Meaning and importance of Constitution:

Constitution is the supreme law of each State. It lays down rules regarding the organization,
powers and functions of government. It also defines the basic features of the State and the
relation between the citizens and the State. The basic, fundamental law of a state which sets
out how that state will be organized and the powers and authorities of government between
different political units and citizens.

Definition:

In simple words, we can say a Constitution is the Constitutional law of the state.
Constitutional law enjoys the position of being the supreme and fundamental law of the state.
It lays down the organization and functions of the government of state. The Government can
use only those powers which the Constitution grants to it.

1. "Constitution is the collection of principles according to which the powers of the

government, the rights of the governed and the relations between the two are adjusted." -
Woolsey

2. "Constitution is a body of judicial rules which determine the supreme organs of state,
prescribes their modes of creation, their mutual relations, their spheres of action and the
fundamental place of each of them in relation to state." -Jellinek

3. "Constitution of a state is that body of rules or laws, written or unwritten which determine
the organization of government, the distribution of powers to the various organs of
government and the general principles on which these powers are to be exercised." -Gilchrist
On the basis of these definitions it can be said that the Constitution is the sum total of the
Constitutional laws of the state.

It lies down:

(1) Organization and powers of the government;

(2) Principles and rules governing the political process;

(3) Relations between the people and their government; and

(4) Rights and duties of the people.

The government of state gets organized and works in accordance with the provisions of the
Constitution. People get their rights protected from the Constitution. No one, not even the
government, can violate the Constitution.

Types of Constitution:

I. Written Constitution:

A written Constitution means a Constitution written in the form of a book or a series of

documents combined in the form of a book. It is a consciously framed and enacted
Constitution. It is formulated and adopted by a constituent assembly or a council or a
legislature.
Garner writes, "A written Constitution is a consciously planned Constitution, formulated
and adopted by deliberate actions of a constituent assembly or a convention." It provides for a
definite design of government institutions, their organizations, powers, functions and inter-
relationships. It embodies the Constitutional

law of the state. It enjoys the place of supremacy. The government is fully bound by its
provisions and works strictly in accordance with its provisions. A written Constitution can be
amended only in accordance with a settled process of amendment written in the Constitution
itself. It is a duly passed and enacted Constitution. The Constitutions of India, the USA,
Germany, Japan, Canada, France, Switzerland and several other states, are written
Constitutions.

II. Unwritten Constitution:

An unwritten Constitution is one which is neither drafted nor enacted by a Constituent

Assembly and nor even written in the form of a book. It is found in several historical charters,
laws and conventions. It is a product of slow and gradual evolution. The government is
organised and it functions in accordance with several well settled, but not wholly written
rules and conventions. The people know their Constitution. They accept and obey it, but do
not possess it in a written form. An unwritten Constitution cannot be produced in the form of
a book.

However, an unwritten Constitution is not totally unwritten. Some of its parts are available in
written forms but these do not stand codified in the form of a legal document or a code or a
book. According to Garner, "an unwritten Constitution is one in which most and not all, rules
are unwritten and these are not found in any one charter or document."

The Constitution of the United Kingdom is an unwritten Constitution.

Difference between written and unwritten Constitution:

1. A written Constitution is written in the form of a book or document, whereas an unwritten

Constitution is not written in such a form.

2. A written Constitution is a made and enacted by a constituent assembly of the people. An

unwritten Constitution is the result of a gradual process of Constitutional evolution. It is
never written by any assembly.

3. A written Constitution is usually less flexible than an unwritten Constitution. An unwritten

Constitution depends mostly on unwritten rules or conventions which do not require any
formal amendment.

4. A written Constitution is definite. Its provisions can be quoted in support or against any
power exercised by the government. An unwritten Constitution cannot be produced in
evidence. It has to be proved by quoting its sources and practices.

However, the difference between written and unwritten Constitutions is not organic. A
written Constitution has written parts in majority. Along with these, it also has some
unwritten parts in the form of conventions. In an unwritten Constitution, most of the parts are
unwritten and are not written in the form of a book. However some of its parts are also found
written in some charters and other documents.

III. Flexible Constitution:

A Flexible Constitution is one which can be easily amended. Several political scientists
advocate the view that a flexible Constitution is one in which the Constitutional law can be
amended in the same way as ordinary law. Constitutional amendments are passed in the same
manner by which an ordinary law is passed.

British Constitution presents a classic example of a most flexible Constitution. The British
Parliament is a sovereign parliament which can make or amend any law or Constitutional law
by a simple majority. Laws aiming to affect changes in a Constitutional law or in any
ordinary law are passed through the same legislative procedure i.e., by a simple majority of
votes in the legislature. Similarly, a Constitution is flexible when the procedure of amending
it is simple and the changes can be made easily.

Merits of a Flexible Constitution:

First, a major merit of the flexible Constitution is its ability to change easily in accordance
with the changes in the social and political environment of the society and State.

Secondly, it is very helpful in meeting emergencies because it can be easily amended.

Thirdly, because of its dynamic nature, there are less opportunities for revolt. The
Constitution has the ability to keep pace with the changing times. The people do not feel the
need for revolutionary changes.

Finally, since the flexible Constitution keeps on developing with times, it always continues to
be popular and remains up-to-date.

Demerits of a Flexible Constitution:

First, a flexible Constitution is often, a source of instability. Flexibility enables the
government in power to give it a desired dress and content.

Secondly, it is not suitable for a federation. In a federation, a flexible Constitution can lead to
undesirable changes in the Constitution by the federal government or by the governments of
federating units.

IV. Rigid Constitution:

The Rigid Constitution is one which cannot be easily amended. Its method of amendment is
difficult. For amending it, the legislature has to pass an amendment bill by a specific, usually
big, majority of 2/3rd or 3/4th. For passing or amending an ordinary law, the legislature
usually passes the law by a simple majority of its members.

A rigid Constitution is considered to be the most fundamental law of the land. It is regarded
as the basic will of the sovereign people. That is why it can be amended only by a special
procedure requiring the passing of the amendment proposal by a big majority of votes which
is often followed by ratification by the people in a referendum.

Merits of a Rigid Constitution:

First, a rigid Constitution is a source of stability in administration.

Secondly, it maintains continuity in administration.

Thirdly, it cannot become a tool in the hands of the party exercising the power of the state at
a particular time.

Fourthly it prevents autocratic exercise of the powers by the government.

Finally a rigid Constitution is ideal for a federation.

Demerits of a Rigid Constitution:

First, the chief demerit of a rigid Constitution is that it fails to keep pace with fast changing
social environment.

Secondly, because of its inability to change easily, at times, it hinders the process of social
development.

Thirdly, it can be a source of hindrance during emergencies.

Fourthly, its inability to easily change can lead to revolts against the government.

Fifthly, a rigid Constitution can be a source of conservativeness. It can grow becomes old
very soon because it cannot Keep pace with times.

Thus, there are both merits and demerits of Flexible and Rigid Constitutions. The decision
whether a state should have a flexible or a rigid Constitution, should be taken on the basis of
the needs and wishes of society. No hard and fast rule can be laid down as to whether a state
should have a flexible or a rigid Constitution.In fact, a Constitution must have both a certain
degree of rigidity as well as an ability to change for keeping pace with the changing times.
An excessive rigidity or excessive flexibility should be avoided. The Constitution of India is
partly rigid and partly flexible. In several respects, it is a rigid Constitution but in practice it
has mostly worked as a flexible Constitution.

V. Evolved Constitution:

An evolved Constitution is one which is not made at any time by any assembly of persons or
an institution. It is the result of slow and gradual process of evolution. Its rules and principles
draw binding force from the fact of their being recognised as ancient, historical, time-tested
and respected customs and conventions.

Some of these conventions get recognised by law and hence become enforceable while others
are followed because these are supported by public opinion, their practical utility and moral
commitment in their favour. Evolved Constitutions is the product of historical evolution and
of political needs and practical wisdom of the people. The Constitution of Great Britain
presents a key example of an evolved Constitution.

VI. Enacted Constitution:

An Enacted Constitution is a man-made Constitution. It is made, enacted and adopted by an

assembly or council called a Constituent Assembly or Constitutional Council. It is duly
passed after a thorough discussion over its objectives, principles and provisions. It is written
in the form of a book or as a series of documents and in a systematic and formal manner. The
Constitutions of India the USA, Japan, China and most of other states are enacted
Constitutions.

Qualities of a Good Constitution:

Constitution must be systematically written.

It should incorporate the Constitutional law of the state and enjoy supremacy.

It should have the ability to develop and change in accordance with the changes in the
environment -and needs of the people.

It should be neither unduly rigid nor unduly flexible.

It must provide for Fundamental Rights and Freedoms of the people.

It should clearly define the organisation, powers, functions inter-relations of the government
of the state and its three organs.
It must provide for the organisation of a representative, responsible, limited and accountable
government.

It must provide for:

Rule of Law

De-centralization of powers

Independent and powerful Judiciary

A system of Local self-government

Sound Method of Amendment of the Constitution

Process and Machinery for the conduct of free and elections

The Constitution must clearly reflect the sovereignty of the people.

The language of the Constitution should be simple, clear and unambiguous

The Constitution must empower the judiciary with the power to interpret, protect and
defend the Constitution and the fundamental rights and freedoms of the people against
the possible legislative and executive excesses.

These are the basic features which must be present in every good Constitution.

Significance:

Each state has a Constitution which lays down the organization, powers and functions of the
Government of the State. The government always works according to the Constitution, no
law or order of the government can violate the Constitution. Constitution is the supreme law
and all government institutions and members are bound by it.

Constitution enjoys supreme importance in the state because:

It reflects the sovereign will of the people.

 It lies down of the aims, objectives, values and goals which the people want to
secure..

It contains description and guarantee of the fundamental rights of the people.

It gives a detailed account of the organisation of the government. The organisation,

powers and functions of its three organs of the and their inter-relationship.

In a federation, the Constitution lays down the division of powers between the central
government and the governments of the federating states/provinces. It is binding upon
both the centre and the state governments.

It specifies the power and method of amendment of the Constitution.

It lays down the election system and political rights of people.

It provides for independence of judiciary and rule of law.

The Constitution governs all and no one can violate its rules.Every democratic
Constitution guarantees to the citizens a protection against arbitrary governmental
actions. A democratic state, like India, has a written and supreme Constitution which
binds its entire people and their government.

