Political Science & International

Relations

INDIAN GOVERNMENT
AND POLITICS
(PART 1)

1
List of Topics

2
 2

Perspectives on Indian National Movement (INM)

Introduction

The Indian National Movement was a grand struggle launched against British
imperialism. In the context of the Indian National Movement, Indian Nationalism
represented two ideas:

Anti-Imperialism

National Unity

The Indian National Movement was one the biggest movements the world has
witnessed, the presence of various leaders and their analysis of the Nationalist
Movement has made it quite puzzling and thus there is no consensus on one single
perspective to describe the movement. Therefore, there exists as diverse perspectives
on the Indian National Movement as diverse the country is.

Note:

Meaning of perspective: Perspective means way of looking at reality, it means the

way different sections of scholars looked at Indian National Movement.

We study different perspectives on Indian National Movement to get the complete

picture of reality called Indian National Movement because Indian National Movement
represented different schools of thoughts which looked at Indian National Movement
through different perspectives.

Colonial Perspective

Colonial scholars wrote about colonial countries with the desire of domination and
justification of their rule. They criticised Indian society, Indian culture and
tradition of unity in diversity.

Scholars like J.S Mill wrote about India from a colonial perspective. J.S Mill and
Vincent Smith argued that it is because of British efforts that unity was brought to
India and they viewed India as a stagnant society which required guidance from the

3
 3

British. According to them, the British are on a civilising mission. They talked about
.

The British did not accept the diversity of India. They always
diversity and disunity and this emphasis on diversity and disunity were emphasised
by colonial historians for justification of British rule. They rejected the idea of India as
a nation.

Colonial historians gave the following arguments for not accepting India as a Nation:

Indians are divided on the line of races.

Indians are divided on the line of languages.

Indians are divided on the lines of caste and religion, etc.

British historians such as Malleson, Elphinstone, Dowson, etc. presented a colonial

view of history and rejected the ideas of India as a nation.

With the rise of Nationalist Movement and Nationalist assertion of existence of India
as a Nation, it became necessary for colonial historians to counter this attempt to
bring Indians together, thus, they criticised Indian National Movement as an agitation
by selfish members of middle classes or Bengali Babus. According to colonial
historians, India is merely a geographical expression.

Imperialist historians of Cambridge School criticised the Indian National Movement as

a communal movement and its leaders as Power Brokers.

Colonial scholars asserted that political leaders of community or political activities

were not inspired by any grand ideas like that of French Revolution-liberty, equality
and fraternity but political leaders were driven by instinct.

In fact, British historians went on to the extent of calling Indian Nationalists as

selfish. These leaders were not interested in the ideas of Nationalism. Moreover,
different communities used the Indian National Movement for their own class
interests. According to British historians, these leaders were not interested in the

goal of their own community.

4
 2

Perspectives on Indian National Movement (Part-2)

Liberal or Nationalist perspective

This approach was developed as a response to the colonial approach. Nationalist
perspective on Indian National Movement looks at the National Movement as a
movement of Indian people which grew out of the growing awareness of exploitative
nature of colonial rule.

The liberal perspective was developed during the time of Raja Ram Roy. Early
nationalist or liberal had a genuine feeling for British political institutions and values.
During this phase, nationalist leaders and scholars restricted their criticisms of colonial
rule to the economic aspect.

Early Nationalist like Surendra Nath Bannerji accepted that “India was not a nation
but a nation in the making”.

Cultural Nationalists like Aurobindo Gosh were not satisfied with the mild and defensive
approach of early nationalist. He rather established that India was not a nation in the
making but India was a nation from the beginning. The idea of India has been existing
since time immemorial. (Also refer to Aurobindo Gosh in Indian political thought).

According to Bisheshwar Prasad, the Loss of freedom and the Fear of Domination by
alien rulers rankled in the hearts of Indians and this intense feeling was expressed in
numerous revolts since the establishment of British rule culminating in the Great Revolt
of 1857.

Nationalist historians like R.C Majumdar argued that the conception of India as a
common Motherland was still in the “Realm of infancy”. There was no India as it is
understood today. According to R.C Majumdar, it was Congress which gave reality to
the ideal of Indian unity through various movements.

Nationalist historians, Tarachandra also thought that creation of an Indian nation was
a recent phenomena which emerged due to combined Economic and Political changes.

5
 3

According to modern scholars like Shashi Tharoor, the Idea of India emerged from
Ancient Civilization united by a shared history and sustained by modern democracy.

According to scholars, the process of nation building in India is still going on and there
are many challenges that still exist but despite these challenges the Spirit of India
survives and emerges more and more stronger.

Criticism of Liberal Perspective

Liberals were criticised by cultural nationalist like Aurobindo Gosh and militant
nationalist like LAL-BAL-PAL. Aurobindo Gosh believed that we cannot attain swaraj
by praising the British. The Indian Nationalist Movement should not be confined only
to elites. According to Aurobindo Gosh, India was a nation from the beginning. There
has been a cultural and spiritual unity throughout the Indian sub-continent. They
wanted to prove that Indian culture values and civilizational achievements have been
much ahead of the West.

Some scholars also argued that India was much ahead of Britain even during the
Ancient Period - India had representative institutions, the tradition of Sabhas and
Samitis, successful Republics in the past when Britain was still living in dark ages.

Marxist Perspective on Indian National Movement

The Marxist historians have been critical of both the colonial and liberal perspective on
Indian nationalism. They criticised the colonial perspective for holding a discriminative
view on India and its people while they criticised the nationalist commentators for
following reasons:

For seeking the roots of Nationalism in India’s past.

For invoking ancient India’s Civilizational Values.

For using religious symbols.

They criticised both British and Indian nationalist for not paying attention to economic
factors and class differentiation in their analysis of the phenomena of nationalism.

The beginning of Marxism perspective is traced to the work of R.P Dutt’s “India Today”
and R.C Dutt’s “the Economic History of India”.

6
 4

R.P Dutt’s book initiated Marxist thinking on Indian National Movement. They
presented it as a movement dominated by bourgeoisie i.e.,Capitalist. The main
argument is that although various classes including the peasantry participated in the
Indian National Movement but its basic character remained capitalist.
R.P Dutt is particularly harsh on Gandhi whom he called Mascot of bourgeoisie. He
asserts that Non-Cooperation movement was withdrawn because masses were
becoming too militant and there was a threat to the propertied classes within and
outside the Congress. The Civil Disobedience Movement met with similar fate when it
was suddenly and mysteriously called off at the moment when it was reaching its
height in 1932.
Therefore, the Marxist perspective on Indian National Movement is informed by a class
approach related to politics and ideology. The basic position is that the nationalist
leadership and the nationalist ideology objectively or subjectively represents the Indian
capitalist class and wanted that India should evolve on the path of independent
capitalist development.

Critical Analysis of Marxist Perspective

S.N Mukherjee has argued that Indian nationalism was a complex phenomenon with
multiple layers and meaning and cannot be understood merely by class analysis. He
pointed out the importance of caste as a crucial factor along with that of class and
showed that traditional languages of politics were simultaneously used. It means caste,
religion, language along with class made an important role in organising the nationalist
movement of India.
Sumit Sarkar has also criticised Marxists scholars for taking a casual approach in
describing such complex phenomena. According to Sumit Sarkar, Congress had no
planned strategies against the masses. Moreover, Indians were not very sharply divided
which could have prevented their unity.

7
 2

Perspectives on Indian National Movement (Part-3)

Dalit perspective or Subaltern perspective

This school of thought looks at nationalism in exploitative terms of caste, gender,

religious division, etc. Subaltern argued that Nationalism ignored the internal

contradiction within Indian society.

Scholars on Dalit perspective are Jyotiba Phule, Ramaswami Naicker or Periyar, Dr.

Bhim Rao Ambedkar, Narayan Guru, etc.

According to Jyotiba Phule, the British were the first ones to establish the

in India. He also appreciated British rule for ensuring rule of law.

Dr. B.R Ambedkar was also influenced by the idea of Jyotiba Phule. He rejected the

idea of India as a nation. He also did not accept the claim of the Indian National

Congress that the Congress-led movement was a national movement.

idea of nationalism was influenced by the French Revolution. According to him, the

Nation is built on the feeling of fraternity which is missing in India because of the

presence of inherent contradiction of Indian Society. (Also refer to Ambedkar notes on

Indian Political Thought).

