1.

Meaning of the constitution law and constitutionalism

 The Constitution of a country is a document that has its own legal sanctity; it could be
any-written or unwritten. Constitution seeks to establish its fundamental or basic or
apex organs of government and administration, describe their structure, composition,
powers and principle functions, define the inter-relationship of these organs with one
another, and regulate their relationship with the people, more particularly, the political
relationship.

 Note that the term “Constitutional law” is much extensive in nature with its concept
than the term “Constitution”. The Constitutional law includes the Constitution,
judicial precedents, relevant statutory laws, and conventions.

 The constitutional law of a country comprises of different ‘legal’ and ‘non-legal’

norms. ‘Legal’ norms are those which can be enforced by the courts if there is any
violation whereas ‘non-legal’ norms arise in course of time as a result of practices
which are followed over and over again for years.
 Besides the concept of the Constitution, there is an important idea of
Constitutionalism.

 A country may have a Constitution, but not necessarily ‘Constitutionalism’ for

example, a country where the dictator’s word is the law can be said to have
Constitution, but not Constitutionalism.
 The concept of Constitutionalism is not new, it is somewhere deeply embedded in
human thoughts. The Magna Carta (1215) has always strengthened and promoted the
traditional view that “law is supreme”. It has endorsed having certain limits on the
powers of the king. Some natural law philosophers like Hobbes, Locke, Aquinas,
Grotius, and Rousseau have promoted this idea in their theories for example, ‘Social
Contract’.

 Constitution ought to be saturated with Constitutionalism and have certain restrictions

on the powers of different organs of government in order to safeguard some basic
rights of an individual like freedom, and maintain the personal liberty and dignity of
an individual.

 There is an underlying difference in both the concepts that a constitution should not
merely grant powers to different organs of government, but additionally seek to limit
those powers.

 Constitutionalism perceives the requirement for the government with powers to have
social control but demands limitations being set upon governmental powers with
checks and balances.
 It visualizes balanced governance where the powers of executive and legislature are
under some limitations; else, it would jeopardize the freedom and opportunity of
individuals and lead to a tyrant, oppressive and authoritative government.
  Constitutionalism is an antithesis to arbitrary powers.[3] ‘Constitutions spring from
belief in limited government’. According to Schwartz, the word Constitution means
“a written organic instrument, under which governmental powers are both conferred
and circumscribed”.
 Remark from Professor Vile “Western institutional theorists have concerned
themselves with the problems of ensuring that the exercise of governmental power,
which is essential to the realisation of the values of their societies, should be
controlled in order that it should not itself be destructive of the values it was intended
to promote”.
 Elements of Constitutionalism
 Written Constitution
 Independent Judiciary
 Judicial Review
 Rule of Law
 Separation of Powers
 Free and Fair Elections
 Responsible Government
 Fundamental Rights
 Federalism
 Decentralisation of Powers

 Therefore, all the three: Constitution, Constitutional Law and Constitutionalism are
interrelated with the linked idea of democracy and limited powers. These concepts
refer to the legal system of the country which grants collective rights and allows
people to enjoy their freedom and promote the principle of “Rule of Law”.

2.Historical perspective of the Constitution of India

Political system and history

Present day India is a federal state with 28 federated entities divided among seven unions. Its
system of government is parliamentary and based on the Westminster model. India first came
into contact with the west in the early 18th century when it was annexed by the British East
India Company. In the mid 19th century, it fell under British colonial rule. The colonial
administration in British India or British Raj – as it was also called - was headed by a Viceroy
who also cumulated the title of Governor General until 1947 when a struggle for
independence, marked by a widespread non violent resistance movement resulted in
independence from the British Colonial Empire.

Constitutional history and development

Prior to the constituent assembly that convened in 1948 to draft the Indian constitution
adopted in 1950 and still in force to date, the fundamental law of India was mostly embodied
in a series of statutes enacted by the British Parliament. Key among them was the
Government of India Acts of 1919 and 1935.
The Government of India Act of 1919

Passed as a measure of gratitude for India’s role in world war one, the primary purpose of this
act was to expand native participation in the government. Key reforms of the Act were the
establishment of a dual form of government with limited powers for the major provinces. The
imperial legislative council was transformed into a bicameral legislature for all India. Finally,
the Act established the position of a High Commissioner with residence in London to
Represent India in the United Kingdom.

The Government of India Act of 1935

This Act was adopted in response to opposition and criticisms from the National Congress of
India to the 1919 Act for doing too little in terms of granting autonomy. Its key provisions
included:

 Abolition of the dual form of government or diarchy and the granting of a larger
degree of autonomy for the provinces
 Establishment of a Federation of India (which never came into force though)
 Introduction of direct suffrage and extension of the franchise to 37 million people
from the original 5 million
 Membership of the provincial assemblies was altered so as to include more elected
Indian representatives, who were now able to form majorities and be appointed to
form governments
 The establishment of a Federal Court

The Constituent Assembly of 1948 and the Constitution of 1950

In 1946, the British decided to examine the possibility of granting independence to India. As
a result, a British cabinet mission was despatched to India to (1) hold discussions with the
representatives of British India and the Indian States in order to agree on the framework for
writing a constitution, and (2), set up a constituent body and an executive council. Following
this mission and the ensuing negotiations, a Constituent Assembly was indirectly elected by
the provincial legislatures comprising 278 representatives and 15 women. Parties represented
in the CA were the Congress Party which had a majority, Muslim League, Scheduled Caste
Federation, the Indian Communist Party and the Union Party. The CA met for the first time in
December 1946 and by November 1949 the draft constitution was approved. The constitution
went into effect in January 1950 and the CA was transformed into a Provisional Parliament.

The Constitution which is still in force has been amended over 90 times making it one of the
most frequently amended constitutions in the world. It is also known to be one of the longest
and most detailed in the world with 395 articles and 10 appendixes called schedules.
Extensively modelled on western legal and constitutional practice, its key features include:

 The establishment of a federal system with residual powers in a central government

 A list of fundamental rights
 A Westminster style parliamentary system of government
Key timelines in the 1948 constitutional process
Britain decides on to grant independence to India and cabinet mission is
1946
dispatched to India to discuss modalities for transfer of power

14 August
Proposal for creation of committees is tabled
1947

29 August
Drafting committee is established
1947

6 December Constituent Assembly formally convenes for the first time, following
1947 elections, to start the process of writing a constitution.

4 November
Draft is finalized and submitted
1947

1948 – 1949 Constituent Assembly meets in sessions open to the public

26 November
Constituent Assembly adopts final draft making it official
1949

26 January
Entry into force of the new constitution
1950

3.Salient features and characteristics of the Constitution of India

The Constitution of India is a unique constitution. It is the largest written liberal democratic
constitution of the world. It provides for a mixture of federalism and Unitarianism, and
flexibility and with rigidity. Since its inauguration on 26th January 1950, the Constitution
India has been successfully guiding the path and progress of India.

The salient features of the Constitution of India can be discussed as follows:

(1) Written and Detailed Constitution:

The Constitution is a wholly written document which incorporates the constitutional law of
India. It was fully debated and duly enacted by the Constitution Assembly of India. It took
the Assembly 2 years, 11 months and 18 days to write and enact the Constitution.

Indian Constitution is a very detailed constitution. It consists of 395 Articles divided into 22
Parts with 12 Schedules and 94 constitutional amendments. It is a constitution of both the
Centre and states of Indian Union It are indeed much bigger than the US Constitution which
has only 7 Articles and the French Constitution with its 89 Articles.