Constitutionalism:

The concept of Constitutionalism is that of a polity governed by or under a Constitution that

ordains essentially limited government and rule of law as opposed to arbitrary authoritarian
or totalitarian rule. Constitutional government, therefore, should necessarily be democratic
government. In other words, Constitutionalism is a political philosophy in which the
functions of government of a state must be in accordance with the provisions of the
Constitution meaning thereby the actions of government must reflect Constitutionality.

As the Constitutionalism is a political spirit or philosophy, so it is not necessary that the

states who have a Constitution must be embodied with the concept of Constitutionalism.
According to Douglas Greenberg, Constitutionalism is a commitment to limitations on
ordinary political power, it revolves around a political process, one that overlaps with
democracy in seeking to balance state power and individual and collective rights, it draws on
particular cultural and historical contexts from which it emanates and it resides in public
consciousness.

Now to identify that whether Constitutionalism is present in India or not. It can be analyzed
with the help of various provisions of Constitution that are:- Preamble, Judicial Review, Rule
of law, Separation of power, Checks and balances and so on. There is no exhaustive list of
features by which the validity or existence of Constitutionalism can be tested; but the every
feature which limits the government and proves helpful to establish a position of sovereignty
under fundamental principles of Constitutional jurisprudence may be a considerable point for
Constitutionalism.

In Indian context, Preamble may be a point to check the presence of Constitutionalism. Our
Constitution enacted on 26th November, 1949, since then, a question always a matter of great
concern that whether preamble is a part of Indian Constitution or not. However, in 1960, In
Re Beru Beri case, it was held that preamble is not a part of Constitution but after a long
time, In case of Keshavanand Bharti v State of Kerala (1973), 13 judges largest bench of
Indian Constitutional history rejected previous contentions and declared that "Preamble is a
part of Indian Constitution".

Constitutional Law and Constitutionalism

The concepts of constitutional law and constitutionalism basically refer to the legal
framework of a country. At a time when the constitution is referred to as 'supreme law of
land'; constitutional law is the study of rules, doctrines and principles related to the
constitution; and constitutionalism is a system of governance under which the power of
government is limited to rule of law.
As defined by Britannica, Constitutional law is the body of rules, doctrines and practices that
govern the operation of political communities. It refers to rights carved out in the federal and
state constitutions. This body of law is majorly developed from state and Supreme Court
rulings along with the respective constitutions. In case of conflict between important
functions of the state, the Supreme Court interpret their constitutions and come to a
conclusion which ensures that the law passed by the legislature does not violate the
Constitutional limits.

The term constitutional law is much more extensive in nature and includes the Constitution,
judicial precedents, relevant statutory laws and conventions. Constitutional law outrights
rights and powers of branches of the government at the central, state and local level and gives
distinct responsibilities and functions to all three of them. It also defines the role, power and
structure of different entities within the state namely, legislature, executive and judiciary. In
countries like India, US, Singapore have their constitution defined in written form which
consequentially means that the constitutional law of those countries is also subjective and can
be ratified time to time, in case of need. Constitutional law regulates the government of a
state and is the study of the set of rules which governs the relationship in a state between the
ruler and the ruled.

Essentially, Constitutional law is the supreme law and all other laws have to conform to the
Constitutional law, containing laws concerning the government and its people.

Whereas, Constitutionalism is a doctrine that means a government's authority is determined

by a body of laws or constitution. Although some jurists take constitutionalism as a synonym
of limited government, some refer to it as efforts to prevent arbitrariness of government. It is
majorly regarded as a system of governance in which the power of government is limited by
law, checks and balances to reconcile with the individual and collective freedoms.
Constitutionalism has a variety of meanings, most generally referred to as " a complex of
ideas, attitudes and patterns of behaviour elaborating the principle that the authority of
government derives from and is limited by a body of fundamental law". It is basically meant
as the limited government of limitation of government. It does both, recognises the need for a
government with adequate powers and at the same time, places limitations on those powers to
prevent arbitrariness.

The Supreme Court in I.R. Coelho v. State of Tamil Nadu', the Supreme Court regarded
constitutionalism as a legal principle which requires control over the exercise of
Governmental power to ensure that it does not destroy the democratic principles upon which
it is based. Also, in Rameshwar Prasad and Ors. v. Union of India the Supreme Court
stated- "The constitutionalism of constitutional system of Government abhors absolutism it is
premised on the Rule of Law in which subjective satisfaction is substituted by objectivity
provided by the provisions of the Constitution itself."

Therefore, all the terms, constitution, Constitutional law and Constitutionalism are inter-
related with each other with the linked idea of democracy and protection of rights of citizens
through limited government. These concepts refer to a legal system of the country which
grants collective rights and allows people to enjoy their freedom and promote the principle of
"Rule of Law".

Salient features of Indian Constitution:

The Constitution of India has some distinct and unique features as compared to other
Constitutions to the world. As Dr. B.R. Ambedkar, the Chairman of the Drafting Committee
puts it, the framers had tried to accumulate and accommodate the best features of other
Constitutions, keeping in view the peculiar problems and needs of our country.
The following are the salient features of the Constitution of India.

I. Longest written Constitution

Indian Constitution can be called the largest written Constitution in the world because of its
contents. In its original form, it consisted of 395 Articles and 8 Schedules to which additions
have been made through subsequent amendments. At present it contains 395 Articles and 12
Schedules, and more than 90 amendments. There are various factors responsible for the long
size of the Constitution. One major factors was that the framers of the Constitution borrowed
provisions form several sources and several other Constitutions of the world. They have
followed and reproduced the Government of India Act 1935 in providing matters of
administrative detail. Secondly, it was necessary to make provisions for peculiar problems of
India like scheduled castes, Scheduled Tribes and backward regions. Thirdly, provisions were
made for elaborate centre-state relations in all aspects of their administrative and other
activities. Fourthly, the size of the Constitution became bulky, as provisions regarding the
state administration were also included. Further, a detail list of individual rights, directive
principles of state policy and the details of administration procedure were laid down to make
the Constitution clear and unambiguous for the ordinary citizen. Thus, the Constitution of
India became an exhaustive and lengthy one.

II. Partly Rigid and Partly Flexible

The Constitution of India is neither purely rigid nor purely flexible. There is a harmonious
blend of rigidity and flexibility. Some parts of the Constitution can be amended by the
ordinary law-making process by Parliament. Certain provisions can be amended, only when a
Bill for that purpose is passed in each house of Parliament by a majority of the total
membership of that house and. by a majority of not less than two- third of the members of
that house present and voting. Then there are certain other provisions which can be amended
by the second method described above and are ratified by the legislatures of not less than
one-half of the states before being presented to the President for his assent. It must also be
noted that the power to initiate bills for amendment lies in Parliament alone, and not in the
state legislatures.

Pundit Nehru expressed in the Constituent Assembly, "While we want the Constitution to be
as solid and permanent as we can make it, there is no permanence in Constitution. There
should be certain flexibility. If you make anything rigid and permanent, you stop the nation's
growth, the growth of a living, vital organic people."

III. Democratic Republic

India is a democratic republic. It means that sovereignty rests with the people of India. They
govern themselves through their representatives elected on the basis of universal adult
franchise. The President of India, the highest official of the state is elected for a fixed term.
Although, India is a sovereign republic, yet it continues to be a member of the
Commonwealth of Nations with the British Monarch as its head. Her membership of the
Commonwealth does not compromise her position as a sovereign republic. The
commonwealth is an association of free and independent nations. The British Monarch is
only a symbolic head of that association.

IV. Parliamentary System of Government

India has adopted the Parliamentary system as found in Britain. In this system, the executive
is responsible to the legislature, and remains in power only as long and it enjoys the
confidence of the legislature. The president of India, who remains in office for five years is
the nominal, titular or Constitutional head. The Union Council of Ministers with the Prime
Minister as its head is drawn from the legislature. It is collectively responsible to the House
of People (Lok Sabha), and has to resign as soon as it loses the confidence of that house. The
President, the nominal executive shall exercise his powers according to the advice of the
Union Council of Ministers, the real executive. In the states also, the government is
Parliamentary in nature.

V. Federation

Article 1 of the Constitution of India says, "India, that is Bharat shall be a Union of States."
Though the word 'Federation' is not used, the government is federal. A State is federal when
(a) there are two sets of governments and there is distribution of powers between the two, (b)
there is a written Constitution, which is the supreme law of the land and (c) there is an
independent judiciary to interpret the Constitution and settle disputes between the centre and
the states. All these features are present in India. There are two sets of government, one at the
centre, the other at state level and the distribution of powers between them is quite detailed in
our Constitution. The Constitution of India is written and the supreme law of the land. At the
apex of single integrated judicial system, stands the Supreme Court which is independent
from the control of the executive and the legislature.

VI. Fundamental Rights

"A State is known by the rights it maintains", remarked Prof. H.J. Laski. The Constitution of
India affirms the basic principle that every individual is entitled to enjoy certain basic rights
and part III of the Constitution deals with those rights which are known as fundamental
rights. Originally there were seven categories of rights, but now they are six in number. They
are (i) Right to equality, (ii) Right to freedom, (iii) Right against exploitation, (iv) Right to
freedom of Religion, v) Cultural and Educational rights and vi) Right to Constitutional
remedies. Right to property (Article-31) originally a fundamental right has been omitted by
the 44th Amendment Act. 1978. It is now a legal right.
These fundamental rights are justifiable and the individual can move the higher judiciary, that
is the Supreme Court or the High Courts, if there is an encroachment on any of these rights.
The right to move to the Supreme Court straight for the enforcement of fundamental rights
has been guaranteed under Article 32 (Right to Constitutional Remedies). However,
fundamental rights in India are not absolute. Reasonable restrictions can be imposed keeping
in view the security-requirements of the state.

VII. Directive Principles of State Policy

A novel feature of the Constitution is that it contains a chapter in the Directive Principles of
State Policy. These principles are in the nature of directives to the government to implement
them for establishing social and economic democracy in the country.

It embodies important principles like adequate means to livelihood, equal pay for both men
and women, distribution of wealth so as to subserve the common good, free and compulsory
primary education, right to work, public assistance in case of old age, unemployment,
sickness and disablement, the organisation of village Panchayats, special care to the
economically back ward sections of the people etc. Most of these principles could help in
making India welfare state. Though not justiciable these principles have been stated a;
"fundamental in the governance of the country".

