parliament cannot abridge or take away a
Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.
Significance of Fundamental rights

• Safeguarding people’s interests: Fundamental rights are very important because they are like the backbone of
the country. They are essential for safeguarding the people’s interests.
• Intellectual Wellbeing: Fundamental Rights play a significant role because they are most essential for the
attainment of the full intellectual, moral, and spiritual status of an individual.
• Individual Dignity: The fundamental rights were included in the constitution because they were considered
essential for the development of the personality of every individual and to preserve human dignity.
• Democracy and FR: The writers of the constitution regarded democracy to no avail if civil liberties, like freedom
of speech and religion, were not recognised and protected by the State.
• Protector of Human Rights: The fundamental rights help not only in protection but also the prevention of gross
violations of human rights.
• Equality without discrimination: They emphasise on the fundamental unity of India by guaranteeing to all
citizens the access and use of the same facilities, irrespective of background.
• Protection against individuals too: Fundamental rights primarily protect individuals from any arbitrary state
actions, but some rights are enforceable against individuals. Example: untouchability and begar.
Issues and challenges pertaining to implementation of FR:

• Interpretation issue: The FRs have been at helm of judicial interpretation. E.g. evolving interpretation of Article
19 and 21.
• Suspension: Fundamental rights can be suspended during National Emergency except Article 20 and 21.
• Immunities: Certain privileges/ immunities enjoyed by president and governor under Article 361. for ex - The
President or the Governor is not answerable to any court for the exercise of the powers and duties of his office.
• Privileges: Art. 105 and Art. 194 of the Indian Constitution lay down the powers, privileges and immunities of
Members of Parliament (MPs) and State Assemblies respectively.
• Article 31C is an exception: Laws made to implement Article 39(b) and 39(c) cannot be challenged on the
ground that they are in violation of Article 14.
• False sense of implementation: There are back door mechanism through which FRs are violated. E.g. Right to
Privacy is a FR but have been diluted through state surveillance.
• Missing horizontal implementation: Due to increase in private sector it has become default to enforce the FRs
against them. (Vertical implementation pertains to government)
• Delayed judicial remedy: Pendency of cases having crossed 4.4 crore across all courts thus Delayed justice is
denied justice.
Criticisms of Fundamental rights

• Evolving interpretations: These fundamental rights are subject to interpretation of the judiciary and the same
Article had been interpreted variedly e.g. Article 21 and Article 19.
• Too many restrictions: The right to freedom and personal liberty has a variety of limitations thus it has been
criticised for failing to check the authorization of powers that are sometimes deemed "excessive."
• Missing Rights: The right to work, the right to economic aid in the event of unemployment, old age, and similar
rights are not incorporated as fundamental rights to address concerns of poverty and economic insecurity.
Although these principles are incorporated as the DPSP.
• Lack of definitions: The meaning of phrases like "reasonable restrictions" and "the interest of public order"
have not been explicitly stated in the Constitution, and this ambiguity leads to unnecessary litigation.

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• Constitution vs Implementation: Employment of child labour in hazardous job environments has been reduced,
but their employment even in non-hazardous jobs, including their prevalent employment as domestic help
violates the spirit and ideals of the Constitution.
• Justice delayed is justice denied: The cases involving violations of fundamental rights take an inordinate
amount of time for resolution by the Supreme Court which is against the legal maxim 'justice delayed is justice
denied'.
Conclusion
The true democracy could not exist without ensuring the dignity and equality of individuals against the state as well
as from social majorities. It was only with fundamental rights that an individual can rise from the status of subject
to that of ‘citizen’.

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DPSP (PART IV, ARTICLE 36-51)

1. Discuss the possible factors that inhibit India from enacting for its citizens a uniform civil code as provided
for in the Directive Principles of State Policy. (2015)
Introduction
• The Directive Principles of State Policy (DPSP) has been taken from the Irish constitution. They are an
‘instrument of instructions’ which are enumerated in the Government of India Act, 1935.
• The concept behind the DPSP is to create a ‘Welfare State’. They seek to establish economic and social
democracy in the country.
• According to Dr B R Ambedkar, these principles are ‘novel features’ of the Constitution. DPSP are ideals which
are meant to be kept in mind by the state when it formulates policies and enacts laws. But DPSPs are not legally
enforceable by the courts for their violation.
Constitutional provisions for DPSP
• Article 36 of Part IV defines the term “State” as the one, who has to keep in mind all the DPSP before
formulating any policy or law for the country.
• Article 37 the nature of DPSP has been defined i.e. DPSPs are non-justiciable.
• Article 38 to 51 contains all the different DPSPs.
It authorizes the state to secure a

38 social order for the promotion of 44 Uniform Civil Code.
the welfare of people.
Certain principles of policies to be Provision for early childhood care and education to
39 45
followed by the state. children below the age of six years.
Free Equal justice and free legal Promotion of education and economic interests of
39A 46
aid. SC, ST, and other weaker sections.
Duty of the state to raise the level of nutrition and
40 Organization of village Panchayats. 47
the standard of living and to improve public health.
Right to work, to education and to
41 48 Organization of agriculture and animal husbandry.
public assistance in certain cases.
Securing just and humane work Protection and improvement of environment and
42 48-A
and maternity relief. safeguarding of forests and wildlife.
Fair wages and a decent standard Protection of monuments and places and objects
43 49
of life. which have national importance.
Workers’ participation in
43-A 50 Judiciary should be separate from the Executive.
management.
The state shall promote international peace and
43-B Promotion of Cooperatives. 51
security.
The state shall promote international peace and
51
security.
Conflict between DPSP and FR

Champakam The Supreme Court held that Article 37 expressly says that the directive principles are not
Dorairajan Case enforceable by court. The Supreme Court mandated that the chapter on Fundamental rights
1951 in the constitution is sacrosanct and the directive principles have to conform to and run
subsidiary to the chapter on Fundamental Rights.