(2) Self-made and Enacted Constitution:

Indian Constitution is a constitution made by the people of India acting through their duly
elected and representative body—the Constituent Assembly that was organised in December
1946. Its first session was held on 9th December, 1946. It passed the Objectives Resolution
on 22 January, 1947.

Thereafter, it initiated the process of constitution-making in the right earnest and was in a
position to finally pass and adopt the constitution on 26th November, 1949. The constitution
became fully operational with effect from 26th January 1950. We celebrate this day as our
Republic Day. The Constitution of India is thus a self-made and duly enacted constitution.

(3) Preamble of the Constitution:

The Preamble to the Constitution of India is a well drafted document which states the
philosophy of the constitution. It declares India to be a Sovereign Socialist Secular
Democratic Republic and a welfare state committed to secure justice, liberty and equality for
the people and for promoting fraternity, dignity the individual, and unity and integrity of the
nation. The Preamble is the key to the constitution. It states in nutshell the nature of Indian
state and the objectives it is committed to secure for the people.

(4) India is a Democratic Socialist State:

Although, right from the beginning the Indian Constitution fully reflected the spirit of
democratic socialism, it was only in 1976 that the Preamble was amended to include the term
‘Socialism’. It is now regarded as a prime feature of Indian state. India is committed to secure
social, economic and political justice for its entire people by ending all forms of exploitation
and by securing equitable distribution of income, resources and wealth. This is to be secured
by peaceful, constitutional and democratic means.

(5) India is a Secular State:

India gives special status to no religion. There is no such thing as a state religion of India.
This makes it different from theocratic states like the Islamic Republic of Pakistan or other
Islamic countries. Further, Indian secularism guarantees equal freedom to all religions. The
Constitution grants the Right to Religious Freedom to all the citizens.

(6) India is a Democratic State:

The Constitution of India provides for a democratic system. The authority of the government
rests upon the sovereignty of the people. The people enjoy equal political rights. On the basis
of these rights, the people freely participate in the process of politics. They elect their
government.
Free fair and regular elections are held for electing governments. For all its activities, the
government of India is responsible before the people. The people can change their
government through elections. No government can remain in power which does not enjoy the
confidence of the people. India is world’s largest working democracy.

(7) India is a Republic:

The Preamble declares India to be a Republic. India is not ruled by a monarch or a nominated
head of state. India has an elected head of state (President of India) who wields power for a
fixed term of 5 years. After every 5 years, the people of India indirectly elect their President.

(8) India is a Union of States:

Article I of the Constitution declares, that “India that is Bharat is a Union of States.” The
term ‘Union of State’ shows two important facts:

(i) That Indian Union is not the result of voluntary agreement among sovereign states, and

(ii) that states of India do not enjoy the right to secede from the Union. Indian Union has now
28 States and 7 Union Territories.

(9) Mixture of Federalism and Unitarianism:

While describing India as a Union of States, the Constitution provides for a federal structure
with a unitary spirit. Scholars describe India as a ‘Quasi-Federation’ (K.C. Wheare) or as ‘a
federation with a unitary bias, or even as ‘a Unitarian federation.’

Like a federation, the Constitution of India provides for:

(i) A division of powers between the centre and states,

(ii) A written, rigid and supreme constitution,

(iii) Independent judiciary with the power to decide centre-state disputes and

(iv) Dual administration i.e. central and state administrations. However, by providing a very
strong centre, a common constitution, single citizenship, emergency provisions, common
election commission, common all India services etc. the Constitution clearly reflects its
unitary spirit.

India is a federation with some Unitarian features. This mixture of federalism-Unitarianism

has been done keeping in view both the pluralistic nature of society and the presence of
regional diversities, as well as due to the need for securing unity and integrity of the nation.

(10) Mixture of Rigidity and Flexibility:

The Constitution of India is rigid in parts. Some of its provisions can be amended in a
difficult way while others can be amended very easily. In some cases, the Union Parliament
can amend some parts of the Constitution by passing a simple law.
Article 368, of the Constitution provides for two special methods of amendment:

(i) Most of the provisions of the Constitution can be amended by the Union Parliament by
passing an Amendment Bill by a majority of total membership and 2/3rd majority of
members present and voting in each of its two Houses.

(ii) For the amendment of some specified parts, a very rigid method has been provided.
Under it, first the Union Parliament passes the Amendment Bill by a majority of total
membership and 2/3rd majority of members present and voting in each house , and then it
goes to the State Legislatures for ratification. The Amendment gets passed only when it is
approved by not less than one half of the several states of the Union.

Thus the Constitution of India is partly rigid and partly flexible.

4. Scheme of the fundamental rights

Originally Constitution provided for seven Fundamental Rights viz.

Right to equality (Article 14-18)Right to freedom (Article 19-22)Right against exploitation

(Article 23-24)Right to freedom of religion (Articles 25-28)Cultural & educational rights
(Articles 29-30)Right to Property (Article 31)Right to constitutional remedies (Article
32).Right to Privacy.Right to property was removed from the list of the Fundamental Rights
by the 44thConstitution Amendment Act, 1978 and after amendment, it was made legal right
under Article 300-A in part-12 of the Constitution.

At present there are only six Fundamental rights, six fundamental rights are described below
in brief.

Right to Equality (Articles 14-18)

Article 14 (Equality before law) Article 14 says that state shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.Art. 14
is available to any person including legal persons viz. statutory corporation, companies,
etc.Art. 14 is taken from the concept of equal protection of laws has been taken from the
Constitution of USA.The concept of the rule of law is a negative concept while the concept of
equal protection of laws is a positive concept.The concept of equality before the lawis
equivalent to the second element of the concept of the ‘rule of law’ propounded by A.D.
dicey, the British jurist. But certain exceptions to it are, the president of India, state
governors, Public servants, Judges, Foreign diplomats, etc., who enjoy immunities,
protections, and special privileges.

Article 15 (Prohibition of discrimination on the grounds of religion, race, caste, sex or place
of birth):
Article 15 says that the state shall not discriminate against only of religion, race, sex, place of
birth or any of them.Under Article 15 (3) & (4), the government can make special provisions
for women & children and for a group of citizens who are economically and socially
backward.

Article 16 (Equality of opportunities in matters of public employment):

Article 16 says that there shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the state.

Article 17 (Abolition of Untouchability):Article 17 says that Untouchability is abolished and

its practice in any form is forbidden. The enforcement of any disability arising out of
untouchability shall be an offense punishable by law.

Article 18 (Abolition of titles):Article 18 says that no title, not being a military or academic
distinction, shall be conferred by the State. No citizen of India shall accept any title from any
foreign state.The awards, Bharat Ratna, Padma Vibhuhan, Padma Bhushan and Padma Shri,
called as The National Awards would not amount to title within the meaning of Article 18(i).

Right to Freedom (Articles 19-22):

Article 19 (Protection of certain rights regarding freedom of speech, etc.):

Article 19 says that all citizens shall have the right to freedom of speech and expression.To
assemble peacefully and without arms.To form associations or unions.To move freely
throughout the territory of India.To practice any profession or to carry on any occupation,
trade or business.

Article 20 (Protection in respect of conviction for offenses): Article 20 says that state can
impose reasonable restrictions on the groups of security of the state, friendly relations with
foreign states, public order, decency, morality, contempt of court, defamation, etc.

