Indian Constitutional Law

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Introduction

The term “constitution” is a French term and refers to the set of fundamental rules and regulations that govern the functioning of a nation-state or any other organization. A state’s constitution must meet greater requirements of legitimacy and integrity since it is the ultimate law of the nation. It identifies the paths for a state’s growth while outlining the core values, organisational framework, and procedural requirements of the state.

Meaning of the Constitution

A Constitution means a legal document having a special legal sanctity that sets out the framework and the principal functions of the organs of the government of a state and declares the principles governing the operations of the government.

Constitutional Law

Constitutional law” is concerned with how the Constitution and its guiding principles are interpreted and applied. It serves as the foundation for people’s access to certain fundamental freedoms, including the freedom of movement[1], the right to privacy, the right to life[2], and the right to vote. Before a governmental body can interfere with a person’s rights, liberty, or property, it lays forth the procedural requirements that must be satisfied. Among other things, constitutional law deals with issues like judicial review, basic obligations, and legislative authority.

Background

For a proper understanding of the Constitution, we need to know the historical process which led to its present indispensable form. It is however not necessary to go beyond what is known as the ‘British Period’ as modern political institutions originated and developed before this period only. The British Period in the history of India begins with the incorporation of ‘The East India Company’ in the year 1600 in England. The various phases of the growth of our constitution from the advent of the English on the Indian shore can be broadly classified into

  • 1600 to 1765- The coming of the British
  • 1765 to 1858- Beginning of the British Rule
  • 1858 to 1919- End of Company’s Rule
    • 1919 to 1947- Introduction of Self-Government
  • Establishment of Federal Court
  • The Federal Court had one Chief Justice and not more than six Judges
  • The retiring age of the Judges was 65 years
  • Has three kinds of Jurisdiction namely Original, Appellate and Advisory Jurist.
  • 1947 to 1950- Framing of New Constitution
  • The need for Constitution Assembly for the first time was identified by MN Roy in 1934 and was demanded by INC in 1935.
  • The First Meeting of the Constituent Assembly was held on 9th December 1946 as the Sovereign Constitution of India.
  • Constitution Assembly constituted of 389 members of whom 93 were representatives from the Indian state and 296 from Provinces (British India).

The 296 were further split, out of which 292 were from Province and 4 were from Commissionaire. There was a further sub-classification of 296, out of which 208 were from INC and 73 from Muslim League.

  • Dr. Rajendra Prasad was elected as the President of the Constituent Assembly.
  • Adopted Objective Resolution which later became the Preamble of the Indian Constitution.
  • The Constitution Assembly would not be applicable to the areas which would go into Pakistan.
  • On 29th August 1947, a Drafting Committee was constituted to prepare a draft Constitution with BR Ambedkar as the Chairman.
  • The people of India were given 8 months to discuss the draft and propose amendments. A total no of 7635 amendments was proposed and only 2473 were actually discussed. The Constituent Assembly held 11 sessions to discuss the amendments and drafts.
  • It took Two Years Eleven Months and Eighteen Days for the Constituent Assembly to finalise the Indian constitution with a total expense of 64 lakhs and 11000 visitors attending the session.
  • The new Constitution of India was adopted by the Constituent Assembly on 26th November 1949 and signed by president Dr. Rajendra Prasad. It is the same day on which National Law Day is celebrated every year. Articles 5,6,8,9,60,324,366,367,379,380,391,392 and 393 came into force at once. The remaining provisions of the Indian Constitution came into force on 26th January 1950 which is celebrated as Republic Day.
  • The Constitutional Law of India is a document that was not typed or printed. It was handwritten and the calligraphy was done in both English and Hindi Language.
  • Many parts of the Indian Constitution Law been borrowed from many countries such as
  • Britain– Parliamentary Government, Rule of Law, Legislative procedure, Single Citizenship, Cabinet System, Parliamentary Privileges, Bicameralism
  • Ireland– Directive Principle of State Policy (DPSP), Method of Election of President, Members’ nomination to the Rajya Sabha by the President
  • USA– Impeachment of President, Functions of President and Vice-President, Removal of Supreme Court and High Court Judges, Fundamental Rights, Judicial Review, Independence of Judiciary
  • Canada– Advisory Jurisdiction of Supreme Court, Residuary Powers vest with the centre
  • Australia– Concept of Concurrent List, Freedom of Trade and Commerce
  • USSR (Russia)– Fundamental Duties, The Ideals of Liberty, Equality, and Fraternity
  • South Africa– Election of members of the Rajya Sabha, Amendment of the Constitution
  • Japan– Concept of “Procedure Established by Law
  • The Government of India Act contributed the following to the Constitution of India
  • Federal Scheme
  • Office of Governor
  • Judiciary
  • Public service Commission
  • Emergency Provision
  • Administrative details

