Indian Constitution 1
THE CONSTITUTION OF INDIA
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Preamble
WE, THE PEOPLE OF INDIA, having solemnly
resolved to constitute India into a 1[SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and
to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and
worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual
and the 2[unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twentysixth
day of November, 1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.
1Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 2, for “SOVEREIGN
DEMOCRATIC REPUBLIC” (w.e.f. 3-1-1977).
1. Territory of the union
Territory of the union
Article 1 of our constitution says : India, that is Bharat ,shall be a union of states. The term union includes only states but term territory of India includes the entire territory over which the sovereignty of India , for the time being extends. There are 2 classes of territory of India viz.
(i) union territory, which are centrally administered areas.
(ii) such other territories as may be acquired by India, administered by government of India subject to legislation by parliament.
Art 2 says that India is a union of states and no agreement was signed between the central government and the states for the creation of federation. So it is possible to redraw the map of India by a simple procedure.
Art 3 says that the parliament may by law form a new state by separation of territory from any state or by uniting two or more states or parts of states or by uniting any territory to any part of any state: increase or diminish the area of any state; alter the name and boundaries of any state.
The bill for this purpose shall not be introduced without the recommendation of the president, and the bill may be referred to the state legislature for expressing their views with in a specified period.
Article 4 provides that any such law may amend the First and Forth schedules of the constitution without going through the special formalities required by Art 368.
"Before independence, about 600 princely states acceded to India due to the efforts of India’s first Home Minister Sardar Vallabhai Patel except Hydrabad where forces were applied and in Junagarh referendum was held. Efforts were made to make states homogeneous in Cultural and linguistics. S.K. Das commission and another commission under Nehru, Patel and Pattabhi Sitaramaya was appointed but their recommendations were rejected. Andra Pradesh was the first state created on linquistic basis in 1953 after the death of Sriramulu. A recommendation of third commission under Fazal Ali (chairman), K.M. Panicker and Pt. H.N. Kunzru recommended language as the basis for creation of states." |
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2. Citizenship (Art 5-11)
The Indian constitution provides only single citizenship even though it is federal in character. Some federal constitutions like that of U.S.A provides for dual citizenship one for the state of domicile and one for the federation. The main provisions of citizenship as follows
a) Right of Citizenship at the commencement of the constitution : Any person who has a domicile in the territory of India or born in India or whose parents were born in India or who has been resident in India for not less than 15 years immediately preceding the commencement of constitution of India is a citizen of India.
b) Right of citizenship of those migrated to India from Pakistan before 19th July 1948
c) Those persons who migrated from Pakistan to India after 19 July 1948 if they have been registered as citizens of India by an officer appointed for the purpose on an application made by them before the commencement of the constitution. No such person could be registered unless he had been resident of India for at least 6 months before the date of his application for registration. Such registration could take place before commencement of the constitution.
d) Right of citizenship of those who migrated to Pakistan but later on returned to India: A person who had migrated from Indian Territory to Pakistan territory after 1st March 1947 but who returned to India under a permit for resettlement or permanent return issued by an appropriate authority, shall be deemed to be a citizen of India.
The parliament passed a law in 1955 to deal with the acquisition and loss of citizenship in India.
a) Right of Citizenship at the commencement of the constitution : Any person who has a domicile in the territory of India or born in India or whose parents were born in India or who has been resident in India for not less than 15 years immediately preceding the commencement of constitution of India is a citizen of India.
b) Right of citizenship of those migrated to India from Pakistan before 19th July 1948
c) Those persons who migrated from Pakistan to India after 19 July 1948 if they have been registered as citizens of India by an officer appointed for the purpose on an application made by them before the commencement of the constitution. No such person could be registered unless he had been resident of India for at least 6 months before the date of his application for registration. Such registration could take place before commencement of the constitution.
d) Right of citizenship of those who migrated to Pakistan but later on returned to India: A person who had migrated from Indian Territory to Pakistan territory after 1st March 1947 but who returned to India under a permit for resettlement or permanent return issued by an appropriate authority, shall be deemed to be a citizen of India.
The parliament passed a law in 1955 to deal with the acquisition and loss of citizenship in India.
Modes of acquiring and loss of Indian Citizenship
The citizenship act provides 5 modes of acquiring Indian Citizenship.