Article 21 deals with Protection of life and personal liberty.Article 21A states that that state
shall provide free and compulsory education to all children of the age of 6-14 years.

Article 22 deals with protection against arrest and detention in certain cases.

Right Against Exploitation (Articles 23-24):Article 23 deals with the prohibition of traffic in
human beings and forced labor.

Article 24 deals with prohibition of employment of children in factories, etc.

5. The scheme of the Fundamental Duties and its legal status

Article 51A: Fundamental duties

It shall be the duty of every citizen of India –

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and
the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and achievement.
(k) to provide opportunities for education by the parent the guardian, to his child, or a ward
between the age of 6-14 years as the case may be.

Info-bits related to Fundamental Duties

The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment
in 1976, upon the recommendations of the Swaran Singh Committee that was constituted by
the government earlier that year.

Fundamental duties are applicable only to citizens and not to the aliens.

India borrowed the concept of Fundamental Duties from the USSR.

The inclusion of Fundamental Duties brought our Constitution in line with article 29 (1) of
the Universal Declaration of Human Rights and with provisions in several modern
Constitutions of other countries.

Out of the ten clauses in article 51A, six are positive duties and the other five are negative
duties. Clauses (b), (d), (f), (h), (j) and (k) require the citizens to perform these Fundamental
Duties actively.

It is suggested that a few more Fundamental Duties, namely, duty to vote in an election, duty
to pay taxes and duty to resist injustice may be added in due course to article 51A in Part IVA
of the Constitution. (NATIONAL COMMISSION TO REVIEW THE WORKING OF THE
CONSTITUTION: A Consultation Paper on EFFECTUATION OF
FUNDAMENTAL DUTIES OF CITIZENS).

It is no longer correct to say that Fundamental Duties enshrined in article 51A are not
enforceable to ensure their implementation and are a mere reminder. Fundamental Duties
have the element of compulsion regarding compliance.
A number of judicial decisions are available towards the enforcement of certain clauses under
Article 51A.

Comprehensive legislation is needed for clauses (a), (c), (e), (g) and (i). The remaining 5
clauses, which are exhortation of basic human values, have to be developed amongst citizens
through the education system by creating proper and graded curricular input from primary
level of education to the higher and professional levels.

Available Legal Provisions: Justice Varma Committee was constituted in 1998 “to work out a
strategy as well as the methodology of operationalizing a countrywide programme for
teaching fundamental Duties in every educational institution as a measure of in-service
training”. The Verma Committee was conscious of the fact that any non-operationalization of
Fundamental Duties might not ne+

6.The Directive Principles of State Policy – Its importance and

implementation
The Directive Principles constitute a very comprehensive social, economic and political
programme for a modern and welfare state.

These principles emphasises that the State shall try to promote welfare of people by providing
them basic facilities like shelter, food and clothing.

Unlike Fundamental Rights, the Directive Principles of State Policy (DPSP) are non-
binding in nature which means they are not enforceable by the courts for their violation.

However, the Constitution itself declares that ‘these principles are fundamental in the
governance of the country and it shall be the duly of the state to apply these principles in
making laws’. Hence, they impose a moral obligation on the state authorities for their
implementation.

Features of Directive Principles of State Policy (DPSP)

1. It denotes the ideals that the State should keep in mind while formulating policies and
enacting laws.

2. It resembles the ‘Instrument of Instructions’ enumerated in the Government of India Act of

1935. In the words of Dr B R Ambedkar, ‘the Directive Principles are like the instrument of
instructions, which were issued to the Governor-General and to the Governors of the colonies
of India by the British Government under the Government of India Act of 1935.

What is called Directive Principles is merely another name for the instrument of instructions.
The only difference is that they are instructions to the legislature and the executive’.

3. It constitutes a very comprehensive economic, social and political programme for a

modern democratic State which aimed at realising the high ideals of justice, liberty, equality
and fraternity as outlined in the Preamble to the Constitution. They embody the concept of a
‘welfare state’ which was absent during the colonial era.
7. Federal structure and distribution of legislative and financial powers
between the Union and the States
India is a union of states. The constitution of India has divided the legislative, executive and
financial powers between the centre and the states, which gives the constitution a federal
character whereas judiciary is integrated in a hierarchical structure.

The centre-state relations are divided into three parts, which are mentioned below:

(A) Legislative Relations (Article 245-255)

(B) Administrative Relations (Article 256-263)

(C) Financial Relations (Article 268-293)

Legislative Relations

Articles 245 to 255 in Part XI deals with different aspects of legislative relations between
centre and states. These include:

(1) Territorial jurisdiction of laws made by the Parliament and by the Legislatures of States.

(2) Distribution of legislative subjects

(3) Power of parliament to legislate with respect to a matter in the State List

(4) Centre's control state legislation

However, Seventh Schedule of the Constitution provides for the distribution of legislative
powers between the centre and the states. The legislative subjects are divided into List I (the
Union List), List II (the Concurrent List) and List III (the State List).

 At present, there are 100 subjects in the Union list which includes subjects such as
foreign affairs, defence, railway, postal services, banking, atomic energy,
communication, currency etc.
 At present, there are 61 subjects in the State list. The list includes subjects such as
police, public order, roadways, health, agriculture, local government, drinking water
facilities, sanitation etc.
 At present, there are 52 subjects in the concurrent list. The list includes subjects such
as education, forests, protection of wild animals and birds, electricity, labour welfare,
criminal law and procedure, civil procedure, population control and family planning,
drugs etc.

Article 245 empowers the centre to give directions to the states in certain cases in regards to
the exercise of their executive powers.

Article 249 empowers the parliament to legislate with respect to a matter in the State List in
the national interest.
Under Article 250, the parliament becomes empowered to make laws on the matters related
to state list when national emergency (under Article 352) is in operation.

Under Article 252, the parliament is empowered to legislate for two or more States by their
consent.

Administrative Relations

Article 256 to 263 deals with the administrative relations between the centre and the states.
Article 256 states that "the executive power of every State shall be so exercised as to ensure
compliance with the laws made by the parliament and any existing laws which apply in that
State, and the executive power of the Union shall extend to the giving of such directions to a
State as may appear to the Government of India to be necessary for that purpose".

Cooperation Between the Centre and the States

The constitution lays down various provisions to secure cooperation and coordination
between the centre and the states. These include:

(i) Article 261 states that "Full faith and credit shall be given throughout the territory of India
to public acts, records and judicial proceedings of the Union and of every State".

(ii) According to Article 262, the parliament may by law provide for the adjudication of any
dispute or complaint with respect to the use, distribution or control of the waters of, or in, any
inter-State river or river valley.

(iii) Article 263 empowers the President to establish an inter-State Council to inquire into and
advise upon disputes between states, to investigate and discuss subjects in which some or all
of the States, or the Union and one or more of the States, have a common interest.

(iv) As per Article 307, Parliament may by law appoint such authority as it considers
appropriate for carrying out the purposes of the constitutional provisions related to the inter-
state freedom of trade and commerce.

Centre-State Relations during Emergency

(i) During a national emergency (under Article 352), the state government become
subordinate to the central government. All the executive functions of the state come under the
control of the union government.

(ii) During a state emergency (under Article 356), the president can assume to himself all or
any of the functions of the Government of the State and all or any of the powers vested in or
exercisable by the Governor or authority in the State other than the Legislature of the State.

