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T
5
PREAMBLE AND THE SALIENT
FEATURES OF THE
CONSTITUTION OF INDIA
he Constitution of India was framed by a Constituent Assembly. This Assembly was an
indirectly elected body. It had laid down certain ideals to be included in the Constitution.
These ideals included commitment to democracy, guarantee to all the people of IndiaJustice,
equality and freedom. It had also proclaimed that India will be a Sovereign
Democratic
Republic.
The Constitution of India begins with a Preamble.The Preamble contains the ideals,
objectives and basic principles of the Constitution. The salient features of the Constitution
have evolved directly and indirectly from these objectives which flow from the Preamble.
In this lesson you will learn about the framing of the Constitution, its political philosophy as
reflected in the Preamble and the salient features of the Constitution.
Objectives
After studying this lesson you will be able to :
l recognize the significance of the Constitution as the fundamental law of the land;
l describe the composition of the Constituent Assembly and the role of the Drafting
Committee and the objectives of the Constituent Assembly;
l describe the Preamble to the Constitution and its relevance;
l identify the basic principles of Preamble and their reflection in the constitutional
provisions;
l identify the main features of the Constitution of India;
l distinguish between a written and an unwritten, as well as a rigid and a flexible
constitution;
l analyse the nature of the Indian Constitution;
Preamble and The Salient Features of The Constitution of India
Aspects of the
l establish the importance of Fundamental Rights, Fundamental Duties and Directive
Principles of State policy; and
l recognize the special features that distinguish the Indian Constitution from other
Constitutions of the world.
5.1 The Constitution
The Modern State is considered to be a state for the welfare of the people. It is therefore,
suggested that it should have a government of a particular form with appropriate powers
and functions.
The document containing laws and rules which determine and describe the form of the
government, the relationship between the citizens and the government, is called a
Constitution.
As such a constitution is concerned with two main aspects the relation between the different
levels of government and between the government and the citizens.
A constitution is the basic fundamental law of a State. It lays down the objectives of the
State which it has to achieve. It also provides for the constitutional framework that is,
various structures and organs of the governments at different levels. In addition, it describes
the rights and duties of the citizens. It is, therefore, considered to be the basis for the
governance of the country both in terms of goals and objectives as also their structures
and functions.
5.2 The Constituent Assembly
The Constitution of India was framed by the Constituent Assembly. The Assembly was
constituted in 1946.
The members of the Constituent Assembly were indirectly elected by the members of the
existing Provincial Assemblies. In addition, there were members nominated by the rulers
of the Princely States. With Independence of India, the Constituent Assembly became a
fully sovereign body.
The Constituent Assembly, following the partition of the country in 1947, consisted of 299
members as on 31st December 1947. Of these 229 members were elected by the provincial
assemblies and the rest were nominated by the rulers of the princely states. Majority of
the members in the Constituent Assembly belonged to the Congress party. All prominent
leaders of the freedom movement were members of the Assembly.
Princely States During the British Rule there were about 560 areas which were not
directly under the control of the British. These were Kingdoms or Riyasats under
Indian rulers or Princes. These were called Princely States. To name a few, Kashmir,
Patiala, Hyderabad, Mysore, Baroda were some of the princely states.
5.2.1 Working of the Constituent Assembly
The Constituent Assembly was chaired by the President of the Assembly Dr. Rajendra
Prasad was elected as the President of the Assembly. The Assembly worked with the
help of a large number of committees and sub-committees. The committees were of two
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types : (a) relating to matters concerning with procedures, and (b) concerning important
issues. In addition there was an Advisory Committee primarily advised from outside. The
most important committee was the Drafting Committee. Dr. B.R. Ambedkar was the
Chairman of the Drafting Committee. The task of the Committee was to prepare the draft
of the Constitution. The Constitutent Assembly met for 166 days spread over a period of
2 years 11months and 18 days. The procedure followed in the Assembly was Similar to
that which is followed in legislature. You will study about the legislative procedure in detail
in subsequent lesson on Parliament and the legislative Assemblies.
Dr. Rajendra Prasad
President of Constituent
Assembly
The leaders of the Constituent Assembly were conscious that the need of the hour was
general agreement on different issues and principles. As a result, deliberate efforts were
made to achive consensus. While arriving at any decision, the aspirations of the people
were uppermost in the minds of the members of the Assembly.
Intext Question 5.1
Tick out (
PP
PP
P
) the correct response:
1. The Constitution of a country provides the basis for
a) punishment of criminals
b) governance of the country
c) relationship between the citizens
d) trade relations with other countries.
2. The Constituent Assembly of India was composed of the members :
a) nominated by the British Government.
b) nominated by political parties.
c) elected by Provincial Assemblies and nominees of the Princely States.
d) elected by people.
3. The Constitution of India was drafted by the
a) Advisory Committee
Dr. B.R. Ambedkar, Chairman
of drafting committee of
constitution
Preamble and The Salient Features of The Constitution of India
Aspects of the
b) Secretariat of the Assembly
c) President of the Assembly
d) Drafting Committee
5.3 Objectives of The Constitution
The Constitution of independent India was framed in the background of about 200 years
of colonial rule, a mass-based freedom struggle, the national movement, partition of the
country and spread of communal violence. Therefore, the framers of the Constitution
were concerned about the aspirations of the people, integrity and unity of the country and
establishment of a democratic society. Amongst the members there were some who held
different ideological views. There were others who were inclined to socialist principles,
still others holding Gandhian thinking but nothing could act as any kind of impediment in the
progress of the Assemblys work because all these members were of liberal ideas. Their
main aim was to give India a Constitution which will fulfill the cherished ideas and ideals
of the people of this country.
Dr. Rajendra Prasad signing the new constitution
Conscious efforts were made to have consensus on different issues and principles and
thereby avoid disagreement. The consensus came in the form of the Objectives Resolution
moved by Jawahar Lal Nehru in the Constituent Assembly on December 17, 1946 which
was almost unanimously adopted on January 22, 1947. In the light of these Objectives
the Assembly completed its task by November 26, 1949. The constitution was enforced
with effect from January 26, 1950. From that day India became a Republic. Exactly
twenty years before the first independence day was celebrated on Jan. 26, 1930 as decided
by the Lahore session of the Congress on Dec. 31, 1929. Hence, January 26, 1950 was
decided as the day to enforce the constitution.
5.4 The Preamble
As you know that the Constitution of India commences with a Preamble. Let us find out
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what a Preamble is. The Preamble is like an introduction or preface of a book. As an
introduction, it is not a part of the contents but it explains the purposes and objectives with
which the document has been written. So is the case with the Preamble to the Indian
Constitution. As such the Preamble provides the guide lines of the Constitution.
THE CONSTITUTION OF INDIA
PREAMBLE
WE, THE PEOPLE OF INDIA, having solemnly resolved to
constitute India into a
1
[SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC] and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the
2
[unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of
November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO
OURSELVES THIS CONSTITUTION.
1. Subs. by the Constitution (Forty second Amendment) Act, 1976, s. 2 for
SOVEREIGN DEMOCRATIC REPUBLIC (w.e.f. 3-1-1977)
2. Subs. by s. 2. ibid, for unity of the Nation (w.e.f. 3-1-1977).
Preamble of Indian Constitution
The Preamble, in brief, explains the objectives of the Constitution in two ways: one, about
the structure of the governance and the other, about the ideals to be achieved in independent
India. It is because of this, the Preamble is considered to be the key of the Constitution.
The objectives, which are laid down in the Preamble, are:
i) Description of Indian State as Sovereign, Socialist, Secular, Democratic Republic.
(Socialist, Secular added by 42nd Amendment, 1976).
ii) Provision to all the citizens of India i.e.,
a) Justice social, economic and political
b) Liberty of thought, expression, belief, faith and worship
c) Equality of status and opportunity
Preamble and The Salient Features of The Constitution of India
Aspects of the
d) Fraternity assuring dignity of the individual and unity and integrity of the
nation.
Let us see what these objectives mean and how have these been reflected in the
Constitution?
5.5 Sovereign, Socialist, Secular, Democratic Republic
Sovereignty
Sovereignty is one of the foremost elements of any independent State. It means absolute
independence, i.e., a government which is not controlled by any other power : internal or
external. A country cannot have its own constitution without being sovereign. India is a
sovereign country. It is free from external control. It can frame its policies. India is free to
formulate its own foreign policy.
Socialist
The word socialist was not there in the Preamble of the Constitution in its original form. In
1976, the 42
nd
Amendment to the Constitution incorporated Socialist and Secular, in the
Preamble. The word Socialism had been used in the context of economic planning. It
signifies major role in the economy. It also means commitment to attain ideals like removal
of inequalities, provision of minimum basic necessities to all, equal pay for equal work.
When you read about the Directive Principles of the State Policy, you will see how these
ideals have been incorporated as well as partly, implemented in the Constitution.
Secularism
In the context of secularism in India, it is said that India is neither religious, nor irreligious
nor anti-religious. Now what does this imply? It implies that in India there will be no
State religion the State will not support any particular religion out of public fund. This
has two implications, a) every individual is free to believe in, and practice, any religion he/
she belongs to, and, b) State will not discriminate against any individual or group on the
basis of religion.
Democratic Republic
As you have noticed while reading the Preamble to the Constitution, that the Constitution
belongs to the people of India. The last line of the Preamble says . Hereby Adopt,
Enact And Give To Ourselves This Constitution. In fact the Democratic principles of the
country flow from this memorable last line of the Preamble. Democracy is generally
known as government of the people, by the people and for the people. Effectively this
means that the Government is elected by the people, it is responsible and accountable to
the people. The democratic principles are highlighted with the provisions of universal adult
franchise, elections, fundamental rights, and responsible government. These you will read
in subsequent lessons.
The Preamble also declares India as a Republic. It means that the head of the State is the
President who is indirectly elected and he is not a hereditary ruler as in case of the British
Monarch. Under chapter of Union Executive you will read in detail about the election of
the President of India.
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Intext Questions 5.2
1. Secularism in India means __________________________
(rejection of religion/respect for all the religions/respect for ones own religion).
2. Socialism in India means ___________________ (state ownership of all industries/
states major role in economy/equal distribution of wealth).
3. India became a Republic on _____________ (15 August, 1947, 26 November 1949/
26 January 1950).
5.6 Justice, Liberty and Equality
The struggle for freedom was not only against the British rule but their struggle should also
usher in an era of restoring the dignity of men and women, removal of poverty and end to
all types of exploitation. Such strong motivations and cherished ideals had prompted the
framers to lay emphasis on the provisions of Justice, Liberty and Equality to all the citizens
of India.