54
This means that Fundamental Rights were given superiority over the Directive principles.
Golak Nath Case The court in this case laid down that Fundamental Rights cannot be abridged/ diluted to
1967 implement the directive principles.
Kesavananda The Supreme Court ruled that Parliament could amend any and every part of the
Bharati Case Constitution including Fundamental Rights but it could not destroy the basic structure of
1973 the Constitution.
Minerva Mills The Supreme Court held that the Constitution exists on the balance of Part III and Part IV.
Case 1980 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, The Supreme Court held the view that there is no conflict between the
Fundamental Rights and the DPSP and they were complimentary of each other. There was no need to
sacrifice one for the sake of the other.
• If there is a conflict it should be avoided as far as possible. Fundamental Rights and the Directive Principles
of State Policy needed to be balanced and harmonised if they were to reap social order and empower
people.
Utility of DPSP Criticism of DPSP
• Fundamental to the governance: DPSPs are fundamental • Non-justifiable: They were made non-
to the governance of the country (Article 37). justifiable considering that the State may not
• Idea of the welfare state: It also enlists the idea of the have enough resources to implement all of
welfare state which was absent under the colonial rule. them or it may even come up with some
• Guide to legislatures: They place an ideal before the better and progressive laws.
legislator of India which guides them to frame the policies • Illogical arrangement: It is arranged in an
& laws. irrational manner. The basic arrangement of
• Reflection of Preamble: The expression “Justice – Social, Gandhian, Socialist and Liberal philosophy is
economic and political” that is mentioned in the haphazard.
preamble is the ultimate aim that has to be achieved • Reactionary and regressive: It may prove
through the formulation of the DPSP. reactionary and regressive. E.g. UCC
• Four pillars: DPSP are enlisted to attain this ultimate aim implementation
as mentioned in the preamble i.e. Justice, Liberty, • Constitutional clash: It may result in a
Equality and fraternity are also known as the four pillars constitutional clash between the federal
of the Indian Constitution. government and the state.
Implementation of DPSP so far

From 1950, onwards various programmes have been implemented to give effect to the Directive Principles. Some
examples being:
Article 40 The 73rd Amendment Act for 3rd tier i.e. village panchayat
Article 42 Code on Social Security, 2020- provides for maternity leaves
Article 45 Right of Children to Free and Compulsory Education Act, 2009 to provide for compulsory education
to children between the ages of 6 and 14.
Article 43 Mahatma Gandhi National Rural Employment Guarantee Act for promoting inclusive development
through guaranteed wages
Article 44 There have been various discussions from bodies like the Law Commission etc. on implementation
of Uniform Civil Code. In Goa it is already in place.

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Article 47 Gujarat and Bihar have prohibited sale and consumption of liquor within their states
Contemporary issues concerning DPSP
Uniform Civil Code Debate
Context: Recently, a petition has been filed in the Supreme Court against Uniform Civil Code (UCC) on divorce and
alimony. The plea questions whether a uniform civil law for divorce, maintenance and alimony will leave Muslim
women better-off.
• 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.
• 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:
o Sardar Vallabhbhai Patel held that the provision of UCC was outside the scope of Fundamental Rights
and therefore the Uniform Civil Code was made less important than freedom of religion.
o Alladi Krishnaswami, who was in favour of a Uniform Civil Code, conceded that it would be unwise to
enact Uniform Civil Code ignoring strong opposition from any community.
o Gender justice was not mentioned in these debates.
o Dr. Ambedkar had said a UCC is desirable but for the moment should remain voluntary. The stand taken
by B.R. Ambedkar in the Constituent Assembly debates has survived the years.
Merits of implementing UCC
• Equality of status: A Uniform Civil Code would, in theory, provide equal status to all citizens irrespective
of the community they belong to.
• Bring consistency in personal laws: Personal laws of different religions are widely divergent and there is
no consistency in how issues like marriage, succession and adoption are treated for people belonging to
different communities, which clashes with Article 14 of the Constitution, which guarantees equality
before the law.
• Reforms to personal laws have also been inconsistent.
o For example, multiple amendments have been brought to Hindu personal laws, while Muslim law
has seen fewer changes.
• Gender justice: Personal laws, because they derive from tradition and custom, also tend to give undue
advantage to men. As the Law Commission observes in its 2018 consultation paper, “Various aspect of
prevailing personal laws disprivilege women.”
o Exa: This becomes evident in examples such as Muslim men being allowed to marry multiple
wives, but women being forbidden from having multiple husbands.
o In another example, even after the 2005 amendment to the Hindu Succession Act, women are
still considered part of their husband's family after marriage. So, in case a Hindu widow dies
without any heirs or will, her property will automatically go to her husband's family.
Demerits of implementing UCC
• Clashes with FR: Even though it reinforces equality before law, the idea of a UCC clashes with the right to
freedom of religion (Article 25 of the Constitution).
• Homogenise culture: Separate personal laws are one of the ways in which people have exercised their
right to practise their own religion, which has been particularly important for minorities. The UCC could
become a tool to erode this right, suppress minorities and homogenise culture.
• Protest: Attempts at a UCC will undoubtedly be met with widespread protest.
Challenges in implementing
• Need a common code: The debate on the UCC is centred on the argument to replace individual personal
customs and practices of marriage, divorce, adoption and successions with a common code