(iii) During the operation of financial emergency (under Article 360), the Union may give
directions to any State to observe such canons of financial propriety as may be specified in
the directions, and to the giving of such other directions as the President may deem necessary
and adequate for the purpose.

Financial Relations
The Constitution deals with the centre-state financial relations in Article 268-293 of Part XII.

Allocation of taxing powers

The Constitution has provided the union government and the state governments with the
independent sources of revenue. It allocates the powers to centre and the states in the
following way:

(i) The parliament has exclusive power to levy taxes on the subjects mentioned in the Union
List.

(ii) The state legislatures has exclusive power to levy taxes on the subjects mentioned in the

State List

(iii) Both the parliament and the state legislature are empowered to levy taxes on the subjects
mentioned in the Concurrent List.

(iv) The parliament has exclusive power to levy taxes on the matters related to the residuary
subjects.

However, in case of tax revenue distribution,

 article 268 states that duties are levied by the Union but are collected and appropriated
by the States;
 Service tax levied by Union and collected and appropriated by the Union and the
States (Article 268-A);
 Taxes levied and collected by the Union but assigned to the States (Article 269);
 Taxes levied and collected by the Union but distributed between the Union and the
States (Article 270).
 Surcharge on certain duties and taxes for purposes of the Union (Article 271)

Under Article 275, the parliament is authorized to provide grants-in-aid to any state as
parliament may determine to be in need of assistance, and different sums may be fixed for
different States.

Under Article 282, the union or a state may make any grants for any public purpose,
notwithstanding that the purpose is not one with respect to which Parliament or the
Legislature of the State, as the case may be, may make laws.

Under Article 352, during the operation of national emergency, the distribution of revenues
between the centre and the states can be altered by the president.

Under Article 360, during the financial emergency, the executive authority of the Union shall
give directions to any State to observe such canons of financial propriety as may be specified
in the directions and to the give the directions as the President may deem necessary and
adequate for the purpose.

The important recommendations of the first administrative reforms commission related to the
centre-state relations are:
Establishment of an Inter-state council under Article 263

1. Decentralization of powers to the states as much as possible

2. More transfer of financial resources to the states
3. Arrangements for devolution in such a way that the states can fulfil their obligations
4. Advancement of loans to states should be related to as ‘the productive principle’.
5. Deployment of central armed forces in the states either on their request or otherwise

During state emergency, under Article 356, President's Rule can be imposed in event of the
failure of constitutional machinery in a state.

8.Parliamentary Form of Government in India – The constitution powers

and status of the President of India

Parliamentary System in India

The democratic system of government can be divided into the parliamentary and the
presidential system based on the relationship between the executive and the legislature. In a
parliamentary system, executive is a part of legislature, which implements the law and plays
an active role in framing it as well.

In a parliamentary system, the head of the state may be a monarch or a president, but
both of these positions are ceremonial. The head of the government, who is generally called
as the Prime Minister, is the real head. Thus, all the real executive powers are vested in the
Prime Minister.

The parliamentary government is also called as the Cabinet government due to concentration
of executive powers in the cabinet. Articles 74 and 75 deals with the parliamentary system
at the centre and Article 163 and article 164 deals with the Parliamentary system at the
states.

Elements and Features of Parliamentary System are;

1. Nominal and Real Head: The head of the state holds a ceremonial position and is the
nominal executive. For example, the President.

2. In India, the head of government is the Prime Minister who is the real executive. Article
75 of the Indian constitution provides for a Prime Minister to be appointed by the president.
According to Article 74, the Prime Minister headed council of ministers would aid and advise
the President in the exercise of his functions.

3.Executive is a Part of Legislature: The Executive forms a part of the legislature. In India,
the person should be a member of parliament to become a member of the executive.
However, the constitution provides that a person can be appointed as a minister for a period
of not more than six consecutive months if he is not a member of the parliament, after which
the person ceases to be a minister.
4. Majority Party Rule: The party which wins majority seats in the elections of the Lower
House forms the government. In India, the President invites the leader of the majority party in
Lok Sabha to form the government. The President appoints the leader as the Prime Minister
and the other ministers are appointed by the President on the advice of the Prime Minister.
The President may invite a coalition of parties to form the government, in case, no party has
got majority.

5. Collective Responsibility: The council of ministers are collectively responsible to the

parliament. The lower house of parliament has an ability to dismiss a government by getting
the no confidence motion passed in the house. In India, the government survives till the time
it enjoys support of the majority of members in the Lok Sabha. Thus, Lok Sabha is
empowered to introduce no-confidence motion against the government.

6.Prime Minister as the Centre of Power: In India, the Prime Minister is the real executive.
He is the head of the government, the council of ministers and the ruling government. Thus,
he has to play a significant and important role in the working of the government.

7. A Parliamentary Opposition: No government in the parliament can get hundred percent

majority. The opposition plays an important role in checking the arbitrary use of authority by
the political executive.

8. Independent Civil Service: The civil servants advice and implement decisions of the
government. Civil servants hold permanent appointments based on merit-based selection
process. They ensure continuity of employment even when the government changes. The
civil service also ensures efficiency in execution of duties and responsibilities.

9. Bicameral Legislature: Most of the countries following parliamentary system, including

India, have bicameral legislature. The members of the Lower House of all these countries are
elected by the people. The Lower House can be dissolved, in case, the term of the
government is over or there is no scope of government formation due to lack of majority in
house. In India, the President can dissolve the Lok Sabha on recommendation of the Prime
Minister.

10. Secrecy: The members of the executive in this system have to follow the principle of
secrecy in matters such as proceedings, executive meetings, policymaking etc. In India, the
ministers take oath of secrecy before entering their office.

Advantages of Parliamentary System

The parliamentary system has the following advantages over the presidential system:

1. Represents Diverse Group: The parliamentary form of government provides opportunity

to various ethnically, racially, linguistically and ideologically diverse groups to share their
views in framing of laws and policymaking. Countries, such as India, which have high level
of diversity enables accommodation by providing political space to various diverse sections
of the society.

2. Better Co-Ordination Between Legislature and Executive: The executive is a part of

the legislature. As the government enjoys the support of majority of members in the lower
house, the tendency of disputes and conflicts decreases. It makes easy for the government to
pass the legislation in the parliament and implement them.

3. Prevents Authoritarianism: In a parliamentary system, the tendency of authoritarianism

decreases as the power is vested in the council of minister rather than a single individual. The
parliament can remove the government through no-confidence motion.

4. Responsible Government: The parliament can check the activities of the executive as the
latter is responsible to the former. In a presidential system, the president is not responsible to
the legislature. The members of the parliament can ask question, move resolutions, and
discuss matters of public importance to pressurize the government. Such provisions are not
available in Presidential system.

5. Availability of Alternate Government: The lower house of the parliament can introduce
and pass a no-confidence motion. In such a situation, the head of the state invites the leader
of the opposition party to form the government. In the United Kingdom, the opposition forms
a shadow cabinet for the cabinet of the government, so that they can become ready for the
role.

9. Amendment of the Constitutional Powers and Procedure

Part XX of the Constitution of India has only one article that is Article 368 that deals with the
amendment of the Constitution. As per this article, Parliament may add, amend or repeal any
provision of the constitution as per the procedure laid down for this purpose. However, in the
Kesavanand Bharati Case 1973, the Supreme Court has ruled that the Parliament cannot
amend those provisions which constitute the Basic Structure of the Constitution.

