Preamble of The Constitution: The Constitution of India Initiates With A Preamble. The Preamble

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1. Preamble of the Constitution: The Constitution of India initiates with a Preamble.

The Preamble
consists of the ideals, objectives and basic principles of the Constitution. The salient features of the
Constitution have developed directly and indirectly from these objectives which flow from the
Preamble. The Preamble is described as an introduction or preface of a book. As an overview, 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. Basically, it is a brief introductory statement that sets out the
guiding purpose and principles of the document, and it indicate the source from which derives its
authority, meaning, and the people.

The Preamble describes the objectives of the Constitution in two ways: one, is about the structure of
the governance and secondly, it explains the ideals to be achieved in independent India. It is because
of this, the Preamble is considered to be the major element of the Constitution.

The objectives, which are laid down in the Preamble, are:

1. Description of Indian State as Sovereign, Socialist, Secular, Democratic Republic. (Socialist,


Secular added by 42nd Amendment, 1976).

2. 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.

d. Fraternity assuring dignity of the individual and unity and integrity of the nation.

The Preamble to the Constitution of India is a well drafted document which signifies the values of the
constitution. It asserts India to be a Sovereign Socialist Secular Democratic Republic and a welfare
state committed to secure justice, liberty and equality for the people and for promoting fraternity,
dignity the individual, and unity and integrity of the nation. The Preamble is the nature of Indian state
and the objectives it is committed to secure for the people.

Basic Structure doctrine:

The basic structure doctrine is an Indian judicial norm that the Constitution of India has certain basic
features that cannot be changed or destroyed through amendments by the parliament.

The "basic features" principle was first explained in 1964, by Justice J.R. Mudholkar in his
disagreement, in the case of Sajjan Singh v. State of Rajasthan. He wrote, "It is also a matter for
consideration whether making a change in a basic feature of the Constitution can be regarded merely
as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would
it be within the purview of Article 368 ?"

The basic features of the Constitution have not been openly defined by the Judiciary. At least, 20
features have been described as "basic" or "essential" by the Courts in numerous cases, and have been
incorporated in the basic structure. In Indira Nehru Gandhi v. Raj Naraian and also in the Minerva
Mills case, it was witnessed that the claim of any particular feature of the Constitution to be a "basic"
feature would be determined by the Court in each case that comes before it.
Several aspects of the Constitution termed as "basic" are mentioned below:

1. Supremacy of the Constitution

2. Rule of law

3. The principle of Separation of Powers

4. The objectives specified in the Preamble to the Constitution

5. Judicial Review

6. Articles 32 and 226

7. Federalism (including financial liberty of states under Articles 282 and 293)

8. Secularism

9. The Sovereign, Democratic, Republican structure

10. Freedom and dignity of the individual

11. Unity and integrity of the Nation

12. The principle of equality, not every feature of equality, but the quintessence of equal justice

13. The "essence" of other Fundamental Rights in Part III

14. The concept of social and economic justice - to build a Welfare State: Part IV

15. The balance between Fundamental Rights and Directive Principles

16. The Parliamentary system of government

17. The principle of free and fair elections

18. Limitations upon the amending power conferred by Article 368

19. Independence of the Judiciary

20. Effective access to justice

21. Powers of the Supreme Court under Articles 32, 136, 141, 142

22. Legislation seeking to nullify the awards made in exercise of the judicial power of the State
by Arbitration Tribunals constituted under an Act

Important elements among these "basic features", are the fundamental rights granted to individuals by
the constitution. The policy forms the basis of a limited power of the Supreme Court to review and
strike down constitutional amendments passed by the Parliament which conflict with or seek to alter
this "basic structure" of the Constitution. The basic structure doctrine applies only to constitutional
amendments. The basic structure doctrine does not apply to ordinary Acts of Parliament, which must
itself be in conformity with the Constitution.
Initial position of the Supreme Court on constitutional amendments was that no part of the
Constitution was unamendable and that the Parliament might, by passing a Constitution Amendment
Act in compliance with the requirements of article 368, amends any provision of the Constitution,
including the Fundamental Rights and article 368.

In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that
Fundamental Rights included in Part III of the Constitution are given a "transcendental position" and
are beyond the reach of Parliament. It also declared any amendment that "takes away or abridges" a
Fundamental Right conferred by Part III as unconstitutional. By 1973, the basic structure doctrine
succeeded in Justice Hans Raj Khanna's judgment in the landmark decision of KesavanandaBharati v.
State of Kerala. Previously, the Supreme Court had held that the power of Parliament to amend the
Constitution was unfettered. However, in this breakthrough ruling, the Court refereed that while
Parliament has "wide" powers, it did not have the power to destroy or weaken the basic elements or
fundamental features of the constitution.

3. Fundamental Rights and duties:

The Constitution of India grants and guarantees Fundamental Rights to its citizens. It is called the
Indian Bill of Rights. Initially, seven Fundamental Rights were granted but after the deletion of the
Right to Property from the list of Fundamental Rights (44th Amendment Act 1979) their number
came down to six.

Prof. H.J. Laski stated that "A state is known by the rights it maintains". The constitution of India
confirms the basic principle that every individual is permitted to enjoy certain basic rights and part III
of the Constitution deals with those rights which are known as fundamental right.

The Six Fundamental Rights are under:

1. Right to Equality:

It provides for Equality before Law, End of Discrimination, Equality of Opportunity, Abolition of
untouchability and Abolition of Titles.

2. Right to Freedom:

It incorporates six fundamental freedoms that include freedoms of speech and expression, freedom to
form associations, freedom to assemble peaceably without arms, freedom to move freely in India,
freedom of residence in any part, and freedom of adopting any profession or trade or occupation. It
safeguards personal freedom and protection in respect of conviction for certain offences.

The Constitution lays down that the freedom of life and liberty cannot be limited or denied except in
accordance with the procedure established by law. Now under Art 21A Right to Education for the
children between the ages of 6-14 years has been granted. Art. 22 guarantees protection against
arbitrary arrest and detention.

3. Right against Exploitation:


This Fundamental Right forbids sale and purchase of human beings, forced labour (begaar) and
employment of children in hazardous jobs and factories.

4. Right to Freedom of Religion:

The objectives of this right include the freedom of conscience, religion and worship. Any person can
follow any religion. It gives to all religions freedom to establish and maintain their religious
institutions. Citizens cannot be compelled to pay any tax for the propagation of any religion. The state
cannot levy a tax for any religion and constitution prohibits the imparting of religious instructions in
schools and colleges.

5. Cultural and Educational Rights:

In this right, the Constitution guarantees the rights of the minorities to maintain and develop their
languages and cultures. It also confers upon them the right to establish, maintain and administer their
educational institutions.

6. Right to Constitutional Remedies (Art. 32):

This fundamental right is the key of the entire Bill of Rights. It provides for the enforcement and
protection of Fundamental Rights by the courts. It empowers the Supreme Court and High Courts to
issue writs for the enforcement of these rights.

It is stated that these fundamental rights are justiciable and the individual can move to the higher
judiciary that is the Supreme Court or the High Courts, if there is an encroachment on any of these
rights. The right to move to the Supreme Court straight for the enforcement of fundamental rights has
been guaranteed under Article 32 (Right to Constitutional Remedies). However, fundamental rights in
India are not absolute. Reasonable constraints can be imposed keeping in view the security-
requirements of the state.

It is further added by political scientist that fundamental rights for Indians have also been intended to
overturn the inequalities of pre-independence social practices. Precisely, they have also been used to
abolish untouchability and thus prohibit discrimination on the basis of religion, race, caste, sex, or
place of birth. They also prohibit trafficking of human beings and forced labour. They also protect
cultural and educational rights of ethnic and religious minorities by allowing them to preserve their
languages and also establish and administer their own education institutions. They are covered under
articles 14 to 32 of the Indian constitution.

Fundamental Duties of constitution are as under:

A new part IV (A) after the Directive Principles of State Policy was combined in the constitution by
the 42nd Amendment, 1976 for fundamental duties. These duties are mentioned below:

1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the
National Anthem.

2. To apprize and follow the noble ideals, which inspired our national struggle for freedom.

3. To sustain and protect the sovereignty, unity and integrity of India.

4. To defend the country and render national service when called upon to do so.
5. To promote coordination and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic, regional or sectional diversities, to renounce practices
derogatory to the dignity of woman.

6. To value and preserve the rich heritage of our composite culture.

7. To protect and improve the natural environments including forests, lakes, rivers and wild life
and to have compassion for living creatures.

8. To develop scientific temper, humanism and the spirit of inquiry and reform.

9. To defend public property and to abjure violence.

10. To endeavour towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of Endeavour and achievement.

The main aim of integrating these duties in the Constitution is to remind the people that while
enjoying their right as citizens, should also perform their duties as rights and duties are correlative.

Directive Principles:

Directive Principles of State Policy. A unique aspect of the Constitution is that it comprises of a
chapter in the Directive Principles of State Policy. These principles are in the nature of directives to
the government to implement them to maintain social and economic democracy in the country.

It exemplifies important philosophies such as:

1. adequate means to livelihood,


2. equal pay for both men and women,
3. distribution of wealth so as to serve the common good,
4. free and compulsory primary education,
5. right to work,
6. public assistance in case of old age, unemployment, sickness and disablement,
7. the organisation of village Panchayats,
8. special care to the economically disadvantaged group in country.

Most of these principles could help in making India welfare state. These principles have been
stated a; "fundamental in the governance of the country".

Judicial Review:

The judiciary has significant position in Indian Constitution and it is also made independent of the
legislature and the executive. The Supreme Court of India stands at the peak of single integrated
judicial system. It operates as defender of fundamental rights of Indian citizens and guardian of
the Constitution.

The entire judicial system of India is systematized into a hierarchical order. Supreme Court is at
the highest position of judicial administration below that there are high courts at the state level
and there are district courts at the district level. All the courts of India are bound to accept the
decisions of the Supreme Court.
The constitution of India makes provisions for the independence of judiciary because only
independent judiciary can protect the rights and authorities of the people, can protect the
supremacy of the constitution:

In judiciary:

1. - An impartial method has been implemented for the appointment of the judges.

2. - High qualifications have been fixed for the judges.

3. - The judges of the Supreme Court stay in office till 65 years of age and of High courts till 62
years of age.

4. - Difficult method has been espoused for the elimination of the judges as they can be removed
only through impeachment by the union parliament.

5. - There is prohibition of practice after the retirement of the judges.

If any law passed by the legislature or action taken by the executive contravenes the provisions of
the Constitution, they can be declared as null and void by the Supreme Court. Therefore, it has the
power of judicial review. Judicial Review denotes to the power of the judiciary to interpret the
constitution and to declare any such law or order of the legislature and executive void, if it finds
them in conflict to the Constitution of India.

In Indian constitution, the judiciary is provided with the power of judicial review through the
constitution which means that all the laws passed by the parliament and State Legislatures,
constitutional amendments, ordinances and executive orders issued by the executive are reviewed
by the judiciary and in case judiciary finds that any one of these is against the constitution, the
judiciary has the power to declare it unconstitutional.

After independence, the inclusion of explicit provisions for judicial review were compulsory in
order to give effect to the individual and group rights guaranteed in the text of the Constitution.
Dr. B.R. Ambedkar, who headed the drafting committee of Indian Constituent Assembly, had
described the provision related to the same as the ‘heart of the Constitution’. Article 13(2) of the
Constitution of India prescribes that the Union or the States shall not make any law that takes
away or abridges any of the fundamental rights, and any law made in contravention of the
aforementioned mandate shall, to the extent of the contravention, be void.

While judicial review over administrative action has grown on the lines of common law principles
such as ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural
justice, the Supreme Court of India and the various High Courts were given the power to rule on
the constitutionality of legislative as well as administrative actions to protect and enforce the
fundamental rights guaranteed in Part III of the Constitution. The higher courts are also
approached to rule on questions of legislative competence, mostly in the context of Centre-State
relations since Article 246 of the Constitution read with the 7th schedule, contemplates a clear
demarcation as well as a zone of intersection between the law-making powers of the Union
Parliament and the various State Legislatures.
Judicial Review is the power of the Judiciary by which:

The court reviews the laws and rules of the legislature and executive in cases that come before
them; in litigation cases.

The court determines the constitutional validity of the laws and rules of the government.

The court rejects that law or any of its part which is found to be unconstitutional or against the
Constitution.

But judicial review in India constitutes a middle path between the American judicial supremacy in
one hand and British Parliamentary supremacy in the other.

Parliamentary form of government.

The Constituent Assembly decided to espouse Parliamentary form of government both for the Centre
and the states. A parliamentary system is a system of democratic governance of a state where the
executive branch derives its democratic legitimacy from the legislature and is also held responsible to
that legislature. In a parliamentary system, the head of state is normally a different person from the
head of government.
In Indian parliamentary system, distinction is made between nominal and real executive head. The
Council of Ministers is responsible before the Lok Sabha, The lower house of union parliament. There
are close relations between executive and legislature. The tenure of the Council of Ministers is not
fixed as it stays in office till it enjoys the confidence.
There are limited powers of parliament in Indian constitution:
It can pass laws on those subjects which have been entrusted to it by the constitution.
The bills passed by the Parliament need the approval of the President.
The Supreme Court can exercise the powers of judicial review over the laws passed by the parliament
and can declare unconstitutional the laws which it considers are against the constitution

Federal Constitution.

India’s Constitution is of the federal type. It establishes a dual polity, a two tier governmental system,
with the Central Government at one level and the State Government at the other. The Constitution
marks off the sphere of action of each level of government by devising an elaborate scheme of
distribution of legislative, administrative, and financial powers between the Centre and the States. A
government is entitled to act within its assigned field and cannot go out of it, or encroach on the field
assigned to the other government.

Within the federal framework, the Indian Constitution provides for a good deal of centralisation. The
Central Government has a large sphere of action and thus plays a more dominant role than the States.
There is a long Concurrent List containing subjects of common interest to both the Centre and the
States. The emergency provisions provide a simple way of transforming the normal federal fabric into
an almost unitary system so as to meet the national emergencies effectively.
The scholars have characterised the constitution in various ways, e.g., quasi-federal, unitary with
federal features, federal with unitary features, centralised federation etc. The fact however remains
that though the centre in India is strong, and utmost inter-governmental cooperation is sought to be
promoted within the Constitutional framework, yet the states are not agents of the Centre; they exist
under the Constitution and not at the sufferance of the Centre; they enjoy large amount of autonomy
in normal times. Federalism has been declared to be an essential feature of the Constitution and a part
of its basic structure.

Mixture of Flexibility and Rigidity.

When it comes to ease of amendment the Indian constitution strikes a fine balance between rigidity
and flexibility. Article 368 provides for two types of amendments:

1. Some provisions can be amended by a special majority of the parliament, i.e 2\3rd majority of
the members present and voting and majority (more than 50%) of the total membership of
each House.
2. Some other provisions can be amended by a special majority of the Parliament and with
ratification of half of the total states.

This ensures that the Constitution is amended with the widest possible majority.

At the same time, some provisions of the constitution can be amended by a simple majority of the
Parliament in the manner of ordinary legislative process. Such amendments do not fall under the
ambit of Article 368.

Single Citizenship

Usually in a federal state the citizens enjoys double citizenship like in the USA. But in India there is
only single citizenship which 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 Rajasthan,
Uttaranchal or Chattisgarh to which he/she may belong to. All the citizens of India can secure
employment anywhere in the country and enjoy all the rights equally in all the parts of the nation.

Emergency Provisions

 The Constitution makers expected that there could be situations when the government could not be
run in usual manner due to difficult circumstances. To cope with such situations, the Constitution
elaborated 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.

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