1) Birth: A person born in India on or after 26 Jan 1950 except children born of foreign diplomatic personnel and enemy aliens
2) Descent: A person born outside India on or after the 26th January, 1950 of Indian Parents shall be an Indian citizen
3) Registration: A person can acquire Indian citizenship if he belongs to Persons of Indian origin residing outside the territory of India, Women married to Indian citizens , Minor children of Indian citizen, citizens of commonwealth countries and Ireland , persons of Indian origin but ordinarily residing in India and who have been so resident for at least 6 months before making an application for registration.
4) Naturalisation: A citizen of another state who has renounced his citizenship and has resided in India or has been in the service of the government in India for one year immediately prior to the date of his application and during the seven years preceding this one year has resided in India or been in service of a government in India for an aggregate of 4 years could acquire citizenship by naturalisation.
5) Acquisition of territory: If the government of India acquires new territory as a part of India, it may prescribe conditions as to which persons shall be citizen of India
Loss of Citizenship: An India citizen may lose citizenship under the following conditions
1) Renunciation: A Citizen of India may renounce his citizenship through a declaration made in a prescribed manner
2) Termination: A citizen of India shall lose his citizenship if he or she voluntarily acquires citizenship of another state at any time after 26 Jan 1950.
3) Deprivation: The government of India can deprive a person of Indian citizen by issuing an order under Art 10 of the Indian Citizenship Act.
The citizenship act provides 5 modes of acquiring Indian Citizenship.
1) Birth: A person born in India on or after 26 Jan 1950 except children born of foreign diplomatic personnel and enemy aliens
2) Descent: A person born outside India on or after the 26th January, 1950 of Indian Parents shall be an Indian citizen
3) Registration: A person can acquire Indian citizenship if he belongs to Persons of Indian origin residing outside the territory of India, Women married to Indian citizens , Minor children of Indian citizen, citizens of commonwealth countries and Ireland , persons of Indian origin but ordinarily residing in India and who have been so resident for at least 6 months before making an application for registration.
4) Naturalisation: A citizen of another state who has renounced his citizenship and has resided in India or has been in the service of the government in India for one year immediately prior to the date of his application and during the seven years preceding this one year has resided in India or been in service of a government in India for an aggregate of 4 years could acquire citizenship by naturalisation.
5) Acquisition of territory: If the government of India acquires new territory as a part of India, it may prescribe conditions as to which persons shall be citizen of India
Loss of Citizenship: An India citizen may lose citizenship under the following conditions
1) Renunciation: A Citizen of India may renounce his citizenship through a declaration made in a prescribed manner
2) Termination: A citizen of India shall lose his citizenship if he or she voluntarily acquires citizenship of another state at any time after 26 Jan 1950.
3) Deprivation: The government of India can deprive a person of Indian citizen by issuing an order under Art 10 of the Indian Citizenship Act.
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3. Fundamental Rights
Introduction
The Indian people desired to have civil rights in the struggle the British. When India, became Independent, these civil rights were incorporated in Part III of the constitution as a fundamental rights which aims at creating a society in which its citizen could lead a life of freedom from coercion by the state as well as society.
Art 12 defines the term state, which includes the Government Executive and Parliament of India, Government and legislature of the of each of the states in India and all local government (municipalities, Panchayats) and other authorities within the territory of India or states
Art 13 says that any law passed in violation of Part III is void to that extend of violation. Thus it provides for Judicial review of the acts passed by the legislature.
The Indian people desired to have civil rights in the struggle the British. When India, became Independent, these civil rights were incorporated in Part III of the constitution as a fundamental rights which aims at creating a society in which its citizen could lead a life of freedom from coercion by the state as well as society.
Art 12 defines the term state, which includes the Government Executive and Parliament of India, Government and legislature of the of each of the states in India and all local government (municipalities, Panchayats) and other authorities within the territory of India or states
Art 13 says that any law passed in violation of Part III is void to that extend of violation. Thus it provides for Judicial review of the acts passed by the legislature.
