INCLUSIVITY IF THE INDIAN CONSTITUTION

INTRODUCTION

The Constitution is described as having its origin in the people of India, emphasizing its
autochthony (indigenous nature). This theory suggests that a constitution must be a product of
the people who are governed by it, rather than being imposed from outside. The Constitution
of India is presented as an organic, home-grown creation that aligns with the values,
traditions, and aspirations of the Indian people.
The Constitution is not just a borrowing from Euro-American models but is deeply rooted in
the long history and cultural traditions of India. The reference to India’s "over four thousand
years of history" reflects a view that the constitutional framework integrates indigenous
traditions, even though it was drafted in a modern context, influenced by colonial
experiences.

The idea that the Constitution was the result of a struggle for independence, where the people
of India wanted to establish a government of their own, reflects the nationalist theory of
constitution-making. It represents a break from colonial governance and asserts the
importance of a constitution that reflects the collective will and needs of the people.
Sovereignty of the People:

The idea that a constitution must be the product of the people to be governed, rather than one
imposed from an external source, is rooted in the popular sovereignty theory. This principle
underscores the centrality of the people in shaping the laws and governance structures that
affect their lives.
Pragmatism and Adaptation:

The Constitution's ability to endure and adapt over time, avoiding the fate of other
constitutions, points to the pragmatic theory of constitutional design. It stresses that a
constitution must not only be relevant at the time of its creation but must be able to evolve in
response to changing social, political, and cultural conditions.
Democratic and Inclusive Nature:

By emphasizing that the Constitution is "for the people," the introduction suggests a
commitment to democratic principles and inclusivity. This theory aligns with the democratic
theory of governance, which posits that governance should be based on the will of the people
and must protect their rights and freedoms.
These principles emphasize the Indian Constitution’s distinctiveness, marking it as a product
of Indian political thought, culture, and the collective aspirations of its people, rather than as
a mere import from other nations. The constitution’s success is seen as linked to its deep-
rooted connection to India’s traditions and the practical needs of its citizens, ensuring its
survival and relevance over time.
Adaptation and Sovereignty:
The Constitution of India follows a modern structural pattern (Preamble, Articles, Parts, and
Schedules), similar to Western constitutions, but it does not automatically align with the
colonial constitutions, like the Government of India Act, 1935. This is grounded in the theory
of popular sovereignty, which emphasizes that the Constitution is the product of India's
people's collective will, not imposed by a foreign power. The adoption of certain features
from the British colonial structure reflects a pragmatic adaptation of functional elements that
suited India's needs but the Constitution is distinct in its purpose and origin.

Rejection of Colonial Legacy:

The Indian Constitution’s divergence from prior colonial legislation, such as the Government
of India Act, 1935, underscores the nationalist theory of constitution-making. It marks a clear
rejection of colonial structures that were imposed against the will of the people. India’s fight
for independence was, in part, a struggle for the right to establish a constitution that reflects
Indian aspirations, free from foreign influence. The core principle is the assertion of self-
determination and the rejection of externally imposed systems of governance.

Historical and Cultural Continuity:

The passage emphasizes that the Constitution must be understood in the context of India’s
historical and cultural evolution. It suggests that the Constitution, while adopting modern
structural elements, embodies values that are deeply rooted in India’s long history. The
historical theory of constitutional development emphasizes that a country’s constitution is
shaped by its unique historical trajectory and cultural heritage. For India, this meant creating
a Constitution that reflects its socio-political history, including colonial experiences and
native traditions.

Indigenous Constitutionalism:
The emphasis on the Constitution being a product of the Indian people reflects the theory of
indigenous constitutionalism, wherein the Constitution is seen as emerging from the
traditions, values, and struggles of a particular society. It acknowledges the role of global
influences but asserts that the essence of India’s Constitution lies in its roots within Indian
thought, culture, and the political will of its citizens.

Pragmatism and Innovation:

The adoption of some formal structures from previous British Acts does not diminish the
Constitution’s native spirit. The theory of constitutional pragmatism suggests that a
constitution must be practical and adaptable. This includes borrowing useful elements from
other systems while innovating to address local needs and values. The Constitution of India,
while reflecting certain Western constitutional ideas, is innovatively shaped to cater to India’s
unique democratic, socio-cultural, and political realities.

Democratic and Social Justice:

The passage hints at the values embedded in the Constitution, such as democracy, equality,
and social justice. These values were shaped by the long struggle for independence and the
subsequent desire to create a society based on justice, freedom, and equality. India’s
Constitution was designed not merely as a legal document, but as a tool for social
transformation, addressing the country’s deeply entrenched social hierarchies and
inequalities.

Together, these principles point to a hybrid constitutional framework: one that incorporates
international best practices but is uniquely crafted to reflect India's historical, cultural, and
political context. It underscores the idea that a constitution must be grounded in the values,
history, and needs of the people it serves.

