What is a Constitution?
• A constitution is a body of fundamental principles according to which a state is
constituted or governed.
Why do we need a Constitution?
• We need a constitution to provide a set of basic rules that allow for minimal
coordination amongst members of a society which are legally enforceable.
Who can decide which rules are the best to suite for a society?
• The constitution specifies the basic allocation of power in a society.
• It decides who gets to decide what the laws will be.
• In the Indian Constitution, it is specified that in most instances, Parliament gets to
decide laws and policies, and that Parliament itself be organized in a particular manner.
Functions of Constitution
• The first function of a constitution is to provide a set of basic rules that allow for
minimal coordination amongst members of a society.
• The second function of a constitution is to specify who has the power to make
decisions in a society. It decides how the government will be constituted.
• The third function of a constitution is to set some limits on what a government can
impose on its citizens. These limits are fundamental in the sense that government may
never trespass them.
• The fourth function of a constitution is to enable the government to fulfil the
aspirations of a society and create conditions for a just society.
Fundamental identity of a people
• Constitution expresses the fundamental identity of a people.
• The people as a collective entity come into being only through the basic constitution.
• Constitutional norms are the overarching framework within which one pursues
individual aspirations, goals and freedoms.
• The constitution sets authoritative constraints upon what one may or may not do.
• It defines the fundamental values that we may not trespass. So the constitution also
gives one a moral identity.
• Many basic political and moral values are now shared across different constitutional
traditions.
Provision of the Constitution
• It gives everyone in society some reason to go along with its provisions.
• Allowed permanent majorities to oppress minority groups within society.
• Systematically privileged some members at the expense of others, or that
systematically entrenched the power of small groups in society, would cease to
command allegiance.
• The more a constitution preserves the freedom and equality of all its members, the
more likely it is to succeed.
Provision of the Constitution
• It gives everyone in society some reason to go along with its provisions.
• Allowed permanent majorities to oppress minority groups within society.
• Systematically privileged some members at the expense of others, or that
systematically entrenched the power of small groups in society, would cease to
command allegiance.
• The more a constitution preserves the freedom and equality of all its members, the
more likely it is to succeed.
Balanced Institutional Design
• Designing of a constitution is to ensure that no single institution acquires monopoly
of power.
• For Example: The Indian Constitution horizontally fragments power across different
institutions like the Legislature, Executive and the Judiciary and even independent
statutory bodies like the Election Commission.
• This ensures that even if one institution wants to subvert the Constitution, others can
check its transgressions.
• An intelligent system of checks and balances has facilitated the success of the Indian
Constitution.
• A constitution must strike the right balance between certain values, norms and
procedures as authoritative, and at the same time allow enough flexibility in its
operations to adapt to changing needs and circumstances.
• Too rigid a constitution is likely to break under the weight of change; a constitution
that is, on the other hand, too flexible, will give no security, predictability or identity to
a people.
How was the Indian Constitution made?
• Constitution was made by the Constituent Assembly which had been elected for
undivided India.
• First sitting on 9 December 1946 and re-assembled as Constituent Assembly for
divided India on 14 August 1947.
• Members were elected by indirect election by the members of the Provisional
Legislative Assemblies that had been established in 1935.
• The Constituent Assembly was composed roughly along the lines suggested by the
plan proposed by the committee of the British cabinet, known as the Cabinet Mission.
Objective Resolutions
• It defined the aims of the Assembly.
• Moved by Nehru in 1946.
• This resolution encapsulated the aspirations and values behind the Constitution.
Based on this resolution, our Constitution gave institutional expression to these
fundamental commitments: equality, liberty, democracy, sovereignty and a
cosmopolitan identity.
Main points of the Objectives Resolution
• India is an independent, sovereign, republic.
• India shall be a Union of erstwhile British Indian territories, Indian States, and other
parts outside British India and Indian States as are willing to be a part of the Union.
• Territories forming the Union shall be autonomous units and exercise all powers and
functions of the Government and administration, except those assigned to or vested in
the Union.
• All powers and authority of sovereign and independent India and its constitution
shall flow from the people.
• All people of India shall be guaranteed and secured social, economic and political
justice; equality of status and opportunities and equality before law; and fundamental
freedoms - of speech, expression, belief, faith, worship, vocation, association and action
- subject to law and public morality.
• The minorities, backward and tribal areas, depressed and other backward classes
shall be provided adequate safeguards.
• The territorial integrity of the Republic and its sovereign rights on land, sea and air
shall be maintained according to justice and law of civilized nations.
• The land would make full and willing contribution to the promotion of world peace
and welfare of mankind.
Borrowed Constitution
From British Constitution
• Nominal Head - President (like Queen)
• Cabinet System of Ministers
• Post of PM
• Parliamentary Type of Govt.
• Bicameral Parliament
• Lower House more powerful
• Council of Ministers responsible to Lower House
• Speaker in Lok Sabha
• First past the Post
• Law Making Procedure
• The idea of the rule of law
From US Constitution
• Nominal Head - President (like Queen)
• Cabinet System of Ministers
• Post of PM
• Parliamentary Type of Govt.