Justice
Justice promises to give people what they are entitled to in terms of basic rights to food,
clothing, housing, participation in the decision-making and living with dignity as human
beings. The Preamble covers all these dimensions of justice social, economic and political.
Besides, the granting of political justice in the form of universal adult franchise or the
representative form of democracy. You will read socio-economic justice in next lessons.
Liberty
The Preamble also mentions about liberty of thought and expression. These freedoms
have been guaranteed in the Constitution through the Fundamental Rights. Though freedom
from want has not been guaranteed in the Fundamental Rights, certain directives to the
State have been mentioned in the Directive Principles.
Equality
Equality is considered to be the essence of modern democratic ideology. The Constitution
makers placed the ideals of equality in a place of pride in the Preamble. All kinds of
inequality based on the concept of rulers and the ruled or on the basis of caste and gender,
were to be eliminated. All citizens of India should be treated equally and extended equal
protection of law without any discrimination based on caste, creed, birth, religion, sex etc.
Similarly equality of opportunities implies that regardless of the socio-economic situations
into which one is born, he/she will have the same chance as everybody else to develop his/
her talents and choose means of livelihood.
Intext Questions 5.3
Fill in the blanks :
1. Justice means giving people what they ______________. (are entitled to/ want)
2. The Constitution of India guarantees ____________________. (liberty of thought
and expression/freedom from want)
Preamble and The Salient Features of The Constitution of India
Aspects of the
5.7 Fraternity, Dignity, Unity and Integrity
In the background of Indias multi-lingual, multi-cultural and multi- religious society and
keeping in view the partition of the country, the framers of the Constitution were very
much concerned about the unity and integrity of our newly independent country. There
was a need for harmonious co-existence among various religions, linguistic, cultural and
economic groups. Inclusion of phrases like dignity of individuals, fraternity among people
and unity and integrity of the nation in the Preamble highlight such a need.
Egalitarian: A society, which feels concerned for meeting the needs of all its
members, is known as egalitarian society. An egalitarian state is expected to reduce
inequalities among citizens and fulfill minimum requirements of all.
The Preamble has provided for a vision humane which is, democratic, secular and,
therefore, egalitarian. Therefore, inspite of not being a part of the Constitution, the
Preamble has always been given due respect and regard by the courts while
interpreting the Constitution.
5.8 Salient Features of The Constitution
So far you have read about the Preamble to the Indian Constitution. In the subsequent
paragraphs you are going to read about the salient features of the Indian Constitution
which directly and indirectly flow from the Preamble, indicating the faith of framers in the
ideals, objectives and goals as mentioned in our Constitution.
A Written Constitution
The Indian Constitution is mainly a written constitution. A written constitution is framed at
a given time and comes into force or is adopted on a fixed date as a document. As you
have already read that our constitution was framed over a period of 2 years, 11 months
and 18 days, it was adopted on 26th November, 1949 and enforced on January 26, 1950.
Certain conventions have gradually evolved over a period of time which have proved
useful in the working of the constitution. The British Constitution is an example of unwritten
constitution. It is to be noted though, that a written constitution is mainly an enacted
document, there could be bodies or institutions which may not be included in the constitution
but form an important part of governance. In Indian context one can mention the Planning
Commission. It is very important body for countrys planning and development. But, the
planning commission was set up in March 1950, not by an Act of Parliament, nor as a Part
of the Constitution of India. It was set up by a cabinet resolution. The Indian constitution
is the lengthiest in the world. The original constitution had 395 Articles and 8 Schedules,
while, the constitution of USA has only 7 Articles.
Intext Question 5.4
Fill in the blanks :
a) A Constitution is a body of ______________ (rules, basic laws, principles).
b) The Constitution of India was enforced on _________________ (August 15, 1947,
November 26, 1949, January 26, 1950)
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c) The original Indian Constitution consisted of _______________ Articles. (495, 395,
295)
d) The constitution of India was adopted by ______________. (Constitution Assembly,
Committee, State assembly)
A Combination of Rigidity and Flexibility
The Indian Constitution is a unique example of combination of rigidity and flexibility. A
constitution may be called rigid or flexible on the basis of its amending procedure. In a rigid
constitution, amendment of the constitution is not easy. The Constitutions of USA,
Switzerland and Australia are considered rigid constitutions. While, the British Constitution
is considered flexible because amendment procedure is easy and simple.
The Constitution of India provides for three categories of amendments. In the first category,
amendment can be done by the two houses of Parliament simple majority of the members
present and voting of before sending it for the Presidents assent. In the second category
amendments require a special majority. Such an amendment can be passed by each House
of Parliament by a majority of the total members of that House as well as by the 2/3
majority of the members present and voting in each house of Parliament and send to the
President for his assent which cannot be denied. In the third category besides the special
majority mentioned in the second category, the same has to be approved also by at least
50% of the State legislatures. Thus, you see that the Indian Constitution provides for the
type of amendments ranging from simple to most difficult procedure depending on the
nature of the amendment.
Federal Polity
India has adopted a federal structure. In a federation there are two distinct levels of
governments. There is one government for the whole country which is called the Union or
Central Government. Also there is government for each Unit/State. The United States of
America is a federation whereas the United Kingdom (Britain) has a unitary form of
government. In a unitary structure there is only one government for the whole country and
the power is centralised.
The Constitution of India does not use the term federal state. It says that India is a
Union of States. There is a distribution of powers between the Union/Central Government
and the State Governments. Since India is a federation, such distribution of functions
becomes necessary. There are three lists of powers such as Union List, State List and the
Concurrent List. These lists have been explained in Lesson 8 in detail. On the basic of this
distribution, India may be called a federal system.
The supremacy of the judiciary is an essential feature of a federation so that the constitution
could be interpreted impartially. In India, the Supreme Court has been established to guard
the constitution. However, in case of Indian federalism, more powers have been given to
the Union Government in administrative, legislative, financial and judicial matters. In fact,
The Indian federal set up stands out with certain distinctive unitary features. The makers
of our constitution while providing for two sets of government at the centre and in the
states provided for division of powers favouring the Central Government, appointment of
the Head of the State government by the Central Government, single unified judiciary,
single citizenship indicate the unitary nature of our federalism. Therefore, it is said that
India has a quasi-federal set up.
rd
Preamble and The Salient Features of The Constitution of India
Aspects of the
Quasi Federal: It means a federal set up where despite having two clear sets of
government central and the states, more powers are given to the Central Government.
Parliamentary Democracy
India has a parliamentary form of democracy. This has been adopted from the British
system. In a parliamentary democracy there is a close relationship between the legislature
and the executive. The Cabinet is selected from among the members of legislature. The
cabinet is responsible to the latter. In fact the Cabinet holds office so long as it enjoys the
confidence of the legislature. In this form of democracy, the Head of the State is nominal.
In India, the President is the Head of the State. Constitutionally the President enjoys
numerous powers but in practice the Council of Ministers headed by the Prime Minister,
which really exercises these powers. The President acts on the advice of the Prime Minister
and the Council of Ministers.
Fundamental Rights and Fundamental Duties
Every human being is entitled to enjoy certain rights which ensure good living. In a
democracy all citizens enjoy equal rights. The Constitution of India guarantees those rights
in the form of Fundamental Rights.
Fundamental Rights are one of the important features of the Indian Constitution. The
Constitution provides for six Fundamental Rights about which you will read in the following
lesson. Fundamental Rights are justiciable and are protected by the judiciary. In case of
violation of any of these rights one can move to the court of law for their protection.
Fundamental Duties were added to our Constitution by the 42
nd
Amendment. It lays down
a list of ten Fundamental Duties for all citizens of India. While the rights are given as
guarantees to the people, the duties are obligations which every citizen is expected to
perform.
Intext Questions 5.5
Fill in the blanks :
(a) India is a _________________ State. (unitary, federal, quasi-federal)
(b) In a parliamentary democracy, the ___________ enjoys the real power (people,
president, cabinet).
(c) The fundamental rights are ________________ (absolute, justiciable, unlimited).
(d) The fundamental duties were included by the ________________ amendment (42
,
44
th
, 46
th
).
Directive Principles of State Policy
The Directive Principles of State Policy which have been adopted from the Irish Constitution,
is another unique feature of the Constitution of India. The Directive Principles were included
in our Constitution in order to provide social and economic justice to our people. Directive
Principles aim at establishing a welfare state in India where there will be no concentration
of wealth in the hands of a few. You will read about these Principles more elaborately in
Lesson 7.
nd
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Single Integrated Judicial System
India has a single integrated judicial system. The Supreme Court stands as the apex court
of the judicial system. Below the Supreme Court are the High Courts. The High Courts
control and supervise the lower courts. The Indian judiciary, thus, stands like a pyramid
with the lower courts as the base, High Courts in the middle and the Supreme Court at the
top.
Independence of Judiciary
Indian judiciary is independent an impartial. The Indian judiciary is free from the influence
of the executive and the legislature. The judges are appointed on the basis of their
qualifications and cannot be removed easily. You will read about the independence of the
judiciary in detail in Lesson 12.
Single Citizenship
In a federal state usually the citizens enjoys double citizenship as is the case in the USA.
In India there is only single citizenship. It means that every Indian is a citizen of India,
irrespective of the place of his/her residence or place of birth. He/she is not a citizen of the
Constituent State like Jharkhand, Uttaranchal or Chattisgarh to which he/she may belong
to but remains a citizen of India. All the citizens of India can secure employment anywhere
in the country and enjoy all the rights equally in all the parts of India.
Universal Adult Franchise
Indian democracy functions on the basis of one person one vote. Every citizen of India
who is 18 years of age or above is entitled to vote in the elections irrespective of caste,
sex, race, religion or status. The Indian Constitution establishes political equality in India
through the method of universal adult franchise.
Emergency Provisions
The Constitution makers also foresaw that there could be situations when the government
could not be run as in ordinary times. To cope with such situations, the Constitution elaborates
on emergency provisions. There are three types of emergency; a) emergency caused by
war, external aggression or armed rebellion; b) emergency arising out of the failure of
constitutional machinery in states; and c) financial emergency. About emergency provisions
you will read in detail in Lesson 9.
