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This Spotlight is a part of our Mission Nikaalo Prelims-2023.
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10th May 2023
Fundamental Rights/ DPSP/duties, Federal vs Unitary Features, Parliament/ Legislature, Supreme Court/ High Court
Fundamental Rights
Fundamental rights are given in Part III of the Indian Constitution from Articles 12 to 35. They are an essential feature of the Indian Constitution. These rights are necessary for the peaceful and dignified existence of the country’s citizens. The Indian Constitution that deals with the people’s fundamental rights are often described as the Magna Carta of the Indian Constitution.
Fundamental rights are called fundamental because the Constitution guarantees them as its fundamental laws. The state cannot take away these rights from any individual. That said, there can be certain limitations to these rights. The Constitution of the United States inspires the Fundamental Rights in the Indian Constitution.
The Fundamental Rights given by the Indian Constitution can be classified as:
The Fundamental Rights from Articles 14 to 18 deal with the right to equality. These rights ensure that everyone is treated equally without discrimination and equal employment opportunities.
The rights from Articles 19 to 22 touch upon the concept of the right to freedom. Provisions in these articles deal with different kinds of personal freedom, choices, and dignity.
Article 19 gives the freedom of six rights that include the right to free speech and expression, freedom of assembly, freedom of forming an association, freedom of movement, freedom of residence, and freedom of choosing any profession.
- Right Against Exploitation
Articles 23 and 24 are provided from the concept of rights against the exploitation of individuals. These rights give the provisions to safeguard the people from the evils of human trafficking and child labour.
- Right to Freedom of Religion
The rights mentioned in Articles 25 to 28 give the people the freedom to practice, profess, and propagate their religious beliefs. The Indian Constitution was made with an idea of a secular state. However, unlike Western democracies, the Indian Constitution doesn’t isolate religion. Rather, it provides for the equal treatment of all religions.
- Rights for the Minorities
Articles 29 and 30 deal with minority rights. These rights provide for the protection of the language and culture of minorities and give them the freedom to manage educational institutions.
- Right Relating to the Constitutional Remedies
Often considered an essential right given to the people, Article 32 of the Constitution provides the right to move the Supreme Court to enforce any fundamental rights.
Note: Article 31 of the Indian Constitution, which dealt with the Right to Property, was deleted as one of the Fundamental Rights by the 44th Constitutional Amendment Act of 1976. Following the amendment, the Right to Property was made legal and incorporated in Article 300-A.
The Directive Principles of State Policy (DPSPs)
The Directive Principles of State Policy or simply DPSPs are incorporated in Part IV of the Indian Constitution. The DPSPs are given from Article 36 to Article 51 in the Constitution.
The Directive Principles refer to the ideals and principles that the state must consider while forming a policy or enacting a law in the legislative process.
The Irish Constitution inspired the concept of DPSPs; however, the Irish Constitution was inspired by the Spanish Constitution. The articles dealing with the directive principles deal with various economic, social, and political principles.
Some essential features of DPSPs are as follows:
- The Directive Principles work as instructions for the state in making policies and enacting laws; in this sense, they are essential to the legislative system.
- The DPSPs are non-justiciable and can’t be challenged in courts for their violation.
- The state cannot be compelled to enforce the DPSP.
- The courts can use DPSPs to determine the constitutional validity of a law of parliament.
The Fundamental Duties
The fundamental duties were not part of the original Constitution; it was only in 1976 when the Parliament of India found it necessary to add fundamental duties into the Constitution of India.
By the amendment of the Constitution in 1976, a new part was added in the Constitution as Part IV A. This part consists of only one article: Article 51 A. The idea of fundamental duties comes from the former USSR’s Constitution.
Here are some key features of the Fundamental Duties:
- There are different kinds of duties, such as moral and civic duties.
- The Fundamental Duties are confined to the citizens of India only, unlike fundamental rights and DPSPs
- Fundamental Duties are non-justiciable.
- There is no legal provision or sanctions for the violation of fundamental duties.
Federal Features – Indian Constitution
The federal features of the Constitution of India are given below:
Written Constitution:
Features of the Indian Constitution is not only a written document but also the longest constitution in the world. Originally, it included a Preamble, 395 articles (22 parts), and 8 schedules.
Dual Polity:
The constitution establishes a dual polity that includes the union at the periphery. Each is endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution.