• Bicameral Parliament
• Lower House more powerful
• Council of Ministers responsible to Lowe House
• Speaker in Lok Sabha
From USSR
• Fundamental Duties
• Five year Plan
• From Australia
• Concurrent list
• Language of the preamble
• Provision regarding trade, commerce and intercourse
From Australia
• Concurrent list
• Language of the preamble
• Provision regarding trade, commerce and intercourse
From Japan
• Law on which the Supreme Court function.
From Weimar Constitution of Germany
• Suspension of Fundamental Rights during the emergency.
From Canada
• Scheme of federation with a strong centre
• Distribution of powers between centre and the states and placing.
• Residuary Powers with the centre
From Ireland
• Concept of Directive Principles of States Policy(Ireland borrowed it from Spain)
• Method of election of President
• Nomination of members in the Rajya Sabha by the President
Bill of Rights
• A list of rights mentioned and protected by the constitution is called the_bill of rights.
• A democracy must ensure that individuals have certain rights and that the
government will always recognize these rights. Prohibits government from thus acting
against the rights of the individuals and ensures a remedy in case there is violation of
these rights.
Fundamental Rights in the Indian Constitution
• The Motilal Nehru committee had demanded a bill of rights as far back as in 1928.
• The Constitution listed the rights that would be specially protected and called them
'fundamental rights'.
• Fundamental Rights are so important that the Constitution has separately listed them
and made special provisions for their protection.
• The Fundamental Rights are so important that the Constitution itself ensures that they
are not violated by the government.
Ordinary Rights and Fundamental Rights
• Ordinary legal rights are protected and enforced by ordinary law, Fundamental
Rights are protected and guaranteed by the constitution of the country.
• Ordinary rights may be changed by the legislature by ordinary process of law
making, but a fundamental right may only be changed by amending the Constitution
itself.
• Judiciary has the powers and responsibility to protect the fundamental rights from
violations by actions of the government, Executive as well as legislative actions can be
declared illegal by the judiciary if these violate the fundamental rights or restrict them
in an unreasonable manner.
Fundamental Rights
Right to Equality
• Equality before law
• Equal protection of laws
• Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Equal access to shops, hotels, wells, tanks, bathing ghats, roads etc.
• Equality of opportunity in public employment
• Abolition of Untouchability
• Abolition of titles
Right to Freedom
• Protection of Right to:
→ freedom of speech and expression;
→ assemble peacefully;
→ form associations/unions;
→ move freely throughout the territory of India;
→ reside and settle in any part of India;
→ practice any profession, or to carry on any occupation, trade or business.
• Protection in respect of conviction for offences.
• Right to life and personal liberty.
• Right to education.
• Protection against arrest and detention in certain cases.
Right against Exploitation
• Prohibition of traffic in human beings and forced labour.
• Prohibition of employment of children in hazardous jobs.
Right to Freedom of Religion
• Freedom of conscience and free profession, practice and propagation of religion.
• Freedom to manage religious affairs.
• Freedom to pay taxes for promotion of any particular religion.
• Freedom to attend religious instruction or worship in certain educational institutions
Cultural and Educational Rights
• Protection of language, culture of minorities.
• Right of minorities to establish educational institutions.
• Right to Constitutional Remedies.
• Right to move the courts to issue directions/orders/writs for enforcement of rights
Preventive detention
• Ordinarily, a person would be arrested after he or she has reportedly committed some
offence. However there are exceptions to this.
• Sometimes a person can be arrested simply out of an apprehension that he or she is
likely to engage in unlawful activity and imprisoned for some time. This is known as
preventive detention.
• It means that if the government feels that a person can be a threat to law and order or
to the peace and security of the nation, it can detain or arrest that person. This
preventive detention can be extended only for three months.
Freedom of faith and worship
• Freedom of religion also includes the freedom of conscience.
• It means that a person may choose any religion or may choose not to follow any
religion.
• Freedom of religion includes the freedom to profess, follow and propagate any
religion.
Certain Limitations
• That, the government can imposes restrictions on the practice of freedom of religion
in order to protect public order, morality and health.
• It is not an unlimited right.
• The government can interfere in religious matters for rooting out certain social evils.
• The Constitution does not allow forcible conversions.
• It only gives us the right to spread information about our religion and thus attract
others to it.
Right to Constitutional Remedies
• Dr.Ambedkar considered the right to constitutional remedies as heart and soul of the
constitution' because this right gives a citizen the right to approach a High Court or the
Supreme Court to get any of the fundamental rights restored in case of their violation.
• The Supreme Court and the High Courts can issue orders and give directives to the
government for the enforcement of rights.
Right to Constitutional Remedies
• Dr.Ambedkar considered the right to constitutional remedies as heart and soul of the
constitution' because this right gives a citizen the right to approach a High Court or the
Supreme Court to get any of the fundamental rights restored in case of their violation.
• The Supreme Court and the High Courts can issue orders and give directives to the
government for the enforcement of rights.
Right to Constitutional Remedies
• Dr.Ambedkar considered the right to constitutional remedies as heart and soul of the
constitution' because this right gives a citizen the right to approach a High Court or the
Supreme Court to get any of the fundamental rights restored in case of their violation.
• The Supreme Court and the High Courts can issue orders and give directives to the
government for the enforcement of rights.
