FRAMING OF THE CONSTITUTION
In this chapter we elaborately discuss the milestones in framing the constitution of our country.
Ø Idea of framing a constitution of India was first raised by M.N. Roy and it was supported by Gandhiji & Nehru
Ø The first initiative to frame a constitution for India was taken by the Indians in the Nehru committee report of 1928 ( in British parliament Lord Birkhenhead questioned the competency of Indians to frame a constitution)
Ø British approval for making a constitution of India was contained in the cabinet mission plan of 1946. A scheme for framing the constitution was incorporated in the report of the mission. That scheme says about the constituent assembly as follows
(1) Total strength of Assembly – 389, members from British India = 296 + 93 seats to princely states. Out of 296 members there should be 292 members from eleven provinces under governors and 4 members from four chief commissioners provinces.
(2) Seats allocation should be based on population. One member / 1 million people
(3) Seats from British provinces should be decided by three communities = Muslims + Sikhs + General (all other)
(4) Representatives from princely states were to be nominated by the head of the state
Ø Cripps mission though unaccepted by the INC, contained suggestion for framing a constitution for India
Ø Election to the constituent assembly for 296 seats were held in 1946 ( July – Aug). INC won 208 seats & Muslim league won 73 seats. M.A, Jinnah and Gandhiji were not part of assembly.
Ø First meeting of the constituent assembly was held on 9th December 1946 and in which Dr, Sachidanand Sinha was elected the interim president of the constituent assembly. Muslim league boycotted the meeting on demanding a separate state for them named Pakisthan. Sachindandha Sinha was the senior most member in the assembly. It is the French practice that to elect senior most member to a key post in an assembly. 211 members participated the meeting except Muslim league.
Ø 2nd meeting was held on 11th December 1946 in which Dr. Rajendra Prasad was elected president, H.C. Mukherjee – Vice president and B.N. Rao as the constitutional adviser.
The objective resolution was moved in the constitutional assembly by J.L. Nehru on 13th December 1946.
Important aspects of objective Resolution
1 It proclaimed India as an independent sovereign republic
2 India shall be a Union of British India, Indian state and other regions who desire to join with India
3 All power and authority of India should be vested with people
4 All people are guaranteed of Justice – Social Economical & Political equality – in status, opportunity before law, freedom of thought; believe etc subject to law and public morality.
5 Adequate safe guards to backward classes, minorities tribal and back ward areas.
6 Integrity of the republic will be maintained along with its sovereign right over land, sea and air according to justice and the law of other civilized nations.
7 This honoured ancient land will contribute the presentation of world peace and the prosperity of people
Ø Objective resolution (O.R) was unanimously adopted by the assembly on 22nd January 1947
Ø O.R. was later modified and framed as the preamble of our constitution
Ø When the Mountbatten plan came into effect on June 3rd, more princely states and Muslim league joined the assembly
Ø India independence act of 1947 brought forth some changes to the assembly as follows;
1 Assembly was made sovereign to frame the constitution which it desires. It can change or alter any law framed by Britain on India.
2 The assembly was assigned two functions – (1) as constituent assembly and (2) As a legislative body to enact ordinary law for the country. These two function were carried out by the assembly on alternative days. When it acted as constituent assembly it was chaired by Dr. Rajendra Prasad and when it functioned as legislative council G.V. Mavlankar chaired the assembly.
3 Total strength of the assembly became 299 when the members hailing from Pakistan withdrew from the assembly.
4 For the first time constituent assembly met as Dominion legislature on November 17th 1947. G.V. Mavlankar was the president of the assembly.
5 Strength of the Indian provinces was reduced to 229 from 296 and those of the princely states reduced from 93 to 70
8 Major committees constituted by the Assembly
Committee Chairman
1 Union constitution committee – J.L Nehru
2 Union powers committee – J.L. Nehru
3 Drafting committee – Dr. B.R. Ambedkar
4 Provincial constitution committee – Sardar Patel
5 Rules of procedure committee – Dr. Rajendra Prasad
6 Steering committee – Dr. Rajendra Prasad
7 Committee for Negotiating with states – J.L. Nehru
8 Advisory committee on fundamental rights & minorities – Sardar Patel
Two sub committees of this committee (1) Sub committee on fundamental rights J.B. Kripalani (2) Sub committee on minorities – H.C. Mukherjee
There were several other minor committees to look after various functions assigned on them regarding the framing of our constitution
The most important committee the Drafting committee was appointed on August 29th, 1947. The other committees submitted their report in between April – August of 1947 and on the basis of this report, drafting committee drafted the constitution.
In February 1948 first draft of the constitution was published for public discussion. Second draft was published in October 1948. It took 141 days by the drafting committee to draft the constitution.
Members of drafting committee – Dr. B. K. Ambedkar (chairman) Alladi Krishnaswami Auyer, N. Gopala Swami Ayengar, Dr. K.M. Munishi, Dr. Syedh Muhammadh Sadhulla, B.L. Mittar ( He was replaced by N. Madhava Rao on his resignation due to ill health) D.P. Khitan (He was replaced by T.T. Krishnamachari because Khaitan died in 1948)
On November, 4th, 1948 B.R. Ambedkar presented the final draft of the constitution in the assembly for first reading. Second reading on the clauses of draft constitution was started on November 15th, 1948 ( up to Oct. 17, 1949) during this time 2473 amendments out of 7653 amendments proposed were considered by the assembly. Third reading started on Nov. 14, 1949 and during this time Dr. Ambedkar moved a motion – “The constitution As settled by the assembly passed”. This motion was adopted by the assembly on 26 Nov., 1949 and the constitution was finally signed by 284 members presented in the assembly. When the constitution was signed it contained 8 schedules, 395 articles and the preamble.
Ø The assembly took 2 years 11 months and 18 days to frame the constitution.
Ø Around 6.4 core rupees was expended on forming constitution
Ø B.R. Ambedkar is called the father of Indian constitution and modern manu
Ø The constitution was finally signed by the constituent assembly on 24th jan 1950. This day was the last day of the assembly.
Ø The constitution came in to force on 26th January 1950 and that day is celebrated as Republic Day (Date of commencement of constitution – Jan. 26, 1950)
Ø On enactment of the constitution the act of 1935 and india independence act 1947 were repealed( as per the provisions of Art 395)
Some criticism on constituent assembly
Ø It does not have the nature of a representative body as the members of the assembly were not elected by adult franchise
Ø It was created on the proposals of British Govt. and it held sessions on the permissions of British
Ø The assembly took very long period to frame the constitution( America took only 4 months to frame their constitution)
Ø The assembly was dominated by politicians and lawyers.it didn’t contain members from other sections of society.
Ø It was dominated by a single political party – INC
Ø It was dominated by a major community – The Hindus
Important features of the constitution
The constitution of India is rather distinct in many of its features when it is compared with other constitutions in the world. Indian constitution was influenced by many philosophies and social doctrines which influenced to the world. It was also influenced by the constitutions framed by other countries. In this chapter we discuss the salient features of India’s constitution.
Ø Indian constitution is the lengthiest written constitution in the world
Ø Originally the constitution contained 395 articles divided in to 22 parts, a preamble and eight schedules
Ø At present Indian constitution contained about 450 articles, divided into 24 parts, 12 schedules and a preamble
Ø In the historical evolution of Indian constitution since 1951 through various amendments around 20 articles have been deleted and about 70 articles have been incorporated along with the addition of three parts and four schedules.
Ø Why Indian constitution became these much bulky
1 It contains detailed administrative measures to enthrall The infant democracy
2 Such a vast geographical features demands special provisions.
3 Only one constitution for both centre and state
4 Incorporation of various influential features of other constitutions.
5 Special provisions for J & K
6 Detailed provisions for FR’s, DPSPS, fundamental duties, emergencies etc
7 Bulkiness of the Act of 1935 influenced Indian constitution much
8 The legal experts in the constitution assembly contributed much to the bulkiness of Indian constitution.
Important Sources
(1) Govt. of India Act 1935
The Indian constitution adopted following provisions from Govt. of India act of 1935
Ø 2/3 of Indian constitution is adopted from Govt. of India act 1935
Ø Basic structure of India political system
Ø Provisions regulating Union and state relationship
Ø Federal scheme for Indian political structure
Ø Power of federal judiciary
Ø The office of Governor
Ø Declaration of emergency
Ø Public service commission
(2) The United States Constitution
Ø President as the executive head of the Government
Ø President as the supreme commander of Armed forces
Ø Fundamental rights
Ø Independence of Judiciary, Judicial review, vice president as the ex officio chairman of Rajya Sabha (council of states)
Ø Concept of a preamble
Ø Impeachment procedures for removing supreme court and high court judges
(3) The British constitution
Ø Rule of law
Ø Law making procedures
Ø Parliamentary system with ministerial responsibilities
Ø Single citizenship
Ø Office of C & AG
Ø Cabinet system
Ø Parliamentary privileges
Ø Prerogative writes
Ø bicameralism
(4) Canadian constitution
Ø Provisions related to centre – state relationships
Ø Distribution of powers between union and states
Ø Federation with a strong centre
Ø Placing residuary powers with centre
Ø Appointment of state governors by the centre
Ø Advisory jurisdiction of supreme court/
(5) Irish constitution
Ø Procedures for election of President
Ø Directive principle of state policy
Ø Nomination of members to Rajya Sabha by president
(6) Weimer constitution of Germany
Ø Suspension of fundamental rights during Emergency
(7) Constitution of Australia
Ø The concurrent list
Ø Freedom of trade, commerce and intercourse
Ø Joint sitting of parliament
Ø co-operative federalism
(8) South African constitution
Ø Amendment procedures
Ø Election of members to Rajya Sabha
(9) Soviet constitution
Ø Fundamental duties
Ø Social, political and economic justice contained in preamble
Ø Five year plans
9(A) French constitution
Ø Ideals of liberty equality and fraternity
Ø Ideas on republic
(10) Japanese constitution
Procedures established and maintained by law
Other sources influenced constitution
Ø American declaration of independence
Ø Ideals of French revolution
Ø Gandhian thoughts etc
Rigid or flexible
Ø Rigid constitution - one that requires special procedure for its amendment
Ø Flexible constitution - They can be amended through simple procedures like how ordinary laws are made eg. British constitution
Ø The constitution of India is neither rigid nor flexible. A beautiful blending of rigidity and flexibility can be observed in Indian constitution
Ø Art 368 contains provisions for constitutional amendments. As per these Article some portions of the constitution can be amended by a special majority of parliament i.e. two-third majority of the members present and voting (each house) and a majority (more than 50 percent of the total membership of the house
Ø Some portion of Indian constitution can only be amended through a special procedure in which special majority of the parliament is required along with ratifications from half of the total states ( U.S constitution requires ¾ states ratification)
Ø The amendments which do not come under art 368 can be amended through simple majority of the parliament (As ordinary legislative procedures). Eg: changes in the names, boundaries, areas, separation or amalgamation of state (Art 4) Administration of schedules tribes area, creation of legislatures and councils of ministers for certain union territories etc.
Federalism
¨ The word federalism is nowhere defined in Indian constitution
¨ Federation – A group of regions or states united with a central government
Important features of a federation
1) Distribution of powers between centre and states
2) Written constitution
3) Constitution is supreme
4) Constitution will be rigid
5) Authority of the courts
Non federal features of Indian constitution
1 Strong centre with authority over states
2 Parliament can through simple majority, change the name, boundary etc of a state ( art 3,4)
3 Rajya sabha can interfere in the business of states (Art 249) (for the reasons of national interest)
4 Constitution is more flexible than rigid. Majority of its portion can be amended by parliament alone
5 Common citizenship for all states & UTs
6 Judicial system is integrated with S.C as the appellate judicial seat
7 Art 155,156 contains provisions to remove and appoint governors by president. The position of governor is designed as he act for the centre..
8 Centre holds unique constitutional powers during all the three types of emergencies – Art 352 – National emergency, Art 356 – State emergency Art 360 – Financial emergency
9 Provisions for all India services. All the officials in this category are appointed and removed by the centre only
10 Centralized election machinery
11 State’s financial transactions are audited by CAG appointed by president
Other facts about Indian federalism
Ø Government of India Act of 1935 envisaged a federal system of administration for the whole India. But the act contained a provision, which was contrary to the federal concept, that the Indian states can decide whether to join with union of India or not (During this time two states existed – British Indian states and Indian states)
Ø Cabinet mission plan proposed for a union of India with both British Indian states / provinces and Indian states
Ø Jammu and Kashmir was allowed to frame its own constitution due to some historical issues (Art 370)
Ø Special provisions are there in Indian constitution (Art 371 – 371I) to meet the regional issues of states like Manipur, Nagaland, Assam, Mizoram, Sikkim, Maharashtra, Gujarat, Andhra Pradesh etc
Ø Art 1 says India that is Bharat shall be a Union of states
Ø The oldest federal constitution in the world is the constitution of USA (1787)
Ø The constitution of USSR permits its states to secede from the Union (Art 72)
Ø Govt. of India Act of 1935 envisaged a union of “Autonomous states imitiating the constitutional provisions on federalism in Canada. But the framers of Indian constitution combined the autonomous provinces along with dissenting Indian states to form the union of India with Union contral over all the states (provinces later formed to Indian states)
Ø Part A of the first schedule of Indian Constitution contains the old provinces, part B of First Schedule consists of the old Indian states. By the 7th Amendment Act (1956) These categorization were amalgamated into one, ie Indian Sates.
Ø In the constitution of USA States enjoys Sovereignty because of the historical aspect that even before the formation of USA the states enjoyed sovereignty. In India the scenario was different because for a long period Indian States did not enjoyed much sovereignty under British ruleSo constitution of USA keeps residuary powers with states while in India it is with the Union.
Ø American and Australian constitution describes their Federation as “ indestructible federation with Indestructible states. So as per this concept no states can secede from the federation and the Union can’t destruct a state by redrawing its boundary. But our constitution took stands –
1) Union is indestructible so no right for states to secede. As per 16th Amendment Act 1963 expression of states to secede from the Union will not have the protection of freedom of expression (2) As per Art 4 (2) – the Union can change the boundaries, names etc of a state and it can devide the states into part to form new states.
Ø U.S. constitution’s essential principle is that irrespective of the size or population, all the states enjoys equal status and representation. But Indian constitution does not ensure equal representation in parliament as the membership is based on population.
Different opinions about Indian Federalism
1 Quasi federal = K.C wheare
2 Bargaining federation = Morris Jones
3 Co-operative federation, = Granville ausitin
4 Federation with a centralizing tendency = Iver Jennings
Parliamentary sovereignty, Judicial supremacy
Ø Sovereignty of parliament is a concept envisaged by British constitution while judicial supremacy is observed by the constitution of USA. In India the framers of constitution adopted a synthesis of both the concepts to avoid a constitutional dead lock in the future
Ø As per the provisions contained in the constitution supreme court review the constitutionality of the legislation passed by parliament while parliament amends the required portions of constitution through its constituent power.
Ø Judiciary has been given an independent position to review the laws passed by the parliament
Parliamentary form of government
Ø Indian constitution provides a parliamentary form of Govt. both at centre and states
Ø President at the centre and Governors in states are super imposed as the nominal executive heads
Ø Indian constitution adopted British parliamentary system rather than US presidential system
Ø Parliamentary system – envisages the co-operation and co-ordination between the legislative and executive organs
Ø Presidential system – Depends on the doctrine of separation of powers between legislative and executive organs.
Ø Important features of parliamentary system in India are
1 Leadership at the hands of Prime Minister and chief Minister
2 Majority party rule
3 Membership of the ministers in legislature
4 Presence of nominal and real executives
5 Collective responsibility of the executives to the legislature
6 Dissolution of the lower house (Lok Sabha or Assembly)
Ø The parliamentary form of government is also called west minister system, responsible government, cabinet government etc
Ø Britain has a non elected king as its head of state while India enjoys an elected head of state
Ø President as the superimposed nominal head of parliament is adopted from the constitution of Eire ( Ireland)
Ø President in India act on the advice of ministers and his action on such advices cannot be challenged in courts
Ø Irish president can act in his discretion while in India president cannot act in his discretion on any matter
Ø 42nd Amendment act 1976 very explicitly reiterated that the president shall act upon the advice tendered by the council of ministers
Ø 44th amendment act 1978 – empowered president to refer a matter to the council of ministers for reconsideration.
Three tier Government
Ø Original constitution contained provisions only for centre and state. But the 73rd 74th constitutional amendments provided provisions for local self government
Ø 73rd amendment act 1992 – Provided constitutional recognition to Panchayat by adding part IX and new schedule 11 to the constitution.
Ø 74th Amendment – 1992 – Provided constitutional recognition to the municipalities by adding part IX A and schedule 12 to the constitution.
Independent Judiciary and Judicial Review
Ø Indian judicial system is integrated and independent. It is integrated as follows.
Supreme court High court District courts
Other subordinate courts. These integrated courts enforce both union laws as well as state laws.
Ø In US federal laws are enforced by federal courts and state laws are enforced by state court
Ø Supreme court has many peculiarities like it is the federal court, it ensures that the fundamental rights of citizens are protected and it act as the guardian of constitution
Ø The ways by which constitution provides independence to Indian judiciary are –
1) security of the tenure of the judges,
2) fixed service conditions for the judges,
3) expenses of supreme court is charged on the consolidated fund of India,
4) Discussion on the conduct of judges are restricted,
5) power of contempt of court procedures,
6) judiciary is separated from executive
Ø Independent Judiciary with a power of judicial review is an important feature of Indian constitution.
Ø Under judicial review the enactments made by the legislators are reviewed by the judiciary on the basis of constitution to avoid the violations of constitutional provisions
Ø Judicial review is a provision adopted from U.S constitution
Ø In England parliament is Supreme in making law. But in US Supreme court can invalidate a law passed by legislature on reasonable grounds. A synthesis of both these provisions are adopted in India.
Fundamental Rights
Ø Indian constitution ensures some fundamental rights in part three. Fundamental rights are incorporated in constitution to check the arbitrary laws passed by the legislatures and to establish political democracy in the country.
Ø Supreme court is the guarantor of fundamental rights
Ø The court uses writs like Habeas corpus, mandamus, quo warranto and certiorari to protect the fundamental rights when they are infringed by the actions or legislations by executive or legislature
Ø Fundamental rights are subjected to reasonable restrictions on them as per certain situations. Eg. fundamental rights are suspended during the period of emergency except the rights guaranteed by Art 21 & 20.
Ø Fundamental rights also ensures social equality by imposing strict provisions to curtail the discrimination on caste, creed, sex, religion, place of birth etc.
Important fundamental rights
1) Right to equality - Art 14 – 18
2) Right to freedom - Art 19 – 22
3) Right against exploitation - Art 23 – 24
4) Right to freedom of religion - Art 25 – 28
5) Cultural and Educational Rights -Art 29 – 30
6) Right to constitutional remedies Art – 32
Independent Bodies
Apart from executive, judiciary and legislature the constitution contains provisions for some independent bodies to maintain the democratic system intact.
Important independent bodies
1 Controller and auditor general - Audit the accounts of states and centre. Act as the guardian of public fund and comments on the legality and propriety of public expenditure.
2 Election commission - To conduct free and fair election to parliament, state legislature, election of president and vice president etc.
3 Union public service commission – To conduct exams for all India services
4 State Public Service Commissions – To conduct exams to state service.
Directive principles of state policy
Part IV of Indian constitution contains provisions related to the Directive principles of state Policy ( DPSPS). DPSP’s are not justifiable in a court but they are incorporated in Indian constitution as “fundamental in the governance of the country”.
Dr. B.R. Ambedkar had defined DPSPS as a ‘novel feature’ of the Indian constitution.
DPSPS resembles the principles of social policy of the constitution of Eire (Ireland)
DPSPS are meant to establish a welfare state with social and economic democracy
At the Minerva mill V/s Union of India case in 1980 supreme court opined that the balancing between fundamental rights and DPSPS act as the foundation of Indian constitution.
Emergency Provisions
Emergency provisions are incorporated in Indian constitutions to safe guard the integrity sovereignty, unity, security, democratic political system etc of the country when any extra ordinary situation arises.
3 Types of Emergency
1 National emergency (1) declared when war or external aggression occurs (2) Due to armed rebellion in the country (Art 352)
2 State emergency – (1) Due to failure of the constitutional machinery in the state (Art 356)
3 Financial Emergency – On the grand of any threat to the financial stability of the country – Art 360
During an emergency the Federal structure of the nation transforms automatically to unitary and the central government become all powerful. This is a unique feature of Indian constitution.
Fundamental Duties
Ø Fundamental Duties were added to Indian constitution by the 42nd amendment act of 1976, during internal emergencies prevaled in the country (1975 – 77)
Ø Fundamental duties come under part IV A, Art 51. There are eleven fundamental duties
Ø Fundamental duties are non judiciable it reminds the citizens of their duties towards the peaceful existence and prosperity of the nation.
Secularism envisaged in constitution
The term secularism was inserted in the constitution in 1976 by 42nd constitutional amendment. The term secular is not defined in constitutions, but many previsions of constitution ensures freedom of religion, belief, faith worship etc to all the countries citizens and state do not promote any religion.
The Western concept of strict secularism is not observed in India due to its society being a pluralistic one. On some occasions state interferes with religion to regulate pernicious or exploitative practices.
Some provisions of the constitution they ensure secularism
Art 14 - equality before law and equal protection of law
Art 15 - No discrimination on the ground of religion
Art 16 - Equal opportunity for all citizens in the case of
public employment
Art 25 - Freedom of conscience and right to practice
profess and propagate any religion
Art 26 - Right to manage religious affairs.
Art 27 - No compelled taxation for the promotion of any
particular religion.
Art 28 – No religious instructions in the state owned
educational institutions
Art 29 - Different section of citizens can preserve their own
script, Distinct language and Culture.
Art30 - Minorities can establish their own educations institutions.
Art 44- State shall endeavor for Union Civil Code.
Single citizenship
Ø Indian constitution provides for single citizenship
Ø In USA dual citizenship exists - Citizen on USA & citizen of state
Ø The citizens of India enjoys all political rights all over the entire country irrespective of to which state he belongs (Exceptions – some political rights are regulated in J&K and in some tribal areas)
Ø Despite single citizenship a lot of communal riots, ethnic classes etc take place in the country. This denotes the fact that the constitutional spirit of single citizenship is not fully imbibed by the citizens of India.
Adult Franchise (Art 326)
Ø Indian constitution adopt adult franchise irrespective of the citizen’s race, sex, caste creed etc . The old practice of communal representation has been abolished except reservations to SCs, Sts and Anglo Indians
Ø Voting Age was reduced to 18 from 21 by the 61st Amendment Act of 1988 (came in to effect in 1989).
Ø First general election was held under the constitution in 1952 and in this election , out of the total population of 360 million , 173 million people enrolled as voters and around 88 million people casted their vote. ( more than 50%).
Ø Reservations for SCs, STs of Anglo Indian are made only for 10 years as per the original constitution, but this provision was extended to 60 years up to AD 2010 (Amended Art 334).
THE PREAMBLE
Ø The Objective resolution by J.L.Nehru Became the Preamble of our constitution when it was framed.
Ø Preamble is known as the key to the Constitution because it unravels the Basic Principles of the Constitution that were proposed by the framers of it. It provides the basic structure of constitution
Ø By 42nd Amendment Act of 1976, preamble was amended and added the words socialist, secular and integrity to preamble
Ø Preamble of the constitution is-Decretive in nature, non Justifiable and it cannot override some specific provisions in the constitution.
Ø In Kesavamanda Barathi V/S State of Kerala case (1973) supreme court emphasised that preamble is a part of the constitution.
Ø Preamble can be amended under Art 368 though additions only and it has been amended only for once so for in 1976 through 42ndAmendment Act. Basic structure of preamble can’t be amended
Different Opinion about preamble
1. K.M. Munshi = “A political Horoscope “
2. Earnest Barker = “Key note to the constitution “
3. Thakurdas Bargava = soul of the constitution
4. N A Palikiwala- Identity card of the constitution .
5. M. Hidayatvila –preamble resembles the declaration of independence of the United States of America, But is more than a declaration.
Constitution reveals four components of constitution
1 Source of Authority of constitution people are the source of Authority
2 Nature of Indian State –sovereign, socialist, secular, Democratic and republican polity
3 Objectives of constitution -justice, liberty, fraternity of equality.
4 Date of Adoption – Nov 26, 1949.
Definitions of key words in preamble
Sovereign Republic
Ø Source of all authority under the constitution is the people of India (Preamble begins with the words we the people of India).
Ø The word “Sovereign in preamble denotes the oneness of the people in India as a nation and it also establish the fact that Indians are inferior to no other external countries.
Ø A republic derives powers directly or indirectly from the people and in a republic people elect the head of the state directly or indirectly for a limited period.
Ø India is a member of common wealth of Nations with British King as its head. But no decisions of the commonwealth is binding on India. The country becoming part of such organizations to fulfill and promote constitutional obligations which say to promote international peace & understanding. Similar is the case of Indias membership in UNO.
USA – Republic , Britain – Monarchy.
Democracy
Ø Democracy means participation of people in the affairs of state. India has adopted the representative parliamentary democracy. Indian constitution’s preamble ensures political democracy along with social and economic democracy.
Ø Two types of Democracy 1) Direct Democracy – people exerts their power directly eg:- Switzerland.
Ø Four tools of direct democracy : Referendum, Plebiscite, Initiative and Recall.
Ø Referendum : A legislation is directly referred to the electorate for settlement by their votes.
Ø Initiative : The way of proposing a bill to its legislature for enactment.
Ø Recall : The way by which people remove a representative or an officer before the expiry of his term.
Ø Plebiscite : Method of gathering the opinion of people on public issues ( Generally used to solve territorial disputes ).
Ø Indirect democracy : The elected representative exercise the Supreme Power and make laws.
Ø The democratic character of Indian polity is manifested in periodic election, Adult Franchise, rule of law, Absence of discrimination, Independent Judiciary etc.
Secular
Ø This word was added by the 42nd Amendment Act 1976.
Ø Supreme Court in 1974, Had referred that the constitution had not been contained the definition or wordings of a Secular state which was the dream of the fondling fathers of Indian constitution.
Ø Art 25 to 28 ensures the freedom of religion.
Ø All religions irrespective of their strength is treated equal by the constitution.
Socialism
Ø Introduced in the preamble by 42nd amendment , 1976.
Ø Socialism envisages economic equality and justice in opportunity. Socialism in Indian scenario does not mean the complete eradication of private property, instead It envisages the scope of a mixed economy.
Ø Avady session of INC in 1955 adopted a resolution to found a socialistic pattern of society in India.
Ø Socialism in India is actually democratic socialism rather than communistic socialism.
Ø Communistic socialism – Aims to eradicate all private properties by way of the nationalization of all means of production. It is also know as state socialism.
Ø Democratic socialism – Envisages a mixed economy where both public and private sector exist simultaneously.
Ø The Socialism envisaged by Indian constitution is a synthesis of Marxism and Gandhism or in other wards it is leaned to much towards Gandhian Socialism.
Ø New policy of economic liberlisation (started since 1991) has really diluted the socialistic pattern of economy in India.
Justice
The preamble use these word beyond its legal meanings. The word has wider meaning as far as the preamble is concerned, they are.
1. Social Justice : Protection from the discrimination on the basis of caste, creed, religion, sex etc. The welfare envisaged by DPSP’s is conceptualised on social justice.
2. Economic justice : denotes the gap between poor and rich should be reduced and the economic equality should be bought forth. Eradication of poverty, equitable distribution of national wealth, utilization of Natural resources, creation of employment opportunities etc. are the measures adopted by state to ensure economic justice.
3. Political Justice : It ensures the equal opportunity to people to participate in the political system. Eg: Adult suffrage
4. The ideal of social, economic and political justice is adopted from Russian Revolution (1917).
Equality
The term means none should be given special privileges and all should be given equal opportunity. Preamble of Indian constitution ensures its citizen equal status and opportunity. It provides civic, social and economic equality.
Civic equality is ensured by
1) Art 14- equality before law 2) Art 15 – Prohibition of discrimination on the grounds of religion, race, caste, place of birth etc. 3) Art 16 – equality in matter of public employment 4) Art 17 - Abolition of untouchability 5) Art 18 Abolition of untouchability.
Political equality is ensured by: 1) Art 325 – No body is o be made ineligible in including electoral roll on the grounds Of Religion, Caste Creed , sex etc. 2) Art 326- Election to the Loksabha and state Assembles should be based on Adult suffrage.
Economic equality is ensured by: DPSP’s plays a good role in ensuring economic equality (equal right to earn a livelihood, equal pay for equal work etc.)
Liberty
Ø The term means the freedom of individual to develop his personality.
Ø Preamble ensures freedom of thought, expression, speech, belief, faith etc. through fundamental rights.
Ø Liberty is to be enjoyed within the perameters set forth by the constitution. Indian constitution ensures qualified liberty, not absolute liberty.
Fraternity
Ø the term denotes the brotherhood among the citizens of the state
Ø fundamental duties, single citizenship etc. aims at nurturing a common brotherhood among people
Ø fraternity is an essential factor to keep individual dignity and unity and integrity of the nation
Ø constitution considers dignity of citizen is sacred and the fundamental duties directs to kkep the dignity of women
Ø Fundamental rights and DPSP’s ensures the dignity of individual through their various provisions.
Ø Dr. Ambedkar : “Fraternity is the principle which gives unity and solidarity to social life.
Ø To keep fraternity, each individuals dignity is to be protected and respected.
Ø As per DPSPs all should be provided decent and human conditions of work, standard of life etc. These provisions ensures the dignity of the people.
Ø Liberty, fraternity & equality are adopted from French revolution (1789- 1799)
Other significances of preamble
Takurdas Bargava also observed – “The preamble is the most precious part of constitution, it is the soul of the constitution, it is a key to the constitution it is Jewel set in the constitution. It is a proper yardstick with, which one can measure the worth of the constitution.
Earnest Barker wrote the famous book “principles of social and political theory (1951)
Ø Allad, Krishnaswami Aiyer, A member of the constituent Assembly, said “The preamble of our constitution express what we had thought or dreams so long”
Ø Berubari case 1960 – Supreme Court Opined that preamble is the key to the mind of the makers of our constitution but it cannot be considered as the part of the constitution. This case was related to the implementation of indo-park agreement over Berubari Union and exchange of enclaves.
Ø Kesavananda Barathi v/s state of Kerala case (1973) – Supreme Court held the view that preamble is a part of constitution. Supreme Court opined that being part of constitution preamble can be amended under art 368 by the parliament.
Ø LIC v/s consumer Education Research Centre Case (1995) – Supreme Court reiterated that the preamble is an integral part of the constitution.