Bicameralism:
The constitution provides for a bicameral legislature in which an upper house (Rajya Sabha) and a lower house (Lok Sabha). Rajya Sabha represents the states of the Indian Union, whereas The Lok Sabha represents the people of India as a whole.
Division of Powers:
The Constitution divided the powers between the Center and the states in terms of the Union List, State List, and Concurrent List in the Seventh Schedule.
Supremacy of the Constitution:
The Constitution is the supreme law of the country. The laws made by the Center and the states should be in conformity with Provision. Otherwise, they may be declared invalid by the Supreme or High Court through its power of judicial review.
Rigid Constitution:
The division of powers established by the Constitution as well as supremacy of the constitution can be maintained only if the method of its amendment is rigid. It is necessary for both houses to agree to amend the constitution.
Independent judiciary:
The constitution establishes an independent judiciary headed by the Supreme Court for two purposes: one, to protect the supremacy of the constitution, and two, to settle the disputes between the Centre and states or between the states.
Unitary features – Indian Constitution
Besides the above federal features, the Indian constitution also possesses the following unitary features:
Strong Centre:
The division of powers is in favor of the center and unequal from a federal point of view. Firstly, the Union list contains more subjects than the state list, secondly, the more important subjects have been included in the union list and the Centre has overriding authority over the concurrent list.
Single constitution:
The constitution of India embodies not only the constitution of the Centre but also those of the states. Both the Centre and the States must operate within this single frame.
States not indestructible:
Unlike in other federations, the states in India have no right to territorial integrity. The parliament can change the area, boundaries, or name of any state.
Emergency provisions:
The emergency provisions are contained in Part XVIII of the Constitution of India, from Articles 352 to 360. In the emergency provisions, the central government becomes all-powerful and the states go into total control of the Centre.
Single citizenship:
Single citizenship means one person is the citizenship of the whole country. The constitution deals with citizenship from Articles 5 and 11 under Part 2.
All India services:
In India, there are all India services [IAS, IPS and IFS] which are common to both the Centre and the states. These services violate the principle of federalism under the constitution.
Appointment of governor:
The governor is appointed by the president. He also acts as an agent of the Centre. Through him, the Centre exercises control over the states.
Integrated election machinery:
The election commission conducts elections for central and state legislatures. But the Election commission is constituted by the president and the states have no say in this matter.
No equality of state representation:
The states are given representation in the upper house on the basis of population. Hence, the membership varies from 1 to 31.
Integrated Judiciary:
The term Integrated Judiciary refers to the fact that rulings made by higher courts bind lower courts. The Supreme Court of India incorporates all lower courts, from the Gram Panchayat to the High Courts. The Supreme Court is at the very top.
Integrated Audit Machinery:
The Comptroller and Auditor-General of India has an organization that is run by officials from the Indian Audit and Account Services, a central service that is responsible for not just the Union Government’s accounts and auditing, but also the accounts and auditing of the States.
Veto Over State Bills:
The governor has the authority to hold certain sorts of laws passed by the state legislature for presidential consideration. The President has the authority to refuse to sign such bills not only in the first instance but also in the second. As a result, the President has absolute (rather than suspensive) veto power over state legislation. However, in the United States and Australia, states are independent within respective fields, and no such reservation exists.
Tabular Comparison of Parliament and State Legislature
| Union Parliament |
State Legislatures |
| Bicameral |
Mostly unicameral – only 6 states are bicameral |
| Article 79 to122 in Part V of the Constitution |
Articles 168 to 212 in Part VI of the Constitution |
| If a bill is introduced in a House, and it passes it, then the other House can:
- Pass the bill as it is.
- Reject the bill altogether.
- Pass the bill with some modifications and return it to the first House for reconsideration.
- Nothing is done to the bill for 6 months, which means both Houses are in disagreement.
In this case, a joint sitting of both the Houses is convened and made, to break the constitutional deadlock.
Note: In the case of Money Bills, which are to be introduced only in the Lok Sabha, the Rajya Sabha has restricted powers.
|
The Legislative Councils (LC) have only advisory powers by and large.
They have lesser powers when it comes to law-making.
If a bill is introduced in the LC, which is passed by it, and it goes on to the Assembly:
- The Assembly rejects the bill.
- It passes the bill with some modifications which are unacceptable to the LC.