E.V Ramaswami Naicker, popularly known as Periyar, views can also be highlighted. He

joined Indian National Congress initially but left the Indian National Congress in 1925

on the presumption that Congress is the party dominated by Brahmins. There is no

scope for the members of other communities in the congress party. He formed the

Justice Party and initiated the Self-Respect Movement against Brahmanism.

Ranjit Guha in his subaltern studies declared that the historiography of Indian

Nationalism has for a long time been dominated by elitism, first by colonialist elitism

and later by bourgeoise Nationalist Elitism.

8
 3

According to Guha, all types of Elitist history have one thing in common that is the

absence of politics of people from their account. Ranjit Guha has criticised three main

trends in Indian historiography,

First, Colonialists, which saw colonial rule as the fulfilment of a mission to enlighten

the ignorant people of India.

Second, Nationalist, which visualised all the protest activities as part of making of

the nation state

Third, Marxist

revolution and socialist state.

Subaltern perspective earlier stood for- Oppressed classes in opposition to the dominant

classes but later it was conceptualised in opposition to Colonialism, Modernity and

Enlightenment.

Socialist perspective (Also refer to Gandhi under Indian Political Thought)

The 1930s was the time when the world witnessed the Great Depression, this led to

worldwide criticism of the capitalist system and it led to growing attention towards

socialism.

Socialist perspective was influenced by the Russian Revolution. It was also influenced by

the ideology of Gandhi. Leaders like Nehru and Subhash Chandra Bose introduced

socialism in congress.

Radical leaders also known as young Turks- Jay Prakash Narayan, Acharya Narendra

Dev, Meenu Masani etc. led the foundation of Congress Socialist Party in 1934 they

wanted to radicalise the program of Congress.

Jawahar Lal Nehru, who was a great admirer of Socialism, in the Lucknow Session

of the Congress said that the only solution to the world's problems lies in socialism.

Jay Prakash Narayan was of the view that India needs Socialist Revolution. According

to him, any sort of freedom can be realised only in an atmosphere of Economic Equality.

9
 4

Subhash Chandra Bose was of the view that bondage of any form robs man of their

freedom and it gives rise to various forms of inequalities.

After independence, India adopted Democratic Socialism, that is, the goals of socialism

is to be achieved through democratic means which has many benefits which are

following:

1. Reduction of Poverty has been one of the greatest achievements of modern India

2. The System of progressive taxation has helped in reducing inequality in Indian

society.

3. Monopoly has been abolished in India and the Indian state has promoted a spirit of

competition.

Radical Humanist perspective (Also refer to M.N Roy under Indian Political Thought)

The ideology of Radical Humanism was propounded by M N Roy. Radical Humanism is

radical in the sense that it rejects various political and philosophical assumptions and

humanist in the sense that it is completely focussed on the needs and requirements of

human beings and their conditions.

Radical Humanism aimed at the foundation of radical democracy meaning party less

democracy. Radical humanism advocates for a scientific approach to politics.

He believed that democracy can not be sustained without democratic culture even when

democratic institutions are introduced, as long as people running these institutions are

not democratic there will be no real democracy.

In 1945, Radical democrats drew up a draft Constitution for independent India. It

envisaged the dissolution of feudal provinces and integration based on linguistic and

cultural homogeneity. The village committees and gram sabhas were given extensive

powers such as initiating legislations, recall of representatives. (Also refer to the MN

Roy notes under Indian Political Thought)

10
 5

Concluding Remarks

Not any single perspective to gain wider understanding of the Indian National Movement

was completely and holistically successful. Different perspectives on the Indian National

Movement implies different approaches adopted by different scholars; at times their goals

differed, their strategies differed and their understanding of the Indian National Movement

differed. But we have to keep our minds and arms open to acknowledge the interplay of

various forms of struggles with varied social backgrounds and differences in methodologies

and particular goals, working at the same time.

Questions Asked

1. Analyse the Marxist perspective of the nature of Indian National Movement. (2021)

2. Comment: Role of Socialists in Indian National Movement. (2020)

3. Dalit perspective on Indian National Movement. Discuss. (2019)

4. The National Movement in India was anti-imperialist and increasingly radical in its

socio-economic and political programmes. Discuss. (2019)

5. Critically examine the radical humanist perspective on Indian National Movement.

(2016)

11
 2

Making of the Indian Constitution (Legacy of the British Rule)

Legacy of the British Rule

Indian Economy, Indian Political System, Indian society and also on

Policy.

Colonial legacy in Political System

It is argued that India adopted more than 75 percent of provisions of the

Government of India Act 1935. There is a visible legacy
political system which are following:

India adopted a parliamentary form of government and federalism

simultaneously. Whereas in classic parliamentary form of government like the one
in Britain, the Prime Minister along with his cabinet enjoys central position and
in federalism, Presidential form of government is more suitable like that in the
U.S.

Lower House is more powerful

than the Upper House whereas in a federal set up, the upper house is more
powerful than lower house e.g., Senate is more powerful in the U.S than the
House of Representatives.

According to former Prime Minister, Dr. Manmohan Singh, British rule in India gives
so many things to India. This legacy is still visible in India in the form of

Rule of law etc.

British rule in India introduced a representative form of government in India.

However, this was not truly a democratic system on account of limited voting rights

12
 3

or limited franchise, on the basis of educational qualification, property, etc. and

nominated Indian members. Nevertheless, Indians got to know about the working of
democratic institutions which finally paved the way for democracy becoming
successful after independence.

The British system of Divide and Rule

before independence in the form of a separate electorate which India did not
continue after independence and rather granted reservation to its people.

Therefore, we can see that colonial legacy has helped in shaping major political
institutions and their functioning in India. In fact, India rejected regressive features
of British rule, but India continued with progressive features of British rule. India

example, a separate electorate granted by the British gave way to a system of

reservation incorporated under the Indian constitution.

Colonial impact on Social System

legacy can be seen not only in social relations but also in the educational sphere.
British colonial rule impacted Indians in both positive and negative sense of the
term. The positive impact of British rule can be seen in the one hundred years of
social reforms that started with abolition of Sati and culminated with Sharda Act
under which the marriageable age of Indian girls was raised (this act was named
after the great social reformer - Har Vilas Sarda).

Colonial rule can be also seen in the educational sphere. The British introduced a
modern system of education in India. The British introduced Modern Education-
modern arithmetic, science etc.

The British system of education of India neglected Education for masses. The purpose
of introducing the modern educational system was not to make Indians educated;
Indians only in
The British believed that this class of Indians will remain

13
 4

connected to British rule, and they will owe their allegiance to the British for
decades to come.

Through their Educational system they wanted to create a clerical class to serve the
British. They made no attempt to develop the scientific temper of students.

In fact, the British scheme of education was not meant for masses which resulted in
mass illiteracy in India and even this system of education was heavily skewed in
favour of males, which resulted in gender disparities.

British policy of Divide and Rule

Divided Indian people on multiple lines and communalism was deliberately promoted.
According to Bipin Chandra, the rise of communalism in India can be directly

ideals of secularism. India also gave rights to minorities and made systematic
attempts to reconcile the interests of various communities.

Therefore, it can be said that the positive impact of British rule was continued but
negative impacts were discontinued. After independence India embarked on a path
of modernization. P. Nehru in his epochal speech "Tryst with destiny
awakening of India, and since then India has made remarkable progress.

14
 2

Legacy of the British Rule (Different Social and Political Perspective)

Impact of colonial legacy on Economy system

Impact of colonial legacy can be seen on and Local

During the Colonial period, the Indian economy was completely subordinated to the

British Economy. India became a classic colony to source raw materials and foodstuffs

at cheap prices and a market for British Machine-Made Goods.

This system of exploitation completely destroyed the Indian economy to the extent

that India was turned into a dead house of famine, malnutrition, hunger, poverty

and death.

At the time of the advent of the British, both India and China used to account for

almost half

economy was growing at the rate of barely 1% and population was growing at the

rate of 2.8%. So, it was a virtually Non-Existent Economy

independence and the Indian economy completely collapsed.