Concept of Constitutional Law

  • We must know that everything we do is governed by rules. There are rules for games any game such as for social clubs. Rules of morality and Customs also play an important role to establish our life. A few rules that are made by the legislature, for the nation, are called “Laws”.
  • Laws in society are a must so our society can regulate its work properly. They are designed to safeguard our property and safeguard us and to ensure that everyone in society behaves in a proper manner.
  • Essentially, the Constitutional Law is the Supreme Law. All other laws have to conform to the Constitutional Law. Constitutional Law contains laws concerning the Government and its People.

Preamble

  • The Preamble indicates that the source of authority of the Constitution lies with the people of India.
  • It declares India to be a socialist, secular, democratic, and republic nation.
  • It states its objective to secure justice, liberty, and equality for all citizens and promote fraternity to maintain the unity and integrity of the nation.

Re Berubari Union Case[3]

This topic was discussed by the nine-judge Supreme Court of India panel in the Re Berubari Union Case (1960). The verdict was given by the illustrious Justice Gajendra Gadkar, and the court noted that the preamble is not a component of the constitution. However, it provides insight into the constitution’s creators’ thoughts and objectives.

Kesavananda Bharati v. State of Kerala[4]

Following that, the matter was brought before the Supreme Court’s thirteen-judge constitutional bench in Kesavananda Bharti v. State of Kerala (1973). The Preamble of the Constitution is regarded as part of the Constitution, according to the Court, and although it does not establish a legally enforceable obligation or any restrictions, it is important to consider when interpreting laws and the Constitution’s provisions. The word “amendment of this Constitution” in Article 368 means that any addition to or modification of any provision of the Constitution made within the broad curve of the preamble is necessary to achieve the Constitution’s fundamental goals.

Minerva Mills v. Union of India[5]

In the Minerva Mills v. Union of India (1980) case, which followed the Kesavananda Bharati case, the five-judge constitution panel was established to decide whether or not the Preamble may be changed. The majority opinion was written by the honourable Justice Y.V. Chandrachud, who noted that any constructive alteration to the Preamble can be made without a doubt. The ideas that form the basis of the Constitution are encapsulated in the Preamble. The 42nd Amendment, according to the Supreme Court, gives the constitutional theory a fresh start. by adding the words “socialist” and “secular” to the Preamble. The Preamble can, thus, be amended using the procedure outlined in Article 368 of the Constitution.

S.R Bommai v. Union of India[6]

In the S.R. Bommai v. Union of India (1994) case, the nine-judge bench’s majority ruling established a fresh constitutional interpretation of the Preamble. The Court came to the conclusion that the Preamble specifies the fundamental principles of the constitution and that any declaration made according to Article 356(1) is susceptible to judicial scrutiny if it contradicts those principles. The Supreme Court came to the conclusion that any declaration made in violation of Article 356(1) that goes against any of the fundamental principles listed in the Constitution’s Preamble will undoubtedly be ruled invalid.

Union of India

Citizenship of the Nation

  • Article 5-11 describes the Citizenship of the people of the Nation.
  • Article 5 deals with citizenship at the commencement of the constitution.

In Pradeep Jain v. Union of India, the Supreme court held that Article 5 only recognizes only one domicile that is the domicile of India. India is a federal state and it only recognizes single citizenship

  • Article 6 deals with the Citizenship of immigrants to India from Pakistan
  • Article 7 deals with the Citizenship of Migrants from Pakistan.

In Kulati v. State of Kerala, the Supreme Court held that the word migrated used in Articles 6 and 7 has to be construed with reference to the context and purpose and the prevailing political condition at the time the Constitution was enacted. So interpreted, the word ‘migrated’ could mean nothing except voluntarily going from India to Pakistan permanently or temporarily.

  • Article 8 deals with persons of Indian origin residing outside India.
  • Article 9 deals with a person voluntarily acquiring citizenship of a foreign state not being a citizen of India.
  • Article 10 deals with the continuance of the rights of citizenship.
  • Article 11 says that Parliament has the power to regulate the right of citizenship by law and can make any provision with respect to the acquisition and termination of citizenship.

Fundamental Rights

Articles 12-35 of the Indian Constitution deal with Fundamental Rights. These are the rights guaranteed to an individual. These Freedoms are not absolute and are judicially enforceable. Fundamental Rights are different from legal rights. Legal Rights are protected and enforced by ordinary law whereas Fundamental Rights are protected by the Constitution of India.