56
• Article 25 provides for the Freedom of Religion, which is a Fundamental Right in the Constitution. Under this
Article, a person is free to practice and propagate his choice of religion. The religious practices prevalent in
the personal laws of communities are continued to be practised.
• UCC violates FR: The introduction of Uniform Civil Code is challenged as a violation of the fundamental
rights under Article 25
• Not enforceable: Article 44 is only a Directive Principle of State Policy which is not enforceable in courts but
Article 25 is a Fundamental Right which is enforceable in courts.
• Against democracy: It is argued that state action to introduce the UCC is against the quintessence of
democracy.
• The secular state is, an enabler of rights rather than an inhibitor in sensitive matters of religion and personal
laws.
• Article 43 mentions “state shall endeavour by suitable legislation”, while the phrase “by suitable
legislation” is absent in Article 44. All this implies that the duty of the state is greater in other directive
principles than in Article 44.
• The “personal laws” are mentioned in the Concurrent List.
Stand of Law commission (2018)
• Law Commission held that a Uniform Civil Code is neither feasible nor desirable. The Law Commission report
said the way forward may not be a Uniform Civil Code but the codification of all personal laws so that prejudices
and stereo-types in every one of them would come to light and could be tested on the anvil of Fundamental
Rights guaranteed by the Constitution.
• Equality within community: Legislature should first consider guaranteeing equality within communities
between men and women, rather than equality between communities.
• Codification of personal laws: Law Commission chose codification of personal laws over the UCC as a way to
end discrimination within religions.
o Codification of various practices and customs would make them ‘law’ under Article 13 of the
Constitution.
o Consistent with FR: Any ‘law’ that comes under Article 13 should be consistent with the fundamental
rights. This would protect the plurality of religions, too, and may be the way forward for the near
future.
Stand of judiciary:
• Shah Bano case : SC in Shah Bano case in 1985 held that A common Civil Code will help the cause of
national integration by removing disparate loyalties to laws which have conflicting ideologies.
• Sarla Mudgal Case: In the 1995 Sarla Mudgal Case, SC reiterated the need for Parliament to frame a
Uniform Civil Code, which would help the cause of national integration by removing ideological
contradictions.
• Others: The same suggestion reflects in the verdicts of other landmark cases such as Jordan Diengdeh vs
SS Chopra and John Vallamattom vs Union of India.
• Ahmedabad Women Action Group (AWAG) v. Union of India, 1997: Many provisions of personal laws are
discriminatory. The result is the introduction of the Uniform Civil Code.
• 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): Apex Court held the practice of triple talaq as
unconstitutional and un-Islamic. The question of the Uniform Civil Code to stop such personal law
practices was again raised.
Way Forward
o According to the Commission, the best way forward may be to preserve the diversity of personal laws
but at the same time ensure that they do not contradict fundamental rights.

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Lockdown and Right of people to their livelihoods

• Lockdown deprived rights: Restrictions that are being imposed by the State, even if they are presumed to
be necessary in the present circumstances, have deprived the right of people to their livelihoods, and
therefore their Right to Life.
• Unreasonable restrictions: Such restrictions would become unreasonable, arbitrary and unconscionable, if
immediate steps are not taken to compensate the people worst affected by these restrictions so as to
enable them to afford the basic necessities of life.
• Article 38 states that the State shall strive to promote welfare of the people by securing effectively, as it
may, a social order in which economic justice shall inform all institutions of the national life.
• Article 39 states that the State shall, in particular, 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
• Recently, the Chief Minister of Rajasthan announced the implementation of the Rajasthan Model of Public
Health that would include a Right to Health as well as measures for preventive, primary 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 by the Government of
India, which also include several short-term and longer-term measures to strengthen the health sector.
▪ Production-Linked Incentive schemes have been announced to boost domestic manufacture of
pharmaceuticals and medical devices.
▪ Mission COVID Suraksha has also been launched to promote the development and testing of
indigenous vaccine candidates.
▪ To ensure food and nutrition security for the poor and the vulnerable during the COVID-19 crisis, the
Government of India launched the Pradhan Mantri Garib Kalyan Package for providing free foodgrains
to 800 million beneficiaries.
o To facilitate access to subsidised grains across the country, the ‘One Nation One Ration Card’
scheme has been enabled in 32 States/Union Territories covering 690 million beneficiaries.
• Allocations for water, sanitation, nutrition and clean air: The National Health Policy (NHP), 2017,
highlights the close links between health, water and sanitation. This year’s Economic Survey too
recognises that improvements in access to bare necessities such as water, sanitation and housing are
strongly correlated with progress in health indicators.
• Pneumococcal vaccine : Budget 2021 was the government’s decision to expand the coverage of the
pneumococcal vaccine across the country.
o Pneumococcal pneumonia is a major killer of children under the age of five years. Once
universalised, this indigenously developed vaccine could save up to 50,000 lives annually.
• COVID-19 vaccine: The Finance Minister has also made a special allocation of ₹35,000 crore for the
COVID-19 vaccine in 2021–22, which could be increased if required.
• The priority accorded to capital expenditure through the launch of the Pradhan Mantri – Atmanirbhar
Swasth Bharat Yojana (PMANSBY).
Accessible and Affordable Judicial System

• Article 39A directs the State to ensure that the operation of the 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 has recently raised concerns over making the entire judicial system
more accessible and understandable for the common man.
• Issue: Cost of legal processes is one of the major impediments in securing justice to all.

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• How to ensure Accessible and affordable judicial system:

▪ Innovations like Lok Adalats and mobile courts be leveraged wherever feasible to improve access.
▪ 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
▪ Local language: System needs to be brought closer to the people by conducting court proceedings
and delivering judgments in the language of local people.
▪ Resolve pendency: We need to find systemic solutions to solve the nearly 4 crore pending cases in
the country, with most cases stuck in the lower courts, where around 87 percent of the total pending
cases lie.
▪ Appointments to the courts must also be expedited and vacancies must be filled in a time-bound
manner. This will bring great productivity gains especially in the lower court
Decriminalising Begging
• Decriminalise begging: The Supreme Court has asked the Centre and four States to file their response on a
plea seeking a direction to repeal the provisions criminalising begging. It has been argued that a person,
who is compelled to beg due to certain circumstances, cannot be faulted for his actions.
• Social security: The government is mandated to provide social security to everyone and ensure that all have
basic facilities, as embedded in the DPSP in the Constitution.
Issue of cow slaughter: (Article 48)
Recent context: Several state governments hastened to enact laws prohibiting the killing of cows. At present,
24 out of 29 states in India have laws criminalising cow killing.
• Constituent assembly’s stand: Seth Govind Das framed it as a “civilisational problem from the time of Lord
Krishna”, and called for the prohibition of cow slaughter to be made part of the Constitution’s chapter on
fundamental rights, on a par with the prohibition of untouchability.
• In its final form Article 48 carefully excluded the question of religious sentiments.
▪ Nor did it require the state to ban cow slaughter outright.
▪ Instead, under the heading “Organisation of Agriculture and Animal Husbandry”
o Article 48 says the state shall “organise agriculture and animal husbandry on modern and
scientific lines and shall, in particular, take steps for preserving and improving the breeds, and
prohibiting the slaughter, of cows and calves and other milch and draught cattle.”
• Shibban Lal Saksena objected to such “back door” tactics, and asked why the Drafting Committee was
“ashamed of providing for [the prohibition of cow slaughter] frankly and boldly in so many plain words”.
• Z.H. Lari, one of the Muslim representatives in the Assembly, stated that his community would not stand
in the way of the majority’s desire, but nonetheless asked that the majority “express itself clearly and
definitely”, so that Muslims could know exactly what the position was on cow slaughter.
• Volated their rights to trade and busines: Over the years, petitioners before the court argued that a
prohibition of cow slaughter violated their rights to trade and business, and also their right to freedom of
religion.
• The Supreme Court rejected these arguments and upheld the laws, but it did so by focussing its reasoning
entirely on — apparent — economic considerations.
Other issues in brief
➢ Free Legal aid: Over 1.2 million legal aid and advice have been rendered by the National Legal Services Authority
(NALSA) to various people across the country in year 2018 alone. (Article 39A)
➢ UN Principles for People with Disabilities: The United Nations (UN) has released it’s first-ever guidelines on
access to social justice for People with Disabilities (PwD) to make it easier for them to access justice systems
around the world.
➢ Atal Beema Vyakti Kalyan Yojana:Union government provided unemployment benefits to a section of
organised workers who have lost their jobs due to the coronavirus pandemic. Workers who become
unemployed get compensation in the form of cash up to three months of unemployment
• Article 41: the State shall make effective provision for securing right to work, to education and to public
assistance in cases of unemployment, old age, sickness and disablement, within the limits of its economic
capacity and development.

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➢ Recently, India accepted the verdict in the Enrica Lexie case to promote international peace and security.
(Article 51)
Conclusion
To conclude, constitution makers had no intention to introduce directive principles of state policy as mere
pious declarations. It was the intention of the Constituent Assembly that in future both the legislature and the
executive should not merely pay lip service to these principles enacted in this part, but that they should be made
the basis of all executive and legislative action that may be taken hereafter in the matter of the governance of the
country.

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FUNDAMENTAL DUTIES (PART IVA, ARTICLE 51 A)

1. Indian constitution exhibits centralising tendencies to maintain unity and integrity of the nation. Elucidate
in the perspective of the Epidemic Diseases Act, 1897; The Disaster Management Act, 2005 and recently
passed Farm Acts. (2020)
Context:
● CJI Bobde while drawing attention to the Fundamental Duties chapter cited Gandhi’s Hind Swaraj which states
that “real rights are a result of the performance of duty”.
● President Kovind on the occasion of Constitution Day said Fundamental Duties remind the people of their moral
responsibilities. He further added that the soul of the Constitution lies in its Preamble, and in the parts
pertaining to Fundamental Rights, Directive Principles and Fundamental Duties.
Introduction
● The Fundamental duties have been incorporated in the constitution to remind every citizen that they should
not only be conscious of their rights but also of their duties.
● The Concept of fundamental duties is inspired from USSR.
● Swaran Singh Committee in 1976 recommended fundamental duties, the necessity of which was felt during
the internal emergency of 1975-77.
Constitutional provisions
● 42nd Amendment Act of 1976 added 10 Fundamental Duties to the Indian Constitution. 86th Amendment Act
2002 later added 11th Fundamental Duty to the list.
● Fundamental Duties are confined to citizens only and do not extend to foreigners.
Fundamental Duties: Article 51 -A
a. To abide by the Constitution and respect its ideals g. To protect and improve the natural environment
and institutions, the National Flag and the including forests, lakes, rivers, wildlife and to have
National Anthem; compassion for living creatures;
b. To cherish and follow the noble ideals which h. To develop the scientific temper, humanism and
inspired our national struggle for freedom; the spirit of inquiry and reform;
c. To uphold and protect the sovereignty, unity and i. To safeguard public property and to abjure
integrity of India; violence;
d. To defend the country and render national service j. To strive towards excellence in all spheres of
when called upon to do so; individual and collective activity so that the nation
e. To promote harmony and the spirit of common constantly rises to higher levels of endeavour and
brotherhood amongst all the people of India achievement;
transcending religious, linguistic and regional or k. Who is a parent or guardian, to provide
sectional diversities; to renounce practices opportunities for education to his child, or as the
derogatory to the dignity of women; case may be, ward between the age of 6-14 years.
f. To value and preserve the rich heritage of our (86th CAA 2002)
composite culture;
Conflict between Fundamental duties & Fundamental rights

● The Supreme Court, after the judgment in the Kesavananda Bharati case, has adopted the view of the
Fundamental Rights and Directive Principles being complementary to each other, each supplementing the
other's role in aiming at the same goal of establishing a welfare state by means of social revolution.
Criticism of Fundamental Duties Implementation of Fundamental Duties

61
● List of duties isn't exhaustive: Other key duties, The legal utility of fundamental duties is similar to that of
such as voting, paying taxes, and family the directives; while the Directives are addressed to the
planning, are not covered. state, so are the duties addressed to the citizens, without
● Non-justiciable: Critics have referred to them as any legal sanction for their violation. However
a code of moral guidelines because they are fundamental duties have been enforced through
non-justiciable. (Swaran Singh Committee legislations like:
proposed a penalty or punishment for failure to ● Prevention of Insults to National Honour Act, 1971:
undertake Fundamental Duties.) No person can disrespect the National flag,
● Confusing Duties: Some of the duties are Constitution of India and the National Anthem under
unclear, confusing, and difficult to comprehend 1971 Act.
for the common citizen. ● The Protection of Civil Rights Act (1955): provided for
● Need not be mentioned: Critics argue that their punishments in case of any offence related to caste
inclusion in the Constitution is unnecessary and religion.
because these duties would be carried out by ● Indian Penal Code, 1860: The imputations and
the people even if they were not in the assertions that are prejudicial to the nation’s integrity
Constitution. and unity are considered as punishable offences under
● Importance diminished: The importance of various sections of the IPC, 1860.
fundamental duties has been diminished by ● Wildlife (Protection) Act, 1972: protects and prohibits
adding them as an appendix to Part IV. They the trade in the case of rare and endangered animals.
should be after Part III, on par with ● Forest (Conservation) Act, 1980: was implemented to
Fundamental Rights. make sure that Article 51A(g) was properly
implemented.
Should FD be added in curriculum?