It is argued by British scholars that

economic integration with the World Capitalist System

the world and specially Britain was not based on the principle of mutual reciprocity.

It was one of the reasons, that, after independence, when India became a leader of

third world countries, following demands were made before colonial powers:

1. Demand for a New International Economic Order that is an equitable distribution

of economic resources of the world.

2. Revaluation of the prices of raw materials

Impact of colonial legacy on agriculture and handicraft

During the British period, India witnessed complete

Industries, so much so that, Indian agriculture went into a State of depression and

15
 3

completely destroyed. Moreover, self-

sufficiency of Indian villages was destroyed forever due to the New Land Revenue

Policy adopted by the British, which caused havoc in rural India, it brought deadly

famines and also created New Social Relationships in rural India.

British land revenue policies created a New Class of Money-lenders and Zamindars,

leading to impoverishment of Indian peasantry. Peasants became landless labourers

with each passing year and India became classic land of famine which started

witnessing frequent famines, which was almost unknown to Indians before the

British. With each passing year, the ferocity of famines kept on increasing and there

was no-one to look after India agriculture. It became an orphan leading to

agricultural depression.

Impact on Handicrafts Industry

destroyed by the British systematically. Handicraft workers lost the patronage of

Indian royalties and nobles leading to their skills rendered useless. Hence, handicrafts

men were forced to migrate to rural areas thereby putting tremendous amount of

pressure on Indian agriculture which was already passing through a State of

depression.

Concluding remarks

ndence, India took necessary measures for ensuring Economic

Growth. India adopted a centralised planning system to achieve Balanced

Development. Economic reforms adopted by India in 1991 has further transformed

India to a great extent. Today, India is considered one of the leading emerging

economies of the world and experts are of the view that the Indian economy has got

the potential to become one of the leading economies of the world in the coming

decades.

16
 4

Impact of colonial rule on Foreign Policy

Since the time of Lord Dalhousie, British India was nursing the desire to become the

Centre of Gravity pan-

Asiatic empire, was taken forward by subsequent Governor Generals and final seal of

approval of this ambition was given during times of Lord Curzon. During British rule,

remained bold and confident.

leader of third world countries, which gave India visibility in Global Politics.

According to strategic experts like Brahma Chelani

very confident and bold

reflected in various decisions like nuclear test 1998, revoking special status of Jammu

and Kashmir given under Article 370, bifurcating Kashmir into two Union

Territories, and also in Russia-Ukraine war. He believes that has

adopted Ultra-realist posture in recent times.

17
 2

(Making of Indian Constitution- Different Social and Political perspective)

Making of Indian Constitution- Different Social and Political perspectives

Indian constitution is different from other Constitutions of world like:

1. American Constitution

The American constitution is the result of the Political Revolution, and it is

fundamentally different from the Indian constitution. Indian constitution is result
of debates, discussions and deliberations among different ideological shades which
were present in

2. British Constitution

The British Constitution is also fundamentally different from the Indian

Constitution. The British Constitution is the result of evolution of hundreds of
years, starting from the till present time.

The Indian Constitution is the result of deep deliberations of the Constituent

Assembly which was responsible for but also
how to achieve Economic Revolution, Social Revolution and Political Revolution.

Framing of the Indian Constitution was a difficult task because of the presence of
people belonging to different Ideological Schools of Thought. People belonging to
different schools influenced the Indian Constitution greatly. Those different
ideological and intellectual shades were following:

Presence of Gandhian School and Modernist.

Presence of Liberals and Socialists.

Debate for Strong Centre Vs Strong State

Parliamentary form of government vs Presidential form of government

Fundamental Rights Vs Directive Principles of State Policy

Separate electorate Vs Reservation

According to Granville Austin, three revolutions were simultaneously happening in

India:

Political Revolution

Economic Revolution

18
 3

Social Revolution

According to him, the Political Revolution has already

Independence. Economic revolution will happen when India will adopt a modern
economy but social revolution is the most important revolution, which India is
trying to achieve. The purpose of social revolution is to make India a modern
society. It means abolition of status, ending discrimination, ending untouchability
and giving social equality to a large section of Indian society.

According to B. R. Ambedkar, social liberty is most important for people.

According to him, whatever forms of liberty has been given to you will be of no
avail or no meaning to you, it was this social revolution which will take India out
of medievalism and make India a modern society.

Different Social and Political perspectives

1. Gandhians Vs Modernists

Gandhi wanted:

Introduction of Panchayati Raj Institution.

Decentralisation of Power.

Ensuring Gram Swaraj.

Central position should be given to Villages

Gandhian Model in Constituent Assembly was proposed by S.N Aggarwal who

drafted the Gandhian Constitution and made village panchayat as primary
political unit.

According to him, members of the panchayat will be elected by adults of villages.

Panchayats will supervise cooperative farming, irrigation, khadi and village
industries. This Gandhian Constitution was contested by modernists present in the
Constituent Assembly and most prominent of modernists were Nehru, Patel and
Ambedkar who contested the Gandhian Constitution. Ultimately, the Gandhian
proposal was accommodated under the Directive Principles of State Policies of the
Indian constitution.

19
 4

2. Liberalism Vs Socialism

In the constituent assembly there was a strong presence of both the schools and
both liberal and socialist groups were very strong. There was a disagreement with
respect to the mechanism to be adopted to achieve socialistic goals.

There were the presence of different brands of socialism in the Constituent

Assembly, ranging from Marxism to Gandhian model to Fabian Socialism. Most of
the Constituent Assembly members were Fabian socialist and the most prominent
one was Pt. Nehru.

In the context of India, the ultimate goal of socialism, that is, how to bring
equality was important. But different groups differed on the method to be
adopted for achieving the goals of socialism. Hence, a compromise was made and
India adopted democratic socialism-It means the goals of socialism were to be
achieved through democratic means. For this purpose Article 39 clause (b) & (c)
were incorporated under the Constitution of India.

Article 39(b) says, State shall try to ensure equitable distribution of resources
among people, Article 39(c) says, State shall endeavour to prevent concentration
of wealth into few hands. These are the most important socialistic ideals provided
under the Constitution (Details will be discussed in Preamble Chapter).

20
 2

Making of Indian Constitution (Different Social and political perspective: (Part-2)

Various Social and Political perspective

3. Parliamentary Form of Government Vs Presidential form of Government

There were strong currents in the Constituent Assembly in favour of both

Parliamentary and Presidential form of government because the Presidential form of

Government is more suitable to federal set up. In a classic federal set up like the USA,

the Presidential Form of Government is more suitable.

In the Constituent Assembly, people like K.M Panikkar favoured Parliamentary form

of government whereas people like Krishna Swami Iyer favoured Presidential form of

government. However, given the experience of India with Parliamentary Form of

government, Pt. Nehru favoured adoption of Parliamentary Form of government.

Indians were known to the working of Parliamentary form of Government since

Indian Councils Act, 1861 (although Indians were nominated by British for the

management of Administration)

Since Morley-Minto reforms 1909, Indians had first-hand experience of

Parliamentary form of Government that is why Parliamentary form of government

was adopted in Indian context.

Separate electorate Vs Reservation

Leaders like Pt. Nehru were not in favour of adoption of a separate electorate in

independent India because they were of the view that any arrangement like separate

electorate will create the condition for partition of India in future. Since India had

already witnessed a painful partition, that is why, the proposal for separate

electorate was rejected and reservation was granted to the vulnerable section of

society like Scheduled Castes and Scheduled Tribes.

21
 3

Debate between Strong Centre Vs Strong State

Some members of the Constituent Assembly were in favour of strong states. However,

not be prudent to

have strong States and weak Centre historical experiences and

separatist tendencies.

Indian Constitution reflects a unique constitutional design and establishes a strong

Centre. In fact, several provisions of the Indian Constitution like Article 3 establish

that India has strong Centre and weak states. For e.g., Under Article 3, the Name,

Area and Boundary of State can be changed without the consent of states. If the

central government today decides to merge Uttarakhand with Uttar Pradesh, then

from tomorrow onwards Uttarakhand will disappear from the map of India.