Intext Questions 5.6
Fill in the blanks :
a) The United States of America has a system of ______________ citizenship. (single,
double, temporary)
a) Single citizenship means __________________ (a person is a citizen of his own
state only, a person is a citizen of the whole country, a person is a citizen of his native
place).
b) The minimum age of voting in India is ________________ (18 years, 21 years, 25
years).
Preamble and The Salient Features of The Constitution of India
Aspects of the
c) Emergency provisions given in the Constitution can be imposed _______________
(in normal times, abnormal times, any time).
What You Have Learnt
A Constitution symbolises independence of a country. Framework and structure for the
governance of a free country are provided in the Constitution. The Constituent Assembly
prepared the draft of the Constitution by keeping the Objectives Resolution as the backdrop
which reflected the aspirations of the people of India.
The framing of the Constitution was completed on November 26, 1949 when the Constituent
Assembly formally adopted the new Constitution. The Constitution came into force with
effect from January 26, 1950.
The Constitution begins with a Preamble which declares India to be a Sovereign, Socialist,
Secular, Democratic, Republic. The Preamble also mentions the goals of securing justice,
liberty and equality for all its citizens and promotion of national unity and integrity on the
basis of fraternity among the people assuring dignity of the individual.
The Constitution of India has several distinctive features. It is the lengthiest Constitution in
the world and it is a combination of rigidity and flexibility. The Constitution provides for a
quasi-federal set up with a strong centre. There is a clear division of powers between the
Centre and the States. The Supreme Court of India, is the apex court of India which will
resolve the disputes between the centre and state or between the states.
India has a parliamentary democracy. The Council of Ministers headed by the Prime
Minister enjoys the real powers and is responsible to the Parliament.
The Indian Constitution provides for Fundamental Rights which are justiciable. Ten
Fundamental Duties have also been added to the Constitution. The Directive Principles of
State Policy give a concrete shape to the welfare concept.
Terminal Exercises
1. What is the importance of the Preamble to the Constitution?
2. Explain the meaning and relevance of Secularism in Indian context.
3. What is the philosophy of the Indian Constitution?
4. Explain the significance of a written Constitution.
5. Distinguish between a rigid and flexible constitution.
6. Explain briefly India as a federal state.
7. Write brief notes on:
a) Independence of Judiciary
b) Integrated judicial system single integrated judicial system
c) Universal Adult Franchise
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5.1
Notes
56
1. (b) 2. (c) 3. (d)
5.2
1. respect for all religions
2. states major role in economy
3. January 26, 1950
5.3
1. are entitled to
2. liberty of thought and expression.
5.4
a) Basic Laws
b) January 26, 1950
c) 395 Articals
d) Constitution Assembly
5.5
a. quasi - federal
b. cabinet
c. justifiable
d. 42
5.6
nd
Amendment
a. double
b. a person is a citizen of the whole country
c. 18 years
d. abnormal times
Hints to Terminal Exercises
1. Refer to Section 5.4.
2. Refer to Section 5.5 (Secularism).
3. Refer to Section 5.8
4. Refer to section 5.9 (A written constitution)
Preamble and The Salient Features of The Constitution of India
Aspects of the
5. Refer to Section 5.9 (Combination of rigidity and flexibility).
6. Refer to Section 5.9 (Federal Polity).
7. (a) Refer to Section 5.10 (Independence of Judiciary)
(b) Refer to Section 5.10 (Single Independent Judicial System)
(c) Refer to Section 5.10 (Universal Adult Franchise)
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P
6
FUNDAMENTAL RIGHTS
eople in democractic conutries enjoy certain rights, which are protected by judicial
system of the country concerned. Their violation, even by the State, is not allowed by the
courts. India respects the rights of the people, which are listed in our Constitution, under
the heading Fundamental Rights. In lesson, a mention has been made of the Fundamental
Rights as one of the salient features of the Constitution. In this lesson, we will discuss in
detail various Fundamental Rights which are incorporated in chapler III of the Constitution.
Objectives
After studying this lesson you will be able to
l explain the meaning and importance of Fundamental Rights;
l highlight that the dignity of an individual is protected and safe guarded through
Fundamental Rights;
l recognise that the enforcement of Fundamental Rights is ensured through High Courts
and the Supreme Court;
l explain the Right to Equality;
l recognise the rationale behind protective discrimination in favour of Scheduled Castes
and Scheduled Tribes and other backward classes(OBCs);
l describe as well as appreciate the Right to Freedom;
l recall the safeguards against deprivation of life and personal liberty except according
to the procedure established by law;
l explain the Right against Exploitation;
l appreciate the Right to Freedom of Religion;
l explain Cultural and Educational Rights;
l identify the right to Constitutional Remedies;
l recall the value of writs that may be issued for the protection of Fundamental Rights;
and
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l appreciate the Constitutional limitations on the enjoyment of Fundamental Rights.
6.1 Meaning And Importance Of Fundamental Rights
The rights, which are enshrined in the Constitution, are called Fundamental Rights. These
rights ensure the fullest physical, mental and moral development of every citizen. They
include those basic freedoms and conditions which alone can make life worth living.
Fundamental Rights generate a feeling of security amongst the minorities in the country.
They establish the framework of democratic legitimacy for the rule of the majority. No
democracy can function in the absence of basic rights such as freedom of speech and
expression.
Fundamental Rights provide standards of conduct, citizenship, justice and fair play. They
serve as a check on the government. Various social, religious, economic and political
problems in our country make Fundamental Rights important. In our Constitution,
Fundamental Rights are enumerated in Part III from Article 14 to 32. These rights are
justiciable.
Justiciable: Justiciable means that if these rights are violated by the government or
anyone else, the individual has the right to approach the Supreme Court or High
Courts for the protection of his/her Fundamental Rights.
Our Constitution does not permit the legislature and the executive to curb these rights
either by law or by an executive order. The Supreme Court or the High Courts can set
aside any law that is found to be infringing or abridging the Fundamental Rights. You will
read about it in detail in the lesson on Judiciary. Some of the Fundamental Rights are also
enjoyed by foreigners, for example, the Right to Equality before Law and Right to Freedom
of Religion are enjoyed by both i.e. citizens as well as foreigners. The Fundamental Rights
though justiciable are not absolute. The Constitution empowers the government to impose
certain restrictions on the enjoyment of our rights in the interest of public good.
Seven Fundamental Rights were enshrined in the Constitution of India. However the Right
to Property was removed from the list of Fundamental Rights by the 44
th
Amendment Act
of the Constitution in the year 1976. Since then, it has been made a legal right. There are
now six Fundamental Rights.
The Fundamental Rights are: 1.
Right to Equality
2. Right to Freedom
3. Right against Exploitation
4. Right to Freedom of Religion
5. Cultural and Educational Rights, and
6. Right to Constitutional Remedies.
Recently by the 86
th
Amendment Act, the Right to Education has been included in the list
of Fundamental Rights as part of the Right to Freedom by adding Article 21(A).
We will now study these rights one by one.
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Intext Questions 6.1
Fill in the blanks selecting appropriate words/figures given in the brackets.
1. Right to Property was removed from the list of Fundamental Rights by ___________
Amendment Act of the Constitution(42
nd
/43
rd
/44
th
).
2. The Rights are given in Part III of the Constitution and are termed as _____________
Rights (Legal/Economic/Fundamental).
6.2 Right To Equality
Right to Equality means that all citizens enjoy equal privileges and opportunities. It protects
the citizens against any discrimination by the State on the basis of religion, caste, race,
sex, or place of birth. Right to Equality includes five types of equalities.
6.2.1 Equality Before Law
According to the Constitution, The State shall not deny to any person equality before law
or equal protection of laws within the territory of India.
Equality before law means that no person is above law and all are equal before law,
every individual has equal access to the courts. Equal protection of laws means that if
two persons belonging to two different communities commit the same crime, both of them
will get the same punishment.
6.2.2 No Discrimnation on Grounds of Religion, Race, Caste,
Sex, Place of Birth or any of them
No citizen shall be denied access to shops, restaurants and places of public entertainment.
Neither shall any one be denied the use of wells, tanks, bathing ghats, roads etc. maintained
wholly or partly out of State funds. However, the State is empowered to make special
provisions for women, children and for the uplift of Scheduled Castes, Scheduled Tribes
and other backward classes (OBCs). The State can reserve seats for these categories in
educational institutions, grant fee concessions or arrange special coaching classes.
6.2.3 Equality Of Opportunity In Matters Of Public Employment
Our Constitution guarantees equality of opportunity in matters relating to employment or
appointment to public services to all citizens. There shall be no discrimination on the basis
of religion, race, caste, sex, place of birth or residence in matters relating to employment
in public services. Merit will be the basis of employment. However, certain limitations
have been provided to the enjoyment of these rights.
6.2.4 Abolition of Untouchability
The Constitution abolishes untouchability and its practice in any form is forbidden.
Action in the box are considered as offences when committed on the grounds of
untouchability.
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refusing admission to any person to the public institutions;
preventing any person from worshipping in place of public worship;
insulting a member of Scheduled Caste on the grounds of untouchability;
preaching untouchability directly or indirectly.
6.2.5 Abolition of Titles
All titles national or foreign which create artificial distinctions in social status amongst the
people have been abolished.
This provision has been included in the Constitution to do away with the titles like Rai
Sahib, Rai Bahadur have been conferred by the British on a few Indians as a reward
for their effective co-operation to the colonial regime. The practice of conferring titles like
this is against the doctrine of equality before law. To recognise the meritorious service
rendered by individual citizens to the country or mankind, the President of India can confer
civil and military awards on those individuals for their services and achievements such as;
Bharat Ratna, Padma Vibhushan, Padam Sri, Param Veer Chakra, Veer Chakra etc., but
these cannot be used on titles.
Intext Questions 6.2
Fill in the blanks:
1. Right to Equality aims at an end to......................discrimination (moral/social/political).
2. Right to Equality has............................kinds of equalities (3/4/5).
3. Right to...........................provides for the abolition of untouchability (equality / freedom
/ religion).
4. State can make............................ provisions for women and children against
exploitation (general/special/ordinary).
5. Right to Equality aims at establishing.......................equality. (social/moral/political)
6.3 Right To Freedom
Freedom is the basic characteristic of a true democracy. Our Constitution guarantees to
the citizens of India a set of six freedoms described as the Right to Freedom.
6.3.1 Six Fundamental Freedoms
The Constitution guarantees the following six Fundamental Freedoms:
(i) Freedom of speech and expression.
(ii) Freedom to assemble peacefully without arms.