In both the above cases, the bill comes to an end.
However, if the bill originates in the Assembly, and it is either rejected or passed with modifications not acceptable by the LC, it does not come to an end.
There is no provision for a joint sitting of the Council and the Assembly. In the case of a disagreement, the decision of the Assembly is deemed final.
Note: Money bills can originate only in the Legislative Assembly.
|
| Members: Lok Sabha: 552 (Max.)
Rajya Sabha: 250 (Max.)
|
Members: Legislative Assembly: Between 40 and 500
Legislative Council: Not more than one-third of the membership of the State Legislative Assembly, and cannot be under 40.
|
| Election to the Rajya Sabha:
Members are elected by the elected members of the State Legislative Assemblies by means of proportional representation by means of a single transferable vote.
|
Election to the Legislative Councils:
Members are elected by five different constituencies through a process of the single transferable vote system.
- ⅓ of the members are elected by the local authorities’ representatives (Gram Panchayats, Municipalities, Block Parishads, etc.)
- ⅓ of the members by the MLAs.
- 1/12 of the members are elected by the teachers (of secondary schools, colleges, and universities) in the state.
- 1/12 are elected by the graduates in the state.
- The remaining 1/6th are nominated by the Governor from persons having experience or knowledge in the fields of science, art, literature, social service, or cooperative movement.
|
The Supreme Court of India
The Supreme Court of India replaced the colonial era Federal Court of India, established in 1937 under the Government of India Act of 1935 and worked as the highest court of British India. In the constitution, provisions related to the organisation, jurisdiction, powers, procedures, independence, etc., of the Supreme Court are given from Article 124 to Article 147.
Presently, the Supreme Court of India has 31 judges, including the Chief Justice of India.
Judges of the Supreme Court
The President of India appoints the judges to the Supreme Court; however, the Chief Justice of India is appointed by the President of India with consultation with the Supreme Court collegium. However, the President must consult the Chief Justice of India to appoint other judges to the Supreme Court.
The Judiciary in India follows a collegium system for the appointments of the judges; in this system, a group of sitting judges recommends the appointments of the eligible candidates as the judge of the Supreme Court.
Chief Justice of India
The Chief Justice of India is the highest judicial officer in India. He/she is usually the senior-most judge of the Supreme Court. After the inauguration of the Supreme Court in 1950, traditionally, the senior-most judge of the Supreme Court has been appointed as the Chief Justice. However, in 1973 and 1977, the collegium recommended judges superseding the senior judges.
Qualifications
To be appointed as a judge of the Supreme Court of India, you must satisfy the following qualifications:
- A person appointed as a judge of S.C must be a citizen of India.
- A person appointed as a judge of S.C must have been a judge of a High Court of any Indian state for at least 5 years.
- A person appointed as a judge of S.C must have been an advocate of a High Court of any Indian state for at least 10 years.
- A person to appoint as a judge of S.C must be a distinguished jurist in the opinion of the President of India.
The constitution of India does not provide for a minimum age requirement for the appointment as a judge of the Supreme Court.
High Court of India
The Indian judiciary system has followed a single integrated judiciary system; the High Court operates below the Supreme Court. Each state of India is provided with a High Court by the constitution of India. The functioning of High Courts is given under Article 214 to Article 231.
All the High Courts consist of one chief justice and several other judges. The President determines the number of judges of the High Court; the President can change the number of judges in any High Court as necessary.
Judges of the High Courts
The President of India appoints the judges to the High Courts across the states. The President of India appoints the chief justice of a High Court after consulting the chief justice of India and the Governor of the respective state. In the appointment of other judges to the high court, the President of India consults the Chief Justice of the Supreme Court of India.
When two or more states share a High Court (e.g., Haryana and Punjab), the governors of all concerned states are consulted by the President of India.
Qualifications
For a person to be appointed as a judge in any High Court of any Indian state, he/she shall satisfy the following qualifications:
- For a person to be appointed as a judge of H.C, he/she shall be a citizen of India.
- To become a judge of H.C, he/she should have held a judicial office for at least 10 years.
- To be appointed as a judge, he/she should have advocated the High Court for 10 years.
The constitution of India does not provide for a minimum age requirement for appointment as a judge of the high court. The constitution also doesn’t provide for the President to appoint a jurist as the judge of a high court.
