CONSTITUTION Of INDIA

Introduction:- The Indian constitution is unique in its content and spirit. The salient features of the
constitution are as follows:-

 Lengthiest written Constitution

 Blend of Rigidity and Flexibility
 Federal system with unitary features
 Parliamentary form of Government
 Independent judiciary
 Single citizenship
 Emergency provision

Structure:- The Indian Constitution originally consisted of 395 Art, 22 parts, 8 Schedules. But after
the Constitution 104th Amendment Act, 2003, the Indian Constitution Consists of 448 Art, 25
parts, 12 Schedules.
Preamble:- The preamble to the constitution is based on the “ objective resolution” drafted and
moved by Pandit Nehru and adopted by constituent assembly. It runs as follows:-

“We THE PEOPLE OF INDIA, having solemnly resolved to constitute India in to a SOVERIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizen:-

 JUSTICE, social, Economic, and Political;

 LIBERTY of thought, expression, belief, faith and worship;
 EQUALITY of status and of opportunity;,
 FRATERNITY assuring the dignity of the individual and the unity and integrity of the
nation; In our Constituent Assembly, this 26th November, 1949, do hereby adopt, enact
and give to ourselves this constitution.”

Purpose of the Preamble:- The preamble to the constitution is a key to open the minds of the
makers and shows the general purpose for which they made the several provisions in the
constitution. Preamble serves the following purposes:-

1. It discloses the source of the constitution.

2. It lays down the date of the commencement of the constitution.
3. It set out the rights and freedoms which the people of India wished to secure for
themselves.
4. It declares the nature of the government.

Q1:- Whether Preamble is the part of the constitution?

Ans.:- In the case of Kesvanand Bharti vs. State of Kerala, the supreme has held that
preamble is part of the constitution. Preamble is of extreme importance and the
constitution should be read and interpreted in the light of grand and noble vision
expressed in the preamble. However, two things should be noted:-
 The preamble is neither a source of power to legislature nor prohibition upon the
powers of legislature.
 It is not justiciable i.e. not enforceable in courts of law.

1
 Q2:- Whether preamble can be amended?
Ans:- Supreme Court has held that preamble can be amended subject to the condition that
no amendment is done to the ‘ Basic structure’ of the constitution. The Preamble has been
amended only once by the 42nd Constitutional Amendment act, which has added three new
words- Socialistic, Secular and Integrity- to the preamble.

Meaning of State:- ( Art.12) The state includes:-

 The Government and parliament of India
 The Government and legislature of each of the states.
 All local and other authorities:
o Within the territory of India
o Under the control of the Government of India
All the fundamental rights are available against the state with a few exception.

Fundamental Right

Introduction:- The aim of Fundamental Rights is that certain elementary rights such as right to life,
liberty, freedom of speech and freedom of faith and so on should be regarded as inviolable
under all circumstances and that the shifting majority in legislatures of the country should
not have a free hand in interfering with fundamental rights. Fundamental right is called the
Magna Carta of India.

Right to Freedom
Article 19(i) defines six freedoms:-
a. Freedom of speech and expression
b. Freedom of Assembly
c. Freedom to from Association
d. Freedom of Movement
e. Freedom to reside and to settle
f. Freedom of Profession, occupation, trade or business.
These six freedom are however not absolute, and subject to reasonable restrictionwhich are
as follows:-
i. Security of the State
ii. Friendly relation with foreign states
iii. Public order
iv. Decency and Morality
v. Contempt of Court
vi. Defamation
vii. Incitement to an offence
viii. Sovereignty and Integrity of India

Right to Life & Personal Liberty

“No person shall be deprived of his life or personal liberty except according to Procedure
established by law.”
In Maneka Gandhi v. Union of India. The Court has given the widest possible interpretation of
Personal liberty. Thus Art 21 requires the following Conditions to be fulfilled before a
Person is deprived of Personal liberty.
2
  There must me a valid law.
 The law must provide a Procedure.
 The Procedure must be (just, fair and Reasonable) ensuring Natural Justice.
Right to life includes within its ambit the right to live with Human dignity. The S.C. held that
the right to life defines not only physical existence but the “quality of life.”