Parliamentary Supremacy Vs Judicial Supremacy

In a federal set up, the Constitution is treated as Supreme which has resulted into

supremacy of the judiciary. Supremacy of judiciary is the result of following factors:

Differences may arise between Centre and States or among States themselves.

There may be differences with respect to interpretation of the Constitution.

In order to resolve the differences on above issues, there must be an authority

endowed with Power to Resolve the disputes and there must be an authority which

shall be the final interpreter of the Constitution. This power in India is vested with

the Supreme Court.

India also adopted a Parliamentary form of government. This works on the principles

of Parliamentary Supremacy. The two principles came into conflict i.e., federalism

and Parliamentary form of government. Ultimately a compromise emerged in the

Indian context, leading to the concept of independent and impartial judiciary coming

into existence.

22
 4

Fundamental Rights Vs Directive Principles of State Policy (DPSPs)

In the Constituent Assembly, a large number of people favoured that DPSPs must be

justiciable, that is, enforceable in court of law. According to them, if DPSPs are not

made justiciable then they are nothing more than pious declarations.

However, it was decided to keep it non-justiciable, not because these principles are

not important but because they required material resources at the disposal of State,

that is, States will try to implement DPSPs when there will be availability of material

resources at disposal of State.

For example, under Article 21A, the Right to Free and Compulsory Education to

children between the age group of 6 to 14 years has been made a Fundamental

Right. Therefore, it can be said that the Constituent Assembly attached equal

importance to both Directive Principles and Fundamental Rights.

23
 2

Preamble
General Introduction to the Preamble

A preamble is an introductory statement in a document which explains the

philosophy and objectives of the document.

In a Constitution, it presents the intention of its framers, the history behind its

creation and core values and principles of the Nation.

The preamble can be referred to as the preface which highlights the entire

Constitution.

K.M Munshi opines that the preamble is like a horoscope of the nation which makes

predictions about the future, time of birth and nature of the nation.

It is customary that a Constitution should have a preamble but not compulsory.

Preamble helps us to understand the intention behind the creation of the

Constitution.

Nature of Preamble

Preamble is non-justiciable in nature and cannot be enforced in court of law. In other

words, the Preamble is a non-operating part of the Constitution, that is, the

Preamble cannot override specific provisions of the Constitution. For example, if there

is a clash between the Preamble and Article 21 of the Constitution then it is Article

21 that will prevail over the Preamble.

According to the Supreme Court, the Preamble helps us in legal interpretation of the

Constitution. If a provision of the Constitution is capable of providing two or more

interpretations, then interpretation that tallies with Preamble, shall be given

preference by the court but it is not mandatory.

Preamble is called an ornamental part of the Constitution and it is in the form of a

declaration.

24
 3

Purpose of Preamble

The Preamble declares that the Constitution emanates from the People and all

authority enjoyed by the Constitution is derived from the people themselves. The

Constitution locates sovereignty into the hands of people of India.

Kehar singh Vs Union of India case, 1990

In this case, the Supreme Court held that the constitution emanates from the people,

is a legal fiction and conclusive assumption which cannot be tested in a court of law

because questioning this legal fiction will destroy the Nation and Constitution.

Preamble contains the enacting clause where it is stated that the Constitution was

enacted and adopted on 26th November 1949. However, the Constitution

commenced on 26th January 1950.

Landmark Case related to Preamble

S.C. have to deal with three basic issues related to Preamble of Constitution of India:

1. Whether the Preamble is part of the Constitution or not?

2. Whether Preamble can be Amended?

3. Whether the Constitution has to be interpreted in light of the Preamble?

Whether the Preamble is Part of the Constitution or not?

Traditional View:

The Traditional view is that it is not a part of the Constitution as the Preamble is not

justiciable i.e., cannot be enforced in a court of law. If the Preamble were to be

dropped, then it will not affect the functioning of the Constitution.

In the Berubari Case 1960, the Supreme Court held that Preamble is not a part of

the Constitution. According to Pratap Banu Mehta, Preamble is not part of the

Constitution, this verdict was given by the Supreme Court because the Indian

Constitution also got influenced by a number of Constitutions of the world and here

25
 4

in, the Court took precedence from the USA. In the case of the USA, the Supreme

Court of USA did not accept the preamble as part of the Constitution.

Modern View:

On the other hand, the modern view is that the Preamble is a part of the

Constitution because the Parliament can amend only part of the Constitution.

But, in Kesavananda Bharati case, the Court held that Preamble is an integral part

of the Constitution of India. The court also accepted the fact that earlier it had

overlooked an important fact that the preamble was adopted by the Constituent

Assembly by the motion after the whole constitution was passed.

Whether the Preamble can be amended or not?

The preamble is like the soul and spirit of the Constitution, but it is not free from

controversies. One of the controversies about the preamble is its amenability. Article

368, which deals with the procedure of amendment, only mentions about the

amendment of the provision and not part of the Constitution. Preamble is part but

not provision.

In opinion of Justice H.R Khanna, Preamble is a part of Constitution whereas an

interesting argument was advanced by Justice Y.V Chandrachud, that Preamble may

be a part of Constitution, but it is not a provision of constitution therefore we cannot

amend the Constitution so as to destroy the Preamble.

The majority of Keshavananda Bharati case bench has held that Preamble is the part

of Constitution, and it can be amended but the Parliament cannot amend the basic

features of Preamble because if these basic elements are removed then structure will

not survive and it will not be the same Constitution and will not be able to maintain

its identity.

The Preamble to Indian constitution was amended by 42nd Amendment Act 1976,

wherein the words socialist, secular and integrity were added to the Preamble to

26
 5

ensure economic justice and elimination of inequality in income and standards of life.

Secularism implies equality of all religions and religious tolerance and does not

identify any State Religion. The word integrity ensures one of the major aims and

objective of the Preamble is ensuring unity and fraternity of the State.

Whether the Constitution has to be interpreted in the Light of Preamble?

In A.K Gopalan Case 1950, the Supreme Court held that the Constitution need not

to be interpreted in the light of preamble; it is to be used only when there is

ambiguity (when more than one case is possible.

In Berubari Case 1960,

The S.C held that the preamble is like a lighthouse.

The Preamble is key to open minds of constituent assembly when there is

ambiguity.

In Keshavananda Bharati case 1973, the Supreme Court held that the Constitution

has to be interpreted in light of Noble Vision expressed in the Preamble.

27
 2

Preamble (Part-2)
Ideals of Preamble

1. Sovereignty

Sovereignty means uncontrolled and unlimited powers while taking decisions. It

means India does not recognize any other powers while taking its decisions.

It is often said that globalisation has impacted the sovereignty of the nation state.

In fact some experts also say that globalisation has also diluted the sovereignty of

countries but it is not completely true that globalisation has diluted the sovereignty

of a country.

It has certainly impacted sovereignty to a great extent but sovereignty of a country

largely remains intact.

External sovereignty of a country in some cases is certainly impacted under

oil from Iran under American pressure is an example of impact on Sovereignty by

external powers.

On the other hand, internal sovereignty refers to the relationship between State

and Individual within its territory. Internal sovereignty relates to internal and

domestic affairs and by large,

In economic matters, sovereignty of nation has certainly been impacted-

For example, in any trade agreement between two countries, interests of both

the countries are to be taken into account.

For example, the economic sovereignty of a country gets impacted under

pressure from external agencies like the IMF, World Bank etc.

28
 3

Globalisation has certainly impacted to a great extent but the sovereignty of the

crude oil from Russia despite

pressure tactics of the USA

Ability to exercise freedom depends on power and today there is a significant

increase in the power of India. India, today, is recognized as the Engine of the Global

Economy.

According to IMF Chief Economic Adviser, Geeta Gopi Nath, India contributes 15%

to global GDP today. India is the fastest growing emerging economic market, a

nuclear power and one of the strongest contenders for a permanent seat in UNSC.

is being taken by India on its own.

2. Socialist

According to the Supreme Court, in Samatha Vs State of Andhra Pradesh case

1997, Socialism in India means following:

Reducing inequality in income.

Reducing inequality in status.

Providing equality of opportunity.

Providing a life of dignity.