AIMS AND OBJECTIVES OF THE CONSTITUTION OF INDIA:

The Constitution of India was crafted with a deep connection to India’s history, values, and
aspirations, beginning with the Cabinet Mission Plan of 1946 and the Constituent Assembly
that followed. The process of constitution-making was significantly shaped by Pandit
Jawaharlal Nehru’s Objective Resolution, which was adopted by the Assembly on 13
December 1946. This Resolution laid out the broad goals that the Constitution aimed to
achieve, forming the backbone of the Constitution’s Preamble.

The Preamble itself acts as a declarative statement of the Constitution's core aims and
objectives, reflecting India’s commitment to building a sovereign, socialist, secular,
democratic, republic. These values are regarded as basic features of the Constitution,
safeguarded from amendment, especially post the 1976 amendment which formally included
the terms socialist and secular.

Key Objectives as expressed in the Preamble:

Justice: The Constitution seeks to ensure social, economic, and political justice for all
citizens, aiming to reduce inequality and foster fair treatment.
Liberty: The Constitution guarantees freedom of thought, expression, belief, faith, and
worship, thus providing individuals with the freedom to lead their lives according to their
own choices and beliefs.
Equality: It commits to the equality of status and opportunity, ensuring that no individual is
discriminated against on any grounds such as religion, race, caste, sex, or place of birth.
Fraternity: The Constitution seeks to foster fraternity, assuring dignity of the individual and
promoting unity and integrity of the nation. This principle was further solidified with the
introduction of the word "integrity" in the 1976 amendment.
These core values outlined in the Preamble are not just aspirational; they are also integrated
into the substantive provisions of the Constitution. Notably, the Preamble itself has been
recognized as an integral part of the Constitution, which can be invoked for direct application
in judicial proceedings. It serves as a guiding force for interpretation and is protected from
changes that would undermine its core principles.
The Significance of the Preamble:
Unlike the Preamble of ordinary statutes, the Preamble of the Indian Constitution holds a
special position. It is not just a preface, but a key part of the Constitutional structure, helping
to guide interpretations and decisions in courts. The fact that it is part of the basic structure of
the Constitution means that any proposed amendments to it that affect its fundamental values
can be subject to judicial review. The Supreme Court has held that any attempt to alter the
Preamble’s essential structure would violate the basic structure doctrine established in cases
like Kihoto Holohan v. Zachilhu (AIR 1993 SC 412) and S R Bommai v. Union of India
(AIR 1994 SC 1918).

Conclusion:
The Preamble is a reflection of India’s unique vision for its future, blending democratic ideals
with social justice, equality, and fraternity. It expresses the fundamental aims of the
Constitution while ensuring that these principles are not diluted over time. Through its basic
features, it has become an essential part of India’s constitutional ethos, standing as a
testament to the sovereignty and self-determination of the Indian people.

FUNDAMENTAL RIGHTS IN THE INDIAN CONSTITUTION

Part III of the Constitution, given people of India their fundamental rights but with their
limitations and remedies for their enforcement. These rights give individuals their liberty
equality, and lastly the constitution's epochal purpose, justice. These rights are unwaiverable
and person can not surrender them even if they want to. These rights, if looked upon prima
facie, are given to individuals as a protection from state but the term “state” should be
interpreted in a broad, inclusive manner. The definition is not limited to the government and
legislature but also extends to any authority or instrumentality that operates under or within
the control of the government. This broad interpretation assumes that the state’s role is not
just governmental but also includes other entities exercising public functions, even if they are
not directly formed by statute. Corporations, regardless of whether they are created under a
statute, may still fall within the scope of the term “state” if they are seen as performing public
functions. Judiciary has expanded the interpretation of this term. We can see the reflection of
our constitution’s inclusivity in many exemplary cases, like M.C. Mehta v. Union of India
(1987) case where Supreme Court ruled on the application of FRs to private actor,
NCRWC Recommendations for broadening the definition of 'state' in Article12, Delineation
of the judiciary's role in non-judicial functions, Right to Property Amendment in Part III and
the inclusion in Part XII, Ajay Hasia v. Khalid Mujib (1981) case, where the Supreme Court
clarified that any authority performing public duties or functions under the control of the
government is considered the "state" under Article 12.
R.D. Shetty v. International Airport Authority of India (1979), which further talked on the
concept that even a body corporate performing a public duty can be treated as an
instrumentality of the state.

How judiciary interprets fundamental rights and vindicates the social justice
In one of his paper Dr Babudhan Tripura1, Constitutional Rights And Social Justice In India:
An Analysis, writes:

"The judiciary in India, as the sentinel of the Constitution, not only guards the fundamental
rights but also adapts their interpretation to meet the needs of a transforming society, thus
playing a central role in the pursuit of social justice."