Fundamental Rights
Freedoms | Article | Explanation |
Right to Equality | 14 | The state shall not deny to any person equality before law or equal protection of laws within the territory of India |
15 | The state shall not discriminate against any citizen on grounds of religion, race, castes, sex, place of birth or any of them | |
16 | Prohibits discrimination in matters relating to employment in state services on grounds of religion, race, case, sex, and place of birth or residence. | |
17 | Abolishes untouchability | |
18 | Abolishes titles and prohibits the state to confer titles on anybody except in academic or military distinctions | |
Right to particular freedom | 19 | a) Right to freedom of speech and expression b) Right to assemble peacefully without arms c) Right to form associations and unions d) Right to move peacefully throughout the territory of India e) Right to reside and settle in any part of India g) Right to practice any profession or to carry on any occupation, trade or business |
20 | Protection against arbitrary and excessive punishment to any person who commits an offence and immunity from double punishment | |
21 | No person shall be deprived of his life or personal liberty except according to a procedure established by law. | |
22 | 1) Guarantees the right of every person who is arrested to be Informed of the cause of his arrest. 2) His right to consult and to be defended by a lawyer of his choice 3) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours | |
Right against exploitation | 23 | Prohibits traffic in Human beings, beggar and similar forms of forced labour. |
24 | No child below 14 years of age shall be employed to work in any factory or mine or engaged in any other hazardous employment | |
Right to freedom of religion | 25 | Subject to public order, morality and health and to other provisions of this part, All persons are equally entitled to freedom of conscience and the right freely to profess , practise, and propagate religion. |
26 | the right to establish and maintain its own institutions for religious and charitable purposes | |
27 | Provides protection to religious activity by exempting funds appropriates towards the promotion and maintenance of any particular religion from the payment of taxes. | |
28 | Prohibits religious instruction in any educational institution wholly maintained out of state funds. | |
Cultural and Educational Right | 29 | 1) Guarantees the right of citizens having distinct language, script and culture of its own to conserve them. 2) Prohibits discrimination based on religion, race, caste, language or any of them in the matter of admission to state or state aided educational institutions. |
30 | 1) minorities based religion or language to have the right to establish and administer educational institutions of their choice. 2) State shall not in granting aid to educational institutions, discriminate against any educational institutions on the ground it is under the management of a minority. | |
Right to property | 31 | By the enactment of 44th Amendment act 1978 the right has been taken out of Part III and made a separate article 300 A which reads as follows. No person shall be deprived of his property save by the authority of Law. |
Right to Constitutional Remedy | 32 | It is the most important article of the constitution and called as the cornerstone of the entire edifice set up by the constitution. It provides a guaranteed remedy for the enforcement of the above rights and this right itself made a fundamental right. Any person who complaints that his fundamental rights has been violated may move directly to the Supreme Court for the enforcement of these rights |
Fundamental rights granted to citizen alone are equality of opportunity in matters of public employment, protection from discrimination on any ground, freedom of speech, peaceful assembly, expression, association, movement, residence and profession, and cultural and educational rights. All others are available to citizens and aliens.
Writs
a) Habeas corpus, literally meaning to have a body, is a writ issued by the court to bring before the court to bring before the court a person from illegal custody. The court will examine the legality of detention and release the person from illegal custody. The writ may be addressed to an official or even to a private person.
b) Mandamus means command, issued to a public authority to do an act under law, it is obliged to do or to forbear from doing.
c) Prohibition is writ to prevent a court or tribunal from doing something in excess of its authority. High Court has the Power to issue an order of prohibition to the executive authority prohibiting it from acting without jurisdiction.
d) Certiorari is a writ issued to a judicial or quasi – judicial authority to correct its order. This is issued on specified grounds like violation of natural justice , excess, abuses or lack of jurisdiction, fraud; and error of law apparent on the face of the record. Thus prohibition is available at an earlier stage and certiorari is available at a later stage.
e) Quo-warranto is a writ issued to a person who authorisedly occupies a public office to step down from that office.
a) Habeas corpus, literally meaning to have a body, is a writ issued by the court to bring before the court to bring before the court a person from illegal custody. The court will examine the legality of detention and release the person from illegal custody. The writ may be addressed to an official or even to a private person.
b) Mandamus means command, issued to a public authority to do an act under law, it is obliged to do or to forbear from doing.
c) Prohibition is writ to prevent a court or tribunal from doing something in excess of its authority. High Court has the Power to issue an order of prohibition to the executive authority prohibiting it from acting without jurisdiction.
d) Certiorari is a writ issued to a judicial or quasi – judicial authority to correct its order. This is issued on specified grounds like violation of natural justice , excess, abuses or lack of jurisdiction, fraud; and error of law apparent on the face of the record. Thus prohibition is available at an earlier stage and certiorari is available at a later stage.
e) Quo-warranto is a writ issued to a person who authorisedly occupies a public office to step down from that office.