VIII. Fundamental Duties

A new part IV (A) after the Directive Principles of State Policy was incorporated in the
Constitution by the 42nd Amendment, 1976 for fundaments duties. These duties are:
 To abide by the Constitution and respect its ideals and institutions, the National Flag
and the National Anthem;

To cherish and follow the noble ideals, which inspired our national struggle for
freedom;

To uphold and protect the sovereignty, unity and integrity of India;

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

To promote harmony and the spirit of common brotherhood amongst all the people of
India. transcending religious, linguistic, regional or sec-tional diversities, to renounce
practices derogatory to the dignity of woman;

To value and preserve the rich heritage of our composite culture;

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

To develop scientific temper, humanism and the spirit of inquiry and reform;

To safeguard public property and to abjure violence;

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.

IX. Secular State

A secular state is neither religious nor irreligious, or anti-religious. Rather it is quite neutral
in matters of religion. India being a land of many religions, the founding fathers of the
Constitution thought it proper to. make it a secular state. India is a secular state, because it
makes no discrimination between individuals on the basis of religion. Neither it encourages
nor discourages any religion. On the contrary, right to freedom of religion is ensured in the
Constitution and people belonging to any religious group have the right to profess, practice or
propagate any religion they like.
X. An Independent Judiciary

The judiciary occupies an important place in our Constitution and it is also made independent
of the legislature and the executive. The Supreme Court of India stands at the apex of single
integrated judicial system. It acts as protector of fundamental rights of Indian citizens and
guardian of the Constitution. If any law passed by the legislature or action taken by the
executive contravenes the provisions of the Constitution, they can be declared as null and
void by the Supreme Court.

The Constituent Assembly of India

The Constituent Assembly of India was elected with the objective of forming the Constitution
of the country. M N Roy, a supporter of radical democracy and pioneer of the Communist
movement in India, is accredited with the idea for a Constituent Assembly. He proposed it in
December 1934. It was a unicameral body that had 389 elected members which were reduced
to 299 after the partition of India to form Pakistan was finalised. The Assembly met for the
first time in New Delhi on 9 December 1946, and its last session was held on 24 January
1950.

Background of the Constituent Assembly

The following points lists the trail of the development of the constituent assembly of India:

• In 1934, M N Roy was the first to propose the idea of a constituent assembly. The Indian
National Congress made it one of their official demands in 1935.

• The INC’s Lucknow session held on the 16th of April 1936 was presided by Pt. Jawahar Lal
Nehru where the official demand for the establishment of the Constituent Assembly was
raised.
• They rejected the proposed idea in the Government of India Act, 1935 as it imposed a
Constitution that was not accepted by Indians.

• It was then when C. Rajagopalachari demanded the setting up of a Constituent Assembly on

15 November 1939 which would be based on adult franchise

• This demand was accepted by the British in the August Offer of 1940.

• The elections for the formation of the Assembly were held as directed by the Cabinet
Mission plan of 1946

• These elections were indirect in nature as the members of this assembly were elected by the
members of the provincial assemblies. They were elected by the method of a single
transferable vote of proportional representation. Composition and Members of the
Constituent Assembly of India Initially, the number of members was 389.

However, once the India-Pakistan partition was officially announced, some of the members
of the Assembly left for Pakistan and making the number come down to 299. Out of these
299 members, 229 were from the British provinces and 70 were nominations from the
princely states.

• Dr Sachchidananda Sinha was the first chairman of the Constituent Assembly, put up
temporarily.

• Later, Dr Rajendra Prasad was the first elected President of the Assembly while Harendra
Coomar Mookerjee became the first Vice President. BN Rau was the constitutional advisor.

Committees of Constituent Assembly of India and their Chairman

Committees of Constituent Assembly of India

1. Drafting Committee -: Dr. B R Ambedkar

2. Union Constitution Committee -: Jawaharlal Nehru
3. Union Powers Committee -: Jawaharlal Nehru
4. States Committee -: Jawaharlal Nehru
 5. Steering Committee -: Dr Rajendra Prasad
6. Rules of Procedure Committee -: Dr Rajendra Prasad
7. Provincial Constitution Committee -: Sardar Vallabhbhai Patel
8. Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded
Areas:
• Fundamental Rights Sub-Committee -: Acharya Kripalani
• Minorities Sub-Committee -: H C Mookerjee
• Excluded and Partially Excluded Areas (Other than those in Assam) Sub-
Committee -: A V Thakkar
• North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded
Areas Sub Committee -: Gopinath Bardoloi

Facts about the Constitution of India

The Constitution of India was an interesting draft. There are some factoids about it listed
below that are relevant from the perspective of the UPSC Exams.
• It took over 2 years, 11 months and 18 days to frame the Constitution
• The original drafts of the Constitution were handwritten, not typed or printed. They are
currently kept in a helium-filled case within the library of the Parliament as it is an invaluable
artefact of our history.
• Prem Bihari Narain Raizada was the calligraphist who had written the unique copies that
defined the Structure of India.
• The Constitution of India was written in English and Hindi originally.
• The Constitution of India has a lot of elements that have been borrowed from constitutions
of countries all across the globe, like Britain, Ireland, Japan, the USA, South Africa,
Germany, Australia, and Canada.
• The basic structure of the Indian Constitution borrows from the Government of India Act,
1935 drafted by the British Government.
• It is the world's lengthiest Constitution.
• The Constitution is not completely federal or unitary, it is more of a federal System with
Unitary Features
• The country follows a bicameral Parliamentary form of government.

History of Constitution of India

A committee known as the Nehru Report was established in Lucknow in 1928 by the All
Parties Conference to draft the Indian Constitution. This was the beginning of first step of the
History of Constitution of India Between 1857 and 1947, much of India was directly ruled by
the British. Following independence, it was obvious that a new constitution was required. But
to do that, India as a whole has to be integrated into the union. This implied that the Princely
States had to be persuaded to join the Indian confederation, with either coercion or
diplomacy. This difficult effort was completed by Sardar Vallabhai Patel and V.P. Menon.
India remained technically a British dominion up until this point, in charge of maintaining
external security. As a result, when the Indian Constitution comes into effect on January 26,
1950, it invalidated both the Indian Independence Act 1947 and the Government of India Act
1935.
With the constitution, India became a sovereign democratic republic rather than a dominion
of the British Crown.
The timeline of the Historical Perspective of Constitution of India can be understood by
various acts and reforms passed by the Britsh. These also include Laws before the making of
the Indian Constitution.
• Regulating Act 1773
• Pitt’s India Act 1784
• Charter Act of 1813
• Charter Act of 1833
• Charter Act of 1853
• Government of India Act 1858
• Indian Councils Act 1861
• India Councils Act 1892
• Morley-Minto Reforms 1909
• Montague-Chelmsford Reforms 1919
• Government of India Act 1935
• Indian Independence Act 1947

Evolution of Indian Constitution

The Indian Constitution has a number of layers in its history. The British government
enforced several acts to administer the country in a way that worked the best and
simultaneously created the History of Indian Constitution. These actions contributed in some
manner the formation of the Indian Constitution.
They have been briefly discussed in the pointers below;
1. Regulating Act 1773
• For the first time, the British Parliament tried to control East India Company
business through Regulating Act 1773.
• The Governor of Bengal became the Governor-General of Bengal who was Warren
Hastings at that time.
• Four people were chosen to serve on the Governor-Executive General's Council. •
The administration was centralised, and the Bengal Presidency was made superior to
the Madras and Bombay Presidencies.
• In 1774, the Supreme Court was created in Calcutta as the highest court.
• Officials of the corporation were not allowed to conduct private business or receive
gifts from Indians.
2. Pitt’s India Act 1784 T
The Pitt’s India Act 1784 was introduced by the then British Prime Minister William
Pitt.
• The company's commercial and political operations are distinct. The Board of
Control oversaw political issues, while the Court of Directors oversaw business
operations.
• British possession in India was the term used to describe the company lands in India.
• Additionally, Governor's Councils were established in Bombay and Madras.
3. Charter Act 1813
Ended the monopoly of the trading rights of British East India Company and allowed
other companies to participate in trading activities with India through Charter Act of
1813. With the exception of tea and opium, this act put an end to the monopoly of the
East India Company on trade with India. All British subjects could trade with India.
4. Charter Act 1833
• The Governor-General of India was previously known as the Governor-General of
Bengal who was Lord William Bentinck at that moment.
• The Bombay and Madras Presidency's legislative powers were eliminated.
• As a result of Charter Act of 1833, the company's commercial operations came to an
end, and it became an administrative entity.
5. Charter Act 1853
• The Governor-legislative General's Council's and executive functions were divided.
 • In Charter Act of 1853, Six people made up the Central Legislative Council, four of
whom were chosen by the interim administrations in Madras, Bombay, Agra, and
Bengal.
• The Indian civil service was established as a way to hire officers for administrative
positions through an open recruitment process.
6. Government of India Act 1858
• Following the 1857 uprising, the Company's rule was abolished, and the British
colonies in India were placed immediately under the British Crown.
• The Secretary of State for India position was established. A fifteen member Council
of India assisted him.
• He was in charge of the Indian government, and the Viceroy served as his
representative. The Viceroy was also known as the Governor-General (Lord
Canning).
• The Board of Control and the Court of Directors were eliminated in Government of
India Act 1858.
7. Indian Councils Act 1861
• There was representation for Indians in the Council of the Viceroy. There were 3
Indians in the Legislative Council in Indian Councils Act 1861.
• Indians were allowed to join the Viceroy's Executive council as non-official
members under certain circumstances.
• System of portfolios was acknowledged.
• The restoration of the legislative authority of the presidencies of Madras and
Bombay marked the beginning of decentralisation.
8. Indian Councils Act 1892
• There are now indirect elections (nominations).
• Congressional Councils grew. This granted the legislative councils new
responsibilities, such as the power to challenge the executive and review the budget.
9. Indian Councils Act 1909 (Morley-Minto Reforms)
The Morley Minto Reforms is also known as Indian Councils Act 1909.
• The first round of direct elections for the legislative councils was held.
• Imperial Legislative Council replaced Central Legislative Council as its name.
• The legislative council now has sixty members. This was sixteen earlier.
• It was allowed to have a separate communal electorate.
 • An Indian was appointed for the very first time to the Viceroy's Executive Council.
(Law Member Satyendra Prasad Sinha)
10. Government of India Act 1919
The GOI 1919 was also called Montague-Chelmsford reforms and it came into effect
in 1921
• Subjects from the centre and the provinces were segregated.
• The provincial governments adopted a diarchic structure, with ministers in authority
of the transferred list of topics and executive councillors in control of the reserved list.
• The ministers answered to the legislative body and were chosen from the members
elected of the legislative council.
• At the centre, a bicameral legislature was first established. (The legislative assembly
and council later changed their names to Rajya Sabha and Lok Sabha, respectively.)
• It required three Indians to sit on the Viceroy's executive council.
• In India, a public service commission was established for the first time thanks to this
statute.
• A 10% increase in the number of people who could vote was made possible by this
statute.
11. Government of India Act 1935
• It was suggested to create an all-India federation made up of British India and the
Indian princely states. But this never came to pass.
• The centre and the provinces each received a different set of subjects. The Federal
List was under the control of the Center, the Provincial List was under the control of
the Provinces, and there was a Concurrent List that both catered to.
• In Government of India Act 1935, diarchy was implemented at the federal level after
being banned at the provincial level.
• The provinces received more autonomy, and the bicameral legislature was
established in 6 of the 11 provinces.
• The Indian Council was disbanded and a federal court was constituted.
• India was cut off from Burma and Aden.
• The RBI was established thanks to this act.
• This Act was in effect till the new Indian Constitution took its place.
12. Indian Independence Act 1947
India was proclaimed to be sovereign and independent through the Indian
Independence Act 1947
 • The Viceroy and the Governors were appointed as titular heads under the
constitution.
• Create accountable national and provincial governments.
• Conferred legislative and executive authority on the Indian Constituent Assembly.