Procedure for Amendment

 A constitution amendment bill can be introduced in any house of the parliament. A

bill for the purpose of amendment of constitution can NOT be introduced in any state
legislature.
 The Ordinance making power of the President can NOT be used
to amend the Constitution.
 A constitution amendment bill can be introduced both as a government bill or a
private member bill. However, if it’s a Private Member, then it has to be examined in
the first instance and recommended for introduction by the Committee on Private
Members’ Bills and Resolutions before it is included for introduction in the List of
Business.
 Prior recommendation of President is NOT needed in introducing the constitution
amendment bills.
 Constitution Amendment Bills are not treated as Money Bills or Financial Bills even
if they have some provisions related to them.
 A constitution amendment bill must pass in both the houses separately by absolute +
special majority {absolute → more than 50% of strength; special → 2/3 of present
and voting}.
 If there is a disagreement between the two houses on a constitution amendment bill,
there is NO provision of joint sitting to resolve the deadlock.
  The bills which result in some changes in the constitution but passed by simple
majority are not deemed to be Constitution Amendments.
 If a 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.
 Once the bill is passed in both houses, the bill is sent to president for approval. The
24th Amendment Act of 1971 had made it obligatory for the President to give his
assent to a constitutional Amendment Bill. Thus, for a Constitution amendment bill, a
President can neither withhold his assent not return the bill for reconsideration.

Bills which result in changes but not deemed to be Constitution Amendment Bills

There are several amendments which result into some changes in the constitution but can be
passed in the houses by simple majorities. Such bills are NOT considered to be Constitution
Amendment Bills for the purpose of Article 368. These include the following:

 Admission or establishment of new states.

 Formation of new states and alteration of areas, boundaries or names of existing
states.
 Abolition or creation of legislative councils in states.
 Changes in the Second Schedule-emoluments, allowances, privileges and so on of the
president, the governors, the Speakers, judges, etc.
 Changes in the requirements of quorum in Parliament.
 Salaries and allowances of the members of Parliament.
 Changes in the Rules of procedure in Parliament.
 Changes in the Privileges of the Parliament, its members and its committees.
 Use of English language in Parliament or changes in use of official langauges {Please
note that insertion of a language in 8th schedule or removal from it would need an
amendment bill to be passed as per article 268}
 Changes that need to redefine number of the judges of Supreme Court.
 Changes that extend the jurisdiction of Supreme Court {Parliament can extend but
cannot curtail jurisdiction of Supreme Court}.
 Changes in elections to parliament and state legislatures; delimitation.
 Changes in scheduled areas (5th schedule) and Tribal Areas (6th schedule)

Bills seeking to amend all other provisions can be introduced in either House of Parliament.

Amendments that seek to change federal provisions of the Constitution

A Constitution Amendment Bill which seeks to make any change in articles relating to:—

 the election of the President, or

 the extent of the executive power of the Union and the States, or
 the Supreme Court and the High Courts, or
 distribution of legislative powers between the Union and States, or representation of
States in Parliament, or the very procedure for amendment as laid down in article 368
of the Constitution

The above bills will be first passed in the two houses separately by absolute and special
majority and then also need to be ratified by legislatures of at least half of the states by
resolutions. Only after this, the bill will be sent for presidential assent.
Presidential Assent to Constitution Amendment Bills

Constitution Amendment Bills passed by Parliament by the prescribed special majority and,
where necessary, ratified by the requisite number of State Legislatures are presented to the
President under article 368 of the Constitution under which the President is bound to give his
assent to such Bills.

10. The historical perspectives of the constitutional amendments in India

On 26 January 1950, the Constitution of India came into effect. With its adoption, India
became a Republic. The Constitution of India took 2 years, 11 months and 18 days to get
drafted. It is the longest constitution in the world. From time to time, amendments have been
introduced in the constitution for various reasons. These are majorly for the welfare of the
people of India. Below are some of the important amendments to the Constitution.
1) Seventh Amendment(1956) – States Reorganization Act 1956 on the linguistic basis and
abolition of Class A, B, C, D states.

Since the Independence of India, this amendment has been the most significant reform of the
boundaries of state and territories of India. In this amendment, not only the boundaries of
state and territories were revised on the linguistic basis but also the four categories of states
(Part A, Part B, Part C and Part D states) were abolished. It is in this amendment that only
certain areas were classified as Union Territories.
2) Twenty-sixth Amendment (1971) – Abolition of Privy Purse paid to the former ruler of
states
After the independence of India in the year 1947, royal families of princely states were given
Privy Purse (amount of money paid to the former ruler of the states before the independence
of India) to integrate with India. In the year 1971, an amendment was introduced in the Indian
Constitution to abolish the policy of paying Privy Purse. In 1949, the royal families lost all
ruling rights after merging with India. The Privy Purse continued to be paid to some of the
royal families even after the twenty-sixth amendment to the Constitution of India in 1971.
There was two years legal battle and finally, all allowances and privileges provided to the
royal families were ceased by the Central Government.
3) Thirty-sixth amendment (1975) – Sikkim included as an Indian State
Although after the Independence of India many states including Pondicherry, Goa, etc were
incorporated in India but the addition of Sikkim was a bit different. It is because Sikkim was
the first and the only associate state of the Indian Union. Before 1974 no concept of associate
state existed in the Indian Constitution. After the thirty-fifth amendment was made to the
Article 2A of the Indian constitution, the constitution was again amended in April 1975 in
which Amendment 36 was introduced to repeal Article 2A, and add Article 371F. This was
done to protect the unique identity and old laws of Sikkim, along with other small
amendments.
4) Forty-second Amendment Act(1976) – Fundamental Duties Prescribed
This amendment was enacted during the emergency (25 June 1975 – 21 March 1977) by the
Indian National Congress government headed by Indira Gandhi. It is the most controversial
amendment in the Indian history. It is known as “mini-Constitution” or the “Constitution of
Indira”. It is due to the Forty-second Amendment to the Indian Constitution that India
became a Socialist, Secular and Democratic Republic. Changes were made to almost every
part of the Constitution which includes the Preamble too. New articles and sections were also
included. Fundamental duties were also added to the Indian Constitution. The changes made
in the constitutional amendments were beyond judicial scrutiny. Many more changes like
including the directive principles were also introduced.