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4. Directive Principles of state policy
Part IV of the constitution contains the directive principles of state policy. According to Art. 37 , it shall be the duty of the state to apply the Directive principle in making laws for the governance of the country. However these principle are not enforcible in the courtsand do not create any justicable rights in favour of Individuals. The courts cannot declare any law as void on the ground that they contravene any of the directives of state policy.
Classification - Economical ideals
Directive principle of state policy can be classified as follows
a) Certain economic ideals, the state should strive for
1) The state shall strive to promote the welfare of the people by securing a social, economic and political justice (Art 38(1))
Directive principle of state policy can be classified as follows
a) Certain economic ideals, the state should strive for
1) The state shall strive to promote the welfare of the people by securing a social, economic and political justice (Art 38(1))
2) To minimise inequality in income, status, facilities and opportunities, amongst individuals and groups (Art 38(2))
3) The state shall endeavour to secure just and humane conditions of work, a living wage, a decent standard of living and social and cultural opportunities for all workers (Art 43)
4) The state shall endeavour to raise the level of nutrition and standard of living and to improve public health. (Art 47)
5) The state shall direct its policy towards securing equitable distribution of the material resources of the community and prevention of concentration of wealth and means of production. (Art 39 (b)-(c))
6) The state shall endeavour to promote international peace and amity (Art 51)
directions to the legislature and Executive
b) Certain directions to the legislature and Executive intended to show in what manner the state should exercise their legislative and executive powers.
1) To establish economic democracy and justice by securing certain economic rights
b) Certain directions to the legislature and Executive intended to show in what manner the state should exercise their legislative and executive powers.
1) To establish economic democracy and justice by securing certain economic rights
2) To secure a uniform civil code for its citizen(Art 44)
3) To provide free and compulsory primary education(Art 45)
4) To prohibit consumption of liquor and intoxicating drugs except for medical purposes(Art 47)
5) To develop cottage industries(Art 43)
6) To organise agriculture and animal husbandry on modern lines
7) To prevent slaughter of useful cattles, i.e. Cows, Calves, and other milch and draught cattle (Art 48)
8) To organise village panchayats as units of self government.(Art 40)
9) To promote educational and economic interests of weaker sections and to protect them from social injustice..(Art 46)
10) To protect and improve the environment and to safe guard forests and wild life (Art 48A)
11) To protect and maintain places of historic or artistic interest(Art 49)
12) To separate the judiciary from the executive (Art 50)
Rights of citizen
c) Certain rights of citizen which shall not be enforceable by courts like Fundamental rights but which the state shall nevertheless aim at securing by regulation of its legislative and administrative policy.
1) Rights to adequate means of livelihood (Art 39 (a))
c) Certain rights of citizen which shall not be enforceable by courts like Fundamental rights but which the state shall nevertheless aim at securing by regulation of its legislative and administrative policy.
1) Rights to adequate means of livelihood (Art 39 (a))
2) Right of both sexes to equal pay for equal work(Art 39(d))
3) Right against economic exploitation (Art 39 (e)-(f))
4) Right of children and young to be protected against exploitation and to opportunities for
healthy development , consonant with freedom and dignity.(Art 39 (f))
5) Right to equal opportunity for justice and free legal aid (Art 39A)
6) Right to work (Art 41)
7) Right to public assistance in case of unemployment, old age, sickness and other cases of
undeserved want (Art 41)
8) Right to humane conditions of work and maternity relief (Art 42)
9) Right to a living wage and conditions of work ensuring decent standard of life for workers (Art
43)
10) Right of workers to participate in management of industries (Art 43A)
11) Right of children to free and compulsory education (Art 45)
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5. Fundamental duties
Part IV A was added by 42nd Amendment Act, 1976. It encompasses Part IV, article 51 A enumerating ten fundamental duties of the Citizen of India. Under this article, it shall be the duty of every citizen of India,
- To abide by the constitution and respect the National Flag and National Anthem
- To cherish and follow the noble ideals which inspired our national struggle for freedom
- To protect the sovereignty, unity and integrity of India
- To defend the country
- To promote the spirit of common brotherhood amongst all the people of India
- To preserve the rich heritage of our composite culture
- To protect and improve the natural environment
- To develop the scientific temper and spirit of inquiry
- To safeguard public property
- To strive towards excellence in all spheres of individual and collective activity.
These duties are addressed to the citizen, without any legal sanction for their violation.
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