This article is written by M K Keerthana of 4th Semester of BBA LLB of ICFAI Law School Hyderabad
Abstract
This article includes a detailed study on the constitutional law which deals with the background of the constitution and a detailed knowledge on the fundamental rights, fundamental duties, directive principles of state policy, and The article also includes the land mark judgements delivered relating to the constitution of India
Keywords: constitution, fundamental rights, writs, fundamental duties, dpsp, articles, schedules, amending, writs, secular
Introduction:
On 26th January 1950 the present constitution of India came into force. The constitution contains 395 articles in 22 parts and eight schedules and The Constitution of India is the longest written constitution in the world. The term “constitution” is French for the collection of fundamental rules and regulations that govern the operation of a nation-state or any other organisation. The constitution of a state is the ultimate law of the nation It defines the fundamental human rights of a state, as well as the paths for its development. It serves as the foundation for people’ access to certain basic rights, such as the right to life, the right to privacy, the ability to move freely, and the right to vote. It establishes the procedural requirements that must be satisfied before a governmental agency. Constitutional law also addresses issues such as judicial review, basic obligations, and legislative power, among others. The Supreme Court of India has played an important role in interpreting the Constitution and the language used in it, and has consequently made significant contributions to constitutional law study. This contribution explains the term “Constitution,” as well as its scope, nature, and functions in a state. The contribution also examines the fundamentals of India’s constitution, particularly the preamble, fundamental rights, and obligations.
Preamble:
The preamble of the Indian constitution mainly focuses on five things
Sovereign: The Preamble’s use of the term “Sovereign” signifies that India has its own autonomous authority and is not subject to any other external force. The legislature of the country has the authority to establish laws, subject to certain constraints.
Socialist: The 42nd Amendment, 1976, adds the term “Socialist” to the Preamble, which signifies the attainment of socialist aims by democratic means. It is essentially a ‘Democratic Socialism’ that believes in a mixed economy in which the private and public sectors coexist.
Secular: The term “secular” was added into the Preamble by the 42nd Constitutional Amendment in 1976, which signifies that all religions in India are treated equally by the state in terms of respect, protection, and assistance.
Democratic: The adjective “democratic” denotes that the Indian Constitution has an established type of Constitution that derives its power from the desire of the people expressed in an election.
Rsssepublic: The term ‘Republic’ denotes that the head of state is directly or indirectly chosen by the people. The President of India is the head of state, and he is elected indirectly by the people.[1]
Fundamental rights:
Fundamental rights are incorporated in part III of The Indian Constitution Fundamental Rights are addressed in Articles 12-35 of the Indian Constitution. These human rights are granted to Indian people since the Constitution states that they are inviolable. The right to life, the right to dignity, the right to education, and so on are all examples of basic rights. Fundamental rights are the fundamental human rights contained in the Indian Constitution and guaranteed to all people. They are applied without regard to race, religion, gender, or other factors. Significantly, courts can enforce basic rights under specific instances.
Types of Fundamental Rights
- Right to Equality (Article 14-18): The right to equality is one of the major fundamental rights guaranteed by the Indian constitution, which provides equal rights for all people regardless of religion, gender, caste, ethnicity, or place of birth. It guarantees equitable job chances in the government and protects against state discrimination in employment on the grounds of caste, religion, and so on. This right encompasses the eradication of titles as well as the right to be untouchable.
- Right to Freedom (Article 19-22): Freedom is one of the most crucial concepts that each democratic society cherishes. The Indian Constitution protects citizens’ freedom. Many rights are included in the freedom right, including Freedom of speech, Freedom of expression, Freedom of assembly without arms, Freedom of association, Freedom to practise any profession, Freedom to reside in any part of the country
- Right against Exploitation (Article 23-24): This right entails a prohibition on human trafficking, slavery, and other types of forced work. It also means a ban on youngsters working in manufacturing, among other things. The employment of minors under the age of 14 under dangerous situations is prohibited by the Constitution.
- Right to Freedom of Religion (Article 25-28): This reflects the secular nature of Indian politics. All religions are treated with equal respect. There is religious freedom in terms of profession, practise, and dissemination. There is no official religion in the state. Everyone has the freedom to freely practise their beliefs and to create and sustain religious and philanthropic organisations.
- Cultural and Educational Rights (Article 29-30): These rights protect religious, cultural, and linguistic minorities’ rights by allowing them to retain their legacy and tradition. Educational rights are intended to provide equal access to education for everyone.
- Right to constitutional remedies (Article 32): If citizens’ fundamental rights are infringed, the Constitution provides for remedies.[2]
Writs:
The supreme court, under Article 32, and the high court, under Article 226, have the authority to issue such writs. Though, under Article 32, the supreme courts issue writs if a person’s fundamental rights are violated, the High Court, under Article 226, has a broader authority to issue writs for both legal and fundamental rights violations.[3]
Types of writs:
- Habeas Corpus: Habeas corpus is a Latin phrase that meaning “you must have the corpse.” It is the court’s order to bring the detainee before the court and determine whether the arrest was valid or not.
