Module-2

Salient features of India Constitution, Preamble to the

Constitution of India, Fundamental Rights (FR’S) and its
Restriction and limitations in different Complex situations.

Salient Features of Indian Constitution

1. Written and Lengthiest:

The Indian constitution is the lengthiest and the most detailed of all the
written constitutions of the world.

The constitution consists of 395(447) Articles, divided to 26 parts and 12

schedules.

300 pages making it the lengthiest constitution.

2. Combination of rigidity and flexibility constitution

The constitution which requires a special method of amendment of

majority of both houses of lok sabha and Rajya sabha present and vote of
any of its provisions is known as
Rigid constitution.

The constitution which can be amended by ordinary legislative

process is known as Flexible constitution (only few members should
present and vote)

A written constitution is generally rigid constitution. The Indian

constitution through written is a combination of both rigid and flexible.

3. Fundamental Rights: ( 06)

Fundamental rights are the basic rights which are very essential for the
development of one’s personality in a free society. We find a list of
fundamental rights in part-III of our constitution. This is one of the unique
features of our constitution.

1) 1 The Right of Equality (Art 14 to 18)

2) The Right to Freedom ( Art 19 to 22)
3) The Right against Exploitation(Art. 23 to 24)
4) The Rights to Freedom of Religion (Art 25 to 28)
5) Cultural and Education Rights (Art 29 to 30)
6) Right to Constitution Remedies( Art 32)
4. Fundamental Duties:

Rights and duties are co-relative. A citizen who enjoys various fundamental
rights must also be willing to perform his part of the duties towards the
state and the society. At present 11 fundamental duties.

5. Directive principles of state policy:

Directive principles are certain guidelines and principles, rules and
regulations which are given by the constitution law that every state
compulsory should be followed the directive principles in order to fulfill the
concept of welfare state.

6. Universal Adult Franchise:

The Indian constitution guarantees to every citizen of this country, who has
attained the age of 18 yrs. Universal adult franchise shows that India is a
Democratic country.

7. Single citizenship:

In India, the citizens are given single citizenship- The citizens of India, There
is no separate citizenship of the states.

8. Republic:

India is a Republic. As a Republic, people have a right to form their own

government and to elect the head of the government.

9. Government of the People:

It upholds a form of government which is- of the people, by the people and
for the people have the right to elect their own rulers.

10. Secularism:

India is called as secular state. There shall be no ‘State Religion’. At the

same time, the government guarantees freedom of faith and worship to all
citizens. However, the government has the right to restrict religious freedom
when it disturbs public peace, as well as law and order.

11. Independent and equally Judiciary:

Under the democratic system, all citizens are equal before the law. There
cannot be different sets of laws for the different groups of people. The
judiciary is expected to provide justice to all sections of the society.
Therefore, the Judiciary is given adequate powers.
12.Equal Rights to Women:

Here, both men and women have been given equal rights. The exploitation of
women is considered an offence. Both get equal pay for equal work.

13.Eradication of Untouchability:

It has prohibited the practice of untouchability in the country. The practice

is consider a crime and offenders can be punished.

Preamble to the Indian Constitution

The Constitution of India begins with a Preamble which specifies the nature
of the Indian State as well as the objectives it is committed to secure.

K.M Munshi describes the Preamble as the political horoscope of the

constitution which lists the basic features and philosophy of the
Constitution.

In the words of Pt.Thakur Dass Bhargawa : “The Preamble is the most

precious part of the constitution, it is the soul of the Constitution, it is the
key to the construction. It is a key to open the mind of the makers of the
constitution, “Preamble reflects the letter and spirit of the Constitution of
India.

It is an Introduction to the constitution. It states the objects which the

constitution seeks to establish. It is the source of the Indian Constitution.
Demand for the preamble was made by Jawaharlal Nehru.

So far preamble was amended at once to include 3 words: Socialist, Secular

& Integrity.-through 42 nd Amendment 1976.

Preamble starts with “We the people of India, having solemnly resolved to
constitute India into a sovereign, secular, democratic republic and to secure
to all its citizens justice, liberty, equality and fraternity”.