India accepted the concept of Inclusive growth in 11th and 12th five years plans to

address the issue of inequality and poverty.

The Preamble seeks to establish democratic socialism which is also known as Fabian

Socialism. It means socialistic goals are to be achieved through democratic means.

The socialistic goals are included under the Directive Principles of State Policy. These

goals are given under two articles,

29
 4

Article 39(b) It mandates that the State shall take steps to ensure equitable

distribution of resources so that material resources of the country must be used

for the benefits of the common good.

Article39 (c) says that the State shall take measures to prevent concentration

of wealth into few hands.

Democratic socialism holds faith in a Mixed economy where both the public and

private sector co-exist simultaneously.

Democratic socialism is also called Fabian Socialism. Fabian Socialism regards the

transition from capitalism to socialism as a gradual process through peaceful use of

Economic and Political agencies.

Impact of economic reforms on socialistic goals

Has India deviated from its socialistic goals?

Argument against:

According to some experts, India has deviated away from its socialistic goals.

Economic reforms of India have created inequality in society. Economic reforms

have also resulted in regional disparity e.g., southern states and western states are

economically more successful than Northern states.

It is also said that those who are educated are more successful than others who are

not so educated.

Counter arguments:

It is wrong to say that Indian states has deviated from socialistic principles because

of following reasons:

India has been trying hard to reduce inequality in society. The Indian state has

been actively trying to ensure minimal inequality in society. For example, Under

Prime Minister Jan Kalyan Yojana, the Indian state has provided free ration to

almost 800 million people during Covid-19 period.

30
 5

Through mechanisms like Progressive Taxation, the Indian state has been trying

to reduce inequality.

The Indian State has recalibrated its strategy to reduce inequality in India and

it has been fairly successful in this regard.

Jan Dhan- Aadhar- Mobile Trinity has helped in financial inclusion of the poor

and it has also helped in reducing corruption and extending benefits to the

poor.

3. Secularism

It means worldly as opposed to otherworldly or spiritual. Secularism means the

State is neutral on religious grounds.

The Secular State does not recognise religion as the official religion of the country.

So, Secularism means the existence of religious tolerance, diversity, and pluralism

in the field of religion.

It means that all religions have the right to co-exist on the soil of India. It means

the state is neither religious nor anti-religious or irreligious but only non-religious

in character.

Secularism in India is based upon the principle of which

means all religions are equal.

Western Secularism

It is completely separated from religion. The State cannot patronise any religion

whereas in India the State is free to protect any religion provided no discrimination

is shown between any religion.

Secularism in India is provided under Article 25 to 28, which are the Fundamental

Rights of the Constitution.

31
 6

explained the meaning of

Indian Secularism as

According to neo-Gandhian scholar T N Madan, Secularism is not possible without

Secularisation. It means reducing the role of religion in the lives of people.

D. E. Smith has concluded the first work on Indian Secular State and held that

minorities are custodians of Secularism. He acknowledges the role of minorities in

the formation of a secular foundation in the Indian State. Had there been no active

protest by the minorities, the State would not have granted them special rights,

and he also acclaimed that the way minorities organise themselves will also shape

the future of secularism in India.

32
 2

Preamble (Part-3)
Ideals of Preamble

4. Democratic

Ambedkar believes that democracy is not one man-one vote but also value. Social

and economic democracy is as important as political democracy. Hence, he

advocated protection of minority rights.

of the people, for the people and by the people

The form of democracy provided in India is Multi- Party Democracy. The kind of

democracy provided is Representative Democracy. It is based on the one man one

vote and one value principle. It is provided under Article 326 which provides for

Universal Adult Suffrage, that is, the Right to Vote cannot be discriminated against

on the grounds of religion, race, caste, sex etc. (Universal). Adults who are above

18 years of age have got the right to vote. Suffrage means the right to vote.

5. Republic

Democratic Republic

The head of state is elected directly or indirectly by the people and is not a

hereditary monarch. India has an elected president who is the Head of the State

and any person who is a citizen of India can occupy all offices including that of

President. It means any person can become President of India.

Aspirations

1. Justice

The Constitution of India provides a wholesome form of justice e.g., Preamble talks

about all three forms of Justice i.e., social justice, it means there should be equal

treatment of all citizens without social distinction based on caste, religion, race, sex

etc. It has been provided under Article 14 to Article 18.

33
 3

Economic Justice

Economic justice implies that there should be no discrimination between people

on the basis of Economic Factors. It has been provided under Article 39(b)

&39(c).

Political Justice

Political justice denotes that all citizens should have equal political rights, equal

access to all political offices and equal voices in the government. It has been

provided under Article 326.

2. Liberty

The term Liberty means Freedom of an individual to do what he considers best to

himself

Liberty does not mean licence, it means responsibility.

Liberty also means the absence of arbitrary powers exercised by the State over

individuals.

Preamble talks about two forms of Liberty:

1. Liberty of thought and expression provided under Article 19 [(1) (a)].

2. Liberty of belief, faith and worship. It has been provided by Article 25-28.

3. Equality

Equality means the absence of privileges to a Group of people and also enough

opportunity to all individuals without discrimination.

Preamble talks two kinds of equality:

1. Equality of status is guaranteed under Article 15, 16, 17 and 18.

2. Equality of opportunity provided under Article 16.

34
 4

4. Fraternity

It is a sense of brotherhood prevalent among all the people of India when they feel

they are sons and daughters of the same soil.

It leads to social harmony, and it promotes integrity among people.

Significance of Preamble

The preamble reflects the sacrifices made and the struggles faced by the people of India

in their fight for an independent India. It pays homage to the freedom fighters and the

principles for which they fought.

The use of the words such as justice, liberty, and equality in the Preamble reflects the

influence of the International ideals and principles.

global values of human rights, social justice, and equality.

The Preamble of the Indian Constitution encapsulates the foundational values, principles

and objectives that guide the It plays a significant role in shaping

the interpretation and application of the provisions of the Constitution and serves as a

reminder of the vision and the goals of the framers of the Constitution.

Concluding Remarks

The Preamble of the Indian Constitution lays down the nature of the Indian State and

the objectives which are to be achieved for all the citizens of India. It also upholds the

sovereignty of the people of India and records the date on which the Constitution was

finally adopted by the Constituent Assembly. Each word of the Preamble conveys a set

of ideals. The interpretation of the Constitution is done keeping in mind the Preamble.

Challenges do exist while we try to realise these ideals fully, but the Preamble continues

to serve as a foundation stone for and democratic

governance.

35
 5

Questions Asked

1. (2021)

2. In the light of neo-economic policies adopted since 1991, examine the relevance of the

(2015)

3. Comment: Secularism in the Indian Constitution. (2015)

4. Comment: Significance of the Preamble. (2013)

5. Minorities are the natural custodians of the secular state. Discuss. (2010)

6. Explain the main principles embodied in the Preamble to the Constitution of India.

What is their significance? Do you think that they are the political horoscope of the

country? Discuss. (2004)

36
 2

Fundamental Rights
Significance of Rights

Rights are those conditions that help an individual in realising his true self. If an

individual will not have rights, then his personality will not develop to its fullest and

the individual will not be able to make a contribution to society.

Without rights an individual will become a subject he will have only duties to follow.

Meaning of Rights

The rights are claims of individuals which get recognition from society, rights also get

enforced by the state.

The rights are considered as an entitlement of an individual to perform certain actions

and not to perform certain actions.

Relationships between Rights and Duties

Rights and Duties are part of the same coin, they are complementary to each other.

Rights cannot last long without corresponding obligations. If individuals have only rights

and no duties, then an individual will have no constructive contribution to society and

the person will become nearly a critic.

Natural Rights

Natural rights are those rights that are granted to individuals by nature. An individual

enjoys these rights since birth. For example, the right to life and liberty.

Natural rights can be termed as fundamental rights also, for example, the right to life

and the right to liberty are part of fundamental rights provided under the Indian

Constitution.

Human Rights

These rights are enjoyed by an individual because he or she is a human being. His rights

are universal in nature.

37
 3

These rights became universal in nature after the UN Declaration of Human Rights in

1948.