- Mandamus: The writ of mandamus is an order or command issued by any laws or any legal authority to any person, company, or other authority to execute any public obligation.
- Certiorari: Certiorari is a Latin word that meaning “to be informed.” The higher court issues this writ to review the subordinate court’s conduct.
- Quo Warranto: The phrase quo warranto implies “by what authority?” This writ is issued to demand a person to demonstrate the authority under which he used his powers or rights.[4]
- Prohibition: A writ of prohibition is a writ issued by a higher authority to a subordinate authority to halt something that the law forbids. This writ may be issued solely against judicial or quasi-judicial bodies.
Fundamental duties:
The Fundamental Duties are incorporated in Article 51A under Part-IV A of the Indian Constitution. The objective of creating Fundamental Duties is for every citizen to understand that the first is to defend the country and foster national harmony; that is, the national interest should come first in all actions and goals. Abide by the Constitution and respect national flag & National Anthem, Follow ideals of the freedom struggle, Protect sovereignty & integrity of India, Defend the country and render national services when called upon, Developing the spirit of common brotherhood, Preserve composite culture of the country, Preserve natural environment, Develop scientific temper and humanity, Safeguard public property and avoid violence, Strive for excellence in all spheres of life, Duty of all parents/guardians to send their children in the age group of 6-14 years to school.[5]
Directive Principles of State Policy (DPSP):
Part IV of the Indian Constitution includes this DPSP. The Directive Principles of State Policy (DPSP), unlike Fundamental Rights, are non-justiciable, which means they cannot be enforced in court for infringement. The Constitution, on the other hand, specifies that “these principles are fundamental in administering the country, and it shall be the responsibility of the state to adopt these principles in drafting legislation.” As a result, they impose a moral obligation on state authorities to carry them out. The Directive Concepts of State Policy are the ideas that the government should consider while establishing policies and laws. The state is not obligated by the Constitution to immediately put these principles into reality. The guiding principles were considered in India’s Constituent Assembly. The Constituent Assembly was formed. The directive principles were finally recognised as part of the Constitution by the Constituent Assembly. The directive principles establish criteria and concepts for the country’s future legislature and administration to consider as they develop policies.[6]
Amending power of constitution:
Article 368 of the Indian constitution has the amending power and provides the procedure for amending the constitution
Constitution Can Be Amended in Three Ways
- Amendment by simple majority of the parliament: This technique is used to create or abolish legislative bodies for the foundation of new states. Thus, amendment at the request of the states, or amendment by state legislature, falls within this category.
- Amendment by special majority of the parliament: Using this approach, the Union Parliament can only change the Constitution. It is a strict system but it is considered a flexible strategy because any modification may be enacted by parliament alone. The following provisions are amendable in this manner: Fundamental Rights, Directive principles of state policy, and all other provisions not covered by the first and third categories
- Amendment by special majority of the parliament and the ratification of half of the state legislature: A special majority is insufficient for various articles of the Constitution. When an amendment seeks to modify an article dealing with the allocation of powers between states and the Central Government, or provisions pertaining to representation, it is appropriate to consult the states and get their approval. First, the amendment bill must be approved by a majority of the total membership and a two-thirds majority of members present and voting in each House. Second, the amendment bill must be ratified by at least half of the various State Legislatures (currently at least 14 state legislatures).[7]
Landmark cases:
Romesh Thappar v. State of Madras (1950)[8]
The Supreme Court ruled that the freedom to spread ideas through circulars is a component of free speech and expression.
State of Madras v. Amt. Champakam Dorairajan (1951)[9]
As a result of this decision, India’s Constitution was amended with the First Amendment. It was the first important reservation decision made by the Republic of India. The Madras High Court’s decision to quash a Government Order (G.O.) issued in the [Madras Presidency] in 1927 was supported by the Supreme Court.[10]
I.C. Golaknath and ors. v. State of Punjab and Anr. (1967)[11]
According to the Supreme Court, fundamental rights are not amendable under Article 13, and any changes would require a new Constituent Assembly. Furthermore, while Article 368 provides the process for altering the Constitution, it does not give Parliament the right to do so.