1. We the people-ultimate source of authority lies with the people of

India.
2. Sovereign-means “Supreme Authority” i.e free from external and
internal sources. The state has absolute power to legislate on any
subject in conformity with the constitutional limitations. It has
supremacy over all individuals and associations within its territory.
Sovereignty of the state is absolute unlimited and final.
Sovereignty includes both Internal and External sovereignty of India.
3. Socialist- providing social justice to all irrespective of caste, sex,
creed, colour etc. Elimination of inequality in income, status,
opportunity and free from exploitation.
4. Secular- Secularism means the state is neutral in all matters of
religion unless it is a threat to public morality or unity and integrity of
the Nation. The state does not declare nay religion as state religion.
i.e. all religions are treated equally.
5. Democratic- It is a form of Govt, where representative of the people
administer the government. It is derived from Greek words ‘demos’
means the people and ‘Kratos’ means rule and government.
6. Republic-A state in which the executive head of the country is not a
hereditary monarch, but elected representative. E.g. The President of
India.
7. Justice
To secure social Justice:- Social justice means all persons are treated
equally irrespective of their status in their society because of birth,
gender, religion, caste, race etc.
To secure economic Justice:- Economic Justice aims at reducing the
gap between the rich and the poor. It requires that the rich and the
poor are treated equally by the state.
To secure political justice:- Political justice means equal opportunity
for all citizens to participate in political process without any
discrimination based on religion, race ,caste ,creed or place of birth.

8.Liberty
Liberty includes, Liberty of speech thought, expression, belief, faith
and worship. But at the same time constitution has restricted these
liberties in the interest of public order, morality and integrity of India.

9.Equality
Equality of Status:- It signifies, the status of free individuals in society
having opportunity grow and develop which is provided by prohibition
of artificial restriction on the ground of religion, race, gender, color,
place of birth.
Equality of opportunity:- It guaranteed by the Rule of Law, signifying
equality before law and equal opportunity of law and non-
discrimination in matters of public employment.

10. Fraternity:- It means brotherhood. We are all members of single

family i.e India.
 Fundamental Rights

Fundamental Rights are those basic rights which essentials for

human progress, In the absence of these rights the growth and
development of the human personality is not possible.

The country which gives importance for fundamental rights are India,
Japan, USA, USSR France, and many other countries.

Originally, Part III of the constitution described seven fundamental rights of

the Indians. But after the 44th Amendment to the Constitution, their number
came down to six. Right to property (Art. 31) and 19(b) got deleted from the
list of fundamental rights and became a legal right under Article 300A.

Part III of the constitution is described as the Magna Carta of India.

Magna Carta is the first written document issued by king John of England
in the year 1214 to the English people.

The Fundamental rights of an Indian Citizen are :

1.The Right of Equality (Arts. 14 to 18)

2.The Right to Freedom ( Arts. 19 to 22)

3.The Right against Exploitation(Art. 23 to 24)

4.The Rights to Freedom of Religion (Art 25 To 28)

5.Cultural and Education Rights (Art 29 to 30)

6.Right to Constitution Remedies ( Art 32)

Apart from Article 12 & 13 of the same part deals with the definition of state
and law respectively article 33 & 35 deals with general provision relating to
fundamental rights.

The fundamental Rights are available to the following reasons:-

1. The Rights contained in article 15,16,19 and 30 are guaranteed only

to the citizen of India.
2. The Rights contained in Article 14, 20,21,23,25,27 and 28 are
available to citizens as well as non-citizens that is foreigners

1. Right to equality: (Art. 14 to 18)

1. .Article 14- Equality before Law: No special privilege was given in

favour of any persons, whatever his rank or condition.
 Equal law should be applied all in the same situation and there
should be no discrimination between one person and another.

Exceptions:

President of India and the governor of state shall not be answerable to

any court for the exercise and performance of the powers and duties of
the office

2. Article 15- No discrimination on grounds of Religion, Race, caste etc

The state shall not discriminate against any citizens on grounds on religion,
race, caste and place of birth.

3. Article 16-Equality of opportunity in matters of public employment

Constitution guarantees equality of opportunity for all citizens in

matters relating to employment under central government and state
government jobs.
This guarantee is available only to the citizens of India and not to the
foreigners.
Exceptions: There can be reservation of jobs in Karnataka for the residents
of Karnataka only.

State make provision for reservation seats for sc’s and st and other
backward classes according to 77th Amendment act in the year 1995.

