Contitution Unit-1 PDF
Contitution Unit-1 PDF
Contitution Unit-1 PDF
1.0 OBJECTIVES
Indian Constitution is the lengthiest written constitution in the world. This constitution
has been in operation for over years. This shows the strength of the Indian democracy
and the faith of the people in the constitution. This unit aims to apprise you about basics
of Indian Constitution.
The objective of this unit is to enable the learners to understand and apreciate the legal
and constitutional aspects as well as to look at the document as source for social change.
After reading this unit your should be able to:
! give a bird’s eye view of the Indian Constitution;
! create awareness of the Rights and Duties of the citizens;
! make the learners enlightened citizens of this country; and
! familiarize with the new concepts such as parliamentary democracy, rights based
approach, civil liberties and social and economic justice.
1.1 INTRODUCTION
The knowledge of the Constitution of India is important as it lays the foundation for
citizenship training. The learner is exposed to the various features of our Constitution
such as the principles of socialism, secularism, fundamental rights, fundamental duties
and the working of the Executive, Legislature and the Judiciary. The study of the
Constitution aims at preparing citizens with greater consciousness on Rights and Duties
and citizens who believe in making India a vibrant democracy.
Article 14 – The State shall not deny any person ‘equality before law’ and ‘equal
protection of laws’ within the territory of India. The source of article 14 lies in American
and British constitutions. ‘Equality before law’ is borrowed from the British Constitution
and negative in connotation implying the absence of any special privilege in favour of
the individual whereas ‘Equal protection of laws’ is borrowed from US, but positive in
connotation. It means that all people have to get equal treatment in similar circumstances.
The element of reasonableness is an important consequence to apply this right. It is
also available even to foreigners and aliens alike.
To spell out, the principle of equality in greater detail, Article 15 directs that the State
shall not discriminate against a citizen on grounds of religion, race, caste, sex or place of
birth or any of them. It prohibits discrimination but permits state to make special
provisions.
Article 15-clause (1) --- the State is prohibited to discriminate between citizens
on grounds only of religion, race, caste, place of birth or any of them. However, Art
15-Clause (2): prohibits discrimination by the State and the citizens with regard to
access to shops, public restaurants, hotels and places of public entertainment or the use
of wells, tanks bathing ghats, roads and places of public resorts maintained wholly or
partly out of State funds or dedicated to the use of general public. Recognising need of
special protection, it offers special protection for women and children [Art 15 (3)] and
provides reservation for socially and educationally Backward Classes of the citizens or
for the Scheduled Castes and Scheduled Tribes. [Art 15(4)]
Article 16 creates the right to equality of opportunity in public employment which
explains that no citizen shall be discriminated against or be ineligible for any employment
or office under the State on grounds only of religion, race, caste, sex, place of birth,
descent or residence. Two additional grounds ‘descent and residence’ which was not
included in Art. 15 have been added in Art.16.
The Art.16-(4) provides reservation for appointments or post in favour of any Backward
Classes of citizens who, in the opinion of the State, are not adequately represented in
the service under the State.
Article 17 Abolition of Untouchability : Our Constitution abolishes untouchability
and forbids its practice in any form. In pursuance of this article the Parliament enacted
Untouchability Offences Act in 1955. It has been renamed as Protection of Civil Rights
Act, 1995 Further to strengthen the legislation the government enacted Scheduled
Castes and Scheduled Tribes Prevention of Atrocities Act in 1989 and Scheduled
Castes and Scheduled Tribes ‘Prevention of Atrocities rules’ in 1995.
Similarly, state has abolished all the titles to create equality among citizens in the free
and independent India. Military and Academic distinction are however exempted from
the provision for they are an incentive to further efforts for the perfection of the military
power of the State.
Rights to Freedom (Arts. 19-23)
Freedom as fundamental rights has been explained under Arts. 19-23. All citizens shall
have the right to freedom of speech and expression, peaceful assembly without arms,
unionization or forming association, free movement and freedom to settle anywhere
within country.
Citizens have been granted freedom to express one’s conviction and opinions freely by
word of mouth, writing, printing, pictures or any other mode. It includes the freedom of
6 press. Therefore, pre-censorship of newspapers and magazines are invalid. The above
rights have some reasonable restrictions. The grounds of restrictions for freedom of Indian Constitution
speech and expression are:
i) security of the State
ii) friendly relation with foreign States,
iii) public order,
iv) decency and morality,
iv) contempt of Court,
v) defamation,
vi) incitement of an offence, and
vii) sovereignty and integrity of India.
The right of assembly includes the right to hold meeting and to take out processions.
This right is subject to the restriction of being peaceful and without arms. Citizens have
right to form, to join an association or trade union. Every citizen of India has also the
right to reside and settle in any part of India but the grounds of restriction include the
interest of general public as well as State [Art. 19 (1)(d)].
Right to Property is not a fundamental right but it is a legal right. Under article
19(1) (f), Citizens have rights to acquire, hold and dispose of property. This is dropped
through the 44th amendment to the Constitution in 1978. Further, all citizens shall have
the right to practice any profession or to carry out any occupation or trade or business
with reasonable restrictions, in the interest of general public and in prescribing professional
or technical qualification necessary for practicing any profession or carrying out any
occupation, trade or business.
The Indian Constitution observes that ‘no person shall be convicted of any offence
except for violation of law in force at the time of the commission of the act charged as
an offence nor be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of commission of the offence’. (This is known
as ex-post facto law). It also guarantees a person against a double jeopardy i.e. a
person should not be punished twice for the same offence. While constitution prohibits
‘self incrimination’ which means no person accused of any offence shall be compelled
to be a witness against himself.
Protection of life and personal liberties means that ‘No person shall be deprived of
his or her life or personal liberty except according to procedure established by law’.