(iii) Freedom to form associations or unions.
(iv) Freedom to move freely throughout the territory of India.
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(v) Freedom to reside and settle in any part of the territory of India.
(vi) Freedom to practise any profession or to carry on any occupation, trade or business.
Let us study these freedoms one by one briefly.
(I) Freedom of Speech And Expression
It is an important freedom. This freedom ensures free and frank speech, discussion and
exchange of opinions. It includes the freedom of the press. However these freedom like
freedom of speech and expression are not absolute. The state is empowered to impose
reasonable restrictions on the exercise of this right in the interest of security of the state,
public order, morality etc.
These freedoms can be suspended during the State of National Emergency. As soon
as the State of National Emergency is declared under Article 352, the abovementioned
freedoms except the right to life and liberty,
automatically remain suspended
as
long as the State
of National Emergency
continues. All
these freedoms get restored
as
soon as the proclamation of National Emergency is lifted.
6.3.2 Protection in Respect of Conviction for An Offence
This Constitutional provision assures protection against arbitrary arrest and excessive
punishment to any person who is alleged to have committed an offence. No person shall
be punished except for the violation of law which is in force when the crime was committed.
An accused cannot be compelled to be a witness against himself/herself.
No person shall be punished for the same offence more than once.
6.3.3 Protection of Life and Personal Liberty
The Constitution lays down that no person shall be deprived of his/her life or personal
liberty except according to the procedure established by law. It guarantees that life or
personal liberty shall not be taken away without the sanction of law. It ensures that no
person can be punished or imprisoned merely at the whims of some authority. He/she may
be punished only for the violation of the law.
6.3.4 Prevention against Arbitrary Arrest and Detention
Our Constitution guarantees certain rights to the arrested person. As per the provision, no
person can be arrested and/or be detained in custody without being informed of the grounds
for detention. He /she has the right to consult and be defended by a lawyer of his/her
choice. The accused has to be produced before the nearest magistrate within a period of
twenty-four hours of arrest.
These safeguards however are not available to foreigners as well as to those citizens
detained under Preventive Detention Act.
Preventive Detention: When the State feels that a person is likely to commit
crime or is a threat to the security of the State, he/she may be detained without trial
for a limited period. However, no person can be kept under detention for more than
three months until permitted by an Advisory Board consisting of persons who are
qualified to be appointed as judges of the High Courts. Such a board is presided over
by a sitting judge of a High Court.
6.3.5 Right to Education
By the 86
th
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Amendment Act of the Constitution a new article 21-A has been added after
Article 21. By this Amendment Act, Right to Education has been made a Fundamental
Right and has been deleted from the list of Directive Principles of State Policy. According
to it, The State shall provide free and compulsory education to all children of the age of
six to fourteen in such a manner as the State may by law determine. It further states that
it is the responsibility of the parent or guardian to provide opportunities for education to
their child or ward between the age of six to fourteen years.
Intext Questions 6.3
Each question has four options. Select the correct option by putting a tick (



)
against one of the options:
1. The number of freedoms guaranteed under the Right to Freedom is :
a) 5
b) 6
c) 7
d) 8
2. Any person arrested by the police shall have to be produced before the nearest
magistrate within a period of :
a) 12 hours
b) 24 hours
c) 36 hours
d) 48 hours
3. A person arrested under Preventive Detention can be kept in Jail without trial for a
maximum period of :
a) three months
b) six months
c) twelve months
d) eighteen months
4. Right to education has been made a Fundamental Right by .Amendment
Act of the Constitution (84
th
/86
6.4 Right against Explotation
th
/ 88
th
)
The people of India were exploited not only by the British but also by the money lenders
and zamindars. This system was called forced labour. Right against exploitation prohibits
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all forms of forced labour as well as traffic in human beings . The violation of this provision
is an offence punishable under law. The state require citizens services in times of major
calamities such as floods, forestfire, foreign aggression etc.
Our Constitution also provides safeguards for children. It bans the employment of children
below the age of fourteen years in any factory , mine or hazardous occupations.
Traffic in human beings means sale and purchase of human beings as goods and
commodities for immoral purposes such as slavery and prostitution
Intext Question 6.4
Fill in the blanks selecting appropriate words/figures given in the brackets:
1. Employment of children in factories below the age of is prohibited
by law (14/16/18)
Right to Freedom of Religion
India is a multireligious state. Besides Hindus, there are Muslims, Sikhs, Christians and
many others residing in our country. The Constitution guarantees to every person freedom
of conscience and the right to practice and propagate any religion.
It also permits every religious group, the right to manage its own affairs in matters of
religion. Every religious sect has the right to establish and maintain in stitutions for religious
and charitable purposes. Each religious group is also free to purchase and manage
its movable and immovable property in accordance with law, for the propagation of its
religion.
Our Constitution lays down that no religious education can be imparted in any educational
institution which is wholly maintained out of the state funds. This restriction does not apply
to those educational institutions which are not wholly maintained out of State funds. But,
even in those institutions, no child can be compelled to receive religious instructions against
his /her wishes.
Right to Freedom of Religion is not absolute. It can be restricted on the grounds of public
order, morality and health. The state shall not impose restrictions arbitrarily .
Intext Questions 6.5
Fill in the blanks with the suitable words/figures given in brackets:
1. Religion is the concern of the in a secular state. (Individual /Society/
State)
2. Noeducation can be imparted in any educational institution wholly
maintained out of state funds. (moral/religious/none of the two)
6.6 Cultural and Educational Rights
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India is a vast country with diversity of culture, Script and languages. People take pride in
their own language and culture.
Our constitution provides necessary guarantees to preserve maintain and promote their
culture and language. The Constitution allows minorities to establish and maintains
educational institutions of their own. It also provides that the state shall not discriminate
against any educational institution while granting financial aid on the grounds that it is being
run by a minority community.
These rights ensure that minorities will be given assistance by the state in the preservation
of their language and culture. The Ideal before the state is to preserve and propagate the
composite culture of the country.
6.7 Right To Constitutional Remedies
After reading about all the Fundamental Rights, a question may arise in your mind : what
can an individual do if one or more of his or her Fundamental Rights are encroached upon
by the State?
Part III of our Constitution provides for legal remedies for the protection of these rights
against their violation by the State or other institutions/individuals. It entitles the citizens of
India to move the Supreme Court or High Courts for the enforcement of these rights. The
State is forbidden from making any law that may be in conflict with the Fundamentals
Rights.
The Constitution empowers the Supreme Court and High Courts to issue orders or writs
as mentioned in the box given below.
HABEAS CORPUS; (Latin term) It is an order by the court to the state to produce
the person physically before it justify the confinement or release of the person.
MANDAMUS: (Latin term) It is a command or an order from a superior court to a
subordinate court or tribunal or public authority to perform its duty in case it is not
doing it.
PROHIBITION: It is an order issued by the Superior Court to forbid a subordinate
court or tribunal from proceeding with a case which is beyond its jurisdiction.
QUO WARRANTO: This writ is issued to restrain a person from acting in a public
office to which he /she is not entitled.
CERTIORARI : The term certiorari means to be informed of what is going. It is
an order to a lower court from a superior court to transfer the matter to it or to any
other court for deciding the matter.
These writs go a long way in protecting the rights of the individuals against encroachment
by the legislature, the executive or any other authority. If the Fundamental Rights are the
cornerstone of our democracy, then the Right to Constitutional Remedies is the soul of the
part III of the Constitutions.
You will read more about these writs in the lesson no.12.
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Intext Questions 6.6
Fill in the blanks by selecting appropriate words/figures given in the brackets:
1. Religious or linguistic can establish their own
educational institutions. (minorities/majority)
2. In India writs are issued byCourts. (lower/
subordinate/high)
3. The direction of the court to the detaining authority to produce the person before
it is the writ of (Mandamus/prohibition/habeas corpus)
4. The writ to restrain a person from acting in a public office to which he /she is not
entitled is known as (quo warrato/Certiorari/
Mandamus)
5. An order to a lower court to transfer the case to another court for its proper
consideration in called the writ of . (Habeas Corpus/
Prohibition/Certiorari)
What You Have Learnt
Fundamental Rights have been incorporated in part III of our Constitution from article 1432.
These rights protect and safeguard the dignity and status of the citizens. These rights
are
justiciable i.e. are enforceable by the court of law.
At
present there are six Fundamental
Rights.
Recently by an Amendment
Act
of the Constitution, Right to Education has been
added.
These Rights are not absolute, reasonable restrictions can be imposed on these rights in
the interest of peace, national defence, morality, comman good and good relations with
other countries. The first right that comes under Fundamental Rights is the Right to Equality.
Under the Constitution, all are equal before law and the state can not discriminate between
citizens on the basis of religion, race, sex, place of birth or any of them. Uuntouchability
has been abolished and made an offence punishable by law. The state has been forbidden
from conferring honorary titles on citizens that create social disparities.
Right to Freedom has been granted for the all round development of the body, mind and
spirit of all the citizens. It provides six freedoms to citizens. This Right helps protection of
life and personal liberty. It also protects the individual from arbitrary arrest and detention.
Our Constitutions prohibits traffic in human beings and forced labour. Employment of
children below the age of fourteen years in mines, factories and hazardous jobs is banned.
India is a multi religious country. Our Constitution neither promotes nor interferes in their
religious affairs. India believes in secularism. Every religious community is free to establish,
maintain and run its own religious institutions. Every citizen has been granted freedom to
profess and propagate his/her religion.
Cultural and Educational rights provide the right to conserve our culture. Educational
institutions maintained by the state on getting financial aid from the state cannot refuse
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admission to children on the grounds of religion, race, caste, language or any of them. The
minorities have been given the right to establish and manage institutions of their own for
the preservation and propagation of their language and culture. While giving financial aid to
any institution, the state will not discriminate on the basis of religion or language.
Lastly the Constitution guarantees enjoyment of Fundamental Rights by citizens under the
Right to Constitutional Remedies. The Supreme Court and High Courts have been given
powers to issue orders, directions and writs for the enforcement of Fundamental Rights .
Dr. B.R Ambedkar has rightly called the writs as the Soul of the part III of the Constitution:
Terminal Exercises
1. Explain the importance of Fundamental Rights as provided in the Constitution.
2. Mention any three aspects of right to equality.
3. Describe six Fundamental Freedoms granted under the Right to Freedom.
4. Explain the Right against Exploitation.
5. How does the Right to Freedom of Religion help in establishing a secular polity in
India? Explain.