Keshavananda Bharati v. State of Kerala (1973)[12]
In this case, the Supreme Court established the fundamental framework. The court ruled that, while Parliament had the ability to alter any part of the Constitution, including the Fundamental Rights, constitutional revision could not change the underlying framework of the Constitution. This serves as the foundation of Indian law for the judiciary’s authority to nullify any amendment passed by Parliament that disagrees with the fundamental values of the Constitution.[13]
Maneka Gandhi v. UOI (1978)[14]
The question of whether the right to go abroad fits under Article 21’s concept of the Right to Personal Liberty was central to this case. according to the Supreme Court It is part of the right to personal liberty; The Supreme Court also ruled that curtailing personal freedom required nothing more than the existence of an enabling statute. Furthermore, any legislation must be “just, fair, and reasonable.”[15]
Minerva Mills Ltd. V. UOI (1980)[16]
This scenario reinforces the Basic Structure notion once more. The judgement ruled two amendments made to the Constitution by the 42nd Amendment Act of 1976 to be unconstitutional and void. The verdict clearly shows that the Constitution, not the Parliament, is higher.[17]
Mohd. Ahmed Khan v. Shah Bano Begum and ors. (1985)[18]
This is a critical case in the fight for the rights of Muslim women. The Supreme Court upheld a Muslim woman’s alimony claim and decided that everyone, regardless of faith, is bound by the 1973 Code of Criminal Procedure. This generated a political dispute, and the verdict was overturned by the government of the time, who passed the Muslim Women “Protection on Divorce Act” in 1986, which stated that alimony may only be paid during the iddat period.[19]
M.C. Mehta v. UOI (1986)[20]
The applicability of Article 32, the application of the Rylands v. Fletcher rule of absolute liability, and the compensation problem were all addressed in this case. The Supreme Court ruled that its jurisdiction under Article 32 extends to remedial and preventative actions in cases of human rights violations. Furthermore, Absolute Liability was chosen to be applied in industries that engage in dangerous or fundamentally destructive behaviour. Finally, the pay must be commensurate to the size and potential of the industry in order to serve as a deterrent.[21]
Vishaka and Ors v. State of Rajasthan (1997)[22]
This case included sexual harassment in the workplace. The Supreme Court issued a series of directions in its decision to employers and other accountable parties or organisations to guarantee the immediate avoidance of sexual harassment. They are known as the “Vishaka Guidelines.” These were considered to be in effect until the required legislation was approved.[23]
Present contemporary issues in constitution:
- Constitutional Morality as A Challenge
- Data Protection Bill and Right to Privacy
- Patriarchy And Permanent Commission in Army
Conclusion:
The Indian Constitution provides a detailed explanation of the structure essential for a sovereign country to rule and govern. The writers of the Indian Constitution acknowledged that no matter how well-written or detailed a constitution is, it is pointless unless it is carried out and lived by the proper people. Because the Constitution is the principal manifestation of India’s democratic status, commitment to and honouring the Constitution is necessary to maintain democracy. Despite its age of 67 years, it nevertheless supports and offers a strong basis for any current law that the Parliament desires to construct in reaction to imminent issues.
[1] Preamble To The Indian Constitution available at < https://www.legalserviceindia.com/legal/article-750-preamble-to-the-indian-constitution.html> last visited on 25 June 2023
[2] Fundamental Rights – Articles 12-35 (Part III of Indian Constitution) available at < https://byjus.com/free-ias-prep/fundamental-rights/> last visited on 26 June 2023
[3] The Writ of Habeas Corpus available at < https://blog.ipleaders.in/writ-habeas-corpus/> last visited on 26 June 2023
[4] Ibid
[5] 11 Fundamental Duties in India available at https://unacademy.com/content/railway-exam/study-material/polity/11-fundamental-duties-in-india/#:~:text=Indian%20Fundamental%20Duties%20include%20abiding,duties%20of%20citizens%20were%20listed. Last visited on 26 June 2023
[6] Directive Principles of State Policy (DPSP) available at < https://unacademy.com/content/bank-exam/study-material/general-awareness/directive-principles-of-state-policy-dpsp/> last visited on 27 June 2023
[7] Parliament’s Competence To Amend The Constitution Under Article 368 Vis-A-Vis Doctrine Of Basic Structure available at < https://www.legalserviceindia.com/legal/article-6563-parliament-s-competence-to-amend-the-constitution-under-article-368-vis-a-vis-doctrine-of-basic-structure.html> last visited on 28 June 2023
[8] Romesh Thappar v. State of Madras, 1950 SCC 436
[9] Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, 3.1 JCLJ (2022) 151
[10] Top 10 Landmark Cases of Constitution available at < https://blog.finology.in/Legal-news/top-10-landmark-cases-of-constitution> last visited on 30 June 2023
[11] 1967 AIR 1643, 1967 SCR (2) 762)
[12] (1973) 4 SCC 225; AIR 1973 SC 1461
[13] Top 10 Landmark Cases of Constitution available at < https://blog.finology.in/Legal-news/top-10-landmark-cases-of-constitution> last visited on 30 June 2023
[14] Maneka Gandhi v. Union of India, (1978) 1 SCC 248
[15] Top 10 Landmark Cases of Constitution available at < https://blog.finology.in/Legal-news/top-10-landmark-cases-of-constitution> last visited on 30 June 2023
[16] Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625
[17] Ibid
[18] Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556
[19] Ibid
[20] M.C. Mehta v. Union of India, (2013) 16 SCC 336
[21] Ibid
[22] Shanta Kumar v. Council of Scientific and Industrial Research, 2017 SCC OnLine Del 11388
[23] Ibid