Key Facts about the Historical Background of Indian Constitution

• Prior to the Charter Act of 1833, laws were referred to as Regulations, whereas laws
enacted afterward are referred to as Acts.
• The position of District Collector was established by Lord Warren Hastings in 1772, but
Cornwallis later divided the position's judicial authority from it.
• The Indian administration evolved into a competent government accountable to the
legislature and people from the strong authorities of uncontrolled executives.
• The growth of the budget and portfolio system indicates the separation of powers.
• In Lord Mayo's resolution on financial decentralisation, institutions of self governance in
India were envisioned as growing (1870).
• The Lord Ripon resolution, known as the "Magna Carta" of municipal self-government, was
lauded in 1882. The "Father of local self-government in India" is what some refer to him as.
• Based on the Acworth Committee findings, the railway budget was split from the general
budget in 1924. (1921).
• The British strove to consolidate authority from 1773 to 1858. The 1861 Councils Act
marked a change in policy toward the devolution of power to the provinces.
• Prior to the Act of 1909, the Charter Act of 1833 was the most significant legislation.
• The 1919 Act was the only set of regulations that the Indian government had to follow up
until 1947. The 1935 Act's Federation and Dyarchy-related clauses were never put into effect.
• Up until 1947, the Viceroy received advice from the Executive Council established by the
1919 Act. The executive council left a legacy that is owed to the present executive (Council
of Ministers).
• After independence, the Legislative Council and Assembly evolved into the Rajya sabha
and Lok sabha.

Dr. B.R. Ambedkar played a pivotal role in the drafting of the Indian Constitution. He was the
chairman of the drafting committee and is widely regarded as the chief architect of the Indian
Constitution. He made significant contributions to the drafting process, drawing from various
sources of legal and constitutional expertise. B.N. Rau, on the other hand, was appointed as the
constitutional advisor to the Constituent Assembly of India. He played a crucial role in providing
legal and constitutional expertise, as well as in the compilation and synthesis of constitutional
provisions from various sources including other countries' constitutions. As for the Preamble to
the Constitution of India, while Dr. Ambedkar played a significant role in the drafting of the
entire constitution, including the Preamble, it was a collective effort of the members of the
drafting committee and the Constituent Assembly. The Preamble reflects the aspirations and
values of the Indian people and was crafted through deliberations and consensus among the
members of the assembly. Therefore, it would not be accurate to say that Dr. Ambedkar single-
handedly wrote the Preamble.

PREAMBLE OF THE INDIAN CONSTITUTION

The first constitution to start with a preamble was the American Constitution. The
Indian constitution also starts with one. The Preamble is basically the introduction or
preface to the constitution. It sums up the essence of the constitution. N A Palkhivala,
a constitutional expert, referred to the Preamble as the ‘Identity card of the
Constitution’.
The Preamble is based on Pandit Nehru’s Objective Resolution that he moved and
was adopted by the Constituent Assembly. The Preamble has been amended in 1976
by the 42nd Amendment which added words ‘socialist’, ‘secular’ and ‘integrity’ to it.
Ingredients of the Preamble
The Preamble gives 4 components:
1. Source of authority of the Constitution: it mentions that the constitution derives its
power from the people of India.
2. Nature of the Indian State: it says India is a sovereign, socialist, secular, democratic
and republican State.
3. Objectives of the Constitution: it gives the objectives as – justice, liberty, equality and
fraternity.
4. Constitution date of adoption: 26th November 1949
Why Constitution of India is called Bag of Borrowing?
The constitution has many borrowed features. The country’s founding fathers were
wise enough to borrow good features from different nations and mould a constitution
that best suits India. The influences from other constitutions are listed below.
Constitution Borrowed Features

 Parliamentary system
British
 Constitutional Head of State
 Lower House of Parliament more powerful than the Upper House
 Responsibility of Council of Ministers towards Parliament
 Prevalence of the rule of law

 Preamble
US
 Fundamental Rights
 Functions of Vice-president
 Amendment of Constitution
 Nature and functions of the Supreme Court
 Independence of the judiciary

 List of concurrent powers

Australian
 Procedure for solving deadlock over concurrent subjects between
the Centre and the States

 Directive Principles of State Policy

Irish
 Method of nomination of members to the Rajya Sabha

 Powers of the President

Weimer Constitution
of Germany

 Provisions of a strong nation

Canadian
 Name of the Union of India
 Vesting residuary powers

 Procedure of amendment with a two-thirds majority in Parliament

South African
(To read abut the types of amendments , follow the linked article.)
 Election of the members of the Rajya Sabha on the basis of
proportional representation by the State Legislatures
 FUNDAMENTAL RIGHTS

Fundamental rights are the basic human rights enshrined in the Constitution of India which are
guaranteed to all citizens. They are applied without discrimination on the basis of race,
religion, gender, etc. Significantly, fundamental rights are enforceable by the courts,
subject to certain conditions.
Why are they called Fundamental Rights?
These rights are called fundamental rights because of two reasons:
1. They are enshrined in the Constitution which guarantees them.
2. They are justiciable (enforceable by courts). In case of a violation, a person can
approach a court of law.
How many Fundamental Rights are there in the Indian Constitution?
There are six fundamental rights in the Indian Constitution. They are mentioned below
along with the constitutional articles related to them:
1. Right to Equality (Article 14-18)
2. Right to Freedom (Article 19-22)
3. Right against Exploitation (Article 23-24)
4. Right to Freedom of Religion (Article 25-28)
5. Cultural and Educational Rights (Article 29-30)
6. Right to Constitutional Remedies (Article 32)
Why Right to Property is not a Fundamental Right?
There was one more fundamental right in the Indian Constitution, i.e., the right to property.
However, this right was removed from the list of fundamental rights by the 44th
Constitutional Amendment.
This was because this right proved to be a hindrance towards attaining the goal of socialism
and redistributing wealth (property) equitably among the people.
1. Right to Equality (Articles 14 – 18)
The right to equality is one of the important fundamental rights of the Indian Constitution
that guarantees equal rights for everyone, irrespective of religion, gender, caste, race
or place of birth. It ensures equal employment opportunities in the government and
insures against discrimination by the State in matters of employment on the basis of
 caste, religion, etc. This right also includes the abolition of titles as well as
untouchability.
Right to Equality
Article Brief description

The State shall not deny to any person equality before the law or the equal protection of
Article
the laws within the territory of India, on grounds of religion, race, caste, sex or place
14
of birth

The State shall not discriminate against any citizen on grounds only of religion, race,
Article
caste, sex, place of birth or any of them.
15

There shall be equality of opportunity for all citizens in matters relating to employment
Article
or appointment to any office under the State.
16

Abolition of untouchability
Article
17

Abolition of all titles except military and academic

Article
18

Equality before the law (Article 14)

Article 14 treats all people the same in the eyes of the law. Article 14 is described in two
parts – which states and commands the State not to deny to any person ‘equality
before the law’. Another part of it also commands the State not to deny the ‘equal
protection of the laws’.
 This provision states that all citizens will be treated equally before the law and avoids
any kind of discrimination.
 The law of the country protects everybody equally.
 Under the same circumstances, the law will treat people in the same manner.
Prohibition of discrimination (Article 15)
This article prohibits discrimination in any manner. This article secures the citizens from
every sort of discrimination by the State, on the grounds of religion, race, caste, sex or
place of birth or of them.
 No citizen shall, on grounds only of race, religion, caste, place of birth, sex or any of
them, be subject to any liability, disability, restriction or condition with respect to:
 Access to public places
 Use of tanks, wells, ghats, etc. that are maintained by the State or that are
meant for the general public
 The article also mentions that special provisions can be made for women, children and
the backward classes notwithstanding this article.
Equality of opportunity in matters of public employment (Article 16)
Article 16 provides equal employment opportunities in State service for all citizens.
 No citizen shall be discriminated against in matters of public employment or
appointment on the grounds of race, religion, caste, sex, place of birth, descent or
residence.
 Exceptions to this can be made for providing special provisions for the backward
classes.
Abolition of untouchability (Article 17)
Article 17 prohibits the practice of untouchability.
 Untouchability is abolished in all forms.
 Any disability arising out of untouchability is made an offence.
Abolition of titles (Article 18)
Article 18 abolishes titles.
 The State shall not confer any titles except those which are academic or military titles.
 The article also prohibits citizens of India from accepting any titles from a foreign
State.
 The article abolishes the titles that were awarded by the British Empire such as Rai
Bahadur, Khan Bahadur, etc.
 Awards like Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna and
military honours like Ashok Chakra, Param Vir Chakra do not belong to this category.