Right to constitutional Remedies-

Meaning:- A mere declaration of fundamental rights in the constitution is meaningless,
useless and worthless without providing effective machinery for their enforcement.
In other words right of enforcement is itself a fundamental right. That is why Dr.
Ambedkar called Article 32 as the soul of the constitution.
Article 32 empowers the Supreme Court to act as defender and guarantor of the
fundamental rights of the citizen. It has been vested with ‘original and ‘wide’ powers
for that purpose. The purpose of Art. 32 is to provide a guaranteed, effective,
expeditious, inexpensive and summary remedy for the protection of the
fundamental rights. Only the fundamental right can be enforced and not any other
right like statutory right, customary rights etc. The violation of fundamental right is
sine qua non for the applicability of article 32. However, the jurisdiction of the
Supreme Court in case of violation fundamental right is concurrent with the
jurisdiction of the High Court as per Article 226 of the constitution. It means when
the fundamental right of a citizen is violated, the aggrieved party has the option of
moving either the High Court or Supreme Court directly. Supreme Court and High
Court ( in case of any other right also) provides the remedy in form of writ which are
as follows:-
 Habeas Corpus: - it is Latin term which literally means ‘to have the body of’.
It is an order issued by the court to a person who has detained another
person to produce the body of latter before it. The court then examines the
cause and legality of the detention. It would set the detained person free, if
the detention is found to be illegal. Thus writ is a bulwark of individual liberty
against arbitrary detention.
The writ of Habeas Corpus can issued against both public and private person.
However it cannot be issued in following cases:-
 Detention is lawful.
 Proceeding is for contempt of legislation or a court.
 Detention is by a competent court.
 Detention is outside the jurisdiction of the court.
 Mandamus: - It literally means ‘we command’. It is command issued by the
court to a public official asking him to perform his official duties that he has
failed or refused to perform. It can also be issued against any public body, a
corporation, an inferior court, a tribunal or government for the same
purpose.
It cannot be issued in the following cases:-
 Against a private individual or body
 To enforce departmental instruction
 When the duty is discretionary not mandatory
 Against the president or Governor.
 Prohibition:- Literally means ‘to forbid’. It is issued by higher court to a
lower court or tribunal to prevent the latter from exceeding the jurisdiction.
Thus unlike, mandamus that directs activity, the prohibition directs inactivity.
3
 It is not issued against:-
 Administrative authorities
 Legislative authorities
 Private individuals.
 Certiorari:- In the literal sense, it means ‘to be certified’ or ‘to be informed’.
It is issued by higher court to a lower court or tribunal either to transfer a
case pending with the latter to itself or squash the order of the latter in a
case. It is issued on the grounds of:-
 Excess of jurisdiction
 Lack of jurisdiction
 Error of law.
Thus, unlike prohibition, which is only preventive, certiorari is both preventive as
well as curative. Certiorari can be issued against even the administrative
authorities affecting the rights of individual as per the ruling of the supreme
since 1991.
 Quo-Warranto:- In the literal sense, ‘it means by what authority or warrant’.
It is issued by the court to enquire in to the legality of claim of a person to a
public office.
Directive Principles of State Policy
Introduction:- The D.P.S.P. contained in Part IV of the Constitution set out aims and
objective to be taken up by the States in the governance of the country. This
feature of the Constitution is borrowed from the Constitution of Ireland. The idea of
a welfare State established by our constitution can only be achieved if the States try
to implement them with a high sense of moral duty. The main object in enacting
the directive principles appears is to set standard of achievement before the
legislature and the executive, the local and other authorities, by which their success
or failure can be judge. The Constitution of India contains the following directive
principals:-
i. Directive for social order based on justice – Art 38(1) requires the State to try
and promote the welfare of the people by securing a social order in which
every one is assured social, economic and political justice.
ii. Directives in the nature of non-justifiable right of every citizen –
 right to adequate means of livelihood,
 right of both sexes to equal pay for equal work
 Right against economic exploitation.
 Equitable justice and free legal aid.
iii. To organize village Panchayats as units of self-government
iv. Right of work within the economic capacity of the state.
v. The State shall make provision for securing just and humane conditions of
work and for maternity relief.
vi. To develop cottage industries.
vii. Participation of workers in management of industries,
viii. To secure a uniform civil code for the Citizen.
ix. The State shall endeavour to provide, free and compulsory education for all
children until they complete the age of fourteen years.
x. To promote with special care the educational and economic interests of the
4
 weaker section of the People and, in particular, of the Scheduled Castes and
the Scheduled Tribes, and shall protect them from social injustice and all
forms of exploitation.
xi. To prohibit consumption of liquors and intoxicating drug except for medical
purposes.
xii. To organize agriculture and animal husbandry on modern lines.
xiii. Protection and improvement of environment and safeguarding of forests and
wild life,
xiv. To protect and maintain places of historic, and artistic interest. (Art 49).
xv. To separate judiciary from executive.
xvi. The State shall endeavour to—
a. promote international peace and security;
b. maintain just and honorable relations between nations;

Relation between fundamental rights & D.P.S.P:-

D.P.S.P contained in Part IV of the Constitution. These are defined in Art 36 to 51 set out
the aims and objectives to be taken up by the State in the Governance of the
country. The D.P.S.P. is borrowed from the Constitution of Ireland. The D.P.S.P. are
not justifiable.
Fundamental Rights are contained in Part III of the Constitution. These are defined in Art
12 to 35. These rights are provided for to every person of India and it can be
enforced by the Court.
In Kesvanand Bharti v. State of Kerala, The Supreme Court held that the fundamental
right & D.P.S.P. aim is the some goal of bringing about a social revolution and
establishment of a welfare state and they can be interpreted and applied together.
Fundamental duties
a. To abide by the Constitution and respect its ideals and institutions, the National Flag
and the national Anthem
b. To Cherish and follow the noble ideals which inspired our National Struggle for freedom.
c. To uphold and protect the Sovereignty – Unity and integrity of India.
d. To defend the Country and render National Service when called upon to do so.
e. To Promote harmony and the spirit of common brotherhood amongst all the people of
India, Transcending, religious, linguistic and regional or Sectional diversities, to renounce
Practices derogatory to the dignity of woman.
f. To value and presence the rich heritage of our composite culture.
g. To protect and improve the Natural, environment, Including forests, lakes, rivers and
wild life, to have compassion for living creatures.
h. To develop the scientific temper, humanism and the spirit of inquiry and reform.
i. To safeguard public property and to abjure violence.
j. To strive towards excellence in all sphere of individual and collective activity. So that the
nation constantly rises to higher levels of Endeavour and achievement.
k. Who is Parent or Guardian to provide opportunities for education to his child or as the
case be ward between the age of six and fourteen years.