Article 17- Abolition of Untouchability

It state: “Untouchability” is abolished and its practice in any form is

forbidden. The enforcement of any disability arising out of
“Untouchability” shall be an offence punishable in accordance with
law”

To achieve this constitutional goal, the parliament has enacted the

untouchability offences act, 1955 which is amended by the
untouchability offences (Amendment) Act 1976. To eradicate the
practice of untouchability from the society, this act is now renamed as
the protection of civil rights act. It prescribes punishment for
practicing untouchability in any form.

In fact, the Protection, Civil Rights Act, 1955 prescribes punishment

for
1) Preventing any person from entering any place of public worship or
from worshipping in such place.
2) Insulting a member of scheduled caste on the ground of
untouchability.
3) Preaching untouchability directly or indirectly.
 4) Not access to any shop, restaurant, hotel or place of public
entertainment.
5) Refusing admission to a hospital
6) Refusing to sell goods or render services.

Article 18- Abolition of titles

No citizen of India shall accept any titles/profit from any foreign

country without the consent of president.
But state is not prevented from giving way any military or
Academic or civil awards for outstanding social service such as
“Padma sri” Bharat Ratna, Padma Vibhushan etc.

2. Right to Freedom ( Art 19-22)

Right to Freedom (19):-

Six Fundamental Freedoms

(Art 19)
Article 19 of the constitution guarantees six (Originally seven)
fundamental freedoms to the citizens
It states : All citizens shall have the right to:
19.1(a) Freedom of speech and expression
19.1(b) Freedom of assembly
19.1(c) Freedom to form associations
19.1(d) Freedom of movement
19.1(e) Freedom to reside and settle
19.1(f) Deleted
19.1(g) Freedom of profession, occupation, trade or business.

1) Article 19.1(a) Freedom of speech and expression:

Freedom of Speech and Expression means the right to express

their ideas, views, feeling and opinions freely by words by mouth,
printing, pictures or any other modes.
Freedom of Speech also includes freedom to remain silent.

All the citizens shall have the right to freedom of speech and
expression. But this right is subject to limitations/restrictions on
the following grounds:

1. Security of the state, friendly relations with foreign states,

public order, contempt of court, encouragement of offences.
 National Anthem case

Three students v/s state of Kerala

The 3 students belonged to Christianity according to whose

religious belief the members of the community were not allowed to
take part in any other religious rituals/ceremonies.

According to the order issued by the director of public instruction

(state of Kerala) it was mandatory on the part of the students to
sing the national anthem. But the three students were not singing
the national anthem on the ground that their religion does not
permit them to do so. However they stood up respectfully when
other children were singing the national anthem.

But the school authority absorbs this and removed the students
from the school. The 3students challenged before the high court of
Kerala.

The high court gave judgement that it is duty of all the citizens to
sing a national anthem song. The three students failed to discharge
their fundamental duty imposed by the constitution by
disrespecting and dishonoring the national anthem.

Then the three students appeal to the Supreme Court, Supreme

Court reversed the decision of the Kerala high court and held that
students not singing the national anthem had not committed any
offence under the National Honours Act, however they stood up
respectfully when other children were singing the national
anthem. Freedom of Speech also includes freedom to remain
silent.
and hence they were not liable to be removed from the school.

Freedom of press also includes in the freedom of speech and

expression.

Telephone tapping is the violation of freedom of speech and

expression.

The Supreme Court has viewed that calling for and holding of
Bundh is unconstitutional and violates the freedom guaranteed
under Art.19 of the constitution.

2) Article 19(1) (b) Freedom of Assembly : Guaranteed to all

citizens the right of assembly which includes the right to hold
meeting and to take out processions. However, it prescribes two
restrictions on this right in the interest of public order or
sovereignty and integrity of India. They are
i. The assembly must not contain any weapons and
 ii. It must be peaceful assembly

3) Article 19(1) (c) Freedom to form Association/Union: All

Citizen have the right to form associations or unions- companies,
societies, partnership, clubs, trade union and continue them.
i. Workers and employers have freedom to from associations
and trade unions in order to safeguard their rights, to make
demands for better conditions of work or service, and to
extract better deals from the employers.
ii. It also confers right to form companies, societies,
partnership, clubs etc.
iii. Persons working in an army cannot form their associations
or unions.
iv. Association must be lawful association.

4.Article 19(1)(d) Freedom of movement:

Constitution guarantees the right to all citizens to move freely
throughout the territory of India. It is an absolute freedom under the
constitution.
Restrictions:-
i) In the Interest of general public
ii) For the protection of the interest of any scheduled tribe/caste

5.Article 19(1)(e) Freedom to Reside and settle:

The constitution gives a right to settle in any part of India Since
there is single citizenship and no state citizenship, any citizen is
free to make his residence or settle anywhere in India.
Restrictions: in the interest of public and schedule tribe.