● Recently, Vice President Naidu suggested that fundamental duties must be introduced at an appropriate level
in the curriculum and that these duties should be displayed at all educational institutions, offices and public
spaces is worthy of serious consideration.
● While fundamental rights have strengthened our democracy, fundamental duties are essential to strengthen
our society.
● M C Mehta Case (1987): The Court is of the view that Fundamental Duties prescribed for citizens applies to the
state as well. It has said that under Art 51A(g), it is the duty of the Centre to introduce compulsory teaching of
lessons at least for one hour in a week on protection and improvement of the environment in all educational
institutions.
● The Constitutional law givers have provided that the citizens of this great nation shall perform their duties in
an excellent way than performing it half-heartedly. The performance of these duties fall within Constitutional
Law. So, it is now time to turn the spotlight on an important Article in our Constitution that has remained
dormant for long, so that the citizenry develops a balance between rights and duties
Campaign to create awareness on fundamental duties

• The government launched a campaign to spread awareness among people about fundamental duties on the
70th anniversary (2019) of the adoption of the Constitution on November 26.
• During the Conference of Governors, President Ram Nath Kovind expressed hope that all Governors and
Lieutenant Governors will play a major role in creating awareness among masses at the occasion of the
Constitution Day.
• The President said that it is the fundamental duty of every citizen to protect the natural environment including
water resources like forest, lake and river.
Fundamental rights and duties are not isolated: PM Modi

• The Prime Minister was speaking to students at the second Pariksha Pe Charcha, an event where a large number
of students, teachers and parents had gathered to interact with him.

62
• He emphasised that the current students would be playing a key role in India’s development in 2047, when
India will mark hundred years since independence. He hope that this generation takes it upon themselves to
act on some of the Fundamental Duties enshrined in our Constitution.
• He gave Gandhiji’s philosophy: “If I uphold my responsibility as a teacher, aren’t the rights of a student upheld?
This means that rights are duties are not conflicting. Mahatma Gandhi used to urge that there are no
fundamental rights, but only fundamental duties. And if we uphold our duties with utmost honesty, there is no
need for demanding anything else because the rights will be enshrined within.”
Breach of fundamental duties led to the spread of Corona

• The Supreme Court has asserted that under Article 47, the State shall regard the improvement of public health
as among its primary duties.
• The State has an obligation to protect the health of the people. In this context, the State has to regulate all
social and religious events which involve congregations so as to prevent the spread of the virus. Apart from the
State, every individual has an obligation to regulate his/her conduct and see to it that their behaviour does not
result in any adverse impact on society. We Indians have failed in both these aspects.
• The apex court had expanded the concept of “Right to Life.” It was held that it derives its life breath from the
directive principles of State policy. When the constitutional right to manage religious affairs came up for
discussion before the drafting committee, the Chairman had proposed to make the said right, subject to public
order, morality and health.
• We failed in adhering to the social distancing norms which is a major cause for the spread of the virus. Mahatma
Gandhi had said on the aspect of a person’s duty towards society that “the true source of right is duty.” If we
all discharge our duties, rights will not be far to seek. If we neglect our duties and run after rights, they will
elude us.
• The Supreme Court in the Javed Vs State of Haryana case, held that fundamental rights are not to be read in
isolation. They have to be read along with directive principles of State policy and fundamental duties enshrined
in Article 51A.
Fundamental duties as important as rights during the Covid-19 pandemic: Bombay HC

• Holding that it is the constitutional right of migrants, labourers and citizens to get their basic needs fulfilled,
the Bombay high court (HC) stated that it was also their duty to maintain peace, harmony and the spirit of
brotherhood, especially during the Covid-19 pandemic.
• The court stated that this is right time to remind ourselves the fundamental duties of the citizen. Often, citizens
show serious concern about fundamental rights but they forget about the duties.
• The court further observed, “While this court expects effective measures from the respondent state authorities
and corporation, it also expects that citizens would remind themselves fundamental duties and would discharge
them to deal with the outbreak of Covid-19 pandemic.”
Conclusion
The Ramayana and Mahabharata depict different pictures of Indian society at different periods of time. 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 and everybody demands their
respective rights. 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.

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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.
Constitutional Provisions
Article 5: Rights of citizenship for persons domiciled Article 9 Persons voluntarily acquiring citizenship
in India. of a foreign State not to be citizens. (No
Dual Citizenship)
Article 6: Rights of citizenship for persons migrated Article 10: Continuance of the rights of citizenship
from Pakistan subject to the provisions of any law that
may be made by Parliament.
Article 7 Rights of citizenship for persons migrated Article 11 Parliament to regulate the rights of
to Pakistan but later returned. citizenship by law.
Article 8: Rights of citizenship persons of Indian
origin residing outside India.
• Unlike other provisions of the Constitution, which came into being on 26th January, 1950, these articles
were enforced on 26th November, 1949 itself, when the Constitution was adopted.
• Citizenship is listed in the Union List under the Constitution and thus is under the exclusive jurisdiction of
Parliament.
Citizenship Act, 1955

• The Citizenship Act, 1955 provides for the acquisition and determination of Indian citizenship.
• 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.
• Through various amendments Parliament has narrowed down the wider and universal principles of citizenship
based on the fact of birth.
Citizenship (Amendment) Act, 2019

• The Act seeks to 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 cut-off date for citizenship is December 31, 2014, which means the applicant should have intruded into
India on or before this date.
• The Act will not apply to areas under Sixth Schedule and the Inner Line Permit.
• Under The Citizenship Act, 1955, 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 for
applicants belonging to the specified six religions, and the above-mentioned three countries.
• The Act provides that the central government may cancel the registration of Overseas Citizens of India (OCIs)
on certain grounds.