2. Right to Freedom (Articles 19 – 22)

Freedom is one of the most important ideals cherished by any democratic society. The
Indian Constitution guarantees freedom to citizens. The freedom right includes many
rights such as:
 Freedom of speech
 Freedom of expression
 Freedom of assembly without arms
 Freedom of association
 Freedom to practise any profession
 Freedom to reside in any part of the country
Some of these rights are subject to certain conditions of state security, public morality and
decency and friendly relations with foreign countries. This means that the State has
the right to impose reasonable restrictions on them.
he right to freedom guarantees freedom for citizens to live a life of dignity among other
things. These are given in Articles 19, 20, 21A and 22 of the Indian Constitution. We
shall take up the articles one by one in this section.
Article Brief description

Protection of 6 rights concerning the freedom of:

Article 19
1. Speech and expression
2. Assembly
3. Association
4. Movement
5. Residence
6. Profession

Protection with respect to conviction for offences

Article 20

Right to life and personal liberty

Article 21

Right to elementary education

Article 21A

Protection against arrest and detention in certain cases

Article 22

Article 19 of Indian Constitution

Article 19 of Indian Constitution guarantees six freedoms. They are:
1. Freedom of speech and expression: The State guarantees freedom of speech and
expression to every person of India. However, the State can impose restrictions on the
freedom of speech and expression in the interests of the integrity, security and
sovereignty of the country, friendly relations with foreign nations, for public order,
with respect to defamation, incitement to offence or contempt of court. Read more
about the Freedom of Speech and Expression here.
2. Freedom to assemble: The State guarantees every person the freedom to assemble
peacefully without arms. However, as above, reasonable restrictions can be imposed
in the interests of the sovereignty and integrity of the country and public order.
3. Freedom to form associations/unions/cooperative societies: Again, the State can
impose restrictions in the interests of the integrity, security and sovereignty of the
country, friendly relations with foreign nations, for public order, with respect to
defamation, incitement to offence or contempt of court. This freedom gives workers
the right to form trade union, which is thus a fundamental right.
1. The Police Forces (Restriction of Rights) Act, 1966 prohibits police personnel
from forming trade unions.
2. The Constitution also allows the Parliament to pass a law restricting the right
to form political associations to members of the armed forces, intelligence
bureaus, persons employed with telecommunication system.
4. Freedom to move freely: A citizen of India can move freely throughout the territory
of India. But this right can also be restricted on the grounds of security, public order
or for protecting the interests of the Scheduled Tribes.
5. Freedom of residence: Citizens of India have the right to reside in any part of the
country. Although restrictions can be imposed on the grounds of security, public order
or for protecting the interests of the Scheduled Tribes.
6. Freedom of profession: All citizens have the right to carry on any trade or
profession/occupation, provided the trade or occupation is not illegal or immoral.
Also, the law does not prevent the State from making laws related to technical or
professional qualifications required for practising the occupation or trade.
Article 20 deals with the protection of citizens in respect of conviction for offences. This
provides for three types of protection of the individual against the State.
 1. Retrospective criminal legislation: This is also known as ex-post-facto criminal
legislation. Under this, a person cannot be convicted for an act that was committed at
a time when the act had not been declared by law as an offence.
1. This means that criminal legislation cannot be given a retrospective effect.
2. This immunity cannot be used against the provision of preventive detention,
and also does not cover the trial.
3. The law also provides that a person cannot be subject to a punishment greater
than what is prescribed by law for the offence committed.
2. Double jeopardy: This indicates that a person cannot be convicted for the same
offence more than once.
3. Prohibition against self-incrimination: This implies that no person accused of an
offence shall be compelled by the State to bear witness against himself.
Article 21
Article 21 states that no person shall be deprived of his life and personal liberty by the State
except as per the procedure established by law. This article has a wide scope and its
interpretation has undergone many changes over the decades.
 The Supreme Court has interpreted the right to life as the right to a dignified life.
 This is the most important right in one sense, because, without this right to life, all
other fundamental rights would be meaningless.
 It is this article that differentiates between a police state and a constitutional state.

“Protection of Life and Personal Liberty: No person shall be deprived of his life or personal
liberty except according to procedure established by law.”

 This fundamental right is available to every person, citizens and foreigners alike.

 Article 21 provides two rights:

 Right to life

 Right to personal liberty

 The fundamental right provided by Article 21 is one of the most important rights that
the Constitution guarantees.
  The Supreme Court of India has described this right as the ‘heart of fundamental
rights’.

 The right specifically mentions that no person shall be deprived of life and liberty
except as per the procedure established by law. This implies that this right has been
provided against the State only. State here includes not just the government, but
also, government departments, local bodies, the Legislatures, etc.

 Any private individual encroaching on these rights of another individual does not
amount to a violation of Article 21. The remedy for the victim, in this case, would be
under Article 226 or under general law.

 The right to life is not just about the right to survive. It also entails being able to live a
complete life of dignity and meaning.

 The chief goal of Article 21 is that when the right to life or liberty of a person is taken
away by the State, it should only be according to the prescribed procedure of law.

Interpretation of Article 21

Judicial intervention has ensured that the scope of Article 21 is not narrow and restricted. It
has been widening by several landmark judgements.

A few important cases concerned with Article 21:

1. AK Gopalan Case (1950): Until the 1950s, Article 21 had a bit of a narrow scope. In
this case, the SC held that the expression ‘procedure established by law’, the
Constitution has embodied the British concept of personal liberty rather than the
American ‘due process’.

2. Maneka Gandhi vs. Union of India Case (1978): This case overturned the Gopalan
case judgement. Here, the SC said that Articles 19 and 21 are not watertight
compartments. The idea of personal liberty in Article 21 has a wide scope including
many rights, some of which are embodied under Article 19, thus giving them
‘additional protection’. The court also held that a law that comes under Article 21
must satisfy the requirements under Article 19 as well. That means any procedure
 under law for the deprivation of life or liberty of a person must not be unfair,
unreasonable or arbitrary. Read the Maneka Gandhi case in detail in the linked article.

3. Francis Coralie Mullin vs. Union Territory of Delhi (1981): In this case, the court
held that any procedure for the deprivation of life or liberty of a person must be
reasonable, fair and just and not arbitrary, whimsical or fanciful.

4. Olga Tellis vs. Bombay Municipal Corporation (1985): This case reiterated the
stand taken earlier that any procedure that would deprive a person’s fundamental
rights should conform to the norms of fair play and justice.

5. Unni Krishnan vs. State of Andhra Pradesh (1993): In this case, the SC upheld the
expanded interpretation of the right to life.

The Court gave a list of rights that Article 21 covers based on earlier judgments. Some of
them are:

1. Right to privacy

2. Right to go abroad

3. Right to shelter

4. Right against solitary confinement

5. Right to social justice and economic empowerment

6. Right against handcuffing

7. Right against custodial death

8. Right against delayed execution

9. Doctors’ assistance

10. Right against public hanging

11. Protection of cultural heritage

12. Right to pollution-free water and air

 13. Right of every child to a full development

14. Right to health and medical aid

15. Right to education

16. Protection of under-trials

Right to Life and Suicide

Section 309 of the Indian Penal Code (IPC) makes attempted suicide a criminal offence
which is punishable with imprisonment and fine.

 There were many debates on whether this should continue since mental health experts
have argued that people who attempt suicide need adequate counselling and not
punishment.

 The Mental Healthcare Act, 2017 was passed by the Parliament and the law came into
force in 2018. This Act is meant to provide “for mental healthcare and services for
persons with mental illness and to protect, promote and fulfil the rights of such
persons during delivery of mental healthcare and services.”

 This law decriminalises suicide in India.

 The law states, “Notwithstanding anything contained in section 309 of the Indian
Penal Code, any person who attempts to commit suicide shall be presumed, unless
proved otherwise, to have severe stress and shall not be tried and punished under the
said Code”.

Arguments against decriminalising suicide:

1. No person has a complete autonomy with respect to his/her life. He/she has a duty
with respect to his family. In many cases, a person’s suicide could lead to a family
being destitute.

2. Decriminalising suicide might lead to decriminalising the abetment to suicide. The

counterargument to this point is that suicide alone can be decriminalised by having
the necessary amendments or legal provisions to cover abetment to suicide.
Arguments in favour of decriminalising suicide:

1. This is the only case where an attempt to a crime is punishable and not the crime itself
(because a person becomes beyond the reach of law if suicide is complete).

2. Suicide is committed/attempted by people who are depressed and under severe stress.
People who attempt suicide need counselling and medical help, not a jail warden’s
severe authority.

3. Decriminalising an attempt to suicide is different from conferring the ‘right to die’.

Right to Life and Euthanasia

There are many debates on whether the right to life also extends to the right to die, especially
to die with dignity. Euthanasia is a topic that is frequently seen in the news. Many countries
have legalised euthanasia (the Netherlands, Belgium, Colombia, Luxembourg).

Euthanasia is the practice of intentionally ending life in order to relieve suffering and pain. It
is also called ‘mercy killing’.

There are various types of euthanasia: Passive and Active.

Passive Euthanasia: This is where treatment for the terminally-ill person is withdrawn, i.e.,
conditions necessary for the continuance of life are withdrawn.

Active Euthanasia: This is where a doctor intentionally intervenes to end someone’s life
with the use of lethal substances.

This is different from physician-assisted suicide where the patient himself administers the
lethal drugs to himself. In active euthanasia, it is a doctor who administers the drugs.

Voluntary euthanasia: Under this, euthanasia is carried out with the patient’s consent.

Non-voluntary euthanasia: Under this, patients are unable to give consent (coma or
severely brain-damaged), and another person takes this decision on behalf of the patient.

Involuntary euthanasia: Euthanasia is done against the will of the patient, and this is
considered murder.
International Position on Euthanasia:

In the Netherlands and Belgium, both euthanasia and physician-assisted suicide are legal.

In Germany, euthanasia is illegal while physician-assisted suicide is legal.

Both euthanasia and physician-assisted suicide are illegal in India, Australia, Israel, Canada
and Italy.

Euthanasia in India

Passive euthanasia has been made legal in India.

 In 2018, the SC legalised passive euthanasia by means of the withdrawal of life

support to patients in a permanent vegetative state.

 This decision was made as a part of the verdict in the famous case involving Aruna
Shanbaug, who had been living in a vegetative state for more than 4 decades until her
death in 2015.