5) Fifty-Second Amendment ( 1985) – Defection to another party after the election made
illegal.
Fifty-second Amendment to the Indian Constitution is commonly known as Anti- Defection
Law. It added the tenth schedule to the Constitution of India which laid down the process by
which the legislators may be disqualified on grounds of defection from one party to another.
There was a change in articles 101, 102, 190 and 191 due to this amendment.
6) Sixty-first amendment (1989) – Voting age reduced from 21 to 18
It was in the Sixty-first Amendment of 1989 that the voting age of elections to the Lok Sabha
and to the Legislative Assemblies of States was reduced from 21 years to 18 years.
Amendment in Article 326 of the Indian Constitution led to this change as the article is
concerned about elections to the Lok Sabha and the Assemblies. The decision was taken
keeping in mind that the youth of India is given an opportunity to become a part of the
political process instead of being unrepresented. Therefore, the voting age was reduced.
7) Seventy-third Amendment (1993) – Introduction of Panchayati Raj, the addition of Part IX
to the Constitution.
This amendment added part IX to the Indian Constitution and was entitled “Panchayats”. It
was passed in April 1993 by the Parliament. It is because of this amendment that a
constitutional status was provided to the Panchayati Raj institutions in India. Article 243 was
also inserted to Part IX of the Constitution. This amendment deals with Article 243-G and
contains 29 functional items. It has given practical shape to Article 4Q of the Constitution. It
is because of this amendment that the Panchayati Raj institutions are given a constitutional
status. The act has provisions which are grouped into two categories- compulsory and
voluntary.
8) Seventy-fourth Amendment ( 1993)- Introduction of Nagarpalikas and Municipalities
It is due to this Amendment Act that the municipalities were given constitutional status and
they came under the purview of judicial review. This Amendment consists of provisions from
Articles 243-P to 243-ZG and is entitled as ‘The Municipalities’. It contains 18 functional
items which are listed under Article 243-W of municipalities and has also added a new
twelfth schedule to the Constitution. The aim of this Act is to revitalize and strengthen the
urban governments so that they may function as effective units of local government. The act
further states there should be three types of municipalities in every state – A Nagar
Panchayat, A municipal council for a smaller urban area and A municipal corporation for a
larger urban area’.
9) Eighty-sixth Amendment( 2002) – Right to Education
With the eighty-sixth amendment to the Constitution of India, free and compulsory education
for the children under the age of 6 to 14 was made as a fundamental right. A new article 21A
was inserted below the Article 21 in the Eighty-sixth Amendment in the year 2002 to make
this a fundamental right. Through this amendment education for all children below 6 years
became a Directive Principle for State Policy (DPSP). This amendment also made the
opportunities for education to a child, a fundamental duty of the child’s parents. Under this
amendment, no child is liable to pay any kind of fee for education below 14 years of age. The
school should have basic facilities such as trained teachers, playgrounds, and infrastructure.

10) One hundred and First Amendment (2016) – Introduction of GST

Under this amendment, the Goods and Service Tax was introduced in India on July 1, 2017.
This act contains the provisions which are necessary for the implementation of the GST
regime. There are 20 sections in this amendment.
11) One Hundred and Second Constitutional Amendment (2018) – Establishment of NCBC

Through the 123rd constitutional amendment bill 2018 and 102nd amendment act, the
National Commission for Backward Classes was formatted. Under the act, the inclusion and
exclusion of the backward communities for reservation in jobs.

12) One Hundred and Third Constitutional Amendment (2019) – Abrogation of Article 370
and 35 A

The state of Jammu & Kashmir which was granted a special status under Article 370 was
scrapped in 2019 asserting that the this will ensure the development of the state and free the
region from terrorism.

Under 35 A which defines “permanent residents” of the J&K state and also used to provide
special rights to protect permanent residents of the state has been scrapped.

13) The Citizenship Amendment Act (2019) – Indian Nationality to Non-Muslim Refugees

Under the Citizenship Amendment Act of 1955 which was passed in 2019, Indian citizenship
will be given to Hindu, Sikh, Buddhist, Jain, Parsi, and Christian religion minorities who are
persecuted because of religion from Muslim neighbouring countries like Bangladesh,
Afghanistan, Pakistan before December 2014.

Emergency Provisions: National Emergency, President Rule, Financial

Emergency
The Indian Constitution gives President the authority to declare three types of emergencies:
National Emergency, State Emergency and Financial Emergency. Emergency provisions in
India are borrowed from Weimar Constitution of Germany. Constitution of India envisages
emergency of following three types:

 Article 352- National Emergency

 Article 356-Emergency in state ( president’s rule)
 Article 360- Financial Emergency

National Emergency

 Under article 352, if the president is satisfied that there exists a grave situation,
wherein the security of the country is threatened on the grounds of wars, external
aggression or armed rebellion, he can proclaim emergency to that effect.
 Emergency can be declared over the complete territory of India or any part thereof.
 President can declare emergency only on the written advice of the cabinet
 A special majority is required to approve an emergency resolution.
 Once approved, emergency shall operate for a maximum period of not more than six
months.
 Lok Sabha has the power to disapprove the operation of national emergency at any
time, if not less than 1/10th members of Lok Sabha in writing to the speaker, if house
is in session, or to the president, then speaker or president as the case may be, shall
 convene a special session of Lok Sabha within 14 days and if such a resolution is
passed, president shall revoke national emergency.

Amendments

 38th Constitutional Amendment Act 1975: It empowered president to proclaim

national emergency on different grounds even though an emergency is already under
operation
 42nd Constitutional Amendment Act 1976:

(i)It empowered president to modify or vary national emergency. Under the original
constitution, only the imposition or revocations were possible.

(ii) Under the original constitution, president could have imposed national emergency only
over complete territory of India. This amendment enabled him over a part of the country.

 44th Constitutional Amendment 1978: It was enacted to prevent the misuse of

emergency power by the executive.

Effects of National Emergency

 On Executive- State governments are not dismissed, they continue to operate, but are
brought under the effective control of the centre, which assumes the power to give
instructions to state government, which shall abide by such directions.
 On Legislature- State legislatures continue to operate and legislate, but parliament
assumes concurrent legislative power on state subjects and a law such enacted by
parliament, shall cease to operate at the expiry of six months after the revocation of
national emergency, to the extent of incompetency.
 On Financial relations- President can suspend the distribution of financial resources
between centre and states and centre can make use of any national resource to fight
the cost on the basis of which, emergency is declared.
 On Fundamental Rights- Article 358 deals with the suspension of the Fundamental
Rights guaranteed by Article 19, while Article 359 deals with the suspension of other
Fundamental Rights (except those guaranteed by Articles 20 and 21).
 As per Article 358, when a proclamation of national emergency is made, the six
fundamental rights under article 19 are suspended only when National Emergency is
declared on the ground of ware or external aggression and not on the grounds of
armed rebellion
 Article 359 authorises the president to suspend the right to move any court for the
enforcement of fundamental rights during a National Emergency except for article 20
and article 21

President’s Rule (State Emergency)

As per Article 355, it shall be the duty of the Union to protect every State against external
aggression and internal disturbance and to ensure that the Government of every State is
carried on in accordance with the provisions of this Constitution.

Under article 356, if president is satisfied on the report of governor or otherwise that there
exist a great emergency where the administration of the state cannot be continued in
accordance with the provisions of constitution, by invoking article 355, any person can
dismiss state government and take over the state administration on to himself and declare that
parliament will enact law on behalf of state legislature.

Effects of President Rule (State Emergency)

 On Executive- State government is dismissed and the executive power of the state is
exercised by the centre.
 On Legislature- State legislature does not function to legislate; state legislative
assembly is either suspended or dissolved.
 On Financial relation- There is no impact on the distribution of financial resources
between centre and the state.

Amendments

1.42nd Constitution Amendment Act, 1976 extended the period of state emergency from 6
months to 1 year.

2. 44th Constitution Amendment Act, 1978 reverted back the operation of state emergency to
6 months. Further it divided the maximum period of 3 years of operation into 1 year under
ordinary circumstances and 2 years under extra ordinary circumstances, for which the
stipulated conditions shall have to be satisfied.

Financial Emergency

Under article 360- If the President is satisfied that a situation has arisen whereby the financial
stability or credit of India or of any part of the territory thereof is threatened, he may by a
Proclamation make a declaration to that effect. This emergency is never imposed in India.