Thus, assures personal liberty of citizens against the arbitrary action on the part of the
law enforcing authorities. We have been provides safeguards against arbitrary arrest
and detention. Accordingly, Article 22 guarantees four rights to the person who is
arrested under an ordinary law.
i) The right to be informed as soon as, may be the ground of arrest.
ii) The right to consult and to be represented by a lawyer of one’s own choice.
iii) The right to be produced before a magistrate within 24 hours.
iv) The freedom from detention beyond the set period except by the order of the
magistrate.
Further sub - clauses (5 -7) of Art. 22 deals with the preventive detention. Preventive
detention is opposite to punitive detention. While the purpose of punitive detention is to
punish a person for what he has already done, the objective of preventive detention is
not to punish a person for having done something but to intercept before one does it
and to prevent him/her from doing it. The period of detention has been decreased from
3 months to 2 months and also the composition of review/advisory board has been 7
Basics of Legal changed after the 44th amendment to the constitution, 1978. The following are some of
Literacy
the preventive detention laws in operation. Human Rights activists also call them as
‘black laws’ such as (i) MISA (Maintenance of Internal Security Act, 1971),
(ii) COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act 1974, (iii) TADA (Terrorist and Disruptive Activities (Prevention, Act
1985) and (iv) POTA (Prevention of Terrorist Activities Act 2002).
Rights against Exploitation Arts 23 - 24
Article 23 prohibits trafficking in human beings, beggar, slavery, and other similar forms
of forced labour. Art.23-Clause (2) permits the State to impose compulsory services
for public purposes. Trafficking in human being means selling and buying men, women
and children like marketable commodities. The traffic in human beings include slavery,
immoral traffic in women and children for immoral purposes like sex work and other
forms of forced labour.
The Constitution clearly prohibits employment of Children below 14 years of age in
factories and hazardous employment (Art. 24). The government has enacted several
laws to prohibit children from working. Some of the legislations are Employment of
Children Act, 1938, Children (pledging of labour) Act, 1933, the Mines Act, 1952 and
Child Worker Regulation Act, 1986.
Rights to Freedom of Religion
The term ‘religion’ is not defined in the Constitution whereas it also guarantees secularism
as one of the ideals of the Constitution. It guarantees a) freedom of conscience,
b) freedom to profess, practice and propagate any religion. Reasonable restrictions to
this freedom are religious liberties subject to public order, morality and health (Art. 25).
Further subject to public order, morality and health every religious denomination or any
section should have the following rights to establish and maintain institutions for religious
and charitable purposes:
a) to manage its own affairs in the matters of religion.
b) to own and acquire movable and immovable properties.
c) to administer such properties in accordance with law.
In order to ensure the secular charater, Art. 27 provides ‘no one shall be compelled to
pay any tax for the promotion or maintenance of any particular religion or religious
denomination’. This is to ensure the secular character of the State. Consequently, there
is prohibition of religious instruction in State aided institutions.
Cultural and Educational Rights
State has been entrusted responsibility of protection of interests of minorities (Art. 29).
It also confers minorities right to establish and administer educational institutions and
provides following four distinctive rights :
a) Right of any section of citizens to conserve its own language, script or culture
[Art. 29 (1)].
b) Right of all religion and linguistic minorities to establish and administer educational
institutions of their choice [Art. 30(1)].
c) Right of an education institution not to be discriminated in matters of State aid on
grounds that it is managed by a religious or linguistic minority [Art. 30 (2)].
d) Right of the citizen not to be denied admission in to any State maintained or State
aided institutions on grounds of religion, caste, race or language [Art. 29 (2)].
The word ‘minority’ has not been defined in the constitution but it has intent to use term
8 in wide sense i.e. section of citizens. Minorities shall be protected in respect of their
language, script and culture. The state shall not make any law that operate oppressively Indian Constitution
or prejudicially.
Right to Constitutional Remedies
Realizing the futility of granting rights without an effective machinery for their enforcement,
the Constitution makers included in chapter III itself the rights to Constitutional Remedies.
Article 32 guarantees to a person the right to move the Supreme Court directly for the
enforcement of their fundamental rights. The Supreme Court can issue various kinds of
writs for the enforcement of these rights. The right to Constitutional remedies shall not
be suspended except as otherwise provided in the constitution that is during emergency
under Article 352. Article 32 has been called the cornerstone of the entire edifice set
up by the constitution. Dr. Ambedkar called it “the very heart and soul of the
Constitution”. One can seek redressal through following petitions.
The Writ of Habeas Corpus: It means “To have a body”. It is a powerful safeguard
against arbitrary acts not only on private individuals but also of the executive. This writ
can be filed by any one including the arrested person, his relatives, friends etc. This
petition will force the arresting authorities to produce the person bodily in the court.
The Writ of Mandamus: Literally means ‘we command’ This writ commands the
person to whom it is addressed to perform public or quasi public legal duty which he
has refused to perform and the performance of which cannot be enforced by any other
legal remedy.
The Writ of Prohibition: It simply means to forbid or to stop. The Supreme Court or
High Court issues directions to an inferior court or institution of governance, forbidding
the latter to continue proceeding in a case in excess of its jurisdiction or to encroach on
jurisdiction with which it is not legally vested.
The Writ of Certiorari: It means ‘to be more fully informed of’. It is issued to a
lower court after a case has been decided by it denouncing or abolishing that order.
The objective is to secure that order. Jurisdiction of an inferior court does not encroach
the jurisdiction which it does not possess.
The Writ of Quo warranto : The writ of Quo warrranto means ‘by what warrant or
by what order’. It is a proceeding by which the court inquires into the legality of the
claim, which a party asserts to a public office and to remove from his or her employment
if the claim is not found.