 The court rejected active euthanasia by means of lethal injection. Active euthanasia
is illegal in India.

 As there is no law regulating euthanasia in the country, the court stated that its
decision becomes the law of the land until the Indian parliament enacts a suitable law.

 Passive euthanasia is legal under strict guidelines.

 For this, patients must give consent through a living will, and should either be in a
vegetative state or terminally ill.

 Living Will: It is a legal document in which a person specifies what actions

should be taken for their health if they are no longer able to make such
decisions for themselves due to illness or incapacity.

 When the executor (of the living will) becomes terminally ill with no hope of
recovery, the doctor will set up a hospital medical board after informing the patient
and/or his guardians.
Article 21(A)
This article was introduced by the 86th Constitutional Amendment in 2002. It provides that
the State shall provide free and compulsory education to all children between the ages
of 6 and 14.
Article 22
Article 22 deals with the protection against arrest and detention in certain cases.
 This article is applicable to both citizens and non-citizens.
 This provision extends certain procedural safeguards for individuals in case of an
arrest.
 It comes into the picture after a person has been arrested. It is not a fundamental right
against detention and arrest.
 The idea behind this right is to prevent arbitrary arrests and detention.
 The article provides the following safeguards:
 Article 22(1) – Any person who is in custody has to be informed as to why he
has been arrested. Further, he cannot be denied the right to consult an
advocate.
 Article 22(2) – The arrested individual should be produced before a judicial
magistrate within 24 hours of his arrest.
 Article 22(3) – No individual who has been arrested can be kept in custody for
more than the period determined by the judicial magistrate.
 These safeguards are, however, not applicable to
 Enemy aliens
 People arrested under preventive detention laws
What is Preventive Detention?
There are two types of detention:
1. Punitive
2. Preventive
Punitive detention is detention after a trial. Preventive detention is detention without trial.
The idea behind this is to prevent an individual from committing a crime. This means
that persons can be detained on grounds of suspicion. The rights of people arrested in
this manner are governed by preventive detention laws.
3. Right against Exploitation (Articles 23 – 24)
This right implies the prohibition of traffic in human beings, begar, and other forms of
forced labour. It also implies the prohibition of employment of children in factories,
etc. The Constitution prohibits the employment of children under 14 years in
hazardous conditions.
Article 23(1): Traffic in human beings and the beggar and other similar forms of forced
labour are prohibited and any contravention of this provision shall be an offence
punishable in accordance with the law.
Article 23(2): Nothing in this article shall prevent the State from imposing compulsory
service for public purposes, and in imposing such service the State shall not make any
discrimination on grounds only of religion, race, caste or class or any of them.
 Exploitation implies the misuse of others’ services by force and/or labour without
payment.
 There were many marginalized communities in India who were forced to engage in
manual and agricultural labour without any payment.
 Labour without payment is known as begar.
 Article 23 forbids any form of exploitation.
 Also, one cannot be forced to engage in labour against his/her will even if
remuneration is given.
 Forced labour is forbidden by the Constitution. It is considered forced labour if the
less-than-minimum wage is paid.
 This article also makes ‘bonded labour’ unconstitutional.
 Bonded labour is when a person is forced to offer services out of a loan/debt that
cannot be repaid.
 The Constitution makes coercion of any kind unconstitutional. Thus, forcing landless
persons into labour and forcing helpless women into prostitution is unconstitutional.
 The Article also makes trafficking unconstitutional.
 Trafficking involves the buying and selling of men and women for illegal and
immoral activities.
 Even though the Constitution does not explicitly ban ‘slavery’, Article 23 has a wide
scope because of the inclusion of the terms ‘forced labour’ and ‘traffic’.
 Article 23 protects citizens not only against the State but also from private
citizens.
  The State is obliged to protect citizens from these evils by taking punitive action
against perpetrators of these acts (which are considered crimes), and also take positive
actions to abolish these evils from society.
 Under Article 35 of the Constitution, the Parliament is authorized to enact laws to
punish acts prohibited by Article 23.
 Clause 2 implies that compulsory services for public purposes (such as conscription to
the armed forces) are not unconstitutional.
 Laws passed by the Parliament in pursuance of Article 23:
 Suppression of Immoral Traffic in Women and Girls Act, 1956
 Bonded Labour System (Abolition) Act, 1976
Article 24 – Prohibition of employment of children in factories, etc.
Article 24 says that “No child below the age of fourteen years shall be employed to work in
any factory or mine or engaged in any other hazardous employment.”
 This Article forbids the employment of children below the age of 14 in any hazardous
industry or factories or mines, without exception.
 However, the employment of children in non-hazardous work is allowed.
Laws that were passed in pursuance of Article 24 in India.
The Factories Act, 1948
This was the first act passed after independence to set a minimum age limit for the
employment of children in factories. The Act set a minimum age of 14 years. In 1954,
this Act was amended to provide that children below the age of 17 could not be
employed at night.
The Mines Act of 1952
This Act prohibits the employment of people under the age of 18 years in mines.
The Child Labour (Prohibition and Regulation) Act, 1986
This was a landmark law enacted to curb the menace of child labour prevalent in India. It
described where and how children could be employed and where and how this was
forbidden. This Act designates a child as a person who has not completed his/her 14th
year of age. The 1986 Act prohibits the employment of children in 13 occupations and
57 processes.
Child Labour (Prohibition & Regulation) Amendment Act, 2016
This Act completely forbids the employment of children below 14 years of age. It also bans
the employment of people between the ages of 14 and 18 in hazardous occupations
and processes. Punishments to violators of this law were made stricter by this
 amendment act. This Act allows children to be employed in certain family
occupations and also as artists.
Child Labour (Prohibition and Regulation) Amendment Rules, 2017
The government notified the above Rules in 2017 to provide a broad and specific
framework for prevention, prohibition, rescue, and rehabilitation of child and
adolescent workers. The Rules clarified on issues concerning the employment of
family enterprises and also provides safeguards for artists in that the working hours
and conditions are specified.

4. Right to Freedom of Religion (Articles 25 – 28)

This indicates the secular nature of Indian polity. There is equal respect given to all
religions. There is freedom of conscience, profession, practice and propagation of
religion. The State has no official religion. Every person has the right to freely
practice his or her faith, and establish and maintain religious and charitable
institutions.
Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and
propagate religion to all citizens.
 The above-mentioned freedoms are subject to public order, health, and morality.
 This article also gives a provision that the State can make laws:
 That regulates and restricts any financial, economic, political, or other secular
activity associated with any religious practice.
 That provides for the social welfare and reform or opening up of Hindu
religious institutions of a public character to all sections and classes of Hindus.
Under this provision, Hindus are construed as including the people professing
the Sikh, Jain, or Buddhist religions, and Hindu institutions shall also be
construed accordingly.
 People of the Sikh faith wearing & carrying the kirpan shall be considered included in
the profession of the Sikh religion.
Article 26 (Freedom to manage religious affairs)
This Article provides that every religious denomination has the following rights, subject to
morality, health, and public order.
1. The right to form and maintain institutions for religious and charitable intents.
2. The right to manage its own affairs in the matter of religion.
3. The right to acquire the immovable and movable property.
 4. The right to administer such property according to the law.
Article 27 (Freedom as to payment of taxes for promotion of any particular religion)
According to Article 27 of the Constitution, there can be no taxes, the proceeds of which are
directly used for the promotion and/or maintenance of any particular religion/religious
denomination.
Article 28 (Freedom as to attendance at religious instruction or religious worship in certain
educational institutions)
This article permits educational institutions that are maintained by religious groups to
disseminate religious instruction.
 This provides that no religious instruction shall be provided in State-run educational
institutions.
 Educational institutions administered by the State but that were established under any
endowment or trust which requires that religious instruction shall be imparted in such
institutions are exempt from the above clause (that no religious instruction shall be
provided).
 Any person who attends any educational institution recognized by the State or
receiving State aid shall not be required to participate in any religious instruction that
may be imparted in such institution, or also attend any religious worship in such
institutions unless he/she has given consent for the same. In the case of minors, the
guardians should have given consent for the same.
What is Secularism?
The word ‘secularism’ means separate from religion.
 It entails the separation of religion from the government, social, economic, and
cultural aspects of life.
 Here religion is an entirely personal matter.
 India is a secular country with no state religion.
 However, this in India, also means that there is equal respect for all religions and
faiths.
 The word is also a part of the Basic Structure of the Constitution. It was added by
the 42nd Amendment to the Constitution.
 This concept enjoys high regard in Indian democracy.
 Secularism has also been an inalienable part of Indian culture as seen by the multitude
of faiths that have co-existed in this country for centuries.
 All religious groups in India have the same powers without any discrimination.
Indian and Western Models of Secularism
The term secularism, as explained above, indicates the separation of the State from religion.
This concept, however, has slightly differing connotations in the Indian and the
western polity. This is discussed below.
 In the Western model, secularism connotates the complete separation of the State
from the Church. This owes its origin to the French Revolution where the revolution
sought to establish a ‘secular’ government, one which did not influence the church or
the clergy.
 Both the institutions (church and government) would not interfere in each other’s
domains.
 In India, however, the State and religion are not water-tight compartments.
 Even though the State has to maintain equal distance from all religions, the influence
of the government does extend to religious affairs, albeit in a limited fashion.
 Unlike the Western model, where the State does not offer financial support to any
religious institution, in India, the State has chosen a positive engagement model.
 The state provides religious minorities the right to establish their educational
institutions, and in some cases, also extends assistance to these institutions.
 Many Hindu temples are directly governed by the State.
 The State has set up Boards for the administration of large temples and has also set up
the Waqf Board, etc.
 In India, when talking about society and the community, the word pluralism is better
suited than the word secularism.
 Western societies have largely been homogenous with minimal religious (and other)
minority groups, until recently.
 In India, for centuries, many religious groups have shared spaces in all respects and
thrived together.