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National Register of Citizens (NRC)

• The NRC is an official record of those who are legal Indian citizens. It includes demographic information about
all those individuals who qualify as citizens of India as per the Citizenship Act, 1955.
• The register was first prepared after the 1951 Census of India and since then it has not been updated until
recently.
• So far, such a database has only been maintained for the state of Assam. However, in November, 2019, Home
Minister of India declared during a parliamentary session that the 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).
• It has also been assured by the government that whenever the NRC will come, no person of the minority
community will face injustice but no infiltrator will be spared.
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, for the purposes of the NPR, 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 as the state has already gone through the National Register
of Citizens.
• NPR vs Census:
o While NPR only contains demographic information, more details are required for the Census like
information on demography, economic activity, literacy and education, and housing and household
amenities besides others.
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. Those who are found without
the proof may face deportation or detention in the long run. But in NPR, there is no need to provide
any document.
• Use of NPR: For example, a majority of permanent residents of an industrial town in Gujarat may be Gujarati
speaking, but the majority of current residents may consist of Hindi speaking people from various parts of the
country. 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 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.
Centre Extends Powers Related to Citizenship Application

• Recently, the Central Government issued a notification granting powers related to citizenship applications
under existing rules to authorities of five states (Gujarat, Chhattisgarh, Rajasthan, Haryana and Punjab).
• The order has been issued under the Citizenship Act, 1955 and the Citizenship Rules, 2009 and not under the
Citizenship Amendment Act, 2019 since its rules have not yet been framed.

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• Section 16 of the Citizenship Act 1955: The Central Government may, by order, direct that any power which is
conferred on it can be exercisable also by such officer or authority as may be so specified.
• However powers mentioned in section 10 (certificate of registration to be granted to persons registered) and
section 18 (form of certificate of naturalisation) can be exercised by the central government only.
Myanmar Refugees Can Approach UNHCR

• The High Court of Manipur has ordered safe passage to seven Myanmar nationals, stranded at a border town
in Manipur, to travel to the United Nations High Commissioner for Refugees (UNHCR) in New Delhi
• The High Court observed that although India has no clear refugee protection policy or framework, it does grant
asylum to a large number of refugees from the neighbouring country.
• India usually respects UNHCR’s recognition of the status of such asylum seekers, mainly from Afghanistan and
Myanmar.
• Though India is not a party to the UN Refugee Conventions, it is a party to the Universal Declaration of Human
Rights of 1948 and the International Covenant on Civil and Political Rights of 1966.
• Article 21 of the Constitution encompasses the right of non-refoulement. Non-refoulement is the principle
under international law which states that a person fleeing persecution from his own country should not be
forced to return to his own country.
Conclusion
Prof. K.T. Shah said that the privilege of citizenship of India should not be regarded as something very
commonplace affair, cheap and easy. It is a great privilege, of which not only those of us who are now citizens may
be proud, but even those who may hereafter become citizens of India should also be proud. It was the proud
privilege in the days of the Roman Republic for any Roman citizen simply because of that citizenship to regard
himself as equal to any King. The last word in status and importance was said when he proudly asserted: "civis
Romanum sum=I am a Roman citizen".
Prof further continued: “I hope the time is coming when the same proud boast may justly be made by Indians, when
the citizenship of India will not be merely regarded as a burden of our 'nativity' (for we were used to be called
'natives' in the dead and buried past) but it would be regarded as something to which the rest of the world will
look up with respect”.

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SCHEDULED AND TRIBAL AREAS (PART X, ARTICLE 244 -244A)

Introduction
▪ Tribal and land: The Tribal people are associated with a territory and depend on them for livelihood and
their habitat. They guard their lands zealously. Tribals also have their own system of governance and
dispute redressal mechanisms.
▪ Land encroachment: There have been many historical confrontations between tribals and 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 and therefore provided specific provisions for their overall socio-political protection
from all sources of exploitation.
▪ 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.
FIFTH SCHEDULE
Constitutional provisions related to FIFTH Schedule
• Article 244 (1): The provisions of the Fifth Schedule • Power of President: The President is
shall apply to the administration and control of the empowered to declare an area to be a
Scheduled Areas and Scheduled Tribes in any State scheduled area. He can also increase or
other than the States of Assam, Meghalaya, Tripura decrease its area, alter its boundary lines, make
and Mizoram. fresh orders for such re-designation on an area
• The Fifth Schedule states at present are (10): Andhra in consultation with the governor of the state
Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal concerned.
Pradesh, Jharkhand, MP, Maharashtra, Odisha, and • The President may at any time and shall, at the
Rajasthan. expiration of ten years from the
• Power of Governor can declare any law not commencement of this Constitution by order
applicable. appoint a Commission to report on the
• Applicability of PESA: The Provisions of Panchayat administration of the Scheduled Areas and the
(Extension to Scheduled Areas) Act, 1996 is welfare of this Scheduled Tribes in the States
applicable in Fifth Schedule Areas. (Article 339)
• Tribal Advisory Council: maximum 20 member of • Any amendment can be done without invoking
which 3/4th ST MLAs. It is the creation of the state Article 368 for both Fifth and Sixth Schedule.
legislature and has advisory power.
Key features of administration of 5 scheduled areas

• Declaration of Scheduled Areas: 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, rescind such designation or make fresh
orders for such redesignation on an area in consultation with the governor of the state concerned.
• 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. He has to submit a report to the
president regarding the administration of such areas, annually or whenever so required by the president.
• 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. It is to consist of 20 members, three-fourths
of whom are to be the representatives of the scheduled tribes in the state legislative assembly.
• 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.