6. What is writ? Who has the power to issue the writs?
7. Explain the statement that Fundamental Rights are justiciable.
8. Describe all the provisions of Right to Freedom.
9. Mention Right to Education as incorporated in the Constitution by 86
Amendment
Act.
Answers to Intext Questions
6.1
1. 44
th
2. Fundamental
6.2
1. Social
2. 5
3. Equality
4. Special
5. Social
6.3
1. b
th
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2. b.
3. a
4. 86
6.4
1. 14.
6.5
th
1. Individual
2. Religious
6.6
1. Minority
2. High Court
3. Habeas Corpus
4. Quo-Warranto
5. Certiorari
Hints for Terminal Expercises
1. Refer to section 6.1
2. Refer to section 6.2
3. Refer to section 6.3.1
4. Refer to section 6.4
5. Refer to section 6.5
6. Refer to section 6.7
7. Refer to section 6.1
8. Refer to section 6.3
9. Refer to section 6.3.5
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l explain the role of government at different levels in implementing these principles.
l distinguish between Fundamental Rights and the Directive Principles of State Policy.
l appreciate the content of Fundamental Duties.
l identify the Fundamental Duties given in the Constitution.
l appreciate the importance of Fundamental Duties despite their being non-justiciable.
7.1 Meaning of Directive Principles of State Policy
Directive Principles of State Policy are in the form of instructions/guidelines to the
governments at the center as well as states. Though these principles are non-justiciable,
they are fundamental in the governance of the country. The idea of Directive Principles of
State Policy has been taken from the Irish Republic. They were incorporated in our
Constitution in order to provide economic justice and to avoid concentration of wealth in
the hands of a few people. Therefore, no government can afford to ignore them. They are
infact, the directives to the future governments to incorporate them in the decisions and
policies to be formulated by them.
7.2 Classification Of The Directive Principles
Directive Principles of State Policy have been grouped into four categories. These are: (1)
the economic and social principles, (2) the Gandhian principles, (3) Principles and Policies
relating to international peace and security and (4) miscellaneous.
7.2.1 The economic and social Principles
The state shall endeavour to achieve Social and Economic welfare of the people by:
(1) providing adequate means of livelihood for both men and women.
(2) reorganizing the economic system in a way to avoid concentration of wealth in few
hands.
(3) securing equal pay for equal work for both men and women.
(4) securing suitable employment and healthy working conditions for men, women and
children.
(5) guarding the children against exploitation and moral degradation.
(6) making effective provisions for securing the right to work, education and public
assistance in case of unemployment, old age, sickness and disablement.
(7) making provisions for securing just and humane conditions of work and for maternity
relief.
(8) taking steps to secure the participation of workers in the management of undertakings
etc.
(9) promoting education and economic interests of working sections of the people
especially the SCs and STs.
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(iii) to provide living wages for working sections.
(iv) to provide early childhood care and education for all children until they complete the
age of 6 years.
(v) to protect historical monuments.
(vi) to bring about reforms to save environment from pollution and protect wild life.
7.3 Directive Principles : Universalisation of Education,
Child Labour and Status of Women
Illiteracy is a big hindrance in the achievement of the goals of socio-economic
justice and welfare state.
7.3.1 Universalisation of Education
The percentage of literate people at the time of independence was only 14%. Our
government realized the importance of education and laid stress on the spread of literacy
among the masses. Efforts have been made by the governments to raise this level. But a
large section of our population is still illiterate. The foremost effort which is required in this
field-is the spread of elementary education and its universalisation. Due to increased number
of drop outs at the primary stage, the number of illiterates between 15 to 35 years of age
has constantly increased.
According to National Policy on Education, 1986, the government has launched National
Literacy Mission, and Operation Blackboard for the spread of mass literacy at primary
stage. For those who were deprived of the benefits of education in their childhood, the
government and many voluntary agencies are making special efforts to educate them by
opening night schools and adult literacy centers.
Many distance education programmes through correspondence courses, distance education
and open learning have been started in different states. The National Institute of Open
Schooling and several Open Universities have been set up to attain the goal of universalisation
of education. The Directive Principles providing free and compulsory education for children
upto the age of 14 years has been included through the 86
Though much has been achieved but still there is a long way to go to accomplish this
objective of a welfare state.
7.3.2 Child Labour
th
Amendment Act, 2002 in the
list of Fundamental Rights under Article 21A.
You have already read that one of the Directive Principles provides opportunities and
facilities to children to develop in a healthy manner. You have also read about the Fundamental
Right against Exploitation of children. Employment of children below the age of 14 years
in mines and industries which are hazardous to their health is prohibited.
Inspite of these provisions, the desired results have not been reached. In most of the
cases, the parents attitude is not conducive to the elimination of child labour. They force
Directive Principles of State Policy and Fundamental Duties
Aspects of the
their children to do some sort of work to earn money and contribute to the family income.
Poverty and social stigma are certain constraints on the path of eradication of this problem
apart from the lack of will. All efforts by governments at various levels would prove futile
unless the willingness and awareness to get rid of the social challenge comes from within.
Dr. Abdul Kalams dream of developed India 2020 can be achieved only when the children
who are the future of the country are secured and protected from being exploited. The
children should not be deprived of their right to enjoy childhood and right to education.
7.3.3 Status of Women
Indian society basically is a male dominated society in which father has been head of the
family and mothers position has been subordinated to him. The position of a woman in
such a system is naturally weak. Women have been suffering a great deal on account of
cruel social customs and religious practices like, pardah and dowry etc.
Women as an integral part, account for 495.74 million and represent 48.3% of the countrys
total population as per 2001 census. Necessity of raising the status and education of women
has already been stressed in our Constitution through Fundamental Rights and various
Directive Principles of State Policy. They have been provided with the right to an adequate
means of livelihood and equal pay with that of men for their work. Women workers have
also been provided for health-care and maternity-relief.
Even in the Fundamental Duties stress has been laid on the duty of every citizen of India
to renounce practices derogatory to the dignity of women.
Many laws and judicial decisions have restored the dignity of women. To protect their
rights, measures have been taken to give them share in the family property. For their
emancipation from cruel practices like bride burning for dowry, wife beating, sati etc. laws
have been enacted. Prohibition of female infanticide, foetouscide, discrimination against
girl child and child-marriage are some of the other measures that will help in improving the
status of women.
To empower women, reservation of one third of seats through the 73
Intext Questions 7.2
Choose the correct answers from the alternatives given below:
(a) What was the percentage of literate people at the time of independence?
(i) 12%
(ii) 14%
(iii) 16%
(iv) 18%
(b) When was the National Educational Policy started?
rd
and 74
Amendment
Act, 1991,1992 for them has been made in the Panchayats and Municipalities. There is a
similar proposal for reservation of seats for them in the Parliament and in the state
Legislatures.
th
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(i) 1984
(ii) 1986
(iii) 1988
(iv) 1989
(c) In which part of the Constitution is the Provision against Exploitation of Children
made?
(i) Fundamental Rights
(ii) Fundamental Duties
(iii) Directive Principles of State Policy
(d) In which of the following Equal Pay for Equal Work for both men and women provide?
(i) Fundamental Rights
(ii) Fundamental Duties
(iii) Directive Principles of State Policy
(e) When was the department of women and child Development set up in India?
(i) 1978
(ii) 1985
(iii) 1992
(iv) 1995
7.4 Critical Analysis Of Directive Principles
Many critics have called these Directive Principles of State Policy as not better than
New Year Greetings. Even the rationale of inserting such high sounding promises has
been questioned. It has been asserted that Directives are in the form of holy wishes
having no legal sanction behind them. Government is not bound to implement them. Critics
point out that they are not formulated keeping the practical aspect these ideals in mind.
Despite all this, it can not be said that these Principles are absolutely useless. They have
their own utility and significance. The Directive Principles are just like a polestar that
provide direction. Their basic aim is to persuade the government to provide social and
economic justice in all spheres of life, keeping in view its limited material resources, at the
earliest possible. Many of them have been implemented very successfully. Actually, no
government can afford to ignore these instructions as they are the mirror of the public
opinion and also reflect the basic spirit of the Preamble of our Constitution. Some of the
steps taken in this direction are being listed below:
(1) Land reforms have been introduced and Jagirdari and Zamindari systems have been
abolished.
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(iii) economic
(iv) close
7.5
(i) Yes
(ii) No
(iii) Yes
(iv) No
7.6
(i) non-justiciable
(ii) ambiguous
Hints of Terminal Exercise
(1) Refer to section 7.1 and 7.2
(2) Refer to section 7.2
(3) Refer to section 7.3.1
(4) Refer to section 7.3.2 and 7.3.3
(5) Refer to section 7.4
(6) Refer to section 7.5.1
(7) Refer to section 7.6.1
I
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INDIAN FEDERAL SYSTEM
n lesson 5 dealing with Salient Features of the constitution of India you have learnt that
the founding fathers of Indian Constitution adopted a Federal structures.
In a federal set up there is a two tier of Government with well assigned powers and
functions. In this system the central government and the governments of the units act
within a well defined sphere, co-ordinate and at the same time act independently. The
federal polity, in other words, provides a constitutional device for bringing unity in diversity
and for the achievement of common national goals.
Objectives
After studying this lesson, you will able to
l recall the nature of federalism ;
l explain why India adopted a federal set up ;
l recognize the federal features of the Indian Constitution ;
l recall the unitary features of the Indian federation ;
l justify the reason for a strong centre ;
l list the process of the central government and those of the governments of the states ;
l analyse that India is federal in character and unitary in spirit ;
l recognise the legislative, administrative (executive) and the financial relations between
the centre and the units ;
l examine how the central government has an edge over the State governments ;
l recognise demand for autonomy by various state governments ; and
l assess the recommendation of the Sarkaria Commission and the need for co-operation
between the Centre and the States.
8.1 Features of Indian Federalism
The Constitution of India has adopted federal features; though it does not, in fact, claim
that it establishes a federation The question whether the Indian Constitution could be
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called a federal constitution troubled the minds of the members of the Constituent Assembly.
This question cannot be answered without going into the meaning of federalism and the
essential features that are evident in federal state. Let us examine them and try to find out
whether India is a federation or not.
8.1.1 Written Constitution
The most important feature of a federation is that its constitution should be a written one,
so that both the Union Government as well as the State can refer to that as and when
needed. The Constitution of India is a written document and is the most elaborate
Constitution of the world. It establishes supremacy of the Constitution because both the
union and the states are given powers by the Constitution as to be independent in their
spheres of governance.