5. Cultural and Educational Rights (Articles 29 – 30)

These rights protect the rights of religious, cultural and linguistic minorities, by facilitating
them to preserve their heritage and culture. Educational rights are for ensuring
education for everyone without any discrimination.
Fundamental Rights guarantee basic rights to the citizens of India. There are six
fundamental rights enshrined in the Constitution of India, and Articles 29 and 30 deal
with the cultural and educational rights of Indian citizens.
 1. This fundamental right intends to preserve the culture of minority groups in India.
2. Indian society is a composite heterogeneous one and its diversity is one of its
strengths.
3. The Constitution guarantees these rights to minorities so that the diversity of this
4. country is preserved and provides avenues for all groups including marginalized ones
to protect, preserve, and propagate their culture.
Article 29 – Protection of Interests of Minorities
This article is intended to protect the interests of minority groups.
Article 29(1): This provides any section of the citizens residing in India having a distinct
culture, language, or script, the right to conserve their culture, language and script.
Article 29(2): The State shall not deny admission into educational institutes maintained by
it or those that receive aid from it to any person based only on race, religion, caste,
language, or any of them.
Article 30 – Right of Minorities to Establish and Administer Educational Institutions
This right is given to minorities to form and govern their own educational institutions.
Article 30 is also called the “Charter of Education Rights”.
Article 30(1): All religious and linguistic minorities have the right to establish and
administer educational institutions of their choice.
Article 30(2): The State shall not, when 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.

6. Right to Constitutional Remedies (32 – 35)

The Constitution guarantees remedies if citizens’ fundamental rights are violated. The
government cannot infringe upon or curb anyone’s rights. When these rights are
violated, the aggrieved party can approach the courts. Citizens can even go directly to
the Supreme Court which can issue writs for enforcing fundamental rights.
Features of Fundamental Rights
 Fundamental rights are different from ordinary legal rights in the manner in which
they are enforced. If a legal right is violated, the aggrieved person cannot directly
approach the SC bypassing the lower courts. He or she should first approach the lower
courts.
 Some of the fundamental rights are available to all citizens while the rest are for all
persons (citizens and foreigners).
  Fundamental rights are not absolute rights. They have reasonable restrictions, which
means they are subject to the conditions of state security, public morality and decency
and friendly relations with foreign countries.
 They are justiciable, implying they are enforceable by courts. People can approach the
SC directly in case of violation of fundamental rights.
 Fundamental rights can be amended by the Parliament by a constitutional amendment
but only if the amendment does not alter the basic structure of the Constitution.
 The Fundamental Rights of the Indian Constitution can be suspended during a
national emergency. But, the rights guaranteed under Articles 20 and 21 cannot be
suspended.
 The application of fundamental rights can be restricted in an area that has been placed
under martial law or military rule.

What is a Writ?

Writs are written orders issued by the Supreme Court of India to provide constitutional
remedies to protect the fundamental rights of citizens from a violation.

Facts about writs in India

 Article 32 also empowers Parliament to authorize any other court to issue these writs

 Before 1950, only the High Courts of Calcutta, Bombay, and Madras had the power to
issue the writs

 Article 226 empowers all the high courts of India to issue the writs

 Writs of India are borrowed from English law where they are known as ‘Prerogative
writs’

What is a Writ Petition?

A writ petition is essentially a court petition for extraordinary review, asking a court to
intervene in a lower court’s decision. Under the Indian legal system, jurisdiction to issue
‘prerogative writs’ is given to the Supreme Court and the High Courts of Judicature of all
Indian states. Parts of the law relating to writs are outlined in the Constitution of India.
Type of Writs

The Constitution empowers the Supreme Court and High Courts to issue orders or writs.

The types of writs are:

 Habeas Corpus

 Certiorari

 Prohibition

 Mandamus

 Quo Warranto

Habeas Corpus

Habeas Corpus is a writ that is enforced to protect the fundamental right to liberty of an
individual against unlawful detention. This writ commands a public official to deliver a
detained person in front of the court and provide valid reasons for the detention. However,
this writ cannot be issued in case the proceeding is for contempt of a legislature or a court.

Certiorari

The writ of certiorari is issued to a lower court directing the transfer of a case for review,
usually to overrule the judgment of the lower court. The Supreme Court issues the writ of
Certiorari in case the decision passed by the lower court is challenged by the party. It is
issued in case the higher court finds it a matter of overjurisdiction or lack of jurisdiction.

It is one of the mechanisms by which the fundamental rights of the citizens are upheld.

Prohibition

Prohibition is a writ issued by a higher court to a lower court to enforce inactivity in the
jurisdiction. It happens only in case the higher court is of the discretion that the case falls
outside the jurisdiction of the lower court. Writ of Prohibition can only be issued against
judicial and quasi-judicial authorities.
Mandamus

The writ of mandamus is issued to a subordinate court, an officer of the government, or a

corporation or other institution commanding the performance of certain acts or duties.

Unlike Habeas Corpus, Mandamus cannot be issued against a private individual.

The writ of mandamus can be used to order the completion of a task or in other cases, it may
require an activity to be ceased.

Quo-Warranto

Quo warranto is issued against a person who claims or usurps a public office. Through this
writ, the court inquires ‘by what authority’ the person supports his or her claim.

Through this writ, the court enquires into the legality of a claim of a person to a public office.
This writ prevents the illegal assumption of a public office by an individual.

To know more about the types of writs in India, refer to the linked article.

Suspension of Fundamental Rights

 Fundamental rights can be suspended in the case of National Emergency as mentioned

under article 352.

 The six fundamental rights under Article 19 are automatically suspended in the case
National Emergency is imposed on grounds of war or external aggression which is
stated under Article 358.

 Article 359 has a clause for suspension of other rights. In that case, a separate
notification has to be issued by the President.

 The rights mentioned under Articles 20 and 21 can never be suspended.

 Constitutional emergency and financial emergency cannot affect Fundamental Rights.

Status of Writs in Other Countries

1. The writs other than habeas corpus are discretionary remedies and have been known
as prerogative orders in England and Wales since 1938.
The writs of quo warranto and procedendo are now obsolete. The modified names of
certiorari, mandamus, and prohibition are mentioned under the new Civil Procedure Rules
1998 known as quashing orders, mandatory orders, and prohibiting orders respectively.

1. Mandamus has been replaced by injunction in the United States district courts.

2. The Supreme Court of the United States grants certiorari while the Supreme Court of
other states grant review.

Fundamental Rights Available Only to Citizens

The following is the list of fundamental rights in the Indian constitution that are
available only to citizens (and not to foreigners):
1. Prohibition of discrimination on grounds of race, religion, caste, gender or place of
birth (Article 15).
2. Equality of opportunity in matters of public employment (Article 16).
3. Protection of freedom of: (Article 19)
 Speech and expression
 Association
 Assembly
 Movement
 Residence
 Profession
4. Protection of the culture, language and script of minorities (Article 29).
5. Right of minorities to establish and administer educational institutions (Article 30).
Importance of Fundamental Rights
Fundamental rights are very important because they are like the backbone of the country.
They are essential for safeguarding the people’s interests.
According to Article 13, all laws that are violative of fundamental rights shall be void. Here,
there is an express provision for judicial review. The SC and the High Courts can
declare any law unconstitutional on the grounds that it is violative of fundamental
rights. Article 13 talks about not just laws, but also ordinances, orders, regulations,
notifications, etc.
Amendability of Fundamental Rights
 Any changes to fundamental rights require a constitutional amendment that should be
passed by both the Houses of Parliament. The amendment bill should be passed by
a special majority of Parliament.
 As per the Constitution, Article 13(2) states that no laws can be made that take
away fundamental rights.
 The question is whether a constitutional amendment act can be termed law or not.
 In the Sajjan Singh case of 1965, the Supreme Court held that the Parliament can
amend any part of the Constitution including fundamental rights.
 But in 1967, the SC reversed its stance taken earlier when in the verdict of the
Golaknath case, it said that the fundamental rights cannot be amended.
 In 1973, a landmark judgement ensued in the Kesavananda Bharati case, where the
SC held that although no part of the Constitution, including Fundamental Rights, was
beyond the Parliament’s amending power, the “basic structure of the Constitution
could not be abrogated even by a constitutional amendment.”
 This is the basis in Indian law in which the judiciary can strike down any amendment
passed by Parliament that is in conflict with the basic structure of the Constitution.
 In 1981, the Supreme Court reiterated the Basic Structure doctrine.
 It also drew a line of demarcation as April 24th, 1973 i.e., the date of the
Kesavananda Bharati judgement, and held that it should not be applied retrospectively
to reopen the validity of any amendment to the Constitution which took place prior to
that date.
Doctrine of Severability
This is a doctrine that protects the fundamental rights enshrined in the Constitution.
 It is also known as the Doctrine of Separability.
 It is mentioned in Article 13, according to which all laws that were enforced in India
before the commencement of the Constitution, inconsistent with the provisions of
fundamental rights shall to the extent of that inconsistency be void.
 This implies that only the parts of the statute that are inconsistent shall be deemed
void and not the whole statute. Only those provisions which are inconsistent with
fundamental rights shall be void.
Doctrine of Eclipse
 This doctrine states that any law that violates fundamental rights is not null or void ab
initio, but is only non-enforceable, i.e., it is not dead but inactive.
 This implies that whenever a fundamental right (which was violated by the law) is
struck down, the law becomes active again (is revived).
 Another point to note is that the doctrine of eclipse applies only to pre-constitutional
laws (laws that were enacted before the Constitution came into force) and not to post-
constitutional laws.
 This means that any post-constitutional law which is violative of a fundamental right
is void ab initio.
Fundamental Rights and Duties Difference
Fundamental Rights are the rights available to the people of this country, while
Fundamental Duties are the obligations on the part of the citizens. Fundamental
Duties were added to the Indian Constitution by the 42nd Constitution Amendment
Act 1976 by the Indira Gandhi Government.
Fundamental rights and duties are two important concepts of the Indian Constitution. While
fundamental rights are the entitlements that individuals possess by virtue of being
citizens of a particular country, fundamental duties are the responsibilities that
citizens have towards their country and fellow citizens. Here are some key differences
between the two:
1. Nature: Fundamental rights are legal rights that are enshrined in the constitution of a
country. These rights are meant to protect the interests of individuals and provide
them with a sense of security and equality. On the other hand, fundamental duties are
moral and ethical obligations expected of citizens towards their country and fellow
citizens.
2. Enforcement: Fundamental rights are enforceable through the courts of law. If an
individual’s fundamental rights are violated, they can seek legal recourse and the
courts can provide appropriate remedies. However, fundamental duties are not
enforceable in the same way. While citizens are expected to fulfil their fundamental
duties, there are no legal sanctions if they fail to do so.
3. Goal: The focus of fundamental rights is on protecting the interests of individuals and
ensuring their well-being. Fundamental duties, on the other hand, are focused on
promoting the collective good and ensuring that citizens contribute to the welfare of
their country.
4. The major differences between Fundamental Rights and Fundamental Duties are:
Fundamental Rights Fundamental Duties

Part 3 of the Constitution of India contains the Fundamental Rights Article 51-A, contained in Part IV A of the
guaranteed to the citizens of India. Articles 12-35 of the Constitution Constitution of India, deals with Fundamental
of India deal with Fundamental Rights. Duties.