12.Local Self Government – Constitutional Scheme in India

Local self-government in India refers to governmental jurisdictions below the level of the
state. India is a federal republic with three spheres of government: central (union), state and
local. The 73rd and 74th constitutional amendments give recognition and protection to local
governments and in addition each state has its own local government legislation. Since 1992,
local government in India (bala)takes place in two very distinct forms. Urban localities,
covered in the 74th amendment to the Constitution, have Nagar Palika but derive their
powers from the individual state governments, while the powers of rural localities have been
formalized under the panchayati raj system, under the 73rd amendment to the Constitution.
For the history of traditional local government in India and South Asia, see panchayati raj

Rural local governments (or panchayat raj institutions):

 Zilla panchayats
 Mandal or taluka panchayats
 Gram panchayats (rahulz)

In 1957, a committee led by Balwant Rai Mehta Committee studied the Community
Development Projects and the National Extension Service and assessed the extent to which
the movement had succeeded in utilising local initiatives and in creating institutions to ensure
continuity in the process of improving economic and social conditions in rural areas. The
Committee held that community development would only be deep and enduring when the
community was involved in the planning, decision-making and implementation process. The
suggestions were for as follows:

 an early establishment of elected local bodies and devolution to them of necessary

resources, power, and authority,
 that the basic unit of democratic decentralisation was at the block/samiti level since
the area of jurisdiction of the local body should neither be too large nor too small. The
block was large enough for efficiency and economy of administration, and small
enough for sustaining a sense of involvement in the citizens,
 such body must not be constrained by too much control by the government or
government agencies,
 the body must be constituted for five years by indirect elections from the village
panchayats,
 its functions should cover the development of agriculture in all its aspects, the
promotion of local industries and others
 services such as drinking water, road building, etc., and
 the higher-level body, Zilla Parishad, would play an advisory role.

The PRI structure did not develop the requisite democratic momentum and failed to cater to
the needs of rural development. There are various reasons for such an outcome which include
political and bureaucratic resistance at the state level to share power and resources with local-
level institutions, the domination of local elites over the major share of the benefits of welfare
schemes, lack of capability at the local level and lack of political will.

It was decided to appoint a high-level committee under the chairmanship of Ashok Mehta to
examine and suggest measures to strengthen PRIs. The Committee had to evolve an effective
decentralised system of development for PRIs. They made the following recommendations:

 the district is a viable administrative unit for which planning, coordination, and
resource allocation are feasible and technical expertise available,
 PRIs as a two-tier system, with Mandal Panchayat at the base and Zilla Parishad at the
top,
 the PRIs are capable of planning for themselves with the resources available to them,
 district planning should take care of the urban-rural continuum,
 representation of SCs and STs in the election to PRIs on the basis of their population,
 four-year term of PRIs,
 participation of political parties in elections,
 any financial devolution should be committed to accepting

that much of the developmental functions at the district level would be played by the
panchayats.

The states of Karnataka, Andhra Pradesh and West Bengal passed new legislation based on
this report. However, the flux in politics at the state level did not allow these institutions to
develop their own political dynamics.
13. Scheme of the Fundamental Right to Equality

Democracy can only thrive and flourish where the individuals in the society are treated
equally and without discrimination. Thus, it was felt by the framers of the Constitution to
incorporate such provision to remove the hurdle of existing social and economical
inequalities and enable the diverse communities of the country to enjoy the rights and
liberties guaranteed under the constitution. It was believed to be essential to remove
inequalities based on religion, social norms, age-old traditions practiced in parts of India, like
untouchability, casteism, race discrimination, etc.

 The Right to equality means the absence of legal discrimination only on grounds of
caste, race, religion, sex, and place of birth and ensures equal rights to all citizens.
 It is considered basic feature of the Indian Constitution.
 The Right to equality is both a positive equality as well as a negative right.

RIGHT TO EQUALITY Positive

Right ⇔ Negative Right

(demands to be treated equally) (prohibits unequal treatment)

treatment)

Under the Indian Constitution, Right to equality is divided under the following subheadings:

1. Equality before law (Article 14)

2. Prohibition of discrimination on grounds of religion, caste, race, sex or place of birth
(Article 15)
3. Equality of opportunity in matters of public employment (Article 16)
4. Abolition of untouchability (Article 17)
5. Abolition of titles (Article 18)

Under the Right to Equality, Article 14 provides a general application whereas Art. 15, Art.
16, Art. 17 and Art. 18 have a specific application.

Right to equality under Article 14

‘The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.’

 Article 14 tries to achieve ‘equality of status’ for all people.

 It aims at establishing the ‘rule of law’ in India.
 This guarantee available to both citizens and non- citizens.
 It applies to all persons, natural as well as juristic.

Right to equality (Article 14)

Equality before the law ⇔ Equality protection of laws

Equality before law

 It is taken from English Common law.

 This implies the absence of any special privileges in any person.
 Implies no discrimination before the law on inapposite grounds like rank, office, etc.
 It means that “the law should be equal and should be equally administered, that like
should be treated alike.” (JENNINGS)
 States that every individual is subject to the jurisdiction of ordinary courts irrespective
of their rank or position.

Equal protection of the laws

 It is corollary from equality before the law.

 It is based on the last clause of the first section of the 14th Amendment of the US
Constitution.
 It directs that equal protection should be secured to all persons within the territorial
jurisdiction.
 This implies that such protection should be without any favor and discrimination.
 This implies equal treatment in similar circumstances, both in the privileges and
liabilities imposed by the law.
 It is a positive obligation of the state which it should achieve by bringing about
necessary social and economic changes, to ensure every person enjoys such equal
protection.

Rule of law

The principle of Article 14, ‘equality before the law’ to a large extent based on the concept of
Rule of law as coined by A. V. Dicey. It states that all individuals, government and other
institutions should obey and be governed by law and not by any arbitrary action by an
individual or group of individuals. Whatever be the rank or position of a person, he should
come under the jurisdiction of ordinary courts and not of any special courts. It also states that
governmental decisions should be based on legal and moral principles embedded in the
supreme law, in the case of India.

14. Scheme of the Fundamental Right to certain Freedom under Article 19

Article 19 is the most important and key article which embodies the “basic freedoms”. Article
19(1) provides that all citizens shall have the right- (originally 7, now 6)

 to freedom of speech and expression;

 to assemble peaceably and without arms;
 to form associations or unions;
 to move freely throughout the territory of India;
 to reside and settle in any part of the territory of India;
 omitted by 44thamendment act. (it was right to acquire, hold and dispose of property)
 to practice any profession, or to carry on any occupation, trade or business.
However, Freedom of speech and expression is not absolute. As of now, there are 8
restrictions on the freedom of speech and expression. These are in respect of the sovereignty
and integrity of the country. These 8 restrictions were:

1. Security of the state

2. Friendly relations with foreign states
3. Public Order
4. Decency or morality
5. Contempt of Court
6. Defamation
7. Incitement to offence
8. Sovereignty and integrity of India.

These 8 restrictions were embodied in their current form in the constitution First Amendment
Bill 1951, this was necessitated by Romesh Thapar v. State of Madras (1950). In this case the
entry and circulation of the English journal “Cross Road”, printed and published in Bombay,
was banned by the Government of Madras. The Supreme court held in this case that, unless a
law restricting the freedom of speech and expression were directed solely against the
undermining of the security of the state or its overthrow, the law could not be held a
reasonable restriction though it sought to impose a restraint for the maintenance of public
order.