8.1.2 Rigid Constitution
The procedure of amending the Constitution in a federal system is normally rigid. Indian
Constitution provides that some amendments require a special majority. Such an amendment
has to be passed by majority of total members of each house of the Parliament as well as
by two-thirds majority of the members present and voting there in. However, in addition to
this process, some amendments must be approved by at least 50% of the states. After this
procedure the amendment is signed by the head of the state i.e; the President. Since in
India important amendments can be amended through this procedure. Hence, Indian
Constitution has been rightly called a rigid constitution.
8.1.3 Division of Powers
In our Constitution, there is a clear division of powers, so that the States and the Centre
are required to enact and legislate within their sphere of activity and none violates its limits
and tries to encroach upon the functions of the other. Our constitution enumerates three
lists, viz. the Union, the State and the Concurrent List. The Union List consists of 97
subjects of national importance such as Defence, Railways, Post and Telegraph, etc. The
State List consists of 66 subjects of local interest such as Public Health, Police etc. The
Concurrent List has 47 subjects important to both the Union and the State. such as Electricity,
Trade Union, Economic and Social Planning, etc.
8.1.4 Supremacy of the Judiciary
Another very important feature of a federation is an independent judiciary to interpret the
Constitution and to maintain its sanctity. The Supreme Court of India has the original
jurisdiction to settle disputes between the Union and the States. It can declare a law as
unconstitutional, if it contravenes any provision of the Constitution.
Intext Questions 8.1
Fill in the blanks :
1. In a federation the powers are . (with the Centre/ with
the State / Divided between the Centre and the States)
2. Federation has a Constitution. (Written/ unwritten/evolved)
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3. In the Indian Constitution there areLists. (2,3,4)
4. 66 subjects are included in the List. (Union/State/Concurrent)
5. The concurrent list consists of subjects. (97,47,66)
8.2 Nature of Indian Federation
In spite of the fact that the Indian Constitution establishes a federal structure, it is indeed
very difficult to put the Indian Constitution in the category of a true federation. The framers
of the Constitution have modified the true nature of Indian federation by incorporating
certain non-federal features in it. These are :
Article I of the Constitution describes India as a Union of States, which implies two
things: firstly, it is not the result of an agreement among the States and secondly, the States
have no freedom to secede or separate from the Union. Besides, the Constitution of the
Union and the States is a single framework from which neither can get out and within
which they must function. The federation is a union because it is indestructible and helps
to maintain the unity of the country.
The Centre appoints the Governors of the States and may take over the administration of
the State on the recommendations of the Governor or otherwise. In other words, Governor
is the agent of the Centre in the States. The working of Indian federal system clearly
reveals that the Governor has acted more as centres representative than as the head of
the State. This enables the Union government to exercise control over the State
administration. The control of the Union over states after the imposition of National
Emergency.
The equality of units in a federation is best guaranteed by their equal representation in the
Uppers House of the federal legislature (Parliament). However, this is not applicable in
case of Indian States. They have unequal representation in the Rajya Sabha. In a true
federation such as that of United State of America every State irrespective of their size in
terms of area or population it sends two representatives in the upper House i.e. Senate.
In addition to all this, all important appointments such as the Chief Election Commissioner,
the Comptroller and Auditor General are made by the Union Government. Besides, there
is single citizenship. There is no provision for separate Constitutions for the states. The
States cannot propose amendments to, the Constitution. As such amendments can only be
made by the Union Parliament.
In order to ensure uniformity of the administrative system and to maintain minimum common
administrative standards without impairing the federal system. All India Services such as
IAS and IPS have been created which are kept under the control of the Union. In financial
matters too, the States depend upon the Union to a great extent. The States do not possess
adequate financial resources to meet their requirements. During Financial Emergency, the
Center exercises full control over the States finances.
In case of disturbances in any State or part thereof, the Union Government is empowered
to depute Central Force in the State or to the disturbed part of the State. Also, the Parliament,
by law may increase or decrease the area of any State and may alter its name and
boundaries.
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The federal principle envisages a dual system of Courts. But, in India we have unified
Judiciary with the Supreme Court at the apex.
The Constitution of India establishes a strong Centre by assigning all-important subjects to
the Centre as per the Union List. The State Governments have very limited powers.
Financially the States are dependent on the Centre
From the above discussion, it is clear, that there is a tilt in favor of the Centre at the cost of
the States. The States have to work in close co-operation with the Centre. This has lent
support to the contention that the Indian Constitution is federal in form but unitary in spirit.
Constitutional experts have called it semi-federal of quasi federal system.
Intext Questions 8.2
Fill in the blanks :
1. The may change the area of a State by law. (Parliament/
State Legislature/Municipal Corporation)
2. All Indian Services are under the control of . (Union Govt/State Govt/
District Govt.)
3. In a federation there is representation in the upper house
of Parliament. (unequal/equal/proportional)
8.3 Centre-State Relations
We have seen that the Constitution of India provides for a federal system. Both the Union
and the State are created by the Constitution and derive their respective authority from it.
Yet there is a criticism that India is a federal State but with unitary features. How far is
this criticism valid? To understand this, it is desirable to study the relationship between the
Union and the States.
The relations between the Centre and the states which constitute the core of federalism
have been enumerated in Parts XI and XII of the Constitution under the heads, legislative,
administrative and financial relations. Let us examine them one by one.
8.3.1 Legislative Relations
Regarding legislative relations, there is a threefold division of powers in the Constitution.
We have followed a system in which there are two lists of legislative powers, one for the
Centre and the other for the State, known as the Union List and the State List, respectively.
An additional list called the Concurrent List has also been added.
The Union List which consists of 97 subjects of national interest is the largest of the three
lists. Some of the important subjects included in this list are: Defence, Railways, Post and
Telegraph, Income Tax, Custom Duties, etc. The Parliament has the exclusive power to
enact laws on the subjects included in the Union List for the entire country.
The State List consists of 66 subjects of local interest. Some of the important subjects
included in this List are Trade and Commerce within the State, Police, Fisheries, Forests,
Industries, etc. The State Legislatures have been empowered to make laws on the subjects
included in the State List.
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The Concurrent List consists of 47 subjects of common interest to both the Union and the
States. Some of the subjects included in this list are: Stamp Duties, Drugs and Poison,
Electricity, Newspapers etc. Both the Parliament and the State Legislatures can make
laws on the subjects included in this list. But in case of a conflict between the Union and
the State law relating to the same subject, the Union law prevails over the State law.
Power to legislate on all subjects not included in any of the three lists vests with the
Parliament.
Under certain circumstances, the Parliament can legislate on the subjects mentioned in
the State List.
8.3.2 Administrative Relations
The framers of the Indian Constitution never intended to create administrative co-operation
and co-ordination between the centre and states.
The executive power of the State is to be exercised in such a way as to ensure compliance
with the laws made by the Parliament. Further, the Union Executive is empowered to give
directions to a State, if necessary, for the requisite purpose.
The Union Government can issue directions to the States to ensure compliance with the
laws of the Parliament for construction and maintenance of means of communications,
declared to be of national and military importance, and also on the measures for the protection
of Railways. In addition to all this, the Parliament can alone adjudicate on inter-state river
disputes. Also, a provision has been made for constituting an Inter- State Council to advise
the president on inter-state disputes.
Even the State governments may delegate some of its administrative functions relating to
the State subjects, to Union Government for a specified period.
The Constitution of India has certain special provisions to ensure uniformity of the
administrative system. These include the creation of All India Services such as IAS and
IPS and placing members of these services in key administrative positions in the states.
The presence of All India Service Officers further paves way for the Central Government
to exercise its authority and control over the states. The members of these services are
recruited by the Centre but are appointed in the States. No disciplinary action can be taken
against them by the State Governments without the permission of the Centre. The
Constitution also makes provision for the creation of new All India Service by the Parliament
on the recommendation of the Rajya Sabha. The President also puts the entire control of
the state administrative machinery under the control of the Union which you will study in
details while going through the lesson on emergency provisions.
You would also recall that the Union executive is empowered to give such directions to a
state as it may appear necessary for the purpose to the Union Government. The Union
Government has wide powers to issue directions based on the subjective view of the
Union and may, therefore, interfere with the state autonomy in the field of administration.
Ordinarily, the central police force and Army are posted to the states at the request of the
State Government. However, there have been occasions when the CRPF of BSF have
been deployed in states much against the state wishes of the State Government. Thus, the
center plays a very important role in the administrative sphere of activity concerning the
States.
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8.3.3 Financial Relations
The distribution of financial resources is especially critical in determining the nature of the
States relationship with the Centre. Both the Union and the State have been provided
with independent sources of revenue by the Constitution. The Parliament can levy taxes
on the subjects included in the Union List. The States can levy taxes on the subjects in the
State List. By and large taxes that have an inter-state base are levied by the Centre and
those with a local base by the State.
The Union List consists of items of taxation which fall under the following categories:
(i) Taxes levied by the Union but collected and appropriated by the State such as stamp
duties and duties of excise on medicinal and toilet preparations etc.
(ii) Taxes levied and collected by the Union but assigned to the States viz. railways, sea
or air etc.
(iii) Taxes levied and collected by the Central and may be distributed between the Central
and the states if the Parliament by law so provides, such as union excise duties,
excise on toilet preparations etc.
(iv) Taxes levied and collected and retained by the Centre such as customs, surcharge
on income tax etc.
(v) Taxes levied and collected by the Centre and distributed between the union and the
states such as taxes other than agriculture etc.
It is clear that in the financial sphere too the Centre is better equipped. The Centre can
exercise control over the state finances and grants-in-aid both general and special to meet
the expenditure on developmental schemes. During financial emergency, the President
has the power to suspend the provisions regarding division of taxes between the Centre
and the State. He can also impose other restrictions on the expenses of the State.
State plans are framed within the priorities of the central plan and they are executed with
the approval of the Planning Commission. Further, the States have to carry out the centresponsored
schemes for which the Centre gives grants and the conditions under which
these
are to be made. The Planning Commission has created an over-centralized planning
system.
No initiative is left to the states and the centrally formulated schemes have been
inappropriately
and unimaginatively imposed upon them.
Intext Questions 8.3
Fill in the blanks :
1. The Union List consists of subjects. (97/66/47)
2. Post and Telegraph is subjects in the List. (Union/
State/Concurrent)
3. The can legislate on subjects in the State List when
there is Presidents rule. (State Legislature/Parliament/Both of them)
4. Trade and Commerce is a subject withList. (Union/State/
Concurrent)
8.4 Demand for Greater Autonomy for the States
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The founding fathers of the Indian Constitution were deeply concerned about ensuring the
unity and integrity of the country. They were aware of the forces of disruption and disunity
working within the country. These dangers at the time of independence could be handled
only by a strong government at the Centre.
Therefore, the framers of the Constitution assigned a predominant role to the Centre. At
the same time they made provisions for the establishment of a co-operative federalism.
The working of the Indian federation during the last five decades clearly shows that the
relations between the Centre and the States have not always been cordial.
The administrative Reforms Commission and several other Commissions were appointed
by the Government of India from time to time to regulate Centre State relations. The
Union Government appointed Sarkaria Commission to suggest ways and means to improve
Centre-State relations.
The recommendations of the Sarkaria Commission assume importance so as to evolve an
appropriate policy in the areas of legislative, administrative and financial relations. It has
not suggested wholesole structural changes in the fundamental fabric of the Constitution.
It felt that federalism is more a functional arrangement for co-operative action than a
static institutional concept. The Commission strongly recommended the establishment of
permanent Inter-State Council. In addition, it desired that both the Centre and the States
should have the concern for the development of backward territory or areas. If the economic
development of these backward regions are undertaken in a planned manner, the separatist
tendencies will be automatically controlled. Differences between the Union and the States
should be resolved by mutual consultation. It has taken a favourable view on the demand
of the States to provide more financial resources at their disposal. In order to improve
Centre-State relations in the country, it has suggested economic liberalization and suitable
amendments to the Constitution.
Intext Questions 8.4
Fill in the blanks :
1. Proposal for amendment to the Constitution can be initiated only by _____________
government.
2. The Indian Constitution is _________________ federal.
3. States are demanding ___________________ autonomy.
4. commission has submitted its report relating to centre-state
relation.
What You Have Learnt
In a federal system of government there is a need for clear cut division of power between
the Union and States. This also requires a written and rigid constitution and an independent
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judiciary to decide disputes between the Union and the States. Though the Indian Constitution
has all such features of a federal state, it is indeed difficult to put the Indian Constitution in
the category of true federations.
The framers of the Constitution have incorporated certain non federal features in it such
as single citizenship, single judiciary, a strong centre, appointment of the Governor by the
President, unequal of representation in the Rajya Sabha and so on. All these indicate a tilt
towards strong centre. The states have to work in close co-operation with the centre. The
constitution is federal in form but unitary in spirit. The study of Center-State relationship in
legislative, administrative and financial spheres also clearly shows that the Centre is stronger
as compared to the states. The Centre has been assigned a dominant role which became
necessary keeping in view the dangers to the unity and integrity of the nation. Therefore,
there are provisions for a co- operative federalism.
The working of the Indian Constitution over the year indicates that relations between the
center and the States have not remained very co-ordinal. The states have started demanding
more autonomy. Various commissions have been appointed by the Government of India to
review the centre- state relations. The Sarkaria Commission examined the problem and
recomended changes in the area of federal, legislative, administrative and financial relations.
Terminal Exercises
1. Discuss the unitary feature of the Constitution of India.
2. Write a short note on the legislative relations between the center and the states.
3. Describe the financial relations between the center and states.
4. Explain that the Indian Constitution is federal in form but unitary in spirit.
Answers to Inext Questions
8.1
Q.1. Divided between the center and the states
Q.2. Wriiten
Q.3. 3
Q.4. State
Q.5. 47
8.2
Q.1. Parliament
Q.2. Union Government
Q.3 Unequal
8.3
Q.1. 97
Q.2. Union
Q.3. Parliament
Q.4. State
8.4
(1) Central
(2) quasi
(3) Greater
(4) Sarkaria
Hints of Terminal Exercises
1. Refer to Section 8.1
2. Refer to Section 8.2.1
3. Refer to Section 8.2.3
4. Refer to Section 8.1
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Y
9
EMERGENCY PROVISIONS
ou have read in the preceding lesson that the Constitution of India is federal in nature
having a unitary bias. On the one hand, it has all the characteristic features of a federation,
while, on the other hand the Centre is more powerful than the States.
When the Constitution of India was being drafted, India was passing through a period of
stress and strain. Partition of the country, communal riots and the problem concerning the
merger of princely states including Kashmir. Thus, the Constitution-makers thought to
equip the Central Government with the necessary authority, so that, in the hour of emergency,
when the security and stability of the country is threatened by internal and external threats.
Therefore, some emergency provisions were made in Constitution to safeguard and protect
the security, integrity and stability of the country and effective functioning of State
Governments.
Objectives
After studying this lesson, you will be able to
l recognise that the Union Government has no option except to assume extraordinary
powers in emergencies;
l identify the situations in which the President can proclaim a state of National
Emergency under Article 352;
l describe the various effects of National Emergency relating to the executive,
legislative, and financial matters, with special reference to the fundamental Rights;
l cite examples of National Emergencies proclaimed in the country with their duration
and effect;
l describe the circumstances in which the President can make a proclamation under
Article 356 imposing Presidents Rule in a state;
l cite a few examples when such proclamations were made due to the breakdown of
constitutional machinery;
l recall that imposition of Presidents Rule has often been controversial in the context
of smooth Centre State relations;
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l describe the circumstances under which Financial Emergency can be proclaimed
under Article 360;
l explain the role of Parliament during Financial Emergency; and
l describe the effects of Financial Emergency.
9.1 Emergency Caused by War, External Aggression etc.
Provisions have been made in the Constitution for dealing with extraordinary situations
that may threaten the peace, security, stability and governance of the country or a part
thereof. There are three types of extraordinary or crisis situations that are envisaged.
First, when there is a war or external aggression has been committed or there is threat of
the same, or if internal disturbances amounting to armed rebellion take place; second,
when it becomes impossible for the government of a State to be carried on in accordance
with the Constitution; and third, if the credit or financial stability of the country is threatened.
In each case the President may issue a proclamation with varying consequences. In this
section we will discuss the emergency caused by war etc., popularly known as the national
emergency.
9.1.1 Proclamation of National Emergency (Article 352)
The Constitution of India has provided for imposition of emergency caused by war, external
aggression or internal rebellion. This is described as the National Emergency. This type of
emergency can be declared by the President of India if he is satisfied that the situation is
very grave and the security of India or any part thereof is threatened or is likely to be
threatened either (i) by war or external aggression or (ii) by armed rebellion within the
country. The President can issue such a proclamation even on the ground of threat of war
or aggression. According to the 44
th
Amendment of the Constitution, the President can
declare such an emergency only if the Cabinet recommends in writing to do so.
Such a proclamation of emergency has to be approved by both the Houses of Parliament
by absolute majority of the total membership of the Houses as well as 2/3 majority of
members present and voting within one month, otherwise the proclamation ceases to operate.
In case the Lok Sabha stands dissolved at the time of proclamation of emergency or is not
in session, it has to be approved by the Rajya Sabha within one month and later on by the
Lok Sabha also within one month of the start of its next session. Once approved by the
Parliament, the emergency remains in force for a period of six months from the date of
proclamation. In case it is to be extended beyond six months, another prior resolution has
to be passed by the Parliament. In this way, such emergency continues indefinitely. But if
the situation improves the emergency can be revoked by another proclamation by the
President of India.
The 44
th
Amendment of the Constitution provides that ten per cent or more members of
the Lok Sabha can requisition a meeting of the Lok Sabha and in that meeting, it can
disapprove or revoke the emergency by a simple majority. In such a case emergency will
immediately become inoperative.
National Emergency has been declared in our country three times so far. For the first time,
emergency was declared on 26 October 1962 after China attacked our borders in the
North East. This National Emergency lasted till 10 January 1968, long after the hostilities
ceased.
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For the second time, it was declared on 3 December 1971 in the wake of the second IndiaPakistan
War
and was lifted on 21 March 1977. While
the second emergency,
on the basis
of
external aggression, was in operation, third National Emergency (called internal
emergency)
was imposed on 25 June 1975. This emergency was declared on the ground
of
internal disturbances. Internal disturbances justified impositin of the emergency despite
the
fact that the government was already armed with the powers provided during the
second
National Emergency of 1971 which was still in operation.
9.1.2 Effects of National Emergency
The declaration of National Emergency has far-reaching effects both on the rights of
individuals and the autonomy of the states in the following manner :
(i) The most significant effect is that the federal form of the Constitution changes into
unitary. The authority of the Centre increases and the Parliament assumes the power
to make laws for the entire country or any part thereof, even in respect of subjects
mentioned in the State List.
(ii) The President of India can issue directions to the states as to the manner in which
the executive power of the states is to be exercised.
(iii) During this period, the Lok Sabha can extend its tenure by a period of one year at a
time. But the same cannot be extended beyond six months after the proclamation
ceases to operate. The tenure of State Assemblies can also be extended in the same
manner.
(iv) During emergency, the President is empowered to modify the provisions regarding
distribution of revenues between the Union and the States.
(v) The Fundamental Rights under Article 19 about which you have already learnt are
automatically suspended and this suspension continues till the end of the emergency.
But according to the 44
th
Amendment, Freedoms listed in Article 19 can be suspended
only in case of proclamation on the ground of war or external aggression.
From the above discussion, it becomes quite clear that emergency not only suspends the
autonomy of the States but also converts the federal structure of India into a unitary one.
Still it is considered necessary as it equips the Union Government with vast powers to
cope up with the abnormal situations. The exigencies of the situation prevailing in the
period 1975-77 necessitated certain changes in the Constituion reagarding emergency
provisions. Therefore, the 44th amendment was passed on 30th April 1979 to strengthen
the democratic features of the Indian Constituion and to protect citizens rights even during
the national emergency.
Intext Questions 9.1
Fill in the blanks :
1. Proclamation of National Emergency gives enlarged powers to the
__________________. (Union Government, President, Supreme Court)
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2. National Emergency can be declared under Article _______________. (232, 352,
360)
3. During this period of National Emergency Lok Sabha can extend its term by
____________ at a time. (one year, three years, five years)
4. During the period of National Emergency, the Right to _____________ can be
restricted. (Equality, Freedom, Constitutional Remedies)
5. On 25 June 1975, National Emergency was declared on the ground of
______________. (external aggression, internal disturbances, financial crisis)
6. The President can declare National Emergency only if _____________.
(a) The Prime Minister gives written advice.
(b) The Cabinet recommends in writing.
(c) He himself is otherwise satisfied.
7. Once approved by the Parliament, the National Emergency ordinarily remains in
force for a period of ________________. (six months, 1 year, 2 years).
9.2 Emergency due to Failure of Constitutional
Machinery in a State
It is the duty of the Union Government to ensure that governance of a State is carried on
in accordance with the provisions of the Constitution. Under Article 356, the President
may issue a proclamation to impose emergency in a state if he is satisfied on receipt of a
report from the Governor of the State, or otherwise, that a situation has arisen under
which the Government of the State cannot be carried on smoothly. In such a situation,
proclamation of emergency by the President is called proclamation on account of the
failure (or breakdown) of constitutional machinery. In popular language it is called the
Presidents Rule.
Like National Emergency, such a proclamation must also be placed before both the Houses
of Parliament for approval. In this case approval must be given within two months, otherwise
the proclamation ceases to operate. If approved by the Parliament, the proclamation remains
valid for six months at a time. It can be extended for another six months but not beyond
one year. However, emergency in a State can be extended beyond one year if
(a) a National Emergency is already in operation; or if
(b) the Election Commission certifies that the election to the State Assembly cannot be
held.
This type of emergency has been imposed in most of the States at one time or the other for
a number of times. It was in 1951 that this type of emergency was imposed for the first
time in the Punjab State. In 1957, the Kerala State was put under the Presidents Rule.
There have been many cases of misuse of constitutional breakdown. For example, in
1977 when Janata Party came into power at the Centre, the Congress Party was almost
wiped out in North Indian States. On this excuse, Desai Government at the Centre dismissed
nine State governments where Congress was still in power. This action of Morarji Desais
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Janata Government was strongly criticised by the Congress and others. But, when in 1980
(after Janata Government had lost power) Congress came back to power at the Centre
under Mrs.Gandhis leadership and dismissed all the then Janata Party State Governments.
In both cases there was no failure of Constitutional machinery, but actions were taken only
on political grounds.
In 1986, emergency was imposed in Jammu and Kashmir due to terrorism and insurgency.
In all, there are more than hundred times that emergency has been imposed in various
States for one reason or the other. However, after 1995 the use of this provision has rarely
been made.
9.2.1 Effects of Imposition of Presidents Rule in a State
The declaration of emergency due to the breakdown of Constitutional machinery in a
State has the following effects:
(i) The President can assume to himself all or any of the functions of the State
Government or he may vest all or any of those functions with the Governor or any
other executive authority.
(ii) The President may dissolve the State Legislative Assembly or put it under suspension.
He may authorise the Parliament to make laws on behalf of the State Legislature.
(iii) The President can make any other incidental or consequential provision necessary to
give effect to the object of proclamation.
The way Presidents Rule was imposed on various occasions has raised many questions.
At times the situation really demanded it. But at other times, Presidents Rule was imposed
purely on political grounds to topple the ministry formed by a party different from the one
at the Centre, even if that particular party enjoyed majority in the Legislative Assembly.
Suspending or dissolving assemblies and not giving a chance to the other political parties to
form governments in states has been due to partisan consideration of the Union Government,
for which Article 356 has been clearly misused.
In view of the above facts, Article 356 has become very controversial. In spite of the
safeguards provided by the 44
th
Amendment Act, this provision has been alleged to be
misused by the Union Government. That is why, there is a demand either for its deletion or
making provision in the Constitution to restrict the misuse of this Article. The Sarkaria
Commission which was appointed to review the CentreState relations also recommended
that Article 356 should be used only as a last resort. The Commission also suggested that
the State Legislative Assembly should not be dissolved unless the proclamation is approved
by the Parliament. It further suggested that all possibilities of forming an alternative
government should be fully explored before the Centre imposes emergency in a State on
grounds of breakdown of Constitutional machinery. The Supreme Court held in the Bommai
case that the Assembly may not be dissolved till the Proclamation is approved by the
Parliament. On a few occasions such as when Gujral Government recommended use of
Article 356 in Uttar Pradesh, the President returned the recommendation for reconsideration.
The Union Government took the hint and dropped the proposal.
Intext Questions 9.2
MODULE - 2
Emergency Provisions
Aspects of the
Fill in the blanks :
1. The proclamation of emergency due to the breakdown of Constitutional machinery
in a State is covered under Article ____________ (352, 356, 360)
2. The imposition of Presidents Rule in a State can continue for ________ months
without the approval of the Parliament. (one, two, six)
3. Presidents Rule in a State can be extended upto a maximum period of
________________ . ( 1 year, 2 years, 3 years)
4. The declaration of emergency due to the failure of Constitutional machinery in a
State is made on the advice of the ____________ . (Chief Minister, Speaker of
Legislative Assembly, Governor)
5. The Parliament can approve the imposition of Presidents Rule in a State for a period
of __________________ at a time. (three months, six months, nine months)
9.3 Financial Emergency
The third type of Emergency is Financial Emergency provided under Article 360. It provides
that if the President is satisfied that the financial stability or credit of India or any of its part
is in danger, he may declare a state of Financial Emergency. Like the other two types of
emergencies, it has also to be approved by the Parliament. It must be approved by both
Houses of Parliament within two months. Financial Emergency can operate as long as the
situation demands and may be revoked by a subsequent proclamation.
9.3.1 Effects of Financial Emergency
The proclamation of Financial Emergency may have the following consequences:
(a) The Union Government may give direction to any of the States regarding financial
matters.
(b) The President may ask the States to reduce the salaries and allowances of all or any
class of persons in government service.
(c) The President may ask the States to reserve all the money bills for the consideration
of the Parliament after they have been passed by the State Legislature.
(d) The President may also give directions for the reduction of salaries and allowances
of the Central Government employees including the Judges of the Supreme Court
and the High Courts.
So far, fortunately, financial emergency has never been proclaimed.
Intext Questions 9.3
1. Article ____________ covers the Financial Emergency provisions. (352, 356, 360)
2. Financial Emergency has been imposed in our country only ______________. (once,
twice, never)
Constitution of India
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Political Science
Aspects of the
Constitution of India
Notes
96
3. Financial Emergency can be imposed for a period of ___________ at a time. ( two
months, six months, desired length).
4. Financial Emergency has to be passed by the Parliament within _____________.
(Two months, four months, six months)
5. Under Financial Emergency, the President may give directions to reduce the salaries
and allowances of ___________________. (Union Government employees, State
Government employees, All government functionaries including judges.)
What You Have Learnt
According to the Indian Constitution, the President has been given extraordinary powers
to deal with certain abnormal situations in order to protect the security, integrity and stability
of the country. For this purpose, there are three types of emergencies which can be
proclaimed by the President of India on the written advice of the Union Cabinet. These
three types of emergencies are :
(a) National emergency (Article 352).
(b) Emergency due to the breakdown of constitutional machinery in a State (Article
356).
(c) Financial emergency (Article 360).
National emergency under Article 352 has been declared three times so far. Twice it was
imposed due to the external aggression once by China and another time by Pakistan,
whereas it was declared only once on the basis of the fear of internal disturbances. This
emergency was imposed on 25 June 1975. Emergency on account of failure of Constitutional
machinery has been declared in most of the States some time or the other. But Financial
Emergency has not been declared so far.
Emergency, when imposed, affects the Fundamental Rights of the citizens. It also affects
the autonomy of the State Governments. The powers of the Union Government increase
and it can make laws even on the subjects included in the State List. The Centre gives
directions to the State Governments. Practically speaking, the federal nature of the
Constitution changes into a unitary form. So much so that when the proclamation of national
emergency is in operation, some of the Fundamental Rights guaranteed by the Constitution
remain suspended.
The second type of emergency under Article 356 is the most frequently imposed emergency.
Under this, a State is put under the Presidents Rule if the elected representatives fail to
form or run the government in a State according to the Constitution of India. This is the
most misused form of emergency which has been vehemently criticised by many.
The third type of emergency is Financial Emergency which has not been declared so far.
During this type of emergency, the President of India may give directions to the Union as
well as State Governments to reduce the salaries and allowances of their employees
including the judges. The purpose of declaring this type of emergency is to solve the
financial crises.
MODULE - 2
Emergency Provisions
Aspects of the
The proclamation of each type of emergency is made by the President on the written
advice of the Union Cabinet. Such a proclamation has to be approved by both the Houses
of Parliament within one month in case of National Emergency and within two months in
case of the remaining two types of emergencies, from the date of imposition of such
emergency. The Proclamation of national emergency as well as the imposition of Presidents
Rule, if approved by the Parliament, will continue to be in operation for six months from
the date of proclamation. In case it is to be extended beyond six months, a subsequent prior
resolution has to be passed by the Parliament to this effect. In case of Financial Emergency
once proclaimed, it continues to operate as long as it is required.
The Emergency Provisions provide the President with sweeping powers to deal with abnormal
and extraordinary situations. Any misuse of these powers can easily lead to subversion of
democracy. But the actual working of the Constitution for more than five decades has
demonstrated that emergency powers were generally used in the interest of the country
barring a few cases where emergency was imposed due to political considerations. In spite
of misuse of emergency provisions in some of the States, there is a broad consensus that
emergency provisions still have a role to play under the conditions prevailing in India.
Terminal Exercises
1. Describe briefly the emergency provisions contained in the Constitution of India.
2. How does the imposition of National Emergency affect the life of citizens?
3. Under what conditions can the Presidents Rule be imposed in a State?
4. How are the executive and legislative powers of a State exercised during the Presidents
Rule?
5. Mention the effects of Financial Emergency.
Answers to Intext Questions
9.1
1. Union Government
2. 352
3. one year.
4. Freedom
5. internal disturbances.
6. Cabinet recommends in writing.
7. 6 months.
9.2
1. Article 356.
2. 2 months.
Constitution of India
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Political Science
Aspects of the
Constitution of India
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3. One year.
4. Governor
5. Six months.
9.3
1. Article 356.
2. never.
3. desired length.
4. Two months.
5. All government functionaries including judges.
Hints for Terminal Exercises
1. Refer to Sections 9.1, 9.2 and 9.3.
2. Refer to Effects of National Emergency Section 9.1.2
3. Refer to Section 9.2.
4. Refer to the Effects of Imposition of Presidents Rule in a State Section 9.2.2.
5. Refer to Section 9.3.
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