Fundamental Rights were borrowed from the Constitution of the Fundamental Duties were taken from the
United States of America. Constitution of the former Soviet Union
(USSR).

Fundamental Rights are defined as the basic human rights of all The Fundamental Duties are defined as the
citizens. These rights, defined in Part III of the Constitution, applied moral obligations of all citizens to help
irrespective of race, place of birth, religion, caste, creed, or gender. promote a spirit of patriotism and uphold
India’s unity.

Fundamental Rights are an integral part of the Constitution; hence, Fundamental Duties can be taken away.
they cannot be taken away. Fundamental rights can be suspended However, the need to suspend Fundamental
during a national emergency. But, the rights guaranteed under Articles Duties during an emergency does not arise.
20 and 21 cannot be suspended.

The Fundamental Rights are not absolute because they can be Fundamental Duties are absolute in nature.
controlled and are subject to reasonable restrictions for the protection
of general welfare.

Not all the citizens of India can enjoy Fundamental Rights absolutely. Fundamental Duties are extended to all
An example would be personnel belonging to the Indian Military. Indian Citizens, including Personnel
belonging to the Indian Military.

Fundamental Rights are enforceable through the Supreme Court and Fundamental Duties cannot be enforced
High Courts. As per Article 32, the Supreme Court can enforce through Courts.
Fundamental Rights. As per Article 226, High Courts can issue writs
for enforcing Fundamental Rights.
 Fundamental Rights are amenable on the condition that it is subject to Fundamental Duties are absolutely amenable.
a basic structure.

Some of the Fundamental Rights are available exclusively to the Fundamental Duties are provided only to the
Citizens of India only, whereas some of the Fundamental Rights are citizens of India. Fundamental Duties are not
extended to foreigners as well. extended or binding on Foreigners.

Fundamental Rights are Political and Social in character. There is no Fundamental duties are political, social and
scope for guaranteed economic rights since it doesn’t mention anything economic in character.
about a guaranteed job.

Some of the Fundamental Rights are available against an individual, Obligations of Fundamental Duties are
and some of the Fundamental Rights are available against the State as expected less towards an individual and as a
well. whole towards a nation or society.

DIRECTIVE PRINCIPLES OF STATE POLICY

The Sapru Committee in 1945 suggested two categories of individual rights. One being
justiciable and the other being non-justiciable rights. The justiciable rights, as we know, are
the Fundamental rights, whereas the non-justiciable ones are the Directive Principles of State
Policy.
DPSP are ideals which are meant to be kept in mind by the state when it formulates policies
and enacts laws. There are various definitions to Directive Principles of State which are given
below:
 They are an ‘instrument of instructions’ which are enumerated in the Government of India
Act, 1935.
 They seek to establish economic and social democracy in the country.
 DPSPs are ideals which are not legally enforceable by the courts for their violation.
Indian Constitution has not originally classified DPSPs but on the basis of their
content and direction, they are usually classified into three types-
 Socialistic Principles,
 Gandhian Principles and,
 Liberal-Intellectual Principles.
The details of the three types of DPSPs are given below:
DPSP – Socialistic Principles

Definition: They are the principles that aim at providing social and economic justice and set the
path towards the welfare state. Under various articles, they direct the state to:

Promote the welfare of the people by securing a social order through justice—
Article
social, economic and political—and to minimise inequalities in income, status,
38
facilities and opportunities

Secure citizens:
Article
 Right to adequate means of livelihood for all citizens
39
 Equitable distribution of material resources of the community for the common
good
 Prevention of concentration of wealth and means of production
 Equal pay for equal work for men and women
 Preservation of the health and strength of workers and children against
forcible abuse
 Opportunities for the healthy development of children

Promote equal justice and free legal aid to the poor

Article
39A

In cases of unemployment, old age, sickness and disablement, secure citizens:

Article
 Right to work
41
 Right to education
 Right to public assistance

Make provision for just and humane conditions of work and maternity relief
Article
42
 Secure a living wage, a decent standard of living and social and cultural
Article
opportunities for all workers
43

Take steps to secure the participation of workers in the management of

Article
industries
43A

Raise the level of nutrition and the standard of living of people and to improve
Article
public health
47

DPSP – Gandhian Principles

Definition: These principles are based on Gandhian ideology used to represent the programme
of reconstruction enunciated by Gandhi during the national movement. Under various articles,
they direct the state to:

Organise village panchayats and endow them with necessary powers and
Article
authority to enable them to function as units of self-government
40

Promote cottage industries on an individual or co-operation basis in rural

Article
areas
43

Promote voluntary formation, autonomous functioning, democratic control

Article
and professional management of co-operative societies
43B

Promote the educational and economic interests of SCs, STs, and other
Article
weaker sections of the society and to protect them from social injustice and
46
exploitation

Prohibit the consumption of intoxicating drinks and drugs which are

Article
injurious to health
47

Prohibit the slaughter of cows, calves and other milch and draught cattle and
Article
 48 to improve their breeds

DPSP – Liberal-Intellectual Principles

Definition: These principles reflect the ideology of liberalism. Under various articles, they
direct the state to:

Secure for all citizens a uniform civil code throughout the country
Article
44

Provide early childhood care and education for all children until they complete
Article
the age of six years. (Note: 86th Amendment Act of 2002 changed the subject
45
matter of this article and made elementary education a fundamental right under
Article 21 A.)

Organise agriculture and animal husbandry on modern and scientific lines

Article
48

Protect monuments, places and objects of artistic or historic interest which are
Article
declared to be of national importance
49

Separate the judiciary from the executive in the public services of the State
Article
50

 Promote international peace and security and maintain just and honourable
Article
relations between nations
51
 Foster respect for international law and treaty obligations
 Encourage settlement of international disputes by arbitration

What are the new DPSPs added by the 42nd Amendment Act, 1976?
42nd Amendment Act, 1976 added four new Directive Principles in the list

Article New DPSPs

S.No

Article 39 To secure opportunities for the healthy development of

1
children

Article To promote equal justice and to provide free legal aid to the
2
39A poor

Article To take steps to secure the participation of workers in the

3
43A management of industries

Article To protect and improve the environment and to safeguard

4
48A forests and wildlife

Facts about Directive Principles of State Policy:

1. A new DPSP under Article 38 was added by the 44th Amendment Act of 1978, which
requires the State to minimise inequalities in income, status, facilities and
opportunities.
2. The 86th Amendment Act of 2002 changed the subject-matter of Article 45 and made
elementary education a fundamental right under Article 21A. The amended directive
requires the State to provide early childhood care and education for all children until
they complete the age of 14 years.
3. A new DPSP under Article 43B was added by the 97th Amendment Act of 2011
relating to co-operative societies. It requires the state to promote voluntary formation,
autonomous functioning, democratic control and professional management of co-
operative societies.
4. The Indian Constitution under Article 37 makes it clear that ‘DPSPs are fundamental
in the governance of the country and it shall be the duty of the state to apply these
principles in making laws.’
Criticism of Directive Principles of State Policy
 As a point of debate, the following reasons are stated for the criticism of Directive
Principles of State Policy:
1. It has no legal force
2. It is illogically arranged
3. It is conservative in nature
4. It may produce constitutional conflict between centre and state
What is the conflict between Fundamental Rights and DPSPs?
With the help of four court cases given below, candidates can understand the
relationship between Fundamental Rights and Directive Principles of State Policy:
Champakam Dorairajan Case (1951)
Supreme Court ruled that in any case of conflict between Fundamental Rights and
DPSPs, the provisions of the former would prevail. DPSPs were regarded to run as a
subsidiary to Fundamental Rights. SC also ruled that Parliament can amend
Fundamental Rights through constitutional amendment act to implement DPSPs.
Result: Parliament made the First Amendment Act (1951), the Fourth Amendment
Act (1955) and the Seventeenth Amendment Act (1964) to implement some of the
Directives.
Golaknath Case (1967)
Supreme Court ruled that Parliament cannot amend Fundamental Rights to implement
Directive Principles of State Policy.
Result: Parliament enacted the 24th Amendment Act 1971 & 25th Amendment Act
1971 declaring that it has the power to abridge or take away any of the Fundamental
Rights by enacting Constitutional Amendment Acts. 25th Amendment Act inserted a
new Article 31C containing two provisions:
 No law which seeks to implement the socialistic Directive Principles specified in
Article 39 (b)22 and (c)23 shall be void on the ground of contravention of the
Fundamental Rights conferred by Article 14 (equality before law and equal protection
of laws), Article 19 (protection of six rights in respect of speech, assembly,
movement, etc) or Article 31 (right to property).
 No law containing a declaration for giving effect to such policy shall be questioned in
any court on the ground that it does not give effect to such a policy.
Kesavananda Bharti Case (1973)
Supreme Court ruled out the second provision of Article 31C added by the 25th
Amendment Act during Golaknath Case of 1967. It termed the provision
 ‘unconstitutional.’ However, it held the first provision of Article 31C constitutional
and valid.
Result: Through the 42nd amendment act, Parliament extended the scope of the first
provision of Article 31C. It accorded the position of legal primacy and supremacy to
the Directive Principles over the Fundamental Rights conferred by Articles 14, 19 and
31.
Minerva Mills Case (1980)
Supreme Court held the extension of Article 31C made by the 42nd amendment act
unconstitutional and invalid. It made DPSP subordinate to Fundamental Rights.
Supreme Court also held that ‘the Indian Constitution is founded on the bedrock
of the balance between the Fundamental Rights and the Directive Principles.’
Supreme Court’s rulings following the case were:
 Fundamental Rights and DPSPs constitute the core of the commitment to social
revolution.
 The harmony and balance between Fundamental Rights and Directive Principles of
State Policy is an essential feature of the basic structure of the Constitution.
 The goals set out by the Directive Principles have to be achieved without the
abrogation of the means provided by the Fundamental Rights.