This is certainly a brilliant idea which can be exemplified in case of Maneka Gandhi v.
Union of India (1978) or Navtej Singh Johar v. Union of India (2018), where the Court
expanded the scope of individual freedoms.

The origin of the human rights goes back to third century B.C. when buddhism gave doctrine
of non-violence, which shows people had individual’s humanitarianity in mind. Then later
kings and rulers like Akbar’s secular movement and Ashoka’s many philanthropic measures
like providing free medicine, shade and trees etc came into the play of Bharat’s development.
One of the dark period for human rights was British colonisation in India. That was when
many of the individual rights were suppressed. But all this was not lost cause. Freedom
fighters and people all over were doubly conscious of their own rights.
And when the constitution of india finally came into force in 1950, a number of fundamental
rights were given to the citizens of the country. Most of the provisions of Part IV of the
Indian constitution are borne from the UN Declaration of Human Rights. Though these
might not be binding on us, Supreme Court in Kesavananda Bharti case explained very aptly
that they can served as a tool for India to understand what is the nature of human rights in
reality.

1. Right to equality [Articles 14-18]

Article 14 of the Indian Constitution ensures that the state does not deny any person equality
before the law or the equal protection of the laws. While this provision appears broad and
negative in its phrasing, subsequent constitutional provisions and judicial interpretations have
transformed it into an indispensable fulcrum for achieving social justice and combating
discrimination. The principle underlying equality is that individuals in similar situations
should be treated equally, whereas those in different circumstances may require differentiated
treatment. This allows for reasonable classification under Article 14, which must satisfy two
criteria (1) The classification should be based on an intelligible differentia that distinguishes
the included group from the excluded group. (2) There must be a rational nexus between this
differentiation and the objective sought to be achieved by the law. Courts have struck down
laws under Article 14 for several reasons, including but not limited to (1) Classifications
lacking a real difference or rational basis. (2) Laws failing to demonstrate a connection
between the classification and the intended purpose. (3) Provisions that arbitrarily establish
special courts or single out individuals for discriminatory treatment without valid
justification.

Interpretations

The reasonable classification doctrine, while central to Article 14, does not entirely define its
contour or puveiw. In E.P. Royappa v. State of Tamil Nadu, the Supreme Court averred that
equality is a dynamic, multidimensional concept transcending doctrinal limitations. It equated
arbitrariness with inequality, epochal using that state actions should be free from arbitrariness
to align with Article 14. In Maneka Gandhi v. Union of India, the Court reinforced this view,
stating that fairness and reasonableness are intrinsic to Article 14 and that it serves to strike
down arbitrary executive or legislative actions, regardless of whether they directly result in
discrimination.

Further, Article 14's "equal protection of the laws" clause, originally influenced by the 14th
Amendment of the U.S. Constitution, been interpreted in India to mandate the state to
proactively address inequalities. Non-action by the state to remedy such inequalities can be as
violative of Article 14 as action perpetuating disparities. This marks a shift toward a more
affirmative obligation under the equality clause.

The specific elaboration of equality in Articles 15-18 addresses India's unique socio-cultural
challenges. For instance, Article 15 prohibits discrimination on grounds like religion, race,
caste, sex, or place of birth but allows for special provisions for women, children, and
disadvantaged groups like Scheduled Castes (SCs) and Scheduled Tribes (STs). Similarly,
Article 16 proffered this principle to public employment, permitting reservations for
underrepresented backward classes while limiting reservations in promotions to SCs and STs.
However, measures such as the exclusion of the "creamy layer" and the ceiling of 50% total
reservation (except in extraordinary cases) aim to balance affirmative action with broader
social objectives.

Article 17 abolishes untouchability, making its practice a punishable offense under the
Protection of Civil Rights Act, 1955. Article 18, prohibiting titles excluding academic and
military honours, align with the principle of equality, with awards like Bharat Ratna and
Padma honors not considered violations, as they do not imply hereditary privilege.

In National Legal Services Authority v. Union of India (2014) the Supreme Court proferred
that the term "person" under Article 14 is not limited to binary genders (male and female). It
includes transgender individuals, recognizing them as part of the community. The Court
directed that transgender persons are entitle to equal legal protection in areas such as
healthcare, employment, education, and civil rights, manifesting their dignity and equality.

In Naz Foundation v. Govt. of NCT of Delhi (2009) the Delhi High Court ruled that Section
377 of the Indian Penal Code, which criminalise consensual same-sex relationships, was
unconstitutional as it violated fundamental rights under Articles 14, 15, and 21. The Court
equality, non-discrimination, and the right to personal liberty.
Suresh Kumar Kaushal v. Naz Foundation (2013): The Supreme Court overturned the Delhi
High Court's decision, reinstating Section 377 and holding that it did not suffer from any
constitutional infirmity. The Court left the matter to the legislature to decide the future of
Section 377.