The violation of human rights today may be a cause of conflict tomorrow, that is why

the protection of human rights is the responsibility of every country.

Rights are of two types:

1. Constitutional Rights: The rights which are provided under the Constitution.

2. Extra-Constitutional Rights: The rights which are created later on and not provided

under the original constitution. For example, MGNREGA.

Differences Between Fundamental Rights and Legal Rights:

The rights can be divided into two forms such as Fundamental Rights and Legal Rights.

Both the Fundamental Rights and Legal Rights are legally enforceable.

The difference between fundamental rights and legal rights are:

If Fundamental rights are violated then the aggrieved individual has the right to

approach the Supreme Court directly under Article 32 for the enforcement of his

rights.

Whereas, if any other legal rights are violated then the aggrieved individual has the

right to approach the High Court under Article 226 by filing a writ petition or

approaching a subordinate court by filing a legal suit.

Meaning of Fundamental rights

Fundamental rights under Indian Constitution are based on

This Bill of Rights was incorporated under the USA Constitution. The USA Constitution

is the first constitution of the world which has given constitutional status to

fundamental rights.

38
 4

Why are these rights called fundamental rights?

These rights are called fundamental rights because they are considered essential for an

individual to attain his or her fullest intellectual, physical, moral, and spiritual stature.

So, without fundamental rights, the person may not be able to develop his or her fullest

capabilities. For this purpose, they are called Fundamental rights.

Fundamental rights help in the effective functioning of democracy. Thus, Part -3 or

fundamental rights is called the cornerstone of Indian Democracy. Part-3 along with

Part-4 is said to constitute the very conscience of the Indian Constitution. Part-3

along with Part-4 also constitutes the intellectual content of the Constitution.

According to Dr. Ambedkar, we are having this liberty in order to reform our social

system which is full of inequality, discrimination and other things which conflict with

our fundamental rights.

Views of Political Scholars on Rights

John Locke: He argued that individuals have natural rights to life, liberty, and

property. He believed that these rights are inalienable and form the basis for a just

government. Locke's ideas laid the foundation for modern liberal democracy.

Thomas Hobbes: He believed that in a state of nature, human life would be "nasty,

brutish, and short." To avoid this, he argued that individuals enter into a social

contract to establish a strong central authority (the Leviathan) to protect their

rights, including the right to self-preservation.

Jean-Jacques Rousseau: Rousseau emphasised the concept of the "general will." He

argued that a legitimate government must be based on the collective will of the

people and that individuals should participate in shaping laws that promote the

common good while respecting individual rights.

39
 5

John Stuart Mill: He argued that society should only limit individual freedom to

prevent harm to others and that the free expression of ideas is crucial for societal

progress.

Hannah Arendt: Arendt focused on the importance of political participation and the

public realm. She believed that fundamental rights, such as freedom of speech and

assembly, enable individuals to engage in politics and exercise their humanity.

Amartya Sen: He is known for his capability approach, which emphasises that

fundamental rights should enable individuals to achieve their potential and lead a life

they value. He argues for a broader view of rights beyond just civil and political rights

to include economic and social rights.

Quotes on Fundamental Rights

"Fundamental rights are the cornerstones of a just and democratic society, protecting

the dignity and freedom of every individual." - Amartya Sen.

"Fundamental rights are the moral compass that guides a society toward justice and

equality." - Ronald Dworkin.

"To deny people their human rights is to challenge their very humanity." - Nelson

Mandela.

"Freedom means the supremacy of human rights everywhere. Our support goes to

those who struggle to gain those rights and keep them. Our strength is our unity of

purpose." - Franklin D. Roosevelt.

Nature of Fundamental Rights

Fundamental rights are enjoyed by individuals as they are called Individual Rights.

Fundamental rights are enforceable in the Court of Law. It means these rights have to

be respected by the state.

40
 6

However, Rights against Untouchability, Rights against Exploitation, and right to

freedom of movement are enforceable against both the state as well as individuals.

Fundamental rights are regarded as limitations against the state's power. Fundamental

rights are limited because states will have to respect them.

Fundamental rights are called a negative obligation of the state and they are largely in

the form of injunction against the state. Fundamental rights are called negative

obligations because most of these rights are holding back the state. However, these

rights are not absolute rights, they are restricted rights because if the rights are

unlimited and uncontrolled and there will be only chaos in society.

Fundamental rights are restricted on following grounds:

1. To maintain sovereignty, security and integrity of India.

2. To maintain friendly relations with foreign states.

3. Defamation of individuals.

4. To maintain public order, morality and decency.

5. In the interest of S.T in case of defamation of individuals.

6. Advancement of socially and educationally backward classes.

These restrictions are provided either in the original constitution or parliamentary

authority to impose reasonable restrictions. It is for the Judiciary to decide whether

these restrictions imposed by parliament are reasonable or not.

Judicial Review

It is implicitly given under the Indian Constitution. Only in case of fundamental rights

it is explicitly given. It is the power of superior courts, that is, Supreme Court and

High Courts to declare a law as unconstitutional and void if it violates one or more

provisions of the Constitution to the extent of such violation.

41
 7

The Judicial Review is available for the courts both against the legislative and executive

actions. The Judicial Review is more implied under the Constitution where it is available

under the writ jurisdiction of the Supreme Court given under Article 32 and High

Courts given under Article 226.

Further under doctrine of Limited Government where the power of government is

limited by the concept of Supremacy of Constitution, Federalism, Separation of Power,

Fundamental Rights, Rule of Law, etc. implicitly confers the power of judicial review

on the court.

However, while applying judicial review, the courts are bound by following three

conditions:

Ordinarily, the court shall not pronounce the constitutionality of the law that has

not been brought into force.

If two interpretations of a Law are possible by the court, where the first

interpretation leads to harmony with constitutional provision, and the second

interpretation leads to conflict with the Constitution then the court shall prefer

first interpretation to second.

Ordinarily the court shall not act Suo-moto while applying the principle of judicial

review.

Benefits of Judicial Review

1. Judicial review has helped in maintaining the Supremacy of the Constitution.

2. To maintain the Rule of Law.

3. Balance between Part-3 and Part-4 of the Constitution.

42
 8

Q.1 Discuss the efficacy of judicial review in India.

Answer Structure:

Introduction (35- 40 Words): Judicial Review is the power of the Supreme Courts

and High Courts to review an executive order or a law made by the Parliament and

ascertain whether Law made by Parliament and decisions taken by Executive is in

line with the Constitutional principles or not. The power of Judicial Review in India

is available to Supreme Courts and High Courts but it is implicitly provided under

the Indian Constitution. But only in case of the Fundamental Rights under Article

13, it has been explicitly provided.

Part 2: In Raj Narain Vs Indira Gandhi case, the Supreme Court called Judicial

Review as part of the Basic structure of the Constitution. The court has applied

Judicial Review on many issues of public importance without any complaint from

the aggrieved party.

Judicial Review as a concept has helped in enormously expanding the scope of

Article 21 and Article 19.

Judicial Review has also helped in maintaining the balance among the three

organs of the State i.e., Legislative, Executive

It has helped in maintaining the Rule of Law.

It has prevented the Executive from taking decisions beyond their Constitutional

mandate.

It has helped in maintaining a balance between the Fundamental rights and the

Directive Principles of State Policy.

Judicial Review has helped in maintaining the supremacy of the Constitution.

43
 9

Part 3: Many landmark judgments have been made by the Supreme Court by

invoking the principle of Judicial Review that has helped in making India's

democracy more robust and people centric . It has forced the Executive to follow

Constitutional Mandate and to ensure Rule of Law in the administration.

Q: 2 Secularism in the Indian constitution. (To be discussed in Next class).

44
 2

Fundamental Rights (Part-2)

Amendability of Fundamental Rights

Article 13 (2) says that the State shall not make any “law” which takes away or
abridges one or more Fundamental Rights, such a law shall be unconstitutional and
void to the extent of such infringement.

First Constitutional Amendment Act:

The First Constitutional Amendment Act of 1951 has amended a few fundamental
rights. Its Constitutionality was challenged before the Supreme Court in the Shankari
Prasad Case of 1951.