Fundamental Rights are –

Right to Equality (Articles 14-18)

Equality before law

The Indian Constitution’s Article 14 ensures that all people would be treated equally in front of the law. It specifies that everyone shall enjoy equal protection under the state’s laws.  In other words, if two people commit the same crime, they will both receive the same punishment without any exceptions.

No discrimination based on religion, race, caste, sex, or place of birth

Discrimination against citizens on the basis of religion, ethnicity, caste, sex, or place of birth is prohibited under Article 15 of the Constitution. In order to advance social equality, this is crucial. Every Indian citizen has equal access to businesses, dining establishments, and places of public amusement, as well as to wells, tanks, and roads. On the other hand, the state has the authority to provide specific guidelines or exemptions for women and children.

Equality of opportunity in matters of public employment

According to Article 16 of the Constitution, all people have a right to equal opportunity in all aspects of employment or appointment to public services. There cannot be any discrimination based on a person’s race, caste, gender, place of birth, or place of residence when it comes to employment in the public sector.  However, there are certain limitations on how these rights may be used as there are special provisions of reservation for members of the Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBCs).

Abolition of untouchability

Making an untouchable display in any way is now illegal under Article 17. Due to their caste or line of work, Indians have historically been degraded and kept at arm’s length. This article aims to change the old orthodox practice prevailing in the country for the development of the country.  However, this societal ill still exists today despite constitutional limitations.

Abolition of titles

Since they created artificial differences under Article 18, all British titles given to British loyalists during the British Colonial era, such as Sir (Knighthood) and Rai Bahadur, have been abolished. The practise of awarding titles in this manner goes against the idea of legal equality. On the other hand, the President of India has the authority to confer both civil and military honours on individuals who have shown outstanding service to the nation in a variety of fields. Military decorations like the Veer Chakra, Param veer Chakra, and Ashok Chakra are awarded alongside civil honours like the Bharat Ratna, Padma Vibhushan, Padma Bhushan, and Padma Shri.

Fundamental Right to Freedom (Articles 19-21)

Right to freedom

(a) Freedom of speech and expression under Article 19(1)(a);

(b) Freedom to assemble peacefully and without arms under Article 19(1)(b);

(c) Freedom to form associations, unions, and cooperative societies under Article 19(1)(c);

(d) Freedom to move freely throughout the territory of India under Article 19(1)(d);

(e) Freedom to reside and settle in any part of India under Article 19(1)(e); and

(f) Freedom to practice any profession or to carry on any occupation, trade, or business under Article 19(1)(g).

The fundamental right to livelihood, against arbitrary arrest, exploitation, and child labour

Right to life

According to Article 21 of the Indian Constitution, no one’s life or personal freedom may be taken away from them unless it follows the legal process. It guarantees that no one’s life or personal freedom may be taken from them violently without a court ruling. It makes sure that no one may be detained or punished based just on the whims of a ruling party. They may only face punishment if they breach the law.

Protection against arrest and detention in certain cases

A person who has been arrested has a number of rights under Article 22 of the Constitution. No one can be detained or arrested without first being told why they are being held, as stated by the constitution. They have the right to choose the lawyer they want to represent them and confer with them. The accused must appear before the closest magistrate within twenty-four hours of their arrest.

Right against Exploitation (Article 23-24)

Prohibition of traffic in human beings and forced labour

Human trafficking and other forms of forced labour are forbidden under Article 23 of the Constitution. This privilege is available to everyone, citizens and non-citizens alike. It safeguards the person against both the state and unsavoury characters. On the other side, the state may require required duty for civic obligations like military or social service.

Prohibition of employment of children in factories

Article 24 of the Constitution makes it illegal to employ minors under the age of 14 in any factory, mine, or other hazardous occupation. However, it does not prevent them from working in any non-harmful capacity.

Fundamental Right to Practice and Propagate Religion (Article 25-28)

In our nation, there are also members of the Hindu, Muslim, Sikh, Christian, and other religious communities. Article 25 of the Constitution guarantees everyone’s right to religious freedom and the ability to practise and spread any religion. Every religious organisation is likewise given the freedom to manage its own religious matters. The establishment and management of religious and charity organisations are legally permitted for all religious denominations. Each religious group is also free to own and manage any real estate needed for the advancement of their religion.

Cultural and Educational Rights (Article 29-30)

India is a sizable nation with a diverse culture, literary style, and linguistics. People are devoted to the languages and cultures of their home countries. Articles 29 and 30 of our constitution give them the necessary protection to guarantee that their language and culture are protected and encouraged. The constitution gives minorities the right to form and run their own educational institutions. Additionally, it states that the state shall not discriminate against any educational institution receiving financial assistance just because it is run by a minority group. These rights ensure that minorities will get support from the state for the preservation of their languages and cultures. The country’s multicultural past should be preserved and continued, according to the state.