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• PESA, 1996 - The Provisions of Panchayat (Extension to

Commissions appointed by president
Scheduled Areas) Act, 1996 is applicable in Fifth Schedule
Areas. • First commission (Dhebar
• Appointment of commission - The President may at any time commission) was appointed in 1960.
and shall, at the expiration of ten years from the • The second commission was
commencement of this Constitution by order appoint a appointed in 2002 under the
Commission to report on the administration of the chairmanship of Dilip Singh Bhuria
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

(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.
• The year 2021 marked 25th anniversary of enactment of PESA. PESA
Objectives of PESA • The provisions of Part IX of the
• To provide self-rule for the bulk of the tribal population. constitution relating to the
• To have village governance with participatory democracy and Panchayats are not applicable to
to make the gram Sabha a nucleus of all activities. the Fifth Schedule areas.
• To evolve a suitable administrative framework consistent with • However, the Parliament may
traditional practices. extend these provisions to such
• To safeguard and to preserve the traditions and customs of areas, subject to such exceptions
tribal communities. and modifications as it may
• To empower panchayats at the appropriate levels with specify. Under this provision, the
specific powers conducive to tribal requirements. Parliament has enacted.
• To prevent panchayats at the higher level from assuming the
powers and authority of panchayats at the lower level of the gram Sabha.
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, their cultural identity, community resources and
the customary mode of dispute resolution.
• Socio-economic development – Gram Sabha shall approve of the plans, programmes and projects for social
and economic development before they are taken up for implementation by the Panchayat at the village
level and be responsible for the identification of beneficiaries under the poverty alleviation and other
programmes.

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• Reservation for STs - The reservation for the Scheduled Tribes shall not be less than one-half of the total
number of seats. Further, all seats of Chairpersons of
Panchayats at all levels shall be reserved for the Scheduled Rare Achievement of PESA
Tribes • In 2013, referring to the PESA, the
• Consultation for Land acquisition - The Gram Sabha or the SC, in a landmark case, had asked
Panchayats at the appropriate level shall be consulted before the Odisha government to go to the
making the acquisition of land in the Scheduled Areas for gram sabha to get permission for
development projects bauxite mining in Kalahandi and
• Exploitation of mineral resources - The prior Rayagada district of Odisha.
recommendation of the Gram Sabha or the Panchayats at the • Local forest dwellers were asked
appropriate level shall be mandatory for grant of concession whether bauxite mining will affect
for the exploitation of minor minerals by auction. their religious and cultural rights
and they decided against the
Issues with implementation of PESA mining on Niyamgiri hills which led
• Poor Implementation - PESA remains disempowered as 40% to the cancellation of a huge
of the states under its purview have not been able to frame project.
their rules for its implementation even after 25 years of its
existence. Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha have not even framed the rules yet.
• States laws inconsistence with PESA - All 10 States having Scheduled Areas have enacted or amended their
State Acts but not in consonance with the letter and spirit of the Central 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 the government is
acquiring land using the Coal Bearing Act of 1957. In the Khunti district, 65% of people whose land was
acquired said they were not even asked about it.
• Attitude of officials – It has been another hindrance in the implementation of PESA. even when gram
sabhas are organised, officials have an upper hand and they give the final verdict.
• Unawareness among common people - The Sarpanch and other influential Gram Panchayat members
dominate the often irregular and scantily attended Gram Sabha meetings. The common people possess
little awareness about its functioning.
• 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 - A large number of Gram Panchayats in the country do not have even full time
Secretary. Around 25 percent of the Gram Panchayats do not have basic office buildings.
• Enactment of other laws - After enacting PESA, the Union government brought several other legislations
and included many provisions of PESA into these laws. For instance, the Land Acquisition Act, 2013
empowered gram sabhas immensely. Similarly, the Forest Right Act, 2006 has provisions of PESA.
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

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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. In its silver
jubilee year PESA either poorly implemented or remained only on paper. PESA is good legislation but it will only
make sense only if taken seriously and implemented well.
Issues and Challenges in Fifth Schedule areas

• Idle powers: Rarely do Governors invoke their power leading to a situation where all legislations, irrespective
of their suitability in Scheduled Areas, are operational without any amendment or alteration.
• Missing Coverage Area: There are several tribal-populated and tribal-dominant areas across the country which
are not Scheduled Areas and therefore, are not covered by the protections offered under the Fifth Schedule.
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: Critics have pointed out that the Governor’s reports are repetitive, casually and
haphazardly constructed and tend to borrow heavily from reports of the tribal welfare department, merely
listing out the schemes and programmes for tribal development without even examining their implementation
and efficacy on the ground.
• Role of TACs: In all these years of its functioning, the TACs have rarely made any significant policy proposals or
recommendations on tribal and developmental issues.
• 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.
PESA was meant 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
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, many of which involved charges of sedition, filed by the previous government.
• 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.

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• 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 recommended that the notification of Scheduled Areas should
include villages as well as towns and cities in the blocks, tehsils and districts, including all forest and revenue
lands.
• Governors be made more accountable: National Commission for Scheduled Tribes advocated that Governors
be made more accountable with regard to their roles vis-à-vis Scheduled Areas, namely ensuring the
implementation of constitutional provision protecting tribal rights.
• Governor’s Cell: The formation of the Governor’s Cell is a longstanding necessity in order for the Governor to
properly carry out the duties of the post vis-à-vis protection of the tribes.
• 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. Constitutional
provisions, laws, policies, and administrative matters pertaining to the Scheduled Tribes must come under its
ambit.
• 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.
o 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 to the administration of the tribal areas in the
States of Assam, Meghalaya, Tripura and Mizoram.
• Article 244A deals with the 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. It is a product of the Constitution and has
financial power to prepare a budget.
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Why these 4 states treated differently ?

