Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure;

Preamble

• ‘identity card of the Constitution.’+ the introduction or preface to the Constitution.
• ‘horoscope of our sovereign democratic republic’ : tells about 1) the DOB. 2) character of the constitution (3sdr). 3) future and aim (social,political etc. )
• based on the ‘Objectives Resolution’ .
• “We, THE PEOPLE OF INDIA, having solemnly resolved
  • to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and
  • to secure to all its citizens: JUSTICE, Social, Economic and Political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and
  • to promote among them all; FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
  • IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”.
• The Preamble reveals four ingredients or components:
  • 1. Source of authority of the Constitution: The Preamble states that the Constitution derives its authority from the people of India.
  • 2. Nature of Indian State: It declares India to be of a sovereign, socialist, secular democratic and republican polity.
  • 3. Objectives of the Constitution: It specifies justice, liberty, equality and fraternity as the objectives.
  • 4. Date of adoption of the Constitution: It stipulates November 26, 1949 as the date.
• Keywords:
  • Sovereign: India is neither a dependency nor a dominion of any other nation, but an independent state. There is no authority above it, and it is free to conduct its own affairs (both internal and external).
    • Membership of UNO and Commonwealth etc are not limitation on it’s sovereignty.
    • Being a sovereign state, India can either acquire a foreign territory or cede a part of its territory in favour of a foreign state.
  • Socialist:
    • added by the 42nd CAA.
    • Democratic socialism in India: have ‘mixed economy’ aims to end poverty, ignorance, disease and inequality etc.
    • Supreme Court: Indian socialism is a blend of Marxism and Gandhism, leaning heavily towards Gandhian socialism.
    • new economic policy 1991 has diluted it.
  • Secular: added by the 42nd CAA.
  • Democratic:
    • type of direct democracy: Referendum, Initiative, Recall and Plebiscite.
  • Republic:
    • the head of the state is always elected directly or indirectly.
    • It also means two more things:
      • one, vesting of political sovereignty in the people and not in a single individual like a king;
      • second, the absence of any privileged class and hence all public offices being opened to every citizen without any discrimination.
  • Justice:
    • Social justice: the equal treatment of all citizens without any social distinction based on R,R,C,S, etc.
    • Economic justice: denotes the non-discrimination between people on the basis of economic factors. + eliminating inequality etc.
    • Political justice: all citizens should have equal political rights, equal access to all political offices and equal voice in the government.
  • Liberty:
    • the absence of restraints on the activities of individuals + providing opportunities for the development of individual personalities.
  • Equality:
    • secures equality of status and opportunity.
      • the absence of special privileges to any section of the society + the provision of adequate opportunities for all individuals without any discrimination.
    • This provision embraces three dimensions of equality—civic, political and economic.
  • Fraternity: a sense of brotherhood.
    • The Preamble declares that fraternity has to assure two things:
      • the dignity of the individual and
      • the unity and integrity of the nation :  The phrase ‘unity and integrity of the nation’ embraces both the psychological and territorial dimensions of national integration.
• Part of the constitution:
  • Berubari Union case 1961 – Not a part
  • Kesavananda Bharati case 1973 -it is a part
  • LIC of india case 1995 –  integral part
• Amendability:
  • Berubari case – can be amended as it is not a part of constitution
  • Kesavananda Bharati (1973) – is part of constitution and can be amended u/a 368 subject to the condition that no amendment is done to the ‘basic features’
    • Has been amended only once. 42 CAA 1972.

Features:

• Lengthiest Written Constitution.
  • Geographical factors, that is, the vastness of the country and its diversity.
  • Historical factors, e.g., the influence of the Government of India Act of 1935, which was bulky.
  • Single Constitution for both the Center and the states.
  • Dominance of legal luminaries in the Constituent Assembly.
  • Contains not only the fundamental principles of governance but also detailed administrative provisions.
  • Further, those matters which in other modern democratic countries have been left to the ordinary legislation or established political conventions have also been included in the constitutional document itself in India.
• Drawn From Various Sources.
  • borrowed from almost every constitution of the world. e.g. Canada, Japan, USSR.
  • structural part largely derived from GOI-1935.
  • philosophical part F.R and DPSP from American and Irish Constitutions respectively.
  • political part (the principle of Cabinet Government and the relations between the executive and the legislature) largely from the British Constitution.
  • the most profound influence and material source of the Constitution is the GOI-1935.
• Blend of Rigidity and Flexibility:
  • Some provisions: simple majority.
  • Article 368 provides for two types of amendments:
    • special majority.
    • special majority + half states.
• Federal System with Unitary Bias:
  • K C Wheare:
    • ‘quasi-federal’
    • ‘federal in form but unitary in spirit’.
• Parliamentary Form of Government:
• Synthesis of Parliamentary Sovereignty and Judicial Supremacy:
  • the scope of judicial review power of the Supreme Court in India is narrower than that of what exists in US.
    • This is because the American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ contained in the Indian Constitution (Article 21).
  • S.C. can declare Parliamentary laws as unconstitutional. Parliament can amend constitution.
• Integrated and Independent Judiciary.
• FR.
• DPSP.
• FD.
• A Secular State.
• Universal Adult Franchise.
• Single Citizenship.
• Independent Bodies. e.g. UPSC, SPSC, E.C.I, CAG.
• Emergency Provisions.
• Three-tier Government
• Co-operative Societies
• CRITICISM:
  • A Borrowed Constitution
  • A Carbon Copy of the 1935 Act
  • Un-Indian or Anti-Indian: has foreign nature
  • An Un-Gandhian Constitution
  • Elephantine Size
  • Paradise of the Lawyers: ivor jennings.

Amendments:

• Several  amendments,  particularly  7th,  42nd,  44th,  73rd,  74th  and 97th  Amendments.  In  fact,  the  42nd  Amendment  Act  (1976)  is  known  as ‘Mini-Constitution’.
• Originally, 395 Articles (divided into 22 Parts) and 8 Schedules. Currently, it consists of a Preamble, about 465 Articles (divided into 25 Parts) and 12 Schedules.
• Kesavananda Bharati case: Parliament can’t amend basic provision of constituion.
• Procedure:
  • introduction of a bill in either House.
  • The bill must be passed in each House by a special majority.
  • Each House must pass the bill separately.
  • If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority.
  • After passed by both the Houses + ratified by the state legislatures => presented to the president for assent, must give his assent (can’t withhold/return).
• Types of Amendment:
  • the Constitution can be amended in three ways:
    • simple majority of the Parliament e.g. establishment, formation of new state, Abolition or creation of legislative councils, citizenship, Use of official language etc.
    • special majority of the Parliament e.g. FR, DPSP etc.
    • special majority of the Parliament and the ratification of half of the S.L:
      • for provisions related to the federal structure
      • There is no time limit within which the states should give their consent.
      • e.g. Election of the President and its manner, Supreme Court and high courts, Any of the lists in the Seventh Schedule etc.
• Criticism of procedure:
  • no provision for a special body like Constitutional Convention/ Assembly like in USA.
  • The power to initiate an amendment to the Constitution lies with the Parliament.
    • unlike in USA, the state legislatures cannot initiate any bill except in one case( legislative councils). Here also, the Parliament can either approve or disapprove.
  • Major part of the Constitution can be amended by the Parliament alone.
  • The Constitution does not prescribe the time frame within which the state legislatures should ratify or reject + silent on the issue whether the states can withdraw their approval after according the same.
  • no provision for holding a joint sitting => there may be deadlock.
• Positive of procedure:
  • process is simple and easy +  succeeded in meeting the changed needs.
  • The procedure is not so flexible as to allow the ruling parties to change it according to their whims. Nor is it so rigid as to be incapable of adopting itself to the changing needs.
  • K C Wheare:  ‘strikes a good balance between flexibility and rigidity’.
  • Nehru:  ‘If you make any Constitution rigid and permanent, you stop the nation’s growth’.
  • the Constitution as in Canada can’t be amended.
• Important amendments:
  • 1st: 1951
    • 1. Empowered the state to make special provisions for the advancement of socially and economically backward classes.
    • 2. Provided for the saving of laws providing for acquisition of estates, etc.
    • 3. Added Ninth Schedule to protect the land reform and other laws included in it from the judicial review.
    • 4. Added three more grounds of restrictions on freedom of speech and expression, viz.,
      • public order,
      • friendly relations with foreign states and
      • incitement to an offence.
      • Also, made the restrictions ‘reasonable’ and thus, justiciable in nature.
    • 5. Provided that state trading and nationalisation of any trade or business by the state is not to be invalid on the ground of violation of the right to trade or business.
  • 7th: 1956
    • 1. Abolished the existing classification of states into four categories i.e., Part A, Part B, Part C and Part D states, and reorganised them into 14 states and 6 union territories.
    • 2. Extended the jurisdiction of high courts to union territories.
    • 3. Provided for the establishment of a common high court for two or more states.
    • 4. Provided for the appointment of additional and acting judges of the high court.
  • 24th: 1971
    • 1. Affirmed the power of Parliament to amend any part of the Constitution including fundamental rights.
    • 2. Made it compulsory for the president to give his assent to a Constitutional Amendment Bill.
  • 25th: 1971
    • 1. Curtailed the fundamental right to property.
    • 2. Provided that any law made to give effect to the Directive Principles contained in Article 39 (b) or (c) cannot be challenged on the ground of violation of the rights guaranteed by Articles 14, 19 and 31.
  • 26th: 1971:  Abolished the privy purses and privileges of the former rulers of princely states.
  • 42nd: 1976:
    • three new words in preamble.
    • FD.
    • president bound by the advise of the cabinet.
    • administrative tribunals and tribunals for other matters.
    • Froze the seats of L.S and S.L. till 2001.
    • constitutional amendments beyond judicial scrutiny.
    • Curtailed the power of judicial review and writ jurisdiction of S.C. and H.C.
    • Raised the tenure OF L.S. and S.L from 5 to 6 years.
    • the laws made for the implementation of DP cannot be declared invalid by the courts on the ground of violation of some FRs.
    • Empowered the Parliament to make laws to deal with anti-national activities and such laws are to take precedence over FRs.
    • Added three new DPSP:
      • equal justice and free-legal aid,
      • participation of workers in the management of industries and
      • protection of environment, forests and wild life.
    • Facilitated the proclamation of national emergency in a part of territory of India.
    • Extended the one-time duration of the President’s rule in a state from 6 months to one year.
    • Empowered the Centre to deploy its armed forces in any state to deal with a grave situation of law and order.
    • Shifted five subjects from the state list to the concurrent list:
      • education, forests, protection of wild animals and birds, weights and measures and administration of justice,constitution and organisation of all courts except the SC and HC.
    • Did away with the requirement of quorum in the Parliament and the state legislatures.
    • Empowered the Parliament to decide from time to time the rights and privileges of its members and committees.
    • Provided for the creation of the All-India Judicial Service.
    • Shortened the procedure for disciplinary action by taking away the right of a civil servant to make representation at the second stage after the inquiry (i.e., on the penalty proposed).
  • 43rd: 1977 (both 43rd and 44th mainly to nullify some of the other distortions introduced by the 42nd)
    • Restored the jurisdiction of SC and HC in respect of judicial review and issue of writs.
    • Deprived the Parliament of its special powers to make laws to deal with anti-national activities.
  • 44th: 1978
    • term of LS and SL again 5 years.
    • Restored the provisions with regard to quorum of parliament and SL.
    • Omitted the reference to the British House of Commons in the provisions pertaining to the parliamentary privileges.
    • Gave constitutional protection to publication in newspaper of true reports of the proceedings of the Parliament and the state legislatures.
    • Empowered the president to send back once the advice of cabinet for reconsideration. But, the reconsidered advice is to be binding on the president.
    • Deleted the provision which made the satisfaction of the president, governor and administrators final in issuing ordinances.
    • Restored some of the powers of SC and HC.
    • Replaced the term ‘internal disturbance’ by ‘armed rebellion’ in respect of national emergency.
    • Made the President to declare a national emergency only on the written recommendation of the cabinet.
    • Made certain procedural safeguards with respect to national emergency and President’s rule.
    • Deleted the right to property from the list of FR and made it only a legal right.
    • Provided that the FR guaranteed by Articles 20 and 21 cannot be suspended during a national emergency.
    • Omitted the provisions which took away the power of the court to decide the election disputes of the president, the vice-president, the prime minister and the Speaker of the Lok Sabha.
  • 52nd, 1985 (popularly known as Anti-Defection Law)
    • Disqualification on the ground of defection.
    • Added 10th schedule.
  • 61st:  1988
    • voting age from 21 years to 18 years.
  • 69th: 1991
    • a special status to the UT of Delhi by designing it as the NCT.
  • 86th: 2002
    • Made elementary education a fundamental right.  Added 21A.
    • Changed the subject matter of Article 45 in Directive Principles. It now reads—“The State shall end eavour to provide early childhood care and education for all children until they complete the age of six years”.
    • Added a new FD under Article 51-A which reads—“It shall be the duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child or ward between the age of six and fourteen years”.
  • 91st: 2003:
    • total number of ministers, including the PM/CM in COM <= 15%. (Art 75/164)
    • member of either house, who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
    • who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post. i.e. any office under the central  or a state government +  any office under a body, which is wholly or partially owned by the central or state government.
  • 99th: 2014
    • Replaced the collegium system of appointing judges to the SC and HC with a new body called the National Judicial Appointments Commission (NJAC).

Significant provisions
FRs:  (part3,Art: 12-35, derived from USA Bill of rights).

• ka the Magna Carta of India, justiciable and more elaborate than any other constitution.
• protect the liberties and freedoms of the people against the invasion by the State.
• Why fundamental:
  • guaranteed and protected by the Constitution, which is the fundamental law of the land.
  • essential for the allround development (material, intellectual, moral and spiritual).
• Features:
  • not absolute but qualified: reasonable restrictions can be imposed but whether such restrictions are reasonable or not is to be decided by the courts.
    • Thus, they strike a balance between the rights of the individual and those of the society as a whole, between individual liberty and social control.
  • Mostly against the arbitrary action of the State, few against the action of private individuals also.
  • some -ve (limitation on state) but some positive (privilege the person).
  • not sacrosanct or permanent : parliament can curtail or repeal them but
    • only by a constitutional amendment act and not by an ordinary act.
    • should not affect the basic structure.
  • suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21. + 6 right under 19 suspended only when emergency due to war/external aggression and not armed rebellion.
  • Their scope of operation is limited by:
    • Article 31A (saving of laws providing for acquisition of estates, etc.),
    • Article 31B (validation of certain acts and regulations included in the 9th Schedule) and
    • Article 31C (saving of laws giving effect to certain directive principles).
  • Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them.
    • Such a law can be made only by the Parliament and not by state legislatures: to maintain uniformity.
• 12: definition of state:
  • executive and legislative of union govt + of state govt.
  • All local authorities: municipalities, panchayats, district boards etc.
  • other statutory or non-statutory authorities: LIC, ONGC, SAIL etc.
  • S.C.: even a private body or an agency working as an instrument of the State.
• 13:
  • all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void.
  • expressively provides for the doctrine of judicial review.
  • The term ‘law’ in Article 13 includes:
    • laws enacted by P/S.L.
    • ordinances.
    • delegated legislation: order, bye-law, rule, regulation or notification.
    • Non-legislative sources of law, that is, custom etc.
    • Kesavananda Bharati case: CAA can be challenged on the ground that it violates a FRs that forms a part of the ‘basic structure’ of the Constitution.
• 14: RIGHT TO EQUALITY: the State shall not deny to any person (legal persons) equality before the law or the equal protection of the laws within the territory of India.
  • The concept of ‘equality before law’: British origin, a -ve concept.
    • the absence of any special privileges in favour of any person,
    • the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, and
    • no person is above the law. (whether rich or poor, high or low, official or non-official)
  • the concept of ‘equal protection of laws’: American origin,  a +ve concept.
    • the equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws,
    • the similar application of the same laws to all persons who are similarly situated, and
    • the like should be treated alike without any discrimination.
  • S.C: where equals and unequals are treated differently, Article 14 does not apply.
  • While Article 14 forbids class legislation, it permits reasonable classification of persons, objects and transactions by the law.
    • But the classification should not be arbitrary, artificial or evasive. Rather, it should be based on an intelligible differential and substantial distinction.
  • concept of ‘Rule of Law’: The concept of ‘equality before law’ is an element of it.
    • Absence of arbitrary power.
    • Equality before the law
    • The primacy of the rights of the individual i.e. constitution is the result of the rights of the individual rather than the constitution being the source of the individual rights.
      • In Indian System, the constitution is the source of the individual rights.
  • Exception:
    • Privileges of President or the Governor.
    • Privileges of MP/MLA U/A 105/194.
    • no civil or criminal proceedings for the publication in a newspaper of a substantially true report of any proceedings of either House.
    • Article 31-C is an exception to Article 14.
    • civil and criminal Immunity to foreign sovereigns (rulers), ambassadors and diplomats.
    • diplomatic immunity to UN and its agency.
• 15: Prohibition of Discrimination  on Certain Grounds:
  • 1st provision: The State shall not discriminate against any citizen on grounds only of RRCSP.
    • ‘discrimination’= ‘to make an adverse distinction with regard to’ or ‘to distinguish unfavourably from others’.
    • The use of the word ‘only’ connotes that discrimination on other grounds is not prohibited.
    • prohibits discrimination only by the State.
  • 2nd provision:  no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of RRCSP w. regards to: 
    • (a) access to shops, public restaurants, hotels and places of public entertainment; or
    • (b) the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public.
    • This provision prohibits discrimination both by the State and private individuals.
  • 3 exceptions:  The state is permitted to make any special provision for:
    • women and children:
      • reservation of seats for women in local bodies or
      • provision of free education for children.
    • socially and educationally backward classes/ SC/ST:
      • reservation of seats or fee concessions in public educational institutions.
    • advancement of any socially and educationally backward classes or SC/ST  regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.
• 16:  Equality of Opportunity in Public Employment.
• Notes
  • The right to Internet access:
    • the Kerala High Court declared the right to Internet access as a fundamental right.
    • Also a Human right by UNHRC resolution: 
      • all people must be able to access the Internet in order to exercise and enjoy their rights to freedom of expression and opinion and other fundamental human rights.
    • SDG 9 target significant increase in access to ICT:  to provide universal and affordable access.
    • In earlier judgement of SC: declared that the Right to Access Internet is a basic fundamental right.
  • Three generation of Human Right:
    • 1st generation: “civil-political” rights deal with liberty and participation in political life.
    • 2nd generation: “socio-economic” human rights guarantee equal conditions and treatment.
    • 3rd-generation, “collective developmental” rights of peoples and groups held against their respective states aligns with the final tenet of “fraternity.”
  • Right to be Forgotten:
    • the ability of individuals to limit, de-link, delete, or correct the disclosure of personal information on the internet that is misleading, embarrassing, irrelevant, or outdated.
    • The right to be forgotten comes within the purview of the right to privacy.
    • In India:
      • is not well-established in India.
      • draft Personal Data Protection Bill, 2018 provides a limited right to be forgotten.
        • only provides for prevention of continuing disclosure of personal data and not the deletion of personal data.
        • this determination has to first be made by an Adjudicating Officer.  The Adjudicating Officer also has to be satisfied that the right to be forgotten overrides the right to freedom of speech and expression, and the right to information of any citizen.
    • Issues:
      • Conflict in situation where public interest information is more important.
      • Against freedom of speech and expression  of the journalism etc.
      • Implementation challenges:  success rate of governments across the world in banning or removing pornographic websites etc  has not been great. 
      • cumbersome to scrutinize.
      • The biggest challenge in implementing this right is the tradeoff between defamation and freedom of expression.
      • If the information is of public interest, the right to information of the public prevails over privacy rights.
      • currently, it is a nascent judicial concept and will need some more debates.

Basic structure

• emergence of B.S:
  • question whether FR can be amended.
  • Shankari Prasad case(1951): the constitutional validity of the 1st (1951), which curtailed the right to property, was challenged.
    • S.C: power of parliament include the power to amend FR. The word ‘law’ in Article 13 includes only ordinary laws and not FR.
  • Golak Nath case(1967): the constitutional validity of the 17th CAA (1964), which inserted certain state acts in the Ninth Schedule, was challenged.
    • S.C: the FRs are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights.
    • CAA is also a law within the meaning of Article 13.
  • The Parliament reacted with 24th CAA -> amended Articles 13 and 368 -> can amend any of the FRs under Article 368 and such an act will not be a law under Art-13.
  • Kesavananda Bharati case (1973):
    • SC overruled its judgement in the Golak Nath case. + upheld the validity of the 24th CAA.
    • laid down a new doctrine of the ‘basic structure’. Art 368 does not enable Parliament to alter the ‘basic structure’ of the Constitution.
  • In Indira Nehru Gandhi case (1975), the doctrine of BS was reaffirmed. SC invalidated a provision of the 39th CAA. which kept the election disputes involving the PM and the Speaker of Lok Sabha outside the jurisdiction of all courts.
  • Again, the Parliament reacted by 42nd CAA. there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court.
  • The Minerva Mills case (1980): invalidated this provision as it excluded judicial review which is a ‘basic feature’.
    • “Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power.”
    • Again in the Waman Rao case (1981): SC adhered to the doctrine of the ‘basic structure’ + clarified that it would apply to CAA enacted after April 24, 1973.
• Elements of BS: Supremacy of the Constitution, Sovereign, democratic and republican nature of the Indian polity, Secular character of the Constitution, Judicial review, Federal character of the Constitution. Principle of equality, Free and fair elections, Independence of Judiciary etc.