Right to Constitutional Remedies (Article 32)

Certain rights that are essential to a person’s life in a democratic society are granted to both Indian citizens and foreigners under the concept of basic rights. A bundle of rights must be protected from violation; just bestowing them is insufficient. The right to constitutional remedy guarantees that any violation or intrusion on basic rights is stopped and resisted. According to Dr. Ambedkar, the “heart and soul” of the Constitution is the citizen’s ability to petition the High Court or the Supreme Court for the restoration of any basic right that has been wronged. A directive or order on how to enforce these rights may then be given by the chosen court to the government.

Directive Principles of State Policy

  • The Directive Principle of State Policy can be divided into the following classes
  • Socialistic (Article 38, 39, 39A, 41, 42, 43, 43A and 47)
  • Gandhian (Article 40, 43,43B, 47, and 48)
  • Liberal-intellectual (44, 45, 48, 48A, 49,50 and 51)
  • The directive Principle of State Policy is not enforceable by Law and is non-justiciable.

Fundamental Duties

  • The Fundamental Duties are dealt with in Article 51A under Part -IV A of the Indian Constitution.
  • It is important to note that the Fundamental Duties cannot be enforced by Writ Jurisdiction. The Fundamental Duties can be enforced only and only by Constitutional methods.

The Union

  • Articles 52-78 deal with the President, Vice President, and various powers conferred upon them by the Constitution.

The Parliament

  • The Parliament of India consists of two Houses namely the Council of States (Rajya Sabha) and the House of People (Lok Sabha).
  • The Composition of the Council of States is 250 members out of which 238 are elected by the Electoral College of the elected members of the state assembly with a system of proportional; representation by a single transferable vote and 12 are nominated by President.
  • The Composition of the House of People is 550 out of which 530 are elected from the state and 20 from the Union Territory.

The Union Judiciary

  • Article 124-147 deals with the Indian Judiciary.
  • Article 124 deals with the Establishment and Constitution of the Supreme Court.
  • The Chief of the Supreme Court is the Chief Justice of India and there are 30 other judges.
  • Qualification to be appointed as Judge of the Supreme Court.
  • Citizen of India
  • 5 years in the High Court or of two or more such Courts in Session.
  • 10 years as an Advocate of the High Court
  • In the opinion of the president of India is an Extinguished Jurist.

Emergency Provisions

  • Article 352 deals with the emergency provisions which says that if the president is satisfied that the security of the country is threatened by war, external aggression, and internal rebellion he may declare an emergency. If the emergency is approved by both houses of Parliament, then it will continue for 6 months and it can be renewed by approval of Parliament after every six months.
  • Article 356 deals with state emergency which says that if the president after receiving a report from the Governor is satisfied that the governance of the state cannot be carried out in accordance with the provision of the Constitution, he may declare an emergency in the state. If the emergency is approved by both houses of Parliament, then it will continue for 6 months and it can be renewed by approval of Parliament after every 6 months but it cannot be extended for more than 3 years.
  • Article 360 deals with Financial Emergency which says that if the President is satisfied that a situation has arisen where the financial stability of the nation cannot be carried out in accordance with the constitutional provision, he may declare a financial emergency.

Power of the Parliament to Amend the Constitution

Article 368 of the Indian Constitution provides the Procedure of Amendment. Under Article 368, the Constitution can be Amended by a simple majority or by the special majority and by the majority of not less than 2/3 members of each house. There is a need for amendments to Constitution as time is not static, it is going on changing. It is necessary to make changes to the Constitution. The social, economic, and political condition of the people keeps on changing. If the changes were not done in Constitution, we would be unable to encounter future difficulties and it will become a hurdle in the path of development.

Conclusion

The Constitution of India is a complete blend of all the provisions, and thus the provisions and articles make it the apex law of the state. The framers of the Constitution have tried to incorporate the significant provisions in the Constitution so there is no scope for ambiguity pertaining to how governance would take place in a country therefore it is the feature of the Indian Constitution which in itself make it a complete and a Comprehensive document of the country.

 

References:

[1] Article 19(1)(d) of Indian Constitution

[2] Article 21 of the Indian Constitution

[3] Re Berubari Union, AIR 1960 SC 845

[4] Keshavananda Bharati V State of Kerala, AIR 1973 SC 1461

[5] Minerva Mills V Union of India, AIR 1980 SC 1789

[6] SR. Bommai V Union of India, AIR 1994 SC 1918

 

This article has been submitted by Animesh Nagvanshi, a student at ICFAI University, Dehradun.         


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