• The tribes have not assimilated much the life and ways of the other people in these states whereas in other
parts of India tribal people have more or less adopted the culture of the majority of the people in whose midst
they live.
• The tribes in Assam, Meghalaya, Tripura and Mizoram, still have their roots in their own culture, customs and
civilization. These areas are, therefore, treated differently by the Constitution and sizeable amount of
autonomy has been given to these people for self-government
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 and each autonomous region has a separate regional council
consisting of 30 members (26 elected for 5-year term and 4 nominated by Governor). Currently, there are
10 such councils.
• 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, marriage and
divorce, social customs with consent of governor.
• Judicial power: Councils can constitute village councils or courts for trial of suits and cases between the
tribes where the jurisdiction of high court over these suits and cases is specified by the governor.
• Regulatory power: District council can establish, construct or manage primary schools, dispensaries,
markets etc. in the district. It can also make regulations for the control of money lending and trading by
non-tribals. But such regulations require the assent of the governor.
• 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 or regions. He may dissolve a district or
regional council on the recommendation of the commission
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 — Mon Autonomous Region in the western
part and Patkai Autonomous Council in the eastern part.
• Call for 6th schedule: The revival of the demand for two autonomous councils has made political parties and
community-based groups call for bringing the entire Arunachal Pradesh under the ambit of the Sixth Schedule
or Article 371 (A) of the Constitution.
• The Sixth Schedule besides giving considerable autonomy to the tribal community empowers the council to
enact laws for land protection.
• Article 371 (A): Nagaland is governed by Article 371 (A), which says that no Act of Parliament shall apply in the
State in several areas unless the Nagaland Assembly so decides by a resolution. These include administration
of civil and criminal justice involving decisions according to Naga customary law and ownership and transfer of
land and its resources.
Concerns of Arunachal Pradesh
• Arunachal Pradesh feels that it was living under the wrong expression of being protected by the Inner Line
Permit (ILP).
• 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.
Whereas others have special protections

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• Article 371 (A): Nagaland is governed by Article 371 (A), which says that no Act of Parliament shall apply in the
State in several areas unless the Nagaland Assembly so decides by a resolution. These include administration
of civil and criminal justice involving decisions according to Naga customary law and ownership and transfer of
land and its resources.
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. To
enter and stay for any period in these areas, Indian citizens from other areas need an ILP.
• 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.
• 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 on the issue of including it 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 recommended that all Gurkhas of Assam
are not indigenous Assamese people as per the definition of 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 in the last part of the 18th century as grazers
and cultivators and were accordingly given permits. 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. In February 2020, the committee submitted the report but was not made public. But some
members of the committee in August 2020 made their “confidential” report public because of the government’s
“disinterest” in processing their recommendations. Among the suggestions made by the panel were sealing of
the India-Bangladesh border and reservation of 80-100% of the seats in Parliament from Assam for the
Assamese people.
NRC Re-verification in Assam
• New state government (2021) in Assam favoured 10-20% re-verification of the citizens’ list: up to 20%
reverification for areas bordering Bangladesh and 10% for interior areas.
• The final draft published in August 2019 had excluded 19.06 lakh out of 3.3 crore applications for lack of
adequate documents establishing them as Indian citizens.

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• Reason: The software (Digitised Legacy Data Development) prepared for matching the family tree of applicants
had no provision for quality checks. Rather, the software was prepared to avoid any quality checks giving the
verifying officers of doubtful integrity a free hand to upload wrong results to fulfil their vested interest.
• Undeserving getting entry: Another reason flagged was of some undeserving persons getting entry in NRC
through wrong marking of original inhabitant (OI).
• Hardships again: However, the Labour Union in the state is opposing the NRC reverification bid. They argue
that the rural poor participated in the exercise in the hope that the issue of illegal migrants would be settled
once and all. They cannot be made to undergo similar hardships all over again.
Meghalaya and the Sixth Schedule

--Why the constitutional protection needs to be revisited?
• To reverse historical wrong: Special constitutional protections are indeed required for marginalised sections to
ensure that historical wrongs done to them are reversed and not repeated, but 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 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.
• The non-tribal population of the state is a product of its history. But once Meghalaya was born, the new-born
state promptly reserved 85 per cent of jobs for natives and prohibited transfer of any land to non-tribals.
• 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. It undermines social harmony, stability and economic development of the state and the region.
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

74
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
• The Bill amends provisions related to the Finance Commission and the Sixth Schedule of the Constitution.
• It provides for Village and Municipal Councils in addition to the District and Regional 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, to review the financial
position of District, Village, and Municipal Councils.
• 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: One of the serious limitations of the Sixth Schedule has been the fact that the
powers given to the Councils to make legislation and implement development programmes have not been
matched with the financial autonomy to follow this through.
• 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: There is a significant degree of variation in the functions devolved to
various Autonomous Councils.
o For e.g. the Bodoland Territorial Council has more power and departments compared to other
Autonomous Councils of the Northeast, though the 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 representatives in the ADCs must be
made mandatory in order to end the exclusion of women from these political institutions.
• Funding: Autonomous Councils must be covered under the State Finance Commission. Funding should not be
left to arbitrary discretion of the State Governments.
• 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.

75
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.

76

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Historical Background _________________________________________________________________5

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Significant Provisions in the Indian Constitution ___________________________________________25

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1. Regulating Act of 1773

2. Pitt’s India Act of 1784

Era of Charter Acts

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Charter Act of 1853

Government of India Act of 1858:

Salient features of the Act:

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Indian Councils Act of 1861

Indian Councils Act, 1892

Indian Councils Act, 1909/Morley-Minto Reforms

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Government of India Act, 1919/ Montagu-Chelmsford Reforms

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• The Indian Constitution can be amended in three ways

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Necessity of amendment Dangers of frequent amendments

Power of Parliament to amend Constitution

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FIRST CONSTITUTIONAL AMENDMENT, 1951

42 ND CONSTITUTIONAL AMENDMENT, 1976

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44 TH CONSTITUTIONAL AMENDMENT, 1977

Amendments & Significance of the 44th amendment act

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