 When a proclamation of emergency is made under article 352, article 19 itself remains
suspended.

Freedom of Speech and Expression

 Article 19 of the constitution provides freedom of speech which is the right to express
one’s opinion freely without any fear through oral / written / electronic/ broadcasting /
press.
 The Constitution does not make any special / specific reference to the Freedom of
Press. The protagonists of the “free Press” called it a serious lapse of the Drafting
committee. However, the freedom of expression includes freedom of press. Dr.
Ambedkar in this context had said on speaking behalf of the Drafting Committee that
the press had no special rights which are not to be given to an individual or a citizen.
Dr. Ambedkar further said that the “editors or managers of press are all citizens of the
country and when they chose to write in newspapers they are merely expressing their
right of expression

15.Scope of the Right to Life and Personal Liberty under Article 21.
The Constitution of India is the highest law of the land. It is the framework within which all
other laws are set. In India, the Constitution defines with certainty the political principles,
procedures and laws that govern the powers and duties of the Government and the various
agencies of the Centre and the States. It also sets out the rights and duties of the people
towards the nation.

It is interesting to note that the Constitution of India is the longest written Constitution in the
world and consists of 22 parts, 12 schedules and 5 Appendixes.
The Constitution of India is novel in its approach and presentation. India being the vast and
diverse country, has numerous facets and issues to be taken care of. In a secular, democratic
republic such as India it is the people who are most important and it is the duty of the
lawmakers to make sure that the law equally protects each and every individual irrespective
of any classification such as caste, color or creed.

Part III and IV of the Indian Constitution

As the primal social document in the country, the Indian Constitution carries two very
important parts, i.e. Part III and IV of the Constitution that basically set out the Fundamental
Rights and Directive Principles of State Policy for the country. What follows is a very
important question, i.e., - "What are Fundamental Rights?"

Fundamental Rights are a bunch of rights as set out in a charter of rights contained in Part III
of Constitution of India. Fundamental Rights guarantee certain civil liberties to all people,
citizen or alien, enabling them to lead their lives with dignity, in peace and harmony and to
the fullest.

Of all the available fundamental rights, the most fundamental is the Right to Life.

Article 21 of the Constitution lays down that the constitution guarantees the right to life and
personal liberty to every person, citizen or alien and cites specific provisions in which these
rights are to be applied and enforced.

Article 21 guarantees the protection of life and personal liberty to every individual and states
that, "No person shall be deprived of his life and personal liberty except according to
procedure established by law."

The true test of a democracy is how its laws stand with regard to the life and liberty of its
people. In England, a charter of liberties are set out in the Magna Carta of 1215. In the same
vein, in USA the Fifth Amendment to the American Constitution is what Article 21 is in
India and Article XXXI of the Constitution of Japan, 1946 reflects what is set out under
Article 21 in the Indian Constitution.

In a literal sense, what this right signifies is that the Fundamental Right to Life as set out
under Article 21, as mentioned above, prevents any kind of encroachment upon the personal
liberty and deprivation of life of any individual except according to a procedure duly
established by law.

A clear reading of this Article indicates that this right protects citizens against any act of the
state that encroaches upon the basic dignity of life and liberty of any citizen.
According to the Hon'ble Justice Bhagwati, Article 21 "embodies a constitutional value of
supreme importance in a democratic society." Article 21 has also been linked to "the magna
carta for protecting life and liberty".
Article 21 applies to all natural persons and is available to every person, citizen or alien,
which means that even a foreigner can claim this right.

What does the 'Right to Life' Embody?

Article 21, which embodies the right to life and liberty, is the right from which all other rights
emerge. Without the right to life and liberty, all the other fundamental rights would be
absolutely meaningless.
When we analyze the meaning and implications of Article 21, we can consider that it
embodies two separate rights that in fact are inseparable and go hand in hand. These two
rights are, i) the right to life, and ii) the right to personal liberty.

The 'Right to Life'

'Life' as mentioned under Article 21 signifies not merely living or the physical act of
breathing. It has a much more profound meaning that signifies the:

 Right to live with human dignity;

 Right to livelihood;
 Right to health;
 Right to pollution free air; and
 Right to live a quality life.
 Right to go abroad;
 Right to privacy;
 Right against solitary confinement;
 Right against delayed execution;
 Right to shelter;
 Right against custodial death;
 Right against public hanging; and
anything and everything that fulfills the criteria for a dignified life.

Article 21 in a sense is limitless in its scope as it embodies everything that a human being
requires to live a quality life so that he/she can afford the opportunities to make his/life better,
more fruitful and secure.

In a landmark judgment on the right to life, the Honorable Supreme Court inter alia held
that, "life as here used is something more is meant more than mere animal existence…"

Therefore, the right to life includes the right to live with human dignity and all that goes
along with it, that is to say the bare necessities of life such as adequate nutrition, clothing,
shelter and facilities of self expression such as reading writing and expressing oneself in
diverse forms, freely moving about and mixing and mingling with society. To have all of this
is to live with dignity and we can call ourselves fortunate to be governed by laws that
guarantee this basic law of life and liberty.

In this way we see that the right to life as guaranteed by Article 21 covers in totality the entire
bouquet of rights and obligations that guarantee a life of freedom and dignity.

What is 'Procedure Established by Law', as Mentioned in Article 21?

We have already analyzed the first part of the Article that encapsulates that every individual
is fundamentally entitled to his life and personal liberty, unless deprived by the due process
of law.
To recap, Article 21 mentions that, "No person shall be deprived of his life and personal
liberty except according to procedure established by law."

The expression "procedure established by law" has been subject to examination in various
landmark cases and the consensus is that that the procedure prescribed by law for depriving a
person of his life and personal liberty must be "right, just and fair" and not "arbitrary, fanciful
and oppressive," otherwise it would directly violate Article 21.

Effect of Article 21

Article 21 of our constitution is the most far reaching in its scope and reach and it is fair to
say that it is the foundation on which every other law is laid. The right to life and liberty is
something that affects each and every person in the country, every single moment of their life
and it is something that we must always value and fight for as it has been guaranteed to us by
our forefathers and maintained by the vigilant eyes of our Judiciary that keeps our rights
intact.

The bottom line here is that, this is a very important article, i.e. Article 21 can be understood
in parts to define the extent of its meaning, but must be read as a whole to understand its true
effect. Article 21 is basically, responsible for enabling the fullest development of an
individual and ensuring his dignity of life by the power vested in it by law. The effectiveness
of this law can only be possible if it is supported by procedural machinery that is reasonable,
just and fair for all.

The Fundamental right to life and liberty as mentioned in Article 21 can and should be read
in consonance with the Directive Principles of State Policy as enumerated under Part IV of
the Constitution of India.

Some of the Directive Principles are listed herein below for easy reference:

 right to pollution free air and water;

 protection of under trial;
 right of every child to full development; and
 protection of cultural heritage.

In this way, the Constitution and lawmakers of India have made the right efforts to make sure
that the Fundamental Right of the right to life and personal liberty is well within the reach of
every individual. A study of legal judgments and pronouncements in this regard evidences the
flexibility and ease with which this right is treated. This humane way in which the right to life
is considered is a hallmark of our legal system and it is this quality that breathes air into our
constitution, giving it life and enabling it to change with the pressures and demands of our
ever changing society, in spite of the economic and cultural inequality that burdens the basic
quality of life of many in India.