Shankari Prasad Vs Union of India Case (1951):

In this case the Supreme Court while upholding its Constitutional validity held that
the Parliament enjoys two types of legislative power:

Constituent Legislative Power under Article 368.

Ordinary Legislative Power.

Any enactment made by Parliament in the exercise of its power under Article 368 is
called a ‘Constitutional Amendment Act’ which does not come under the meaning of
the ‘law’ found under Article 13 (2). Whereas any act passed in the exercise of its
ordinary legislative power is called ‘law’ and comes within the meaning of Article 13
(2). Therefore, the Parliament can amend any part of the Constitution including the
fundamental rights by virtue of its power under Article 368. The court consistently
held this view in a number of cases leading to the Sajjan Singh Vs State of Rajasthan
Case in 1965.

Golaknath Vs State of Punjab Case (1967):

In this case, the Supreme Court overruled its earlier decisions and held that Article
368 did not confer the power on the Parliament to amend the Constitution and it
merely contained the procedure to amend the Constitution. Therefore, the
Parliament enjoyed only one type of legislative power called ordinary legislative
power. Thus, the Court held that the Constitution was unamendable.

45
 3

Further, the court also declared that the fundamental rights had given a
transcendental position or overriding position under the Constitution and no
authority functioning under the Constitution including the Parliament can amend the
fundamental rights.

24th Constitutional Amendment Act of 1972:

The Parliament responded by enacting the 24th Constitutional Amendment Act

1971 which amended the title of Article 368, which now reads as the power of the
Parliament to amend the Constitution and the procedure, therefore.

It also introduced Article 368 (3) which states that nothing under Article 13 shall
apply to any amendment made under Article 368.

It also introduced Article 13 (4) which states that nothing in this Article shall apply
to any amendment made to the Constitution under Article 368.

Keshavananda Bharati Case (1973):

In the Keshavananda Bharati Vs State of Kerala Case (1973), the Supreme Court
held that the 24th Amendment Act was Constitutionally valid. The Court also
classified that; the Parliament can amend any part of the Constitution including the
fundamental rights by virtue of its constituent legislative power given under Article
368.

However, such an amending power of the Parliament is not unlimited, and it is

limited to the extent of not violating the Basic Structure of the Constitution. For this
purpose, the Supreme Court innovated the doctrine of basic structure, but the court
has not defined what is the basic structure of the Constitution.

In a number of cases the Court has only indicated what aspects of the Constitution
form part of the basic structure of the Constitution. This includes:

46
 4

42nd Constitutional Amendment (1976):

The Parliament enacted the 42nd Amendment Act, 1976, which among other
things introduced Article 368 (4), which states no amendment of the Constitution
made under Article 368 shall be called in question in any court on any ground.

It also introduced Article 368 (3) which states for the removal of any doubt. It is
hereby declared that there is no limitation whatsoever on the constituent power of
the Parliament to amend any provision of the Constitution under Article 368. These
two clauses were challenged before the Supreme Court in the Minerva Mill Case.

Minerva Mill Case 1980:

In the Minerva Mills vs Union of India Case 1980, the Supreme Court struck down
these two clauses as unconstitutional and void as it took away the power of Judicial
review of the Court which is a part of the basic structure of the Constitution.

The present position, therefore, is that the Parliament can amend any part of the
Constitution including the fundamental rights but in the process the Parliament
cannot destroy the basic structure of the Constitution.

Benefits of Basic Structure:

It has helped in maintaining the supremacy of the Constitution.

It has helped in maintaining the balance among the three organs of the State.

It helped in maintaining the balance between Part III and PART IV of the
Constitution.

It provides dynamism to the Constitution.

It has helped in providing the foundation for the further evolution of the Constitution
called in question in any court on any ground.

47
 5

Right to Equality (Article- 14)

Article 14, it says that the State shall not deny any individual right to Equality
before Law and Equal Protection of Law.

Equality Before Law

The concept of Equality before Law originated in England and is regarded as a

negative concept because it means absence of privileges for any individual in the eyes
of law. In other words, the Law treats all persons equal without any distinction based
on rank and position in society.

This principle means all individuals are subject to ordinary jurisdiction of law and a
person can sue and be sued before the Court of Law. However, it guarantees only
juridic equality and not other types of equality but there are few exceptions to
Equality before law:

The President of India or Governor of State is not subject to jurisdiction of the

court while discharging its executive function. This principle is based on the
presumption that the

No Criminal proceedings whatsoever can be instituted against the President or

Governor of a State during his term of office even if the President does a criminal
act- he will not be answerable in any court of law unless he is impeached.

No Civil proceedings in which relief or compensation is sought, can be filed against

the President or the Governor of a State unless two-month notice is being served
upon them.

Under International law, foreign diplomats and their families are not subject to
jurisdiction of local courts while discharging their official function. The best local
government can do is to declare the person as not wanted in the country.

Rule of Law

The concept of the Rule of Law originated in England. It is found under Article 14 of
Indian Constitution. It means absolute supremacy of regular law as opposed to the
influence of arbitrary powers. It means the predominance of legal spirit in the
administration of the country and government shall be subjected to the law and not

48
 6

the other way round, that is, the law is not subjected to government. It means law is
supreme i.e., lex supremus or in other words, law is the highest authority in the
country. It means the law is always above you. It is the adoption
of rule of law that changed the conception of administration from REX-LEX, that is,
King is Law to LEX-REX, that is, Law is King.

The Rule of Law is essential for maintaining order in society and without this
administration cannot function smoothly. The Rule of Law is essential for the healthy
functioning of democracy.

The Supreme Court under Article 32 and High Court under Article 226 respectively
is empowered to implement the rule of law.

According to the Supreme Court, the rule of law pervades the entire constitution. It
is one of the basic values on which the entire constitution has been built. Therefore,
the Supreme Court held that rule of law is the part of basic structure of the
constitution which is applicable under all circumstance except the three exception is
given in case of President or Governor of State

It was A.C Dicey, a British legal commentator who popularised this idea of Rule of
Law through his book – “Law and the Constitution.”

According to him, Rule of Law means following things:

1. No person shall be punished or made to suffer in body or goods except for the
violation of law. Such a violation of law shall be established in an ordinary court
of law in an ordinary legal manner.

2. All persons are subject to ordinary law of the land without any distinction of
rank or position.

3. The Constitution is the result of ordinary law of land, but this third principle is
not applied in the case of India because the Constitution is the Supreme Law of
Land in India and all laws passed by Legislature must conform to the
Constitution.

Equal Protection of the Laws

The Concept of Equal Protection of Law originated in the USA, and it is regarded as
a positive concept. It means equality of treatment in equal circumstances. Among

49
 7

equals law should be applied equally. It ensures equality among equals, it does not
ensure inequality among equals or equality among unequals.

The State while making laws, must take into account situational variations in which
different individuals are placed. Therefore, the state is justified in classifying people
into different categories. It is for the judiciary to decide whether such classifications
are legal or not or reasonable or not. It is this concept which justifies positive
discrimination on the part of the state and application of reservation policy in favour
of Backward classes of citizens.

Another example is Progressive Taxation i.e., Different tax slabs for different income
groups to create a level playing field in society.

50
 2

Fundamental Rights (Part-3)

Article 15

It is available only to citizens.

Article 15 (1):

It says the State cannot discriminate against any citizen on grounds only on religion,

race, sex, caste, and place of birth or any of them.

Therefore, if there are any other valid grounds on which discrimination is allowed

then Article 15 (1) does not prohibit it.

Article 15 (2):

It prohibits both the State and private individuals from discriminating against the

citizens only on the grounds of race, religion, caste, sex, place of birth or any of them.

Therefore, it prevents both the state and private individuals from stopping any

citizen from having access to public wells, tanks, roads, restaurants, places of

entertainment, etc. It also helps to fight against untouchability along with Article 17.

Article 15 (3):

The State is free to make special provisions in favour of women and children. For

example, Beti Bachao Beti Padhao, Integrated Child Development Scheme, etc.

Article 15 (4):

It was introduced to the Constitution by the First Constitutional Amendment Act,

1951. It empowers the State to make a special provision for the advancement of

socially and educationally backward classes of citizens.