6.Article 19(1)(g) Freedom to practice any profession or to carry any

occupation, trade or business:-
This freedom is not absolute like other rights. The state can impose
reasonable restrictions on the exercise of these rights in the interest of
general public.
The state can prescribe any professional or technical qualification
necessary for practicing any profession or trade or business.

Right of freedom of property: Every citizen of India have right to

acquire, hold and dispose of property. But in 1978 44 th Amendment
act Right of property, is no longer a fundamental right but it is only a
constitutional right or ordinary legal right or human right under
Art 300A

Protection given to accused persons (Article 20)

Article 20 of the constitution of India provides the following three

safeguards to persons accused of crimes.
1. Article 20(1) Protection Against Ex-Post Facto Law
2. Article 20(2) Protection Against Double Jeopardy
3. Article 20(3) Protection against Self-incrimination

1. Article 20(1) An ex-post facto law is a law which imposes penalties

and punishment for the violation of law in force i,e he should be
punished according to the present law on the day of commission of
the offence and not according to the future law enacted.

Eg: A person commits an offence in 2005. He is liable to be

punished if his act is an offence according to the law in force in
2005. If the law says that the punishment for that offence is 2
years of imprisonment and fine of Rs. 1000/- or both. A has to be
given this prescribed punishment. If the state makes a new law in
2006 according to which the same offence is punishable with 4
year imprisonment and fine of Rs. 2,000/ in such a case A cannot
be subjected to the increased punishment.

2. Article20(2) Protection Against Double Jeopardy:-

Article 20(2) says that “No person shall be punished for the same
offence more than once”. – one offence one punishment.

3. Article20(3) Protection against self-incrimination:

This principle is applicable to criminal law, that an accused must
be treated to be innocent till his guilt is proved beyond reasonable
doubt. However, the accused person may voluntarily give evidence
against himself but not by force. This provision is intended to
protect the accused persons from being subjected to torture or
other inhuman treatment in police custody.

Protection of Life and Personal Liberty (Article 21)

“No person shall take our life or personal liberty except according
to the procedure established by law.

A personal life can take as per law which is fair and reasonable if
they committed crime or unlawful.

The following right are held to be covered under Art. 21

1. Right to live with human dignity
2. Right to livelihood
3. Right to Privacy
4. Right to shelter
5. Right to health and medical assistance
6. Right to free legal aid
7. Right to speedy trail
8. Right against inhuman treatment
9. Right to compensation
10.Right to Education
 Right to Education – a Fundamental Right (Article 21(a)

Right to education, it has been given the status of a fundamental right

under Article 21 by the constitution (86 th amendment) act of 2002. It
provides” the state shall provide free and compulsory education to all
children of the age of 6 to 14 years in such manner as the state may by law
determine”.

Protection of arrested persons/ Protection against Arbitrary arrest and

Detention (Article 22)

This article deals with two separate matters-

a. Persons arrested under the ordinary law of crimes 4 rights

guaranteed to an arrested person by the constitution:

i. Right to be informed of ground of arrest as soon as

possible
ii Right to consult his advocate of his own choice
iii. Right to be produced before a magistrate with in 24hrs.
iv Freedom from arrest by the order of the magistrate.

b. Persons arrested under preventive detention law:

Parliament has the power to make a law for preventive detention

for reasons connected with defense, Foreign affairs or the
security of India. It means detention of a person without trail.
The object of preventive detention is to prevent from doing
something and the detention in this case takes place on the
apprehension that he is going to do something wrong which
comes within any of the above grounds specified by the
constitution.

Examples:- TADA terrorism and disruptive activities Act 1987, POTO etc.
Sanjay dutt was arrested under TADA Act.
A person detention is only for three months and it can be extended only with
the permission of the Advisory board.

