Author: Pranshu Kumar

Amendments of Indian Constitution

Constitutional forefathers were aware of the fact that an extremely rigid constitution would not fulfill the aspirations of future generations. They also believed that the Constitution should be a living document that would be shaped by the exigencies of the time. So, the constitution makers incorporated Part-XX (Article 368) to provide for a detailed procedure to amend the constitution.

Amendment Procedure

Aspect	Exclusive Power of Parliament: Only Parliament can introduce a constitutional amendment bill, not state legislatures.
	Introduced by: Any member of Parliament can introduce the bill.
	No Prior Approval: President’s recommendation is not required to introduce the bill.
Legislative Procedure in Parliament	Majority: Passed by a special majority in each House (majority of total membership and two-thirds of members present and voting).
	No Joint Sitting: Each House must pass the bill separately; no provision for a joint sitting.
Ratification by State Legislatures	If amending federal provisions, the bill must be ratified by half of the state legislatures by a simple majority.
Presidential Assent	Assent Required: President must give assent once the bill is passed by Parliament and ratified by states, if necessary. (24th amendment)
	Becomes an Act: The bill becomes a Constitutional Amendment Act after Presidential assent.

Types of Amendments

Type of Amendment	Details	Example
Amendment by Simple Majority	Not under Article 368: Done through a bill passed by each house with a simple majority.	Creation/abolition of legislative councils, quorum in Parliament, MP salaries, rules of procedure, privileges, use of English in Parliament, number of Supreme Court judges, more jurisdiction to Supreme Court, citizenship, elections.
Amendment by Special Majority of Parliament	Article 368: Bill passed by each house with a special majority.	Fundamental rights, DPSPs, and other non-specified provisions.
	Required Majority: Majority of total members and two-thirds of members present and voting.	For 540 members in Lok Sabha, 273 total members and 354 (two-thirds of 531 present) must approve.
Amendment by Special Majority and Ratification by States	Federal Structure Provisions: Special majority in Parliament and ratification by half of state legislatures.	Election process of President, Union and state executive powers, legislative functions distribution, High Courts, Supreme Court, seventh schedule lists, state representation in Parliament, Article 368, GST Council.

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Need for Amendment

Reason for Amendment	Details	Specific Examples
Adapting to Social Change	Amendments often reflect evolving social norms, values, and requirements of the society.	– Constitutional (One Hundred and Third Amendment) Act, 2019: Provides for reservation in education and public employment for economically weaker sections.
Technological Advancements	Updates to accommodate technological progress and address new-age challenges.	101st Amendment, 2016: Introduced the Goods and Services Tax (GST)
Correcting Oversights or Errors	Address ambiguities or outdated provisions in the constitution that may arise over time.	The 44th Amendment of the Indian Constitution, sought to undo several changes made by the controversial 42nd Amendment during the Emergency period
Judicial Directives	Amendments in response to judicial interpretations that necessitate legislative clarification.	The 24th Amendment of the Indian Constitution was a direct response to judicial challenges and debates about the extent and limitations of the Parliament’s amendment powers.
Decentralization of Power	Enhance governance by redistributing power and responsibilities, fostering local governance.	Constitutional (Seventy-third Amendment) Act, 1992 and Constitutional (Seventy-fourth Amendment) Act, 1992: Strengthened the Panchayati Raj institutions and introduced similar structures for urban local bodies.
Protecting Rights	Expand or recalibrate fundamental rights to reflect contemporary values and international standards.	– Constitutional (Eighty-sixth Amendment) Act, 2002: Made education a fundamental right for children aged 6 to 14 years under Article 21A.
Structural Reforms	Modify or streamline governmental and judicial structures to enhance efficiency and effectiveness.	– Constitutional (One Hundred and First Amendment) Act, 2016: Introduced the Goods and Services Tax (GST) for a uniform tax regime across the country.

Criticism of Amendment Procedure

Criticism	Details
Concentration of Power – Limited Role of States	Only Parliament can amend the Constitution; state legislatures cannot introduce amendments.
Excessive Powers to Parliament	Parliament can change most of the Constitution with a special or simple majority.
Dual Role of Parliament	Parliament has both constituent and ordinary law-making powers; no separate constituent assembly.
No Provision for Joint Sitting	No joint sitting for resolving deadlocks over constitutional amendment bills.
Similar to Ordinary Law Making	The process of amending the Constitution is similar to making ordinary laws, except for the need for a special majority.

Limitations of Amendment powers of Parliament

Limitation	Details	Examples/Notes
Basic Structure Doctrine	Parliament cannot alter the fundamental framework of the Constitution.	Established in Kesavananda Bharati (1973); includes principles like secularism, democracy, and rule of law.
Procedural Limitations	Amendments must follow a strict procedure, requiring a special majority in Parliament and sometimes ratification by state legislatures.	Article 368 outlines these requirements; affects amendments involving federal relations and representation.
Judicial Review	The Supreme Court can review and invalidate amendments that breach the Constitution’s basic structure.	Minerva Mills case (1980) and I.R. Coelho case (2007).
Political and Social Consensus	Substantial political and social consensus is often necessary for passing amendments due to the requirements for a special majority.

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SC judgments on Amendment powers of Parliament

Case Name	Summary of Judgment
Shankari Prasad vs. Union of India (1951)	Ruled that Parliament could amend any part of the Constitution, including fundamental rights.
Sajjan Singh vs. State of Rajasthan (1965)	Reaffirmed the ability of Parliament to amend the Constitution under Article 368, including fundamental rights.
Golaknath vs. State of Punjab (1967)	Overturned previous rulings, stating Parliament could not amend fundamental rights.
Kesavananda Bharati vs. State of Kerala (1973)	Introduced the “basic structure” doctrine, establishing that Parliament cannot alter the fundamental framework of the Constitution through amendments.
Indira Nehru Gandhi vs. Raj Narain (1975)	Struck down the 39th Amendment related to the election of the Prime Minister, asserting that amendments violating the “basic structure” of the Constitution are unconstitutional.
Minerva Mills vs. Union of India (1980)	Reinforced the “basic structure” doctrine. Held that clauses inserted by the 42nd Amendment, which declared that no amendment could be called in question in any court, were invalid.
Waman Rao vs. Union of India (1981)	Validated the constitutionality of all amendments made up to the Kesavananda Bharati judgment, applying the basic structure doctrine prospectively, not retrospectively.
I.R. Coelho (Dead) By LRs vs. State of Tamil Nadu (2007)	Reaffirmed the basic structure doctrine. Ruled that laws put in the Ninth Schedule after the Kesavananda Bharati case are subject to judicial review if they violate the basic structure.

Important amendments

Amendment	Key Provisions & Significance
1st Amendment, 1951	Empowered the state to make special provisions for the advancement of socially and economically backward classes. Provided for the saving of laws providing for acquisition of estates, etc. Added Ninth Schedule to protect the land reform and other laws included in it from the judicial review. 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. 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.
24th Amendment, 1971	Affirmed the power of Parliament to amend any part of the Constitution including fundamental rights. Made it compulsory for the president to give his assent to a Constitutional Amendment Bill.
25th Amendment, 1971	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.
42nd Amendment, 1976	Added three new words (i.e., socialist, secular and integrity) in the Preamble. Added Fundamental Duties by the citizens (new Part IV A). Made the president bound by the advise of the cabinet. Provided for administrative tribunals and tribunals for other matters (Added Part XIV A). Froze the seats in the Lok Sabha and state legislative assemblies on the basis of 1971 census till 2001. Made the constitutional amendments beyond judicial scrutiny. Raised the tenure of Lok Sabha and state legislative assemblies from 5 to 6 years. Provided that the laws made for the implementation of Directive Principles cannot be declared invalid by the courts on the ground of violation of some Fundamental Rights. Added three new Directive Principles viz., equal justice and free-legal aid, participation of workers in the management of industries and protection of environment, forests and wildlife. Extended the one-time duration of the President’s rule in a state from 6 months to one year. Shifted five subjects from the state list to the concurrent list, viz, education, forests, protection of wild animals and birds, weights and measures and administration of justice, constitution and organisation of all courts except the Supreme Court and the high courts. 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.
44th Amendment, 1978	Restored the original term of the Lok Sabha and the state legislative assemblies (i.e., 5 years). Omitted the reference to the British House of Commons in the provisions pertaining to parliamentary privileges. Gave constitutional protection to publication in newspapers of true reports of the proceedings of the Parliament and the state legislatures. Empowered the president to send back once the advice of the cabinet for reconsideration. But, the reconsidered advice is to be binding on the president. 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. Deleted the right to property from the list of Fundamental Rights and made it only a legal right. Provided that the fundamental rights 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 Amendment, 1985	Provided for disqualification of members of Parliament and state legislatures on the ground of defection and added a new Tenth Schedule containing the details in this regard.
61st Amendment, 1989	Reduced the voting age from 21 to 18 years, broadening democratic participation.
73rd Amendment, 1992	Granted constitutional status and protection to the panchayati raj institutions. For this purpose, the Amendment has added a new Part-IX entitled as “the panchayats” and a new Eleventh Schedule containing 29 functional items of the panchayats.
74th Amendment, 1992	Granted constitutional status and protection to the urban local bodies. For this purpose, the Amendment has added a new Part IX-A entitled as “the municipalities” and a new Twelfth Schedule containing 18 functional items of the municipalities.
86th Amendment, 2002	Made elementary education a fundamental right. The newly-added Article 21-A declares that “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may determine”. Changed the subject matter of Article 45 in Directive Principles. It now reads—“The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years”. Added a new fundamental duty 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”.
99th Amendment Act, 2014	Replaced the collegium system of appointing judges to the Supreme Court and High Courts with a new body called the National Judicial Appointments Commission (NJAC). However, in 2015, the Supreme Court declared this amendment act as unconstitutional and void. Consequently, the earlier collegium system became operative again.
101st Amendment, 2016	aved the way for the introduction of the goods and services tax (GST) regime in the country. The GST shall replace a number of indirect taxes being levied by the Union and the State Government. It is intended to remove the cascading effect of taxes and provide for a common national market for goods and services. Provided for the establishment of a Goods and Services Tax Council by a presidential order. Made the provision of compensation to the states for loss of revenue arising on account of introduction of GST for a period of five years.
102nd Amendment Act, 2018	Conferred a constitutional status on the National Commission for Backward Classes which was set-up in 1993 by an Act of the Parliament. Relieved the National Commission for Scheduled Castes from its functions with regard to the backward classes. Empowered the President to specify the socially and educationally backward classes in relation to a state or union territory.
103rd Amendment Act, 2019	Allowed the state to make a provision for the reservation of upto 10% of seats for economically weaker sections in admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.

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November 18, 2024

FUNDAMENTAL DUTIES

42nd Amendment added Fundamental Duties to the Indian Constitution (Swaran Singh Committee recommendation) in 1976 through Part IV-A and Article 51-A, initially listing ten duties.

86th Amendment: Added an 11th duty in 2002, making it a duty for parents to provide education to children aged 6-14.

Fundamental Duties emphasize citizens’ moral obligations and commitments to society and the nation, highlighting the inseparable nature of rights and duties. Countries like China, the Netherlands, Vietnam, and Japan have included Fundamental Duties in their constitutions.

Verma committee recommended including Fundamental Duties in school curricula and making voting in elections a Fundamental Duty.

Fundamental Duties: List and Application

Article 51A – Fundamental Duty	Application
(a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem	Standing up in movie theatres during the national anthem
(b) To cherish and follow the noble ideals that inspired the national struggle for freedom	Including the Desh Bhakti curriculum in the school syllabus
(c) To uphold and protect the sovereignty, unity, and integrity of India	SATARK NAGRIK SURAKSHIT DESH – being vigilant
(d) To defend the country and render national service when called upon to do so	Volunteering during COVID-19 crisis
(e) To promote harmony and the spirit of common brotherhood amongst all the people of India, transcending religious, linguistic, and regional or sectional diversities, and to renounce practices derogatory to the dignity of women	Stopping mob lynching or honor killings; objecting to the objectification of women in advertisements
(f) To value and preserve the rich heritage of the country’s composite culture	Stopping graffiti on the walls of monuments
(g) To protect and improve the natural environment, including forests, lakes, rivers, and wildlife, and to have compassion for living creatures	Reusing, reducing, and recycling plastic waste
(h) To develop the scientific temper, humanism, and the spirit of inquiry and reform	Avoiding falling prey to fake news
(i) To safeguard public property and to abjure violence	Adhering to peaceful protests
(k) To provide opportunities for education to his child or ward between the ages of six and fourteen years	Valuing entrepreneurship and start-up culture
(k) To provide opportunities for education to his child or ward between the age of six and fourteen years	(k) To provide opportunities for education to his child or ward between the ages of six and fourteen years

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Swaran Singh Committee

Aspect	Details
About	In 1976, the Indira Gandhi government set up a Committee under Sardar Swaran Singh to recommend fundamental duties during the internal emergency (1975-1977).
Unaccepted Recommendations	Paying taxes: Duty to pay taxes as a Fundamental Duty was recommended.
	Penal provisions: Parliament could impose penalties for non-compliance with duties.
	Doing away with Judicial review: Laws imposing penalties for non-compliance would not be questioned for violating Fundamental Rights.