Article 15 (5):

It empowers the State to make special provisions for citizens belonging to socially and

educationally backward classes, not only in government-run institutions but also in

private and unaided institutions.

51
 3

It was introduced into the Constitution by the 93rd Constitutional Amendment Act

2005. This Article empowers the State to provide special arrangements for the

socially and educationally backward classes of citizens. It empowers the State to

provide reservations of seats even in unaided educational institutions except for

minority educational institutions.

NOTE:

In the P.A. Inamdar Vs State of Maharashtra Case (2005) , Supreme Court stated

that the State cannot impose the policy of reservation on unaided educational

institutions.

The Supreme Court upheld the Constitutional validity of the 93rd Constitutional

Amendment Act in the Ashok Thakur Vs Union of India Case.

Article 15 (6):

It empowers the State to make special provisions for economically weaker sections of

citizens.

The State is empowered to provide 10% of the reservation of seats for the EWS

(Economically weaker section) category for admission into educational institutions

both aided and unaided educational institutions except minority institutions.

The 103rd Constitutional Amendment Act of 2019 provides 10% reservation to

Economically Weaker Sections (EWS) of society for admission to the centre of

government and private educational institutions.

NOTE:

In order to identify the EWS category (for up to 10% reservation) following criteria

will be used:

Family income

Economic disadvantage indices, etc.

52
 4

Article 16 (4):

It empowers the State to reserve seats in favour of socially and educationally

backward class of citizens in public employment.

Article 16 (4) is called an enabling clause because without Article 16 (4) the State

cannot reserve seats for the backward class in public employment. But Article 16 (4)

does not confirm a fundamental right of the backward class of citizens for reservation

in public employment.

Under Article 16 (4) various conditions must be considered by the State to reserve

seats in favour of the backward class of citizens.

The said class of citizens shall be educationally and socially backward.

The backward class of citizens should not be adequately represented in

government employment.

Indra Sawhney Vs Union of India Case (1992):

In this case the Supreme Court clarified the legal position on reservation policies. It is

also known as Mandal Case.

The Court held the reservation of 27% of seats in favour of OBC as

Constitutionally valid. However, it directed the State to identify the creamy layer

among OBC and remove them from availing the benefits of reservation.

The reservation of seats in favour of backward classes shall not exceed 50%

ordinarily, under any extraordinary circumstance. It can exceed 50% (as

reservations are given to females and differently abled apart from SCs or STs).

The reservation for backward classes is provided only at the entry level.

In this judgement the Supreme Court ruled that 10% of seats reserved by the

Narasimha Rao Government for economically backward class of citizens among the

forward community as unconstitutional and void because the Constitution provides

the reservation only on the basis of social and educational backwardness and not for

financially backward classes.

53
 5

Policy of Reservation in Promotion:

Both the State and the Central Government have introduced reservation of seats in

favour of STs and SCs in public employment to provide for faster promotional

avenues.

In the Indra Sawhney case (1992) the above policy was declared as unconstitutional

and void on the ground that under Article 16 (4) State is empowered to provide

reservation to backward classes only at entry level at the time of recruitment only

and not subsequent to recruitment.

The Parliament enacted the 77th Constitutional Amendment of 1995, which

introduced Article 16 (4) (a), it empowers the State to provide reservations for SCs

and STs in promotion provided that these two communities are not adequately

represented in public employment in the opinion of the State.

M. Nagraj vs Union of India Case (2006):

In this case the Supreme Court held that such reservation policy is Constitutionally

valid. However, it should fulfil the following requirements:

SCs and STs community shall be socially and educationally backward.

SCs and STs communities are not adequately represented in public employment.

Such a reservation policy

Vertical Reservation:

Rules regarding vertical reservation were given by the Supreme Court in the Indra

Sawhney Case (1992).

In this case the Supreme Court stated that overall reservation in favour of

Backward classes shall not exceed 50% except in exceptional conditions.

Tamil Nadu Reservation Policy (Exception to the above rule):

Tamil Nadu is the only State where the percentage of seats reserved for backward

classes exceeds 50% and it is 69%.

54
 6

This policy became unconstitutional and void when the rule of vertical reservation

was introduced by the Supreme Court in the Indra Sawhney Case and the Tamil

Nadu Government was forced to scale down this reservation policy to 50%.

But the Tamil Nadu Assembly enacted the Tamil Nadu Reservation Act 1994, under

which 69% of seats are reserved for the backward classes.

This Act was placed under the 9th Schedule by Parliament which was not subject to

Judicial review at that time.

NOTE:

Article 31-B was introduced to the Constitution by the First Constitutional

Amendment 1951 and it says that acts placed under the 9th Schedule are not

subject to Judicial Review.

IR Coelho Vs State of Tamil Nadu Case (2007):

The Supreme Court in IR Coelho vs State of Tamil Nadu Case (2007) held that any

acts placed under the 9th Schedule before 24th April 1973 (the date on which

Doctrine of Basic Structure was innovated) are not subject to Judicial Review. In

other words, these are not subject to the Doctrine of Basic Structure and cannot be

challenged in the Court of law.

Therefore, all the acts which were placed under the 9th Schedule on or after 24th

April 1973 are subject to the Doctrine of Basic Structure and subject to Judicial

Review. This pronouncement of the Supreme Court made Tamil Nadu Reservation

Act 1994 subject to Judicial review.

Carry Forward Policy:

It is being followed by the Central and the State Governments in favour of SCs and

STs in case of public employment.

Under this policy, the unfilled vacancies due to the non-availability of suitable

candidates are carried forward to the following year and filled only by SCs and STs

community.

55
 7

Since this carry-forward policy may violate the rule of vertical reservation of 50%

that is why Article 16 (4) (B) was introduced by the Parliament through the 81st

Constitutional Amendment Act 2000.

It authorises the State to follow the carry forward policy and such a policy will be

valid even if it exceeds 50% reservation.

Article 19

It guarantees six democratic rights to citizens. These rights are called as democratic

rights because they are considered to be essential for the healthy functioning of

democracy.

Article 19 (1) (a):

It guarantees the right to freedom of speech and expression.

It has been described by the Supreme Court as an inalienable adjunct to right to life

under Article 21 i.e., something which cannot be separated from Article 21.

It enhances the quality of life and makes life more dignified.

This right has several meanings; it means the right of a citizen to express his own

view and opinion freely and openly.

It can openly

government. It also means the right of the citizens to choose any conceivable medium

to express his view.

One can express his expression and opinion by signal, by speaking, by holding banners

or even by observing silence.

It allows citizens to express the views of foreigners under Article 19.

The right to freedom of press and publication is mentioned under Article 19.

This right is implicitly provided under Article 19 (1) (a). This right is given not only

to press but also TV, Media, Radio, etc.

It also includes the right to have access to information. Nobody can be prevented

from having access to information.

56
 8

The Right to Information (RTI) is implicit under Article 19 (1) (a). RTI Act, 2005

merely regulates the right already given to us under Article 19 (1) (a).

The right to have political dissent i.e., to have a different political view also comes

under this Article. It strengthened democracy.

According to the Supreme Court rights given under Article 19 (1) (a) are not limited

to geographical land, political boundaries.

An Indian citizen continued to enjoy these rights even while travelling abroad.

Grounds on which these rights have restricted:

On the grounds of maintenance of public order, morality and decency.

In the interest of the security of India.

In the interest of maintaining friendly relations with foreign states.

In case of defamation and contempt of court.

57
 2

Fundamental Rights (Part - 4)

Article 19 (1) (b)

It guarantees the right to have peaceful assembly. It also includes the right to hold
meetings and take out procession.

However, the assembly shall be peaceful and without arms restrictions can be improved
in the interest of maintenance of public order, morality and decency.

Article 19 (1) (c):

It guarantees the Right to form Associations. The Supreme Court said that it includes
the right to join or not to join; continue or not to continue with association. The right
to form association includes the right to form cultural, political, social and economic
association.

It is Right to form political associations and trade unions. But according to the Supreme
Court the right to form a trade union does not confirm a fundamental right to strike.

The Supreme Court in CPMB Bharat Kumar Palicha and other cases stated that
is illegal because Bandh includes compulsory closing down of offices, disturbance to
public transport systems.

It