III. Right against Exploitation (23-24)

To prevent exploitation of weaker sections of the society by the state or

private authority, constitution prohibits complete ban on traffic in Human
beings, beggar and other types of forced labour.
Traffic in human beings: buying and selling of human beings
Beggar: Involuntary work without payment eg. Zamindari System and
Forced Labour: Eg. Child Labour
Article 24 Prohibition of Employment of Children in Factories

Below the age of 14 years of children were not allowed to work in any factory
mines or dangerous employment. This provision is certainly in the interest
of public health and safety of life of children.
Despite laws protecting children, we can see many children working freely
and openly everywhere around us. Major industries which employ children
in thousands are in
1. Diamond Polishing
2. Glass Industry
3. Crackers industry
4. Carpet industry
5. Lock making industry etc.

IV. Right to Freedom of Religion (Article 25 to Article 28)

A secular state which has no religion of its own or in other words, which
neither gives preference to any religion nor makes any discrimination
against any religion and remains indifferent towards any particular religion.
Article 25 guarantees every person freedom of religion, customs, faith,
belief etc.

Article 26 Freedom of Religion:

Article 26 relates to the freedom
1. To Establish institutions of their own religious and charitable
purposes
2. To manage its own affairs in the matters of religion.
3. To own and acquire movable and immovable property and
To administer such property in accordance with law
Eg Siddaganga Math, Beli Math, Shivaganga Math.

Freedom of payment of tax for the promotion of any particular religion

(Article 27-Article-28)

According to Article 27-28, no person can be forced/compelled to pay any

taxes, which was owned nor maintenance of any particular religion or
religious purposes.
Low rate of interest in bank loan facilities which owned in name of religious.

V. Cultural and Educational Rights (Minority Rights) Article 29 and

Article 30)

Low population groups are considered as a minority- Muslims, Sikhs,

Christians, Buddhists, and Jains.
Minorities are given all the rights which are given under freedom to manage
religious affairs.

VI. Article 32 Right to Constitutional Remedies.

All the Fundamental rights would have become meaningless and ineffective
without any machinery for the enforcement of rights. Here article 32 seeks
to provide the necessary constitutional remedies to achieve the same
according to Dr. B.R Ambedkar
“It is the very soul of the constitution and the very heart of it”. In cases of
violation of any fundamental rights, citizen can seek remedy in SC or HC.
SC is known as ‘protector and guarantee of fundament rights.

Locus standi (Who can apply) The accepted principle is that the affected
person has to file a case or suit in the court of law, not his/her friends,
relatives or any other person has right to file a case.
Eg. If my gold was robbed, I have to file a case, not my friends or relatives.
Exceptions:
1. Habeas Corpus- not only the person detained but any other person can
seek the benefit of Art 32.
2. Public interest litigation (PIL) any interested person can seek the benefit
of Article 32.

The Constitution under Article 32 provides for remedies by way of

writs. There are 5 kinds of writs. They are

1. Habeas Corpus
The word habeas corpus is a Latin term, which means “you may have
his body”. This is a writ by which a person who has been illegally
detained or imprisoned is ordered by the court to be brought and
produced before it and in case his arrest or detention is found to be
illegal or wrongful, the court orders his release.

2. Mandamus
The word Mandamus means a command or an order. By this order,
there is a direction to a public authority, officer, court or government
or any executive authority to do the act or not to do the act. This writ
is available only against public authority and not against private
individuals.
Eg. If a Licensing officer fails to give a license to an applicant in spite
of fulfillment of all the requirements for a license, the court can order
him to issue the license.
Case: Maneka Gandhi v/s Union of India
In 1977, Maneka Gandhi was not allowed to travel abroad and her
passport was cancelled by the passport officer, under instructing from
Smt. Indira Gandhi
3. Prohibition
Superior court issues this writ to a lower court to prevent it from
going beyond the powers conferred on it. It is a direction not exceeds
the limits. The object of this writ is to prevent a lower court from going
beyond the powers conferred upon it by law.

4. Quo-warranto
The term Quo-warranto literally means, “What is your authority”?
The object of this writ is to prevent a person from occupying a public
office who has no proper authority. If a person has occupied any office
to which he has no right, then the court questions such a person to
show under what authority he has occupied that office.

5. Certiorari
This is a writ issued by the superior court(Supreme court and high
courts) to an inferior court or tribunal to remove a suit pending before
it and decide about the validity of such proceedings. If there is already
an order and the trial is completed, then this writ may be issued to
quash such orders.

This is how the constitution of India guarantees the fundamental or

basic rights to all classes of citizens without any discrimination and at
the same time also takes care to see that these rights do not remain
only on paper. Therefore the supreme court of India is called the
Guardian or Custodian or Guarantor of Fundamental Rights.