Characteristics and Significance of Fundamental Duties

Characteristic	Description	Specific Examples
Non-Justiciable	Fundamental Duties are not enforceable by law, meaning no legal action can be taken if they are not followed.	No citizen can be legally compelled to sing the national anthem, but respect during its rendition is expected.
Moral and Civic Obligations	Serve as moral guidelines for civic behavior to promote discipline and commitment to the nation.	To renounce practices derogatory to the dignity of women
Enforceable by Law	Parliament can impose penalties for failing to follow Fundamental Duties.	Flag Code of India
Promotive of Constitutional Ideals	Reflect and reinforce constitutional principles like sovereignty, unity, and integrity.	Duty to uphold and protect the sovereignty, unity, and integrity of India (Article 51A).
Comprehensive in Scope	Duty to protect and improve the natural environment including forests, lakes, and rivers (Article 51A(g)).	Duty to protect and improve the natural environment including forests, lakes, rivers (Article 51A(g)).
Inspirational Role	Inspire citizens to participate actively in national development and uphold national pride.	Promotes involvement in community services and observance of laws promoting national interest.
Rooted in Indian Culture	Represents traditional Indian values like tolerance, peace, and communal harmony.	Promoting communal harmony during festivals and public celebrations to maintain peace and unity.
Instrumental in Legal Framework	Influence legal interpretations and support the enactment of laws aligned with civic responsibilities.	Courts may refer to duties like promoting harmony (Article 51A(e)) when adjudicating cases on communal harmony.
Guidance for State Policies	Guide the state in formulating policies that reflect the fundamental values of the Constitution.	Duty to protect and improve the natural environment including forests, lakes, and rivers (Article 51A(g)).

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Criticisms of Fundamental Duties

Criticism	Details	Example
Superfluous Nature	Duties are seen as redundant as people would perform them without constitutional mention.	Citizens respecting the national flag even before it was mandated by Fundamental Duties.
Non-Justiciable Nature	Described as moral precepts without penalties or punishments for non-performance.	No legal consequences for not developing a scientific temper.
An appendage to Part IV	Incorporation in Part IV-A reduces their value; should have been placed after Fundamental Rights.	Duties not given equal importance as rights in constitutional placement.
Vague and Ambiguous	Terms like ‘noble ideals’ and ‘scientific temper’ are difficult to understand and interpret.	Common people may find it hard to define and practice ‘scientific temper’.
Non-Exhaustive List	Not comprehensive; important duties like paying taxes or voting are missing.	No constitutional mandate for citizens to pay taxes or participate in elections.

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Important Judgments

Case Name	Summary of Judgment
Chandra Bhavan Boarding v State of Mysore 1969	Upheld minimum wage legislation, emphasizing the balance of rights and duties.
Balaji Raghavan v Union of India 1995	Upheld the constitutionality of National Awards, linking them to the duty of striving toward excellence. (Article 51A(j))
M.C. Mehta v Kamal Nath II 2000	Stressed the duty to protect and improve the natural environment. (Article 51A(g))
Javed v State of Haryana 2003	Supported a law limiting the number of children one can have for eligibility in local elections.
In Re Ramlila Maidan Incident 2012	Discussed the duty to obey lawful orders and maintain public order during a protest eviction incident.

Laws implementing FD

Aspect	Details	Example
Representation of People Act, 1951	Membership of Parliament or State Legislatures can be rejected for corrupt activities.	Disqualifying MPs/MLAs involved in corruption.
Unlawful Activities Protection Act, 1967	Bans sectarian organizations to maintain peace and stability.	Prohibiting extremist groups to ensure national security.
Protection of Civil Rights Act, 1955	Punishes those practicing untouchability.	Legal actions against individuals promoting untouchability.
Wildlife Protection Act, 1972	Prohibits illegal trading of animals to protect endangered species.	Penalizing poachers and traders of endangered wildlife.
Prevention of Insults to National Honour Act, 1971	Prohibits insults to the national anthem, flag, and Constitution.	Punishing individuals disrespecting the national symbols.
Forest Conservation Act, 1980	Prohibits the destruction of natural forests; regulates their use.	Restricting deforestation and regulating forest land use.

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November 18, 2024

DIRECTIVE PRINCIPLES OF STATE POLICY

Directive Principles of State Policy are enumerated in Part IV of the Constitution from Articles 36 to 51. Dr B.R. Ambedkar described these principles as ‘novel features’ of the Indian Constitution. Granville Austin has described the Directive Principles and Fundamental Rights as the ‘Conscience of the Constitution’.

It promotes the principles of social and economic democracy and envisages establishing a welfare state.

Directive Principles ‘and Fundamental Rights contain the ‘’philosophy of the Constitution’’ and are known as the ‘’soul of the Constitution’’.

The reason why DPSPs are non-justiciable

Reason	Explanation	Specific Examples
Guiding Principles for Governance	DPSP are intended as guidelines for the government to frame policies, not as enforceable rights. Making them justiciable would entail judicial oversight on policy matters.	Article 47 (Duty of the State to raise the level of nutrition): Influences public health policies like the Mid-Day Meal Scheme.
Conflict with Fundamental Rights	Some directive principles could infringe on fundamental rights, so their implementation was left to the discretion of the State.	Land reform laws conflicted with the right to property.
Flexibility for the Government	Non-justiciability provides flexibility in policy-making, allowing the government to balance diverse interests and adapt to changing circumstances.	Article 39 (Certain principles of policy to be followed by the State): Allows phased implementation of welfare measures like maternity relief.
Resource Constraints	Post-independence, India lacked sufficient resources to implement all directive principles.	Article 45 (Provision for early childhood care and education to children under six years): Guided the introduction of Anganwadi centers under the ICDS program.
Evolutionary Approach	The non-justiciable nature allows for the progressive implementation of these principles, adapting to the country’s economic and social development over time.	Constitution makers trusted the wisdom of the people over court enforcement to fulfilling these principles. Many directives have been implemented through government actions.
Sanction by the People	Constitution makers trusted the wisdom of the people over court enforcement to fulfill these principles. Many directives have been implemented through government actions.	The “Right to Education” was initially a directive principle but became a fundamental right through the 86th Constitutional Amendment Act of 2002
Complexity in Implementation	India’s diversity in customs and traditions complicates the implementation of some directives.	The Uniform Civil Code under Article 44

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Classification of The Directive Principles

Socialist Principles

Article	Description	Implementation
Article 38	Article 38(2) of the Indian Constitution, added by the 44th Amendment Act in 1978, mandates the state to work towards securing a social order that promotes the welfare of the people	Establishment of Planning Commission (1950); Land Reforms including abolition of intermediaries, tenancy reforms, and distribution of surplus land.
Article 39	The principles of policy to be followed by the State must ensure livelihood, resource equity, prevent wealth concentration, provide equal pay, protect workers’ health, and promote child welfare.	Nationalization of life insurance (1956), banks (1969), and general insurance (1971); Abolition of Privy Purses (1971).
Article 39A	NREGA (2005) guarantees the right to work; in the National Social Assistance Programme; and the Ayushman Bharat scheme.	Legal Services Authorities Act (1987) established a network for free legal aid and Lok Adalat for dispute resolution.
Article 41	Right to work, education, and public assistance in certain cases, within the state’s economic capacity.	NREGA (2005) guarantees the right to work; in the National Social Assistance Programme; and the Ayushman Bharat scheme.
Article 42	Provision for just and humane conditions of work and maternity relief.	Janani Suraksha Yojana, Janani Shishu Suraksha Karyakram, Pradhan Mantri Surakshit Matritva Abhiyan, LaQshya initiative, Maternity Benefit (Amendment) Act, 2017.
Article 43	Living wage, decent work, etc., for workers. Promotes cottage industries in rural areas.	The Minimum Wages Act (1948), Code on Wages (2020), Contract Labour Regulation and Abolition Act (1970), Child Labour Prohibition and Regulation Act (1986), Bonded Labour System Abolition Act (1976), Mines and Minerals (Development and Regulation) Act (1957), Maternity Benefit Act (1961), Equal Remuneration Act (1976).
Article 43A	NREGA (2005) guarantees the right to work; in the National Social Assistance Programme; and Ayushman Bharat scheme.	Works committees, Joint management councils, and Joint councils for industries with over 500 employees.
Article 47	Raise the level of nutrition, and standard of living, and improve public health.	Community Development Programme (1952), Integrated Rural Development Programme (1978-79), MGNREGA (2006), Anganwadi Services, Pradhan Mantri Matru Vandana Yojana, Poshan Abhiyaan.

Gandhian Directive Principles

Article	Description	Implementation
Article 40	Organisation of village panchayats. State shall take steps to organize village panchayats as units of Self Government.	73rd Constitutional Amendment Act, 1992,
Article 43	Promotion of cottage industries.	Village Industries Board, Khadi and Village Industries Commission, All India Handicraft Board, Silk Board, Coir Board, etc.
Article 43B	Promotion of cooperative societies. The state shall promote voluntary formation, autonomous functioning, democratic control, and professional management of cooperative societies	97th Amendment Act add cooperative under Article 19
Article 46	Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections	Protection of Civil Rights Act (1955) and SC/ST (Prevention of Atrocities) Act (1989). Establishment of National Commissions for Minorities (1993), Women (1992), Protection of Child Rights (2007), and Backward Classes (1993, with constitutional status in 2018).
Article 47	Raise the level of nutrition and standard of living, improve public health, and prohibit intoxicating drinks and drugs except for medicinal purposes.	Alcohol prohibition in states like Bihar, Gujarat, Mizoram, and Nagaland.
Article 48	Organisation of agriculture and animal husbandry using modern methods and scientific lines, and prohibition of slaughter of cows and calves.	The National Dairy Development Board (NDDB) promotes modern dairy farming techniques.

Liberal-Intellectual Directives

Article	Description	Implementation
Article 44	Uniform civil code for the citizens. The State shall endeavour to secure for all citizens a uniform civil code throughout the territory of India.	Goa is the only state with a uniform civil code.
Article 45	Early childhood care and education to children below the age of six years. The State shall provide early childhood care and education for all children.	86th Constitutional Amendment Act, 2002, The National Education Policy
Article 48	Organisation of agriculture and animal husbandry. State shall organise agriculture and animal husbandry on modern lines, preserving and improving breeds.	Various steps include Rashtriya Gokul Mission, National Livestock Mission, National Programme for Dairy Development, and National Animal Disease Control.
Article 48A	Protection of environment, forest, and wildlife. The State shall endeavour to protect and improve the environment and safeguard forest and wildlife.	Creation of Protected Areas (National Parks, Sanctuaries) and missions like National Action Plan for Climate Change and National Clean Air Programme.
Article 49	Protection of monuments and places of national importance. State to protect monuments, places, or objects of artistic/historic interest from damage.	The Ancient and Historical Monument and Archaeological Sites and Remains Act (1958)
Article 50	Criminal Procedure Code (1973) separated the judiciary from the executive.	Separation of judiciary from the executive. The State should separate the judiciary from the executive in public services.
Article 51	Criminal Procedure Code (1973) separated judiciary from the executive.	Promotion of international peace and security. The state shall endeavor to promote international peace, maintain friendly relations, and respect international law.

Amendments in DPSP

Amendment	Changes Introduced	New Directives and Articles
42nd Constitutional Amendment, 1976	Introduced new directives in Part IV of the Constitution.	Article 39A: Provide free legal aid to the poor. Article 39(f): Ensure children develop healthily with protected freedom and dignity, and against exploitation and abandonment. Article 43A: Participation of workers in industrial management. Article 48A: Protect and improve the environment.
44th Constitutional Amendment, 1978	Inserted Section-2 to Article 38; eliminated Right to Property from Fundamental Rights.	Article 38(2): The state shall strive to minimize economic inequalities in income and eliminate inequalities in status, facilities, and opportunities among individuals and groups.
86th Amendment Act of 2002	Changed the subject matter of Article 45; made elementary education a fundamental right under Article 21A.	Article 45: Early childhood care and education for children below six years. Article 21A: Right to elementary education as a fundamental right.

Directives outside Part IV

The Constitution makers gave a few directives outside Part IV, these are:

Claims of SCs and STs to Services (Article 335; Part XVI)
Instruction in mother tongue (Article 350-A; Part XVII)
Development of Hindi Language (Article 351; Part XVII)

These directions are also non-justiciable and they are given importance equivalent to DPSPs in Part IV. The judiciary has declared that all parts of the Constitution must be read together.

Significance/Utility of Directive Principles

Aspect of Significance	Details	Specific Examples
Instrument of Instruction and Transformation	Acts as a blueprint for transforming India into a welfare state, guiding constitutional amendments and legislation to implement social and economic programs.	Article 48 (Organization of Agriculture and Animal Husbandry): Led to agricultural reforms and policies promoting animal welfare.
Moral and Ethical Framework for Governance	Article 48 (Organization of Agriculture and animal husbandry): Led to agricultural reforms and policies promoting animal welfare.	Article 47 (Duty of the State to raise the level of nutrition): Influenced policies like the National Health Mission.
Non-Justiciable yet Influential	Influences law and policy making, providing a framework within which the electorate can evaluate government performance.	Article 44 (Uniform civil code): Inspired the debate and eventual legislation regarding personal laws in India.
Social and Economic Justice	Guides legislators and administrators, laying down the goals aimed at achieving a just society.	Article 39 (Certain principles of policy to be followed by the State): Influenced the Equal Remuneration Act, 1976.
Complement to Fundamental Rights	Complements enforceable Fundamental Rights by promoting non-enforceable social and economic welfare goals, necessary for the full enjoyment of fundamental rights.	Advocates for welfare measures like the right to livelihood, equal pay, and health improvements, focusing on disadvantaged groups to reduce inequalities.
Dynamic Interpretation and Evolution	Broad and flexible, allowing dynamic interpretation to meet contemporary needs and ensuring relevance in varying socio-economic contexts.	Article 43 (Living wage, etc., for workers): Has guided the formulation of various labor laws and minimum wage standards over the years.
Educative Value	These directives have an educational value, reminding those in power of the goal to introduce ‘economic democracy’ distinct from political democracy.	Promoting social and economic welfare (Article 38)
Force of Public Opinion	Representatives are accountable to the people, and non-compliance with these directives risks their position as they will be judged by the public.	Electoral consequences for failing to implement public welfare measures
Reference for Courts	Courts use these principles to exercise judicial review and determine the constitutional validity of laws.	Minerva Mills vs Union of India case, harmonizing fundamental rights with directive principles
mpower the Opposition	The right to adequate means of livelihood (Article 39(a)) complements Right to life and personal liberty under Article 21	Criticism over failure to implement land reforms or social security measures

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Criticism of Directive Principles

Criticism	Details	Specific Examples
Non-Justiciability	Lack of Legal Force: DPSPs are not enforceable in courts, leading to potential neglect in policy implementation. Dependence on Political Will causes variability in adherence.	Lack of Enforcement: Despite Article 47’s directive to improve nutrition, persistent malnutrition issues reflect inconsistent implementation.
Lack of Consistent Philosophy	N. Srinivasan criticized them as vague, repetitive, and not logically arranged.	Lack of Legal Force: DPSPs are not enforceable in courts, leading to potential neglect in policy implementation. Dependence on Political Will causes variability in adherence.
Conservative	Jennings argued the Directives are based on 19th-century England’s political philosophy. Part IV reflects Fabian Socialism without socialism, making their relevance in the 21st century questionable.	prohibition of intoxicating drinks and drugs (Article 47) appears conservative in modern, liberal India.
Vagueness and Ambiguity	Broad and General Phrasing makes them difficult to implement specifically and measure effectively. Competing Priorities: The broad nature often leads to conflicting priorities, complicating their practical application.	article 39(b) & (c): Calls for minimizing inequalities in income and wealth are vague and have been interpreted variably across different governments.
Resource Constraints	Financial Implications: The implementation of many DPSPs requires significant financial resources, which may not always be available, leading to selective or partial implementation.	Article 41: Right to work is subject to the state’s economic capacity; regions with lower fiscal capacity struggle more to provide employment.
Lack of Priority	Secondary to Fundamental Rights: they often receive less focus and priority in governance and judicial considerations.	Lack of Legal Force: DPSP are not enforceable in courts, leading to potential neglect in policy implementation. Dependence on Political Will causes variability in adherence.
Potential for Misuse	Political Tool: The flexible nature of DPSP can be exploited as a political tool, with parties promising implementation for electoral gains rather than actual welfare improvement.	Electoral Promises like Nyay scheme, freebies
Constitutional Conflict	K Santhanam noted that Directives can cause conflicts, such as between the center and states, or between the President and Prime Minister, over implementation issues.	Implementing the Directive Principle related to the Uniform Civil Code (Article 44) often creates tensions between central and state governments.

Comparison between Fundamental Rights and Directive Principles of State Policy

Parameters	Fundamental Rights	Directive Principles of State Policy
Characteristics	Legally enforceable in the Court of Law	Non-enforceable.
Objective	They establish political democracy in the country	They aim to establish socio-economic democracy in the country.
Force	They have legal sanctions	They have moral and political sanctions
Enforcement	Many of the rights do not require legislation for their enforcement.	They require legislation for their enforcement.
Need	Fundamental for individual development	They promote the welfare of the community and are socialist in nature.
Justiciability	In case any law violates any of the Fundamental Rights, the court is bound to declare it unconstitutional	Violation of Directive Principles of State Policy is not a basis for declaring a law unconstitutional. However, the Court can uphold the validity of any law on the grounds that it was enacted to give effect to a directive.

Conflict Between Fundamental Rights and Directive Principles of State Policy

Case Name	Summary of Judgment
State of Madras vs. Champakam Dorairajan (1951)	The Court ruled that Fundamental Rights prevail over the DPSP. SC also ruled that Parliament can amend Fundamental Rights through the Constitutional Amendment Act to implement DPSPs. This case involved reservations in medical colleges, which were deemed to violate Article 29(2) of the Constitution.
Shankari Prasad vs. Union of India (1951)	This was one of the early cases addressing the amendability of the Constitution concerning Fundamental Rights and DPSP. The Court held that Fundamental Rights could be amended.
Golaknath vs. State of Punjab (1967)	The Court reversed its earlier position, ruling that Fundamental Rights are immutable and could not be amended by the Parliament. It restricted the legislature’s ability to implement DPSP at the expense of Fundamental Rights.
Kesavananda Bharati vs. State of Kerala (1973)	The Court recognized that a balance between Fundamental Rights and DPSP was essential and that both were equally valid.
Minerva Mills vs. Union of India (1980)	The Court emphasized the harmony and balance between Fundamental Rights and DPSP, stating that they are complementary and equally fundamental. It held that any law that violates Fundamental Rights under the guise of achieving DPSP goals is invalid.
Unni Krishnan, J.P. vs. State of Andhra Pradesh (1993)	The Court held that the right to education is a Fundamental Right for children until the age of 14, citing both DPSP and Fundamental Rights. This decision is a pivotal example of harmonizing the two to achieve a broader constitutional goal.
Gujarat Mazdoor Sabha v. State of Gujarat (2020)	The fundamental rights and directive principles of State policy present a coherent vision of a welfare state that contemplates social, political and economic justice.
Present Position	Fundamental Rights enjoy supremacy over DPSP except for Articles 39 (b) and (c) which enjoy supremacy over Articles 14 and 19.

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November 16, 2024

NATURE OF CONSTITUTION, CONSTITUTIONALISM, CONSTITUTIONAL MORALITY

Questions from this theme are increasing with time but solid narratives on the same are missing pushing aspirants to write substandard answers merely consolidating what they know.

Previous Year Questions

[2019] GSIV: What do you understand about the term “constitutional morality”? How does one uphold constitutional morality? (10M)

[2021] ‘Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (10M)

[2022] “The most significant achievement of modern law in India is the constitutionalization of environmental problems by the Supreme Court.” Discuss this statement with the help of relevant case laws. (10M)

[2023] “The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a constitution made for a progressive society”. Illustrate with special reference to the expanding horizons of the right to life and personal liberty. (15M)

[2023] Explain the constitutional perspectives of Gender Justice with the help of relevant Constitutional Provisions and case laws. (15M)

Answer Writing Framework

Questions on this topic are mostly analytical. To get Maximum marks, need to add precise definitions, scholarly quotes, relevant Articles, and SC judgments.

Introduction

Start with definitions of the concepts. If the question is for 15 Mark, can also add context.

Main Body

If the demand is to explain the meaning of the question then use diagrammatic representation for highlighting elements/principles of that concept

For generating dimensions – Stakeholder Approach

Constitution – Rule of law, Supremacy, Morality, constitutionalism, living or organic document, Coordination and equilibrium, Separation of Powers
Executive – Accountability, Preventing majoritarianism, Checks and balances
Legislature – Flexibility, Prevents Arbitrary Legislation
Judiciary – Guardian of FR and Constitution, Independence, Activism, Judicial Review, Special powers (A 141, 142)
Society – Social Justice, Trust and confidence, Modernization, Affirmative Action
Substantiate these points using relevant examples, Articles and SC judgements – Keep elaboration brief and try to cover more dimensions

For critical evaluation – C-I approach

Constitutional – Constitutional morality vs social morality, Subjectivity, vagueness, lack of definition, Against Representative Democracy
Institutional – Judicial Overreach, Lacks popular legitimacy, Against Separation of powers, Policy Paralysis

In case of critical evaluation, provide a brief way forward of 2-3 points

Conclusion

Add a quote of a scholar and link it with keywords like Egalitarian Society, Promotion of FR, etc.
Keywords – Transformative Constitutionalism, magna carta of socio-economic transformation, Constitutional supremacy,

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Constitution

The Constitution serves as the foundational law on which other laws are constructed and enforced. The Constitution establishes the fundamental structure of the political system, upholds the rule of law, and delineates the powers and duties of government organs.

Functions of the Constitution

Coordination rules for diverse groups: It establishes fundamental guidelines enabling minimal coordination among members of a diverse society. For instance, Part III outlines principles of equality, non-discrimination, and individual rights, fostering a cohesive and inclusive society.

It delineates the distribution of power in society and delegates specific decision-making authority to various entities or authorities. For eg. the 7th Schedule divides the legislative power between the Union and State governments.

The Constitution both empowers and constrains the State’s authority. It allows the government to realize societal aspirations and implement principles of justice, liberty, and fraternity. Simultaneously, it establishes boundaries on the government’s ability to impose restrictions on its citizens. For eg. while Articles 15 and 16 prohibit the government from discriminating against citizens, they also provide for affirmative action in favor of vulnerable groups.

The constitution also sets forth the fundamental principles and objectives that govern the establishment and governance of a state. Examples include the Preamble and the Directive Principles of State Policy (DPSP).

Indian Constitution as ‘Bag of Borrowings’

Indian Constitution is often criticized as a Bag of Borrowings, having its features picked up from various other Constitutions.

Arguments in favor

Fundamental Rights borrowed from the United States Constitution.
Directive Principles of State Policy is inspired by the Irish Constitution
Parliamentary System including the bicameral legislature and the role of the Prime Minister, mirrors the British model.
Federal Structure with a strong central government was influenced by the Canadian Constitution.
Emergency Provisions were derived from the Weimar Constitution of Germany.
Fundamental Duties was inspired by the Soviet Constitution.
The concurrent List was borrowed from the Australian Constitution.
Judicial Review was adopted from the American system

Arguments Against

‘Nobody holds any patent rights in fundamental ideas of the Constitution’ – Ambedkar. The crafting and implementation of its provisions were guided and adapted by Indians to accommodate the diverse local realities. Eg – Federalism.

Indian civilizational values: Equality, fraternity, liberty, federalism, republic, democracy, etc. can be traced back to ancient Indian history and scriptures. For eg-

The secularism in the Indian Constitution is influenced by ‘sarva dharma sambhav’
The Rig Veda emphasizes the idea of the unity of all beings and the absence of discrimination based on caste or birth.
The Arthashastra calls individual liberties and property rights as essential components of good governance
The establishment of the “Mahasangha” or the Great Assembly in ancient India is considered an early form of a republic.
The concept of “Sabha” and “Samiti” in ancient texts reflects democratic practices.

Not blind but innovative and modified borrowing– For eg. The U.S. Constitution envisions the Bill of Rights, whereas our Constitution includes not only Rights but also Fundamental Duties for all citizens of India.

Certain basic features are common in all the democratic constitutions in the world. Eg. Protection of individual rights, separation of powers, rule of law, and mechanisms for representative government, such as elections and checks and balances.

Extensive deliberation- The Constitution is the result of brainstorming for 2 years, 11 months, and 18 days where each provision was extensively debated.

Many provisions were of Indian origin. Eg. Finance Commission, Reservation, etc.

Even at present, the Indian judiciary remains open to applying foreign constitutional doctrines in domestic cases, aiming to stay current and embrace best practices. Eg. in the Maneka Gandhi case, the Supreme Court expanded the scope of personal liberty under Article 21 of the Indian Constitution by drawing on the U.S. concept of “due process of law.”

Constitution as a living document

According to Woodrow Wilson, living political Constitutions must be Darwinian in structure and in practice.

Although the Constitution is a permanent document, it is designed to apply to future situations and conditions. The words and expressions used must be interpreted with an understanding of social values and adapted to changing needs. Eg- SC’s interpretation of the Right to Privacy as an integral part of the Right to Life and Personal liberty under Article 21.

Balance between rigidity and flexibility Article 368 enables it to sustain the core basic structure while amending the rest according to the changes in society. Eg. Right To Education, Amending Article 370, GST Act, etc.

Social and Economic Changes: The Constitution has demonstrated its adaptability in addressing social and economic changes. Amendments related to land reform, reservation policies, and environmental protection reflect the responsiveness to evolving social dynamics.

Inclusivity: According to President Droupadi Murmu, the makers created a comprehensive Constitution due to their sensitivity towards each section of society and awareness of each level of democracy and each aspect of administration. As Constitution makers had clarity of thought about the rights of future generations to create systems according to their needs, the provision for Constitutional amendments was included in the Constitution itself

Achievements of the Indian Constitution

Thriving democracy: It established the framework delineating the fundamental political code, rights, and duties of both the government and citizens, earning the title of the world’s largest secular and democratic country.

The Constitution, owing to its dynamic nature, has facilitated the progressive realization of rights, adapting to emerging principles like the Right to Privacy, LGBTQ Rights, and Environmental Rights.

The Constitution’s transformative nature has served as a beacon for social progress, with India evolving to recognize various rights such as the Right to Information (RTI), Right to Education (RTE), Right to Sexual Orientation, etc.

The Constitution ushered in a new era of social justice in Indian society by prohibiting any form of social discrimination and instituting affirmative actions to rectify historical injustices. Eg- recent Constitution (106th Amendment) Act, 2023.

Limitations and Challenges

The Indian society continues to grapple with issues like caste oppression, untouchability, wealth concentration, and poverty, suggesting a perceived failure of the Constitution in fully realizing its objectives of ensuring comprehensive social and economic justice. Eg. the continuation of inhuman practices such as manual scavenging.

The principle of fraternity, which emphasizes a sense of brotherhood and unity among citizens, has faced challenges due to communal riots and secessionist movements in various parts of the country.

The multiple amendments, exceeding 100, are indicative of challenges in achieving a stable and enduring framework for governance.

Declaration of President’s Rule, Governors as agents of central government undermines the principles of federalism envisioned by the framers.

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Constitutionalism

Technically speaking, Constitutionalism is “a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law.”

A Constitution alone does not ensure that the government will act in its spirit. Governments often justify increasing their powers, which can go against the people’s will. Constitutionalism ensures that government actions remain aligned with constitutional principles and the people’s will.

In the I.R. Coelho case, the Supreme Court held that “constitutionalism is a legal principle that requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based”. In the Rameshwar Prasad case, the Supreme Court held that “the constitutionalism or constitutional system of Government abhors absolutism – it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself”.

Principles of Constitutionalism

Louis Henkin defines constitutionalism as constituting the following 9 elements:

Government according to the constitution – The written constitution provides for the codification of fundamental laws and principles into a single, formal document that serves as the supreme law of the land.
Separation of power – it prevents the concentration of power, ensures checks and balances, and safeguards against potential abuses, thereby promoting accountability and the rule of law within a constitutional framework.
Sovereignty of the people and democratic government – The ultimate authority lies with the people who elect representatives, ensuring government accountability and participation in the democratic process.
Constitutional review – SC in Raja Ram Pal case and I.R. Coelho case 2007 has reshaped the whole demarcation and established the superiority of principles such as Basic Structure Theory enhancing the spirit of constitutionalism.
Independent judiciary – to ensure that laws are applied fairly, protecting individual rights and upholding the rule of law without external influence.
Limited government subject to a bill of individual rights – The government’s powers are restricted by a constitution that protects personal freedoms, preventing arbitrary or unjust actions.
Rule of law – ensures that laws are applied uniformly to all individuals, upholding equality and legal predictability, while also constraining government powers within defined legal limits to prevent arbitrary actions and protect fundamental rights.
Civilian control of the military – Civilian elected authorities maintain control over the military, ensuring it remains subordinate to democratic institutions and preventing political interference.
No state power, or very limited and strictly circumscribed state power, to suspend the operation of some parts of, or the entire, constitution.

Constitutional Morality

“Constitutional morality is not a natural sentiment. It has to be cultivated”.

Constitutional morality implies adherence to the core principles and spirit of the Constitution in a democracy. It is not just limited to following the constitutional provisions in their literal sense but includes a commitment to an inclusive and democratic political process in which both individual and collective interests of the society are satisfied.

Transformative constitutionalism: It entails instilling principles such as equality, liberty, fraternity, and dignity into society and achieving the Constitution’s primary goal of transforming society for the better. It tries to give paramount significance to Constitutional morality rather than what constitutes morality in society.

Elements of Constitutional Morality

Constitutional Morality under the Indian Constitution

Preamble: The Preamble of the Constitution articulates the guiding values, including justice, liberty, equality, and fraternity, which form the foundation of constitutional morality.

Fundamental Rights: The Constitution guarantees Fundamental Rights to citizens, reflecting the commitment to individual freedoms and liberties. The ever expanding scope of Fundamental Rights suggests alignment with the ideals of Constitutional Morality.

Directive Principles of State Policy(DPSP): Articles 38, 39, and 41, among others, within the DPSP outline socio-economic goals and principles for the state, reflecting a commitment to social justice, equality, and individual well-being.

Separation of Powers(Article 50): The Constitutional framework establishes separation of powers among the legislative, executive, and judicial branches, promoting a system of checks and balances that ensures accountability and prevents the abuse of power.

Judicial Review: The power of judicial review, inherent in the Constitution, allows the judiciary to assess the constitutionality of laws and government actions, ensuring they align with constitutional values and morality.

Amendment Process: The provision for amending the Constitution underscores its adaptability to changing societal values while maintaining its core principles, demonstrating a commitment to evolving constitutional morality.

Constitutional Institutions: The establishment of constitutional bodies and institutions, such as the Election Commission and the Comptroller and Auditor General, reinforces the adherence to constitutional principles and morality in the functioning of the government.

Significance of Constitutional Morality

Ambedkar saw constitutional morality as the ability to balance conflicting interests and encourage cooperation to resolve issues peacefully, without major confrontations or violence. He believed Constitutional Morality addresses societal disparities and emphasized respect for constitutional democracy as the accepted form of governance and administration.

Positive Transformation in Societal Morality – Constitutional morality can help update laws that are outdated. According to Granville Austin constitutional morality is a living principle that evolves with time, guiding society towards higher ideals and progressive change. Eg – Change in social attitude towards Sati after the law prohibiting Sati.

In Government of NCT of Delhi v. Union of India, the Supreme Court equated constitutional morality to a ‘second basic structure doctrine’, stating that it encompasses more than just the forms and procedures of the Constitution; it provides a framework that enables societal self-renewal.

Building Public Trust – In the Lt Governor of Delhi case, SC proclaimed constitutional morality as a governing idea that highlights the need to preserve the trust of people in the institution of democracy.

Upholds Fundamental Principles: Ensures that the core values of justice, liberty, equality, and fraternity guide the interpretation and implementation of laws.

Ensures Accountability: Holds government and public institutions accountable to the principles enshrined in the Constitution. According to Nani Palkhivala, constitutional morality serves as a safeguard against the tyranny of the majority and is crucial for preserving the rights of minorities and individuals.

SC judgments on Constitutional Morality

The phrase had been used in less than 10 reported cases by the Supreme Court till 2010 from the time the Constitution was adopted. However, in the year 2018 alone, it has been used in more than 10 reported cases by the Supreme Court.

In the Kesavananda Bharati case, two judges invoked the term Constitutional Morality but didn’t deal with it in detail. Also, in the SP Gupta case (First Judges’ case), it was stated that there was a serious breach of Constitutional Morality.

Holding that constitutional morality would prevail over social morality, the Supreme Court in the Navtej Singh Johar case, 2018 struck down Section 377 of the Indian Penal Code and declared such provision unconstitutional in so far as it criminalized consensual sexual conduct between adults of same-sex.

In the Sabarimala verdict, SC ruled that the exclusion of women aged 10-50 from worship at Sabarimala Temple violates four key principles of constitutional morality: justice, liberty, equality, and fraternity. SC reaffirmed religious freedom, gender equality, and the right of women to worship, by bypassing the “doctrine of essentiality”.

Joseph Shine Case – The Supreme Court noted that constitutional morality must guide the law and not the common morality of the State. Thus, it struck down Section 497 of IPC, which made adultery a crime.

Criticism of Constitutional Morality

Some critics argue that the concept of constitutional morality remains understudied and there is a need for a consensus to be reached for defining and applying this concept.

The application of this doctrine without proper limits or restrictions has the potential to result in judicial overreach, raising concerns about a violation of the separation of powers.

The concept of constitutional morality is subjective, with its interpretation varying based on individual or institutional perspectives. This subjectivity may lead to justifications for different actions and decisions, raising concerns about inconsistency and potential misuse.

Against social morality- Critics assert that constitutional morality lacks popular legitimacy as it may not always align with the prevailing public sentiment or morality. The argument suggests that imposing constitutional morality without considering broader public consent could lead to a perceived disconnect between legal principles and societal values. Ex- opposition to Sabarimala Verdict.

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Difference between Constitutionalism and Constitutional Morality

Constitutionalism	Constitutional Morality
It is a political philosophy emphasizing limited government powers defined by a constitution.	It goes beyond legal compliance, emphasizing adherence to moral principles in a constitution.
It promotes the rule of law, ensuring government actions adhere to established legal principles, and involves checks and balances to prevent the concentration of power in any one branch of government.	Involves an ethical foundation, recognizing the moral and ethical dimensions of constitutional principles.
Protects individual rights and liberties through constitutional provisions.	Guides the interpretation and application of constitutional provisions based on broader ethical considerations.
Focuses on the structural and procedural aspects of governance.	Acknowledges the evolution of societal values and the need for contemporary interpretations.
For eg. – The Indian Constitution, from a constitutionalism standpoint, doesn’t explicitly mention a right to privacy as a fundamental right.	In the Puttaswamy case (2017), the SC recognized the right to privacy as a fundamental right, interpreting the Constitution in a way that aligns with contemporary ethical values.

SC Judgments on various aspects

Active Judiciary judgments

1. Kesavananda Bharati v. State of Kerala (1973): concept of the “Basic structure” of the constitution, asserting that certain core principles and features cannot be altered through constitutional amendments, ensuring the integrity and stability of the constitutional framework.

2.Maneka Gandhi v. Union of India (1978): In this case, the Supreme Court expanded the scope of personal liberty under Article 21, declaring that it includes all freedoms guaranteed by the Constitution.

3.SR Bommai Case (1994): The judgment emphasized the importance of constitutional norms and federalism in dealing with issues related to the dismissal of elected state governments.

4. Vishaka v. State of Rajasthan (1997): The Supreme Court, in the absence of specific legislation, laid down guidelines to prevent and redress sexual harassment, showcasing the judiciary’s proactive role in protecting fundamental rights.

5. Right to Privacy (Puttaswamy case): The judgment expanded the scope of Article 21 to include the individual’s right to privacy, marking a significant development in the protection of personal autonomy.

6. Right to Marriage (Hadiya case): The judgment reinforced the autonomy of individuals in matters of marriage and upheld the principle of individual choice as an integral part of the right to life and personal liberty..

7. Decriminalization of Section 377 (Navtej Singh Johar case): The judgment affirmed the rights of LGBTQ+ individuals and upheld the principles of equality and non-discrimination.

8. Prevent Honor Killing (Shakti Vahini case): The judgment emphasized the need for preventive measures and protection of couples exercising their right to marry outside traditional societal norms.

9. Address Environmental Pollution (MC Mehta case).

SC Judgments on Environment

Vellore Citizens Welfare Forum case: The Court emphasized the polluter pays principle and held that Article 21 of the Indian Constitution includes the right to a healthy environment.

M.C. Mehta case (1986): This case laid the foundation for the “Public Trust Doctrine,” which holds that natural resources are held in trust by the state for the benefit of the public. The court issued orders to close down several polluting industries.

Subhash Kumar v. State of Bihar (1991): The court recognized the right to a pollution-free environment as an integral part of the right to life under Article 21.

A.P. Pollution Control Board v. Prof. M.V. Nayudu (2001): The court reiterated the importance of the “Polluter Pays” principle and held that industries causing environmental degradation must pay compensation for the damage caused.

T.N. Godavarman Thirumulpad v. Union of India (2012): The court established the concept of “intergenerational equity” and directed the closure of illegal mining and unauthorized construction within forests.

Centre for Public Interest Litigation v. Union of India (2011): The court took a strong stance against illegal mining in Goa and Karnataka, emphasizing the importance of sustainable mining practices and environmental conservation.

SC Judgments on Gender Justice

Vishaka & Ors. v. State of Rajasthan: The court observed that as per Articles 14(2), 19(1)(g), and 21(4), every profession, trade, or occupation should provide a safe working environment to all the employees. Using powers under Article 141, the court provided certain guidelines to deal with cases of Sexual Harassment of women at workplaces.

Laxmi v. Union of India: This case led to the enactment of Section 357-A in the CrPC which provides compensation to the victims of acid attack or their dependents. The Supreme Court announced a minimum compensation of 300000₹ to all the victims. Section 357-C was also inserted in the CrPC which provides that all hospitals be it a centrally run hospital, a state-run hospital or a private hospital shall provide first aid to an acid attack victim free of cost.

Shayara Bano v. Union of India (Triple Talaq case): The Supreme Court held the practice followed by Muslim husbands of taking divorce by saying talaq thrice as unconstitutional.

Naz Foundation v. Government of NCT of Delhi: the apex court held Section 377 of the Indian Penal Code, 1860 as unconstitutional for violating Article 14, 15, 19, and 21 of the Constitution to the extent of criminalizing consensual intercourse between two adults.

State Of Maharashtra And Another vs Madhukar Narayan Mardikar(1991): According to the Supreme Court, every woman has a right to sexual privacy, which cannot be subjected to invasion by anyone at any time.

Independent Thought v. Union of India(2017): In this landmark case, the Supreme Court of India held that the exception to Section 375(2) of the Indian Penal Code, which allows for non-criminalization of marital rape, is unconstitutional and violates the rights of women. The court also held that sexual intercourse with a minor wife below the age of 18 would constitute statutory rape, irrespective of marital status.

Secretary, Ministry of Defence v. Babita Puniya (2020): The Supreme Court, in this case, held that the Short Service Commission (SSC) women officers in the Indian Army are entitled to Permanent Commission (PC) on par with their male counterparts. The judgment emphasized gender equality and recognized the commitment and service of women officers in the armed forces.

Lt. Col. Nitisha v. Union of India (2021): This case involved a plea by a woman officer seeking direction from the Army to grant her Permanent Commission. The Supreme Court directed the Indian Army to grant Permanent Commission to women officers who had opted for it and completed 14 years of service, reiterating the principles of gender equality and non-discrimination.

Mary Roy v. State of Kerala: It is a landmark judgment of 1986 pronounced by the Supreme Court of India recognizing the rights of Christian women related to intestate successions. Gaurav Jain v. Union of India (1997): The Supreme Court held that the denial of maternity leave to a female employee due to her pregnancy was discriminatory and violated the principles of equality.

SC Judgments on Children

Bachpan Bachao Andolan vs Union of India: In the PIL filed by BBA, the Supreme Court issued notice to the central government and the NCPCR following a BBA PIL seeking the implementation of guidelines for the safety of children in schools.

Society of Private Unaided Schools vs. Union of India: The apex court upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009.

Bachpan Bachao Andolan vs. Union of India: The Supreme Court recognized trafficking as an organized crime and defined it in accordance with the United Nations Convention Against Transnational Organised Crime (UNCTOC). The court also ordered a total ban on the use of children in circuses.

J. K. Mittal v. State of Haryana (2002): The Supreme Court directed the state government to take measures to prevent child labor and ensure the welfare of children involved in the hazardous industry of firecracker manufacturing.

Vishal Jeet vs Union of India: The Supreme Court issued directions to the State Government for eradicating child prostitution and setting up rehabilitative homes for such children.

Court on its own motion vs State of Delhi: The Delhi High Court laid down guidelines – to ensure sensitivity of the criminal justice system towards victims of child sexual abuse; the responsibilities of the police, the manner in which medical examination should be conducted, recording of a statement by the magistrate, and the procedure before the trial court.

SC judgments on Tribals

Samatha v. State of Andhra Pradesh(1997): The judgment clarified that tribal land cannot be transferred to non-tribals without the approval of the government, protecting the land rights of tribal communities.

Nandini Sundar v. State of Chhattisgarh(2011): The Supreme Court issued guidelines to ensure the protection of tribal rights and prevent human rights violations in conflict zones.

Gram Sabha, Village Khamti v. State of Arunachal Pradesh(2019): The judgment highlighted the significance of tribal self-governance, the protection of their customary rights and the autonomy of Gram Sabhas in decision-making processes related to land and resources..

Forest Rights Committee, Tikamgarh v. State of Madhya Pradesh(2019): The judgment emphasized the need for proper implementation of the FRA to protect the rights of tribals over forest land.

Kailas & Others v. State of Maharashtra(2011): The Supreme Court emphasized the importance of fair compensation, rehabilitation, and the need to safeguard the rights and interests of tribal communities affected by development projects.

SC judgments on Minorities

T.M.A. Pai Foundation v. State of Karnataka(2002): The Supreme Court upheld the autonomy of minority educational institutions, recognizing their right to establish and administer institutions of their choice.

Mohd. Hanif Quareshi v. State of Bihar(1959): The judgment balanced the religious practices of minorities with the state’s interests in preserving public order and preventing cruelty to animals.

St. Xavier’s College Society v. State of Gujarat(1974): The Supreme Court, in this case, affirmed the autonomy of minority educational institutions, emphasizing that they have the right to admit students of their choice and administer their internal affairs without interference from the government.

Bal Patil v. Union of India(2005): This case dealt with the interpretation of the term “linguistic minorities” under Article 30 of the Constitution, which provides rights to minorities to establish and administer educational institutions. The Supreme Court clarified the scope of linguistic minorities and their rights under the Constitution.S.R. Bommai v. Union of India(1994): While not specific to minorities, the judgment emphasized the secular nature of the Constitution and the importance of protecting minority rights in the political context.

November 15, 2024

PREAMBLE OF THE INDIAN CONSTITUTION

The American constitution was the first to begin with a preamble. Many counties, including India, followed this practice. A preamble is an introductory and Expressionary statement in a document that explains the document’s purpose and underlying philosophy.

Historical Background

On December 13, 1946, Nehru moved the ‘Objective Resolution’ in the Constituent Assembly. This resolution defined the basic goal or purpose of the Indian Constitution. The same resolution was later modified and adopted as the Preamble to the Indian Constitution.

Provisions of the Objectives Resolution:

It proclaimed India to be an independent Sovereign Republic.
It declared the aim of the Constituent Assembly to write a constitution which fosters unity of the nation and ensures it’s economic and political security.
All powers and authority of sovereign and independent India and its constitution shall flow from the people.
India to have a Federal form of government with Division of Powers between the Centre and the States.
All people of India shall be guaranteed and secured social, economic, and political justice; equality of status and opportunities and equality before the law; and fundamental freedoms – of speech, expression, belief, faith, worship, vocation, association and action – subject to law and public morality.
To provide adequate safeguards to the minorities, backward and tribal areas, depressed and other backward classes.
To maintain the integrity of the territory of the Republic and the sovereign rights on land, sea and air according to the law of civilized nations.
To attain a rightful and honored place in the world and make willing contribution to the promotion of world peace and the welfare of mankind.

Components of the Preamble:

Source of authority for the Constitution – The Preamble states that the Constitution derives its authority from the people of India.
Nature of Indian State – It declares India to be a Sovereign, Socialist, Secular Democratic, and Republican Polity.
Objectives of the Constitution – It specifies Justice, Liberty, Equality, and Fraternity as the objectives.
Date of adoption of the Constitution – It stipulates November 26, 1949, as the date of its adoption.

Significance of preamble with scholar’s Viewpoints

In Sajjan Singh vs State of Rajasthan, Justice Madholkar said that the Preamble had the stamp of “deep deliberation”, was “marked by precision” and the “framers of the Constitution attached special significance to it.” The Preamble was “an epitome” of the broad features of the Constitution which were an amplification or concretization of the concepts set out in the Preamble.
Sir Alladi Krishnaswami Iyer’s View: Describes the Preamble as the expression of long-held thoughts and dreams.
K.M. Munshi’s Perspective: Considered the Preamble as the “horoscope” of India’s sovereign democratic republic.
Pandit Thakur Das Bhargava described the Preamble as the most precious part and soul of the Constitution. A yardstick to measure the worth of the Constitution.
Sir Ernest Barker’s Tribute: An English political scientist, Barker called the Preamble the “keynote” of the Constitution and quoted it in his book Principles of Social and Political Theory (1951).
M. Hidayatullah’s Observation: A former Chief Justice of India compared the Preamble to the Declaration of Independence of the USA, asserting it is more than a declaration—it is the soul of the Constitution, defining the structure of India’s political society.

Debate surrounding whether preamble is part of constitution or not

Berubari Case (1960) – the Supreme Court held that the Preamble serves as a guide to understand the framers’ intentions but is not part of the Constitution and is not enforceable in a court of law. Justice Gajendragadkar stated that the Preamble does not confer substantial powers on the state, using it as a reference under Article 143(1) regarding the Indo-Pakistan Agreement.
In Golak Nath v. State of Punjab, Justice Hidayatullah observed that the Preamble represents the core principles guiding the functioning of the government and described it as the “very soul” of the Constitution, eternal and unalterable.
In Bharti Chandra Bhavan v. State of Mysore, the Court emphasized that the scope of Directive Principles and Fundamental Rights can be better understood by referring to the objectives outlined in the Preamble.
Kesavananda Bharati Case:
- The Preamble is not the supreme power or source of any restriction or prohibition but it plays an important role in the interpretation of statutes and provisions of the Constitution. So, the preamble is part of the introductory part of the Constitution.
- Justice Sikri held: The Preamble was not only very much a part of the Constitution, but was of extreme importance and the Constitution should be read and interpreted in the light of grand and noble vision expressed in the Preamble. Any provisions of the Constitution could be amended under article 368 only within the broad contours of the Preamble and of the Constitution.
- In the words of the learned Supreme Court, The edifice of our Constitution is based upon the basic elements mentioned in the Preamble. If any of these elements are removed, the structure will not survive and it will not be the same Constitution or it cannot maintain its identity.
The 1995 case of Union Government Vs LIC of India: The Supreme Court has once again held that Preamble is an integral part of the Constitution but is not directly enforceable in a court of justice in India.

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Salient Features and keywords in Preamble

Sovereignty:

Sovereignty refers to the supreme authority and power that a government or state possesses within its borders. According to Bodin, “Sovereignty is the supreme power of the State over citizens and subjects unrestrained by law”
Popular Sovereignty – The principle of popular sovereignty is concept of the social contract and asserts that the origin of governmental power, or sovereignty, resides in the people.
There are two primary aspects of sovereignty:
- Internal Sovereignty: It includes the power to create and enforce laws, maintain order, and govern institutions within the country.
- External Sovereignty: External sovereignty entails the right to conduct foreign policy, engage in diplomatic relations, and make decisions without undue influence from external forces.

Other Key Attributes of Sovereignty:

Political Authority: Sovereignty grants the state ultimate authority over all governance.
Exclusivity: The state holds exclusive control over its affairs, free from outside interference.
Territoriality: Sovereignty applies to a specific geographic area under state control.
Recognition: International acknowledgment legitimizes a state’s sovereignty.
Legal Autonomy: Sovereign states independently create and enforce their laws.
Internal/External: It involves both domestic control and international independence.
Legitimacy: Sovereignty is tied to government legitimacy, often from public consent.
Defense: The state is responsible for national security and citizen protection.

Sovereignty under the Indian Constitution:

Preamble: The Preamble asserts that the Indian Constitution, adopted on November 26, 1949, derives its authority from the people, affirming India as a sovereign democratic republic.
Article 51A(c): Citizens are constitutionally obligated to uphold and protect India’s sovereignty, unity, and integrity.
Oaths in Third Schedule: The commitment to safeguard India’s sovereignty, unity, and integrity is mandatory in the oaths of Chief Justices, Union Ministers, and MPs.

Limitations of Sovereignty:

Constitutional Limitations
- Fundamental Rights: The judiciary protects these rights by reviewing and striking down any government actions that violate them.
- Judicial Review: Under Article 13, courts can nullify laws that are unconstitutional, ensuring legal compliance with the Constitution.
- Separation of Powers: Article 50 ensures no single branch dominates, maintaining a balance of power in governance.
- Federal Structure: Central and state governments share authority across Union, State, and Concurrent Lists, limiting absolute control by either.
The Basic Structure Doctrine(Kesavananda Bharati v. State of Kerala)
International Limitations
- International Treaties: Agreements like the WTO limit sovereignty in areas such as subsidies, requiring adherence to global regulations.
- Human Rights Standards: Sovereignty may be constrained when domestic policies conflict with international human rights obligations.
- Economic Interdependence: Global trade and financial agreements influence domestic policies, reducing absolute control over economic decisions.
- International Law: Compliance with international norms, such as UNCLOS, restricts sovereignty in specific legal contexts.
Moral Limitations – religious, moral, and legal values like Justice and Fairness, protection of minorities, Accountability and transparency. Eg- No First Use Nuclear Policy.

Impact of Globalization on Sovereignty:

Globalization is considered a ‘double-edged sword’. The complex process of increased interconnectedness and interdependence among countries around the world has both empowered and challenged the traditional concept of state sovereignty.

Political Implications: Globalization spreads democratic values but challenges sovereignty through institutions like the EU, which imposes supranational governance on member states.
Economic Impact: Globalization boosts trade and investment, fostering growth, but exposes states to crises like the 2008 financial meltdown, which had global repercussions.
Multinational Corporations: These entities hold significant cross-border influence, often challenging the regulatory powers of individual nations.
Cultural Dynamics: While promoting cultural exchange, globalization risks eroding traditional identities through homogenization.
Information Technology: IT accelerates cultural globalization, reshaping national values, as seen in social media’s role in the Arab Spring.
Global Challenges: Global crises, like climate change and pandemics, require multilateral solutions, as illustrated by the COVID-19 pandemic.

Recent News

SC in its judgment on Article 370 has held that Jammu and Kashmir ceded its sovereignty to the Dominion of India “absolutely and completely”. It also held that the restraint on the Parliament to enact certain laws in Jammu and Kashmir was due to limitations on enacting laws on subjects in the State List of the Indian Constitution.

Socialism

It is a governmental system that advocates community ownership and control of all lands and businesses rather than individual ownership. The word ‘Socialist’, added in the Preamble by 42nd Amendment Act, 1976 aims to eliminate inequality in income, status and standard of living.

Types of socialism

Revolutionary Socialism: Advocates rapid societal transformation through revolution rather than gradual reforms.
Democratic Socialism: Promotes socialism through democratic means, with a mixed economy model. Eg: Nordic countries (Sweden, Norway).
Scientific Socialism: Marx and Engels’ theory that capitalism will give way to socialism via proletarian revolution.
Anarcho-Syndicalism: Calls for direct action by labor unions to establish a stateless, socialist society. Eg: Spanish Revolution (1936-1939).
Market Socialism: Combines markets with socially owned production, like worker cooperatives. Eg: Yugoslavia under Tito.
Ecological Socialism: Integrates environmentalism into socialism, focusing on sustainable development. Eg: Global Green Party movements.
Reformist Socialism: Seeks change through democratic reforms rather than revolutionary means.

Indian Socialism

42nd Amendment, 1976: The term “Socialist” was added, but the Directive Principles of State Policy (DPSPs) already reflected socialist ideals.
Nehruvian Socialism: Indian socialism emphasized state-led industrialization, central planning, and public sector control of key industries.
Five-Year Plans: Inspired by socialist planning, these plans promoted industrialization and economic development through significant state intervention.
Public Sector Dominance: The government controlled key industries like steel and mining through public enterprises.
Land Reforms: Socialist principles drove land distribution efforts to address rural inequality.
Mixed Economy: The public sector dominated strategic industries, while the private sector operated in various other areas.
Gandhian Socialism –
- For Gandhi, socialism meant equality, where all—prince, peasant, wealthy, poor, employer, and employee—are equal.
- Marxist vs Gandhian Socialism: While Marxist socialism advocates collective ownership and abolishing private property, Gandhian socialism emphasizes self-reliance, cottage industries, and rural revitalization.
- Article 40: Promotes village panchayats to handle local administration, in line with Gandhian ideals.
- Article 43: Encourages the promotion of cottage industries in rural areas. Eg: Khadi and Village Industries Commission (KVIC).
- Article 43(B): Supports the voluntary formation and democratic control of cooperative societies (97th CAA, 2011).
- Social Justice and Welfare: Articles 15, 16, and 46 uphold social justice, preventing discrimination and supporting marginalized sections, reflecting Gandhian Sarvodaya ideals.

Significance of socialism

Inclusive Development: Policies like reservations and Public Sector Enterprises uplift marginalized groups and drive industrialization.
Land Reforms: Abolition of intermediaries and land ceilings aimed at equitable land distribution and promoting rural equality.
Welfare Programs: Programs like MGNREGA and PDS provide social security; MGNREGA reduced poverty by up to 32%.
Panchayati Raj Institutions: Empower communities and promote grassroots democracy. Eg: Kerala’s decentralized planning model.
Mixed Economy: Post-LPG, private enterprises play a role, but public entities like Indian Railways and LIC remain integral.
Affordable Healthcare: NHM and Ayushman Bharat provide affordable healthcare, reflecting socialist goals of welfare.
Education for All: The RTE Act ensures free, compulsory education for children aged 6 to 14, promoting equal opportunities.
Workers’ Rights: Laws like the Minimum Wages Act and Factories Act ensure justice for workers.
Poverty Alleviation: Programs like PMAY and NRLM aim to reduce poverty and enhance vulnerable populations’ well-being.

Challenges to socialism in India

Economic Liberalization: Post-1991 reforms reduced public sector share from 35% in 1991 to 22% in 2020, shifting towards a market-driven economy.
Inefficient Public Sector: Air India incurred losses of over ₹70,000 crore by 2020, highlighting inefficiencies in state enterprises.
Wealth Inequality: As per Oxfam’s 2022 report, the top 1% in India held over 40.5% of the country’s total wealth, exacerbating inequality.
Land Reform Implementation: By 2013, land reforms redistributed only 4% of India’s total agricultural land, leaving large tracts in the hands of landlords.
Privatization Trends: The government’s target for FY 2022-23 was to raise ₹65,000 crore through privatization, further reducing public ownership.
Corruption in Welfare: Reports showed that 48% of MGNREGA funds were delayed in 2018, with inefficiencies affecting scheme execution.
Globalization Pressures: WTO obligations limited India’s agricultural subsidies under the Agreement on Agriculture, restricting state control.
Cultural and Political Resistance: Opposition to farm laws in 2020 reflected resistance to reduced state intervention in agriculture, a key socialist sector.

SC judgments on Socialism

D.S. Nakara v. Union of India (1983): Expanded pension schemes, promoting social justice for retired government employees.
Olga Tellis v. Bombay Municipal Corporation (1985): Recognized livelihood as part of the right to life under Article 21, underscoring the state’s role in ensuring social justice.
Bandhua Mukti Morcha v. Union of India (1984): Upheld the right to dignity and fair wages as Fundamental Rights, emphasizing the state’s obligation to eliminate practices that conflict with socialist ideals of justice and equality.
Minerva Mills v. Union of India (1980): Reaffirmed socialism as promoting economic equality and welfare state principles.
Ashoka Kumar Thakur v. Union of India (2008): Upheld reservations as a tool for social justice, supporting equality for marginalized groups.
Excel Wear v. Union of India (1979): Balanced socialism with individual rights, ruling that socialism should not undermine the right to conduct business.
J.K. Industries v. Union of India (2007): Emphasized state intervention to protect workers’ rights, reflecting socialist labor welfare principles.

Secularism

Secularism is a principle or ideology that advocates for the separation of religious institutions and beliefs from the affairs of the state, government, or public institutions.

According to Akeel Bilgrami, Secularism consists of three commitments

Freedom of religious belief and practice,
Principles enshrined in the constitution such as equality, freedom of speech, gender equality
Meta-commitment, which says if there is a clash between the first and second commitments, the second commitment must get priority

Secularism under the Indian constitution

Article 15: Prohibits discrimination based on religion, race, caste, sex, or place of birth, ensuring equal treatment by the state.
Article 16: Guarantees equality of opportunity in public employment, prohibiting discrimination on various grounds.
Articles 25-28: Ensures freedom of religion, allowing individuals to practice and propagate their religion, subject to public order.
Article 28: Protects the rights of minorities to establish and manage educational institutions.
Articles 29 & 30: Provide cultural and educational rights to protect minority interests.
Article 44: Promotes the idea of a Uniform Civil Code to establish common laws for all citizens.
Article 51A: Fundamental duty to promote harmony, preserve cultural heritage, and foster brotherhood.

Significance of secularism

Religious Pluralism: Secularism maintains social harmony, allowing diverse religious groups to coexist peacefully. Eg: India’s celebration of multiple religious festivals, like Diwali, Eid, and Christmas.
Protection of Individual Rights: Secularism protects the right to practice any religion or none without discrimination. Eg: Article 25 guarantees freedom of religion.
Constitutional Framework: Secularism is embedded in the Preamble, with Articles 15, 25-28 ensuring religious freedom and equality.
Equality and Inclusion: It prevents religious favoritism, promoting an inclusive society. Eg: The government’s neutrality in issues like temple and mosque disputes.
Protection of Minority Rights: Secularism protects minority rights to establish institutions, as per Articles 29 and 30. Eg: Christian and Muslim minority schools.
Prevention of Religious Discrimination: It separates religion from state power, discouraging the imposition of religious beliefs.
Promotion of Rational Governance: Policies are based on rationality, not religious beliefs. Eg: Legislation on education, like the Right to Education Act, applies uniformly across communities.
Political Inclusivity: Secularism discourages religion-based political mobilization, promoting broad-based leadership.
Safeguard Against Religious Conflict: Secularism acts as a safeguard against communal violence by ensuring the state remains neutral in religious matters.

Western vs Indian secularism

Western secularism	Indian secularism
Implies a clear and distinct division between religious institutions and governmental affairs. Eg- the French laïcité model bans religious symbols in public institutions.	Represents the positive notion of secularism, wherein equal reverence is accorded to all religious beliefs.
Evolved during the European Renaissance as a response to widespread corruption in the Church and undue interference in state matters.	It originated in the ancient Vedic era and is grounded on religious pluralism (Sarva Dharma Samabhav and Dharma Nirapekshata.)
Equal distance model – religion is generally seen as a private matter, and the state aims to maintain equal distance from all religious institutions.	Principled distance model – Recognizes religion’s societal role, accommodating diverse beliefs with state support and promoting religious pluralism and coexistence.
Individual rights take precedence in Western secularism.	Extends beyond individual rights to also address the concerns and rights of religious and cultural minority communities.
It does not accommodate the notion of state-sponsored religious reform.	It is in harmony with the concept of state-sponsored religious reform. Eg- Article 17, Triple Talaq Ban

Criticism of and Threats to Indian Secularism

Selective Secularism: Rising religious nationalism and incidents like mob lynching have heightened communal tensions, showing state favoritism.
Minority Appeasement: Parties have been accused of targeting specific religious groups for electoral gains, raising concerns about vote-bank politics. Eg: Promises of religious quotas during elections.
Religious Intervention in State Matters: Government control over Hindu temples in some states has sparked debates over the state’s role in religious affairs.
Lack of Uniform Civil Code: Personal laws based on religion contribute to legal inequalities, hindering a uniform legal framework.
Rise of Communal Tensions: Inadequate state action against communal conflicts questions the success of secularism in fostering religious harmony.
Inadequate Protection of Free Speech: Secularism has been criticized for limiting free speech, especially in cases of religious criticism or satire.
Ineffectiveness in Addressing Social Issues: Indian secularism has struggled to address caste discrimination, despite its commitment to social justice.
Need for Reinterpretation: There is a call to realign secularism with contemporary challenges, ensuring fairer application across all religious communities.

Scholar views

Rajeev Bhargava: Critiqued “principled distance,” arguing it may not adequately address India’s complex religious diversity. He advocates for a more nuanced, context-specific approach.
Martha Nussbaum: Criticizes secularism’s failure to fully address gender justice, calling for stronger protection of women’s rights in religious communities.
Asghar Ali Engineer: Advocates interfaith dialogue and criticizes secularism’s failure to tackle socio-economic disparities among religious minorities, calling for inclusive policies.

SC judgments related to secularism

S.R. Bommai v. Union of India (1994): The Court held that secularism is a basic feature of the Constitution, asserting that the state must remain neutral and not favor any religion.
Aruna Roy v. Union of India (2002): The Court upheld the inclusion of value-based education, stating it does not infringe on the secular nature of the Constitution, as long as it does not promote any particular religion.
M.P. Gopalakrishnan Nair v. State of Kerala (2005): The Court emphasized that no religious instruction shall be provided in government-aided schools, protecting secularism in education.
Kesavananda Bharati v. State of Kerala – the Supreme Court of India held that secularism is a part of the basic structure of the Constitution.
Ahmedabad St. Xavier’s College v. State of Gujarat – the Supreme Court held that secularism neither means anti-God nor pro-God. Secularism, therefore, eliminates the concept of God in matters of the state.

Way forward

Strengthen Constitutional Safeguards: Ensure strict adherence to Articles 15, 25-28, and 44 to promote religious equality and protection of individual rights.
Uniform Civil Code (UCC): Gradually implement the UCC to eliminate disparities in personal laws and promote a common legal framework, ensuring equal treatment across communities.
Promote Interfaith Dialogue: Encourage platforms for interfaith dialogue to foster mutual understanding and reduce religious tensions.
Improve Education on Secularism: Integrate secularism into school curricula to instill the values of equality, tolerance, and respect for all religions from a young age.
Curtail Communal Politics: Enforce strict laws against using religion in political mobilization and electoral campaigns to prevent communal divisions.
Address Socio-Economic Disparities: Focus on socio-economic development of religious minorities to reduce inequalities and foster an inclusive, secular society.
Media Responsibility: Promote responsible media reporting that avoids sensationalizing religious issues and encourages balanced, respectful coverage of religious matters.
Strict Action Against Hate Crimes: Implement stringent laws to address communal violence, mob lynching, and hate crimes that threaten secularism.
Promote Secular Public Spaces: Encourage cultural events, public platforms, and policies that celebrate India’s religious diversity while upholding secular values.

Quotes

Shashi Tharoor: “Indian secularism has always been the idea of India. This idea of India is that it is not just a country; it’s an idea, a pluralistic idea.”
Maulana Abul Kalam Azad: Secularism is not confined merely to political democracy but goes much beyond that. It is a political, social and cultural process.”

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Democracy

Democracy is a system of government in which power is vested in the hands of the people, either directly or through elected representatives. The word democracy comes from the Greek words “demos”, meaning people, and “kratos” meaning power; so democracy can be thought of as “power of the people“: a way of governing which depends on the will of the people.

Types of democracy

Direct democracy : When people directly express their will or vote on matters of public interest, the type of government is known as direct democracy. Ex. Switzerland
Indirect democracy : When people express their will on matters of public interest through their elected representatives, the type of government is known as indirect or representative democracy. Ex. India

Democracy under the Indian constitution

Preamble: Declares India as a democratic republic, where ultimate power resides with the people.
Article 75: Establishes a parliamentary democracy where the executive is accountable to the legislature for its actions.
Universal Adult Franchise (Article 326): Ensures all adult citizens have the right to vote, reinforcing democratic participation.
Periodic Elections (Articles 170, 172, 174): Mandates regular elections to uphold democracy.
Rule of Law (Article 14): Ensures equality before the law, a cornerstone of democratic governance.
Fundamental Rights (Articles 14-32): Guarantee essential rights like equality, free speech, and personal liberty, necessary for democratic functioning.
Social and economic democracy –
- Article 38 (DPSPs): Secures a social order promoting welfare and aims to reduce income inequalities, supporting social and economic democracy.
- Right to Equality (Articles 14-18): Guarantees equality before the law, prohibiting discrimination on grounds of religion, race, caste, sex, or place of birth.
- Reservation Policies (Articles 15(4) and 16(4)): Provide reservations in education and employment for backward classes, promoting social justice and representation.
- Right to Work (Article 41): Directs the state to ensure the right to work, education, and assistance, offering economic security.
- Protection against Exploitation (Articles 23 & 24): Prohibit forced and child labor, safeguarding citizens from exploitation.

Need For Democracy

Instrumental Value (Amartya Sen): Democratic governance is essential for achieving societal goals like economic development, social justice, and individual freedoms. Sen’s capability approach stresses the role of political rights in enabling individuals to lead fulfilling lives.
Inclusivity: Democracy ensures diverse voices are heard, as seen in the PESA Act and the 5th and 6th Schedules, which represent tribal communities.
Accountability: Regular elections hold representatives accountable, as demonstrated by the change in government post-Emergency.
Protection of Rights: Democracy safeguards the rights of minorities, women, and marginalized groups, contributing to social equity.
Stability and Peace: It encourages open debate, fostering reasoned collective decisions, not coercion.
Course Corrections: Democracy allows for rectification of past mistakes, exemplified by the Prime Minister’s apology to the Sikh community for 1980s atrocities.
Economic Development: Rule of law and respect for property rights in democracies attract investment, promoting a stable economic environment.
Entitlements and Justice (Amartya Sen): In Development as Freedom, Sen argues that democracy ensures fair distribution of resources and opportunities.
International Standing: India, as the world’s largest democracy, influences global discourse on democratic values and governance.

Reasons behind the resilience of Indian Democracy

Strong Constitutional Framework: India’s federal system (Article 245) divides power between the center and states, fostering regional participation. The independent judiciary ensures the rule of law and protects fundamental rights (Part III).
Free and Fair Electoral Process: India’s elections are peaceful, with universal adult suffrage (Article 326). The Election Commission ensures fair elections, with advancements like VVPAT for transparency.
Independent Judiciary: Key judgments like Maneka Gandhi v. Union of India (1978) and Kesavananda Bharati v. State of Kerala (1973) safeguard rights and uphold the Constitution’s basic structure.
Peaceful Transfer of Power: India’s acceptance of electoral outcomes underscores the strength of democratic institutions.
Strong Institutional Framework: Bodies like the CAG and Election Commission act as checks on power. Eg: The CAG report on the 2G scam highlighted corruption.
Accommodation of Diversity: The rise of regional parties and new entrants like AAP shows the system’s adaptability to diverse political aspirations.
Vibrant Civil Society and Media: Organizations like ADR advocate for transparency and accountability in governance. Eg: ADR pushes for electoral reforms.
Resilient Democratic Culture: Movements like Chipko, Narmada Bachao Andolan, and Anna Hazare’s anti-corruption movement showcase citizens’ active role in shaping democratic processes.

Threats to Indian democracy

Political Threats:
- Decline of Parliament: Disruptions, declining committee productivity, and reduced sitting days illustrate this trend. Eg: Lok Sabha sittings fell from 121 days annually (1952-70) to 56 days in 2022 (PRS report).
- Authoritarianism: Authoritarian tendencies erode democratic principles like freedom of expression and the rule of law. Eg: Emergency in 1975 curtailed civil liberties and democratic processes.
- Political Polarization: Divisive politics based on religion or caste deepens societal divisions and weakens trust in institutions. Eg: Delhi Riots in 2020 fueled religious polarization.
- Dynastic Politics: Concentration of power in political families undermines meritocracy, limiting competition and accountability.
Economic Threats:
- Widening Economic Inequality: Growing economic disparity undermines equal representation and access to power. Eg: Oxfam report shows the top 10% of Indians hold 77% of the national wealth.
- Corruption: Corruption distorts democratic processes, eroding trust in institutions and fairness. Eg: Scandals like the 2G scam, Coal scam, and paper leaks highlight systemic issues.
- Crony Capitalism: It enables the capture of state resources and policies for private gain, undermining democratic accountability and economic fairness.
Social Threats:
- Communal Tensions and Violence: Religious or ethnic violence weakens social cohesion and governance by fostering polarization. Eg: Gujarat riots of 2002 intensified religious divisions.
- Caste-based Discrimination: Persistent caste inequalities limit marginalized communities’ political participation, undermining equal representation. Eg: Una flogging incident in 2016 showcased deep-rooted caste bias.
- Gender-based Discrimination: Gender inequality restricts women’s political participation. Eg: Only 15% of Lok Sabha and 13% of Rajya Sabha MPs are women.
- Limited Awareness: Lack of awareness of democratic principles, especially in caste-based societies, risks undermining constitutional values. Eg: Karnataka MP’s statement on changing the Constitution highlights this concern.
Legal-Constitutional Threats:
- Erosion of Institutions: Weakening key democratic institutions undermines the rule of law and governance. Eg: SC referred to CBI as a “caged parrot,” criticizing its lack of independence.
- Executive Overreach: Increasing executive power through ordinances or emergency measures can disrupt checks and balances. Eg: Growing use of ordinances bypasses legislative scrutiny.
- Misuse of Legal Mechanisms: Laws like sedition or defamation are sometimes misused to suppress dissent and curtail freedom of expression, undermining democratic rights.
Technological Threats:
- Misinformation and Disinformation: The spread of false information on social media can distort public discourse and manipulate electoral outcomes, undermining trust in democratic institutions.
- Digital Surveillance: Excessive surveillance by state or non-state actors infringes on privacy and suppresses free expression, creating a climate of fear and limiting democratic participation.
- Cyberattacks: Targeting electoral systems or political actors disrupts democratic processes and undermines trust. Eg: Cyberattacks during the US 2016 elections compromised electoral integrity.

Way forward

Social Democracy: As Ambedkar emphasized, political democracy needs a foundation of social democracy. Addressing social inequalities and ensuring equal opportunities are essential for a lasting democratic system.
Electoral Reforms: Known as the “Mother of all Reforms,” electoral reforms are critical. This includes financing transparency, decriminalization of politics, and strengthening anti-defection laws.
Strengthen Democratic Institutions: Safeguarding the independence and integrity of institutions like the Election Commission and judiciary is vital to uphold democratic principles and the rule of law.
Enhancing Transparency: Promote transparency in government through measures like the Right to Information (RTI) Act, citizen charters, and social audits to ensure accountability and public oversight.
Civic Education: Empower citizens through civic education about their rights, responsibilities, and the functioning of democratic institutions. Encourage grassroots civic engagement and participation in democratic processes for a more vibrant democracy.

Scholar’s views :

“Political democracy cannot last unless there lies at the base of it social democracy.” – Ambedkar
“Democracy is not a form of government, but a form of social organization.” – Ambedkar
“In a democracy, the highest office is the office of the citizen.” – Tagore

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Republic

A republic is a form of government in which the head of state is elected, rather than being a hereditary monarch, and power rests with the people or their elected representatives. In a republic, sovereignty lies with the citizens, and governance is carried out according to a constitution or set of laws, ensuring the rule of law, equality, and protection of individual rights.

The different types of republics are as follows:

Democratic Republic: A republic where representatives are elected by the people, and the government is based on democratic principles. Eg: India, the United States.
Federal Republic: A federation of states or provinces with a division of powers between the central government and regional governments. Eg: Germany, Brazil.
Presidential Republic: The president is both the head of state and the head of government, with separate executive and legislative branches. Eg: United States, Argentina.
Islamic Republic: A republic governed by Islamic laws, often with elected officials but also influenced by religious leaders. Eg: Iran, Pakistan.
People’s Republic: Typically refers to socialist or communist republics where the state claims to represent the common people, often with centralized control. Eg: China, North Korea.
Unitary Republic: A republic where power is concentrated at the national level, with limited autonomy for regional governments. Eg: France, Indonesia.

Significance of republic

Sovereignty and Independence: The Constituent Assembly recognized the necessity of India being a sovereign and independent republic. As Nehru stated, India could not accept external or local monarchies and had to be a republic to reflect its sovereignty.
Vesting of Power in the People: A Republic empowers the people. Dr. P.K. Sen highlighted that all authority must derive from the people, making India a republic where ultimate power rests with its citizens.
Equality and Liberty: B.R. Ambedkar stressed the need for political democracy to align with social democracy, ensuring liberty, equality, and fraternity for all. A republic aims to secure these ideals for its citizens.
Unity and Integrity: S.V. Krishnamoorthy Rao emphasized the Republic’s role in fostering national integration across political, financial, economic, judicial, and defence systems, ensuring India’s unity and integrity.

Justice

In the words of John Rawls, “Justice is the first virtue of social institutions, as truth is of systems of thought.”

According to Amartya Sen, Justice is not merely a matter of giving people what they are entitled to, but also a matter of treating people with the equal concern and respect they deserve.
The key elements of Justice include Fairness, equality, rights, impartiality and accountability.

Types of Justice

Distributive Justice: Focuses on ensuring all members of society receive a fair share of resources and benefits. Eg: Articles 38 and 39 of DPSP, which promote social and economic justice.
Procedural Justice: Ensures that decisions are made and implemented through fair processes, safeguarding fair treatment. Eg: Article 21, guaranteeing the ‘procedure established by law.’
Retributive Justice: Based on the principle of punishment proportionate to wrongdoing, aiming for justice through accountability. Eg: Indian Penal Code (IPC) and Criminal Procedure Code (CrPC).
Restorative Justice: Aims to heal victims, rehabilitate offenders, and repair harm caused to the community. Eg: Article 39A (Equal Justice and Free Legal Aid) and Article 32 (Right to Constitutional Remedies).

Dimensions of Justice

Political Justice: Ensures equal political participation and power distribution, allowing all to engage in voting and governance. Eg: Universal Adult Franchise under Article 326.
Economic Justice: Focuses on fair wealth distribution and access to resources like education and healthcare, addressing inequality. Eg: Progressive taxation, Articles 38 and 39 of DPSP.
Social Justice: Aims to address systemic disparities in wealth, race, gender, and other factors, promoting equality. Eg: Reservation policies under Articles 15 and 16.
Legal Justice: Ensures laws and policies align with human rights and democracy, providing access to justice and due process. Eg: NALSA (National Legal Services Authority) ensuring legal aid.
Gender Justice: Seeks to dismantle patriarchal norms and promote gender equality and empowerment. Eg: Vishakha Guidelines to prevent workplace harassment (SC judgment).
Environmental Justice: Promotes fair treatment in the enforcement of environmental laws, ensuring the right to a clean environment. Eg: M.C. Mehta case (SC) recognizing the right to a clean environment under Article 21.
Global Justice: Focuses on fairness in global resource distribution and addressing international issues like poverty and climate change. Eg: Common but Differentiated Responsibilities (CBDR) under UNFCCC.

Principles of Justice under the Indian constitution

Equality and Non-Discrimination:
- Article 14: Equality before Law – This guarantees equal protection of laws for all citizens.
- Article 15: Prohibition of Discrimination on grounds of Religion, Race, Caste, Sex or Place of Birth – This prohibits discrimination against individuals based on these factors.
- Article 16: Equality of opportunity in matters of public employment – This ensures equal opportunity for government jobs regardless of caste, religion, etc.
- Article 17: Abolition of Untouchability – This abolished the practice of untouchability, a historical social evil.
Right to Life and Personal Liberty (Article 21) encompasses various aspects of justice, including the right to dignity, privacy, and fair trial. It ensures that individuals are protected from arbitrary deprivation of life or liberty and have access to justice and due process.
Fair Legal Process:
- Article 21: Protection of Life and Personal Liberty – This guarantees a fair trial and due process before a person is deprived of life or liberty.
- Article 22: Protection in case of Arrest and Detention – This lays down specific procedures to be followed in case of arrest and detention.
DPSP (Part IV): Guides the state to promote social, economic, and political justice, focusing on equitable resource distribution and protection of marginalized groups.
Independent Judiciary: Ensures impartial adjudication, protects fundamental rights, and upholds the rule of law, acting as a check on government power.

Achievements of India in Securing Justice

Political Justice: Expanding Fundamental Rights, 61st Amendment reducing voting age to 18, electoral reforms (EVM, VVPAT), women reservation, and RTI Act promoting transparency.
Economic Justice: Programs like NRLM and MGNREGA enhance financial inclusion and empowerment, with 415 million people lifted out of poverty (2005-2021, Global MPI).
Social Justice: Land reforms, SC/ST (Prevention of Atrocities) Act, reservation policies, and welfare schemes like MGNREGA, NSAP, and Atal Pension Yojana reduce historical injustices.
Landmark Legal Reforms: RTI Act (2005) promotes transparency; Sexual Harassment Act (2013) addresses workplace gender discrimination.
Judicial Activism: Vishakha v. State of Rajasthan (1997) on workplace harassment and NALSA v. Union of India (2014) on transgender rights expanded justice for marginalized groups.
Access to Legal Aid: NALSA and SLSAs ensure free legal aid. SC in P. Shivakoti Reddy v. State of Andhra Pradesh (1993) mandated legal aid for death row convicts.

Role of Judiciary

Guardian of the Constitution: The judiciary interprets the Constitution (Article 123) and ensures that legislative and executive actions align with its provisions.
Protector of Fundamental Rights: Through judicial review, courts can nullify unconstitutional laws. Eg: Kesavananda Bharati v. State of Kerala (1973) established the basic structure doctrine.
Upholding the Rule of Law: The judiciary enforces equality before the law (Article 14), preventing government arbitrariness. Eg: Indra Sawhney case limited reservations to 50%, ensuring equality.
Promoting Social Justice: The judiciary promotes affirmative action and eradicates social evils. Eg: Dhanabati Devi v. Sham Lal Mehta (2005) recognized women’s right to equality in property laws.
Use of PIL: Public interest litigation (PIL) enables social justice reforms. Eg: Hussainara Khatoon v. State of Bihar (1979) led to the release of undertrial prisoners.

Challenges

Judicial Delays: Over 47 million cases are pending across Indian courts as of 2023, causing significant delays in justice.
Access to Legal Aid: Despite NALSA, only 15% of eligible people are aware of free legal aid services, limiting access for marginalized groups.
Corruption: The VYAPAM Scam in Madhya Pradesh highlighted corruption’s role in weakening public trust in the justice system.
Inequality and Discrimination: The Una flogging incident (2016) exemplifies how caste-based violence continues to obstruct justice for marginalized communities.
Political Interference: The controversy over judicial appointments in the NJAC case (2015) reflected political attempts to influence the judiciary.
Legal Literacy: Only 36% of rural citizens are aware of their fundamental rights, limiting effective legal participation.
Costs of Litigation: Legal expenses for average cases can exceed ₹1 lakh, making justice inaccessible for the economically weaker sections.
Police Reforms: Custodial deaths like in the Sathankulam case (2020) show the urgent need for police accountability and reform.

Way Forward

Judicial Reforms: Malimath Committee (2003) Recommended reforms to speed up the justice delivery system, including setting up more fast-track courts and using technology to reduce case backlog.
Enhancing Legal Aid Awareness: National Legal Services Authority (NALSA) Action Plan (2010), suggested public awareness campaigns, especially in rural areas, to inform citizens about free legal aid services.
Anti-Corruption Measures: Second Administrative Reforms Commission (ARC) (2007), recommended creating an independent National Judicial Council to ensure accountability within the judiciary.
Tackling Inequality: Sachar Committee (2006), recommended special legal aid cells and fast-track courts for marginalized communities, especially minorities, to ensure timely justice.
Judicial Independence: Law Commission of India (214th Report, 2008), called for transparency in the judicial appointment process and the establishment of an independent body to recommend appointments to maintain judicial independence.
Legal Literacy Programs: National Knowledge Commission (2007): Proposed strengthening legal literacy programs in schools and local communities to empower citizens about their rights and legal processes.
Police Reforms:
- Prakash Singh Committee (2006): Recommended reforms like establishing State Police Complaints Authorities and police accountability mechanisms to address custodial violence.
- Sorabjee Committee on Police Act (2006): Proposed creating an independent oversight body to investigate police misconduct and custodial deaths.
Reduce Litigation Costs:
- Arrears Committee (1989): Suggested the promotion of Lok Adalats and other ADR mechanisms to reduce the financial burden of litigation on citizens.
- N. R. Madhava Menon Committee (2012): Focused on reducing costs through ADR, mediation, and making justice more affordable.

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Liberty

Liberty is the state of being free within society from oppressive restrictions imposed by authority on one’s way of life, behavior, or political views. The name “liberty” comes from the Latin word “Liber,” which means “free from all shackles.”

Liberty in the sense of total freedom from all limitations is not conceivable. Such liberty is not possible. The fundamental liberty principle is that law is the condition of liberty.

Types

Positive liberty : It refers to the freedom to pursue one’s goals, aspirations, and self-realization, rather than merely being free from external constraints or interference. It emphasizes the presence of opportunities, resources, and conditions that enable individuals to lead fulfilling lives and achieve their potential.
- Key Aspects
  - Empowerment
  - Self-realization
  - Social Justice
  - Community and Collective Action
  - Democratic Participation
Negative liberty : It refers to freedom from interference, coercion, or constraints imposed by others. It emphasizes the absence of external obstacles that limit individuals’ ability to act according to their will or preferences.
- Key Aspects
  - Freedom from Interference
  - Non-interference Principle
  - Individual Autonomy
  - Rule of Law
  - Limited Government

Principles of Liberty under the Indian constitution

Negative Liberty: Involves freedoms like speech, expression, assembly, and occupation, protected by the Constitution.
Positive Liberty: Promoted through affirmative action, social welfare, and education, enabling individuals to realize their full potential.
Right to Life and Personal Liberty (Article 21): Protects the right to life and personal liberty, ensuring no one can be deprived of life or liberty except by lawful procedure.
Right to Privacy: Recognized as part of Article 21, ensuring individuals’ autonomy and protecting personal information from unauthorized intrusion.
Right to Freedom of Religion (Articles 25-28): Ensures religious liberty, allowing individuals to practice, profess, and propagate their faith without state interference.
Right to Education (Article 21A): Ensures free and compulsory education for children aged 6 to 14, enabling the liberty of opportunity and empowerment through education.

Threats to liberty in India

Judicial Delays: As of 2023, over 47 million cases are pending across Indian courts, delaying justice and often leading to prolonged pre-trial detention for individuals
Arbitrary Detention: The misuse of preventive detention laws like the National Security Act (NSA) can lead to arbitrary detentions.
Censorship: In 2021, 97% of internet shutdowns globally were recorded in India, limiting freedom of expression and access to information. The use of sedition law (Section 124A of IPC) has also increased, with over 70 cases filed in 2020 alone.
Surveillance: The Pegasus spyware scandal in 2021 highlighted the misuse of surveillance on journalists, activists, and politicians, raising concerns about privacy and freedom.
Misuse of Laws: The Unlawful Activities (Prevention) Act (UAPA) saw a rise in cases from 897 in 2016 to over 1,226 in 2019, with low conviction rates, leading to criticism for suppressing dissent.
Custodial Violence: In 2020, the custodial deaths of Jeyaraj and Bennix in Tamil Nadu highlighted the ongoing issue of police brutality and the violation of personal liberty.

Role Of judiciary

Positive

Maneka Gandhi v. Union of India (1978): Expanded the scope of personal liberty under Article 21, ruling that the “procedure established by law” must be fair, just, and reasonable.
Kesavananda Bharati v. State of Kerala (1973): Established the basic structure doctrine, holding that liberty is a fundamental feature beyond Parliament’s amending power.
PUCL v. Union of India (2003): Affirmed that the right to personal liberty includes the right to legal aid and access to justice.
Justice K.S. Puttaswamy v. Union of India (2017): Recognized the right to privacy as a fundamental right under Article 21.
Aadhaar Judgment (2018): Held that certain provisions of the Aadhaar Act violated the right to privacy, which is intrinsic to personal liberty under Article 21.
Navtej Singh Johar v. Union of India (2018): Decriminalized consensual same-sex relations, affirming the right to sexual autonomy and personal liberty.
Sunil Batra v. Delhi Administration: Declared the use of handcuffs on prisoners as unconstitutional, reflecting the need for humane treatment.
Mohini Jain v. State of Karnataka (1992): Ruled that the right to life under Article 21 includes the right to education.
Subhash Kumar v. State of Bihar (1991): Held that the right to clean air is part of the right to life under Article 21.

Negative

A.K. Gopalan v. State of Madras (1950): Article 21 protected against arbitrary executive actions, but not legislative actions, allowing personal liberty to be curtailed by laws.
ADM Jabalpur v. Shivkant Shukla (1976): Held that during Emergency, the right to enforce fundamental rights, including personal liberty under Article 21, could be suspended.

Quotes

Gettell– “Liberty is the positive power of doing and enjoying those things which are worthy of enjoyment and work”.
Laski – “Without rights there cannot be liberty, because without rights, men are the subjects of law unrelated to the needs of personality”.

Equality

Equality entails the absence of preferential treatment for any segment of society and the provision of sufficient opportunities to all individuals without discrimination.

The essence of rights lies in their equal enjoyment by all members of society. To ensure universal enjoyment of these rights, it is imperative to attain social and economic equality.

Dimensions of Equality

Procedural Equality: Ensures fairness in processes, treating everyone equally under the law. Eg: Article 14 – Equality Before Law (EBL) and Equal Protection of Laws (EPL).
Substantive Equality: Focuses on achieving fair outcomes by addressing systemic inequalities. Eg: Reservation Policy.

Types of equality :

Political Equality: Equal participation in the political process, including the right to vote and run for office.
Legal Equality: Equal application of laws and procedures for all individuals, regardless of status.
Social Equality: Equal respect and opportunities in social interactions, challenging hierarchies and stereotypes.
Economic Equality: Reducing income and wealth disparities through measures like progressive taxation and access to opportunities.
Gender Equality: Equal rights and opportunities for all genders, addressing issues like pay gaps and gender-based violence.
Racial Equality: Equal treatment and opportunities for all races and ethnicities, free from discrimination.

Principles of Equality under the Indian constitution

Civic Equality:
- Article 14: Right to equality before law.
- Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
- Article 16: Equality of opportunity in matters of public employment.
Political Equality:
- Article 326: Universal adult suffrage.
- Article 325: No person to be ineligible for inclusion in, or to claim to be included in, a special, electoral roll on grounds of religion, race, caste, or sex.
Socio-economic Equality:
- Article 330 and 332: Reservation of seats for SC and ST in the House of the People.
- Article 38 includes provisions for minimizing inequalities in income, status, facilities, and opportunities.
- Article 39(d) directs the State to ensure equal justice and free legal aid.
- Article 46: Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections.
Gender Equality:
- Article 15(1): Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
- Article 15(3): Empowers the State to make special provisions for women and children.
- Article 16: Equality of opportunity in matters of public employment.
- Article 39(a): Equal pay for equal work for both men and women.
- Article 42: Provision for just and humane conditions of work and maternity relief.

Achievements of India in Securing Equality

Reservation Policies: Around 21.1% of government jobs and educational seats are reserved for SCs and STs, promoting social inclusion (NSS data).
Gender Equality: Initiatives like Beti Bachao Beti Padhao, laws against gender violence, and increasing women’s political participation have improved India’s Gender Inequality Index (0.490 in 2021, ranked 122).
Legal Reforms: Laws like the Protection of Civil Rights Act (1955), SC/ST Prevention of Atrocities Act (1989), and Rights of Persons with Disabilities Act (2016) ensure equal treatment under the law.
Education: Programs like Sarva Shiksha Abhiyan and the Mid-Day Meal Scheme reduce educational disparities and promote equality.
Landmark Judgments: Cases like Kesavananda Bharati (1973) upheld constitutional equality, and Navtej Singh Johar (2018) decriminalized same-sex relations, advancing non-discrimination.

Role of Judiciary

Indra Sawhney v. Union of India (1993): The Supreme Court upheld reservations for disadvantaged groups but limited them to 50% to ensure equality for others. It also introduced the “creamy layer” concept for OBC reservations.
Vishaka v. State of Rajasthan (1997): The Court established guidelines to prevent sexual harassment in the workplace, protecting women’s equality in employment.
Navtej Singh Johar v. Union of India (2018): Decriminalized consensual same-sex relations, affirming the right to equality and non-discrimination based on sexual orientation.
Ram Krishna Dalmia case (1958): The Court laid down the “classification test,” allowing differential classification if it is based on intelligible differentia and has a rational nexus with the objective.

Challenges to equality

Caste-Based Discrimination: Despite legal protections, caste-based crimes remain high, with over 50,291 cases against Dalits in 2020 (NCRB), indicating political challenges in enforcing equality laws.
Economic Inequality: The top 1% of Indians control 40.5% of the nation’s wealth (Oxfam 2022), creating significant barriers to equitable economic opportunities.
Gender Inequality: Women’s workforce participation was only 25.1% in 2020 (World Bank), and gender-based violence remains high, hindering social equality.
Religious Discrimination: Muslims face educational and economic disadvantages, as highlighted by the Sachar Committee Report (2006).
Digital Divide: Only 38% of rural households have internet access (NSS 2017-18), limiting access to education and economic opportunities, especially during the pandemic.
Caste and Gender Laws: Despite laws like the SC/ST Act and laws against gender violence, enforcement gaps remain, leading to ongoing discrimination.
Regional Disparities: Regions like Bihar and Uttar Pradesh, with lower Human Development Index scores (Bihar: 0.574, Kerala: 0.779), face unequal development opportunities, affecting access to resources.
Limitations on Freedom of Speech and Expression – use of Sedition Laws, Online Censorship for Imprisonment of journalists, Banning of certain YouTube channels.
Unequal Access to Justice due to Case Backlog in Courts, Limited Legal Aid prevents financially disadvantaged individuals from effectively pursuing their rights in court.

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Fraternity

Fraternity is derived from the French term fraternité, which means brotherhood, friendship, community, and collaboration (Asthana 1992: 118).
Dr. B.R. Ambedkar defined fraternity as “a sentiment of mutual brotherhood among all Indians—if Indians are considered as one people.” It is the principle that gives social life its unity and solidarity.” “Without fraternity, equality and liberty will be no more than a coat of paint. Without fraternity, liberty and equality could not become a natural flow of events.”

Key provisions on fraternity in the Indian Constitution:

Preamble: Promotes fraternity to ensure the dignity of individuals and the unity and integrity of the nation.
Fundamental Duties (Article 51A): Citizens are expected to promote harmony, brotherhood, and preserve India’s diverse heritage.
DPSP (Article 38 & 39A): Directs the state to ensure a just social order and equal access to justice, fostering fraternity.
Fundamental Rights (Part III): Promotes equality and prohibits discrimination, upholding dignity and social harmony.

Meaning and purpose of fraternity:

Preamble declares that fraternity assures two things- the dignity of individuals and promoting unity and integrity of the nation.
According to K.M.Munshi, the phrase “dignity of the individual” means that the Constitution not only assures material advancement and sustains a democratic system but also acknowledges that each individual’s personality is precious.
“National unity and integrity” refers to the psychological and geographical components of national integration.

Criticism of inclusion of fraternity in indian constitution by constitutional assembly member H.M. Seervai by arguing that:

Executive Competence: He argues that the executive is better suited to promote fraternity through actions, questioning the effectiveness of a constitutional mandate.
Vagueness of Fraternity: Seervai finds the concept too vague, making it less useful for interpreting constitutional provisions or guiding legal decisions.

Judicial response and the idea of fraternity

Shri Raghunathrao Ganpatrao v. Union of India: The Court rejected special privileges for former princes, citing fraternity as essential for national unity amid diverse societal divisions.
S.R. Bommai v. Union of India (1994): The Court emphasized the need for fraternity and secularism, ruling that any attempt to undermine the unity and integrity of India through communalism violates the constitutional promise of fraternity.
Indra Sawhney v. Union of India (1992): The Court recognized that reservations for backward classes should be balanced with the principles of fraternity, ensuring that societal harmony is maintained while promoting social justice.
Nandini Sundar v. State of Chhattisgarh (2011): The Court stressed that policies that lead to violence or division undermine the principle of fraternity, reiterating the importance of state actions fostering unity

Limits and Challenges to Fraternity in India’s Context

Caste-Based Divisions: Despite laws, crimes against Dalits remain high, with over 50,291 cases reported in 2020 (NCRB). Incidents like the Una flogging (2016) reflect deep-rooted caste divisions, hindering fraternity.
Religious Polarization: Communal riots, such as the Delhi riots (2020) and Gujarat riots (2002), exacerbate religious divides and fuel distrust between communities, undermining the spirit of fraternity.
Regionalism: Movements for regional autonomy, like the Assamese vs. Bengali identity conflict in Assam or Gorkhaland movement in West Bengal, often foster regionalism, creating divisions and challenging national unity.
Economic Inequality: The top 1% of Indians hold 40.5% of the nation’s wealth (Oxfam 2022). This widening gap between rich and poor leads to social alienation, making it difficult to promote fraternity.
Political Polarization: The 2019 Lok Sabha elections saw a rise in divisive rhetoric, with issues like CAA-NRC protests and political parties appealing to narrow identities, deepening social divisions.
Social Injustice: Gender-based violence remains rampant, with over 371,503 cases of crimes against women reported in 2020 (NCRB), illustrating persistent inequalities that challenge the spirit of fraternity.
Failure of Constitutional Morality: Incidents like mob lynchings related to cow vigilantism reflect the failure to uphold constitutional values, prioritizing narrow group interests over national unity.
Language and Cultural Barriers: Tensions, such as Tamil Nadu’s resistance to Hindi imposition, highlight how linguistic and cultural divides challenge the ideal of fraternity in India.

Suggestions to promote fraternity in India:

Strengthen Constitutional Morality through Judicial Oversight: Set up fast-track courts to handle cases related to hate crimes, such as mob lynchings. Eg: Implement recommendations of the Supreme Court in Tehseen Poonawalla (2018) to address lynchings and hate crimes.
Enhance Legal Enforcement:
- Strengthen SC/ST Prevention of Atrocities Act (1989): Improve enforcement of this act by appointing more special courts and ensuring timely investigation of caste-based crimes.
- Police Accountability: Implement police reforms based on the Prakash Singh case recommendations to ensure impartial handling of communal or caste-related violence.
Encourage Interfaith and Intercaste Dialogue:
- Community Mediation Centers: Establish government-backed centers in sensitive regions to foster dialogue between different communities, modeled after the success of the Khudai Khidmatgar initiative.
- Educational Programs: Include interfaith dialogue and caste reconciliation programs in the National Education Policy 2020 curriculum to promote harmony.
Language Accommodation through Multilingual Policies: Promote official multilingualism in public services, particularly in states that resist Hindi imposition. Eg: Implement the 1968 National Policy on Education’s three-language formula to promote linguistic harmony.
Promote Inclusive Economic Growth: Strengthen Political Accountability by Regulation of Hate Speech: Strictly enforce the Model Code of Conduct during elections and curb inflammatory political rhetoric, using recommendations from the Law Commission on regulating hate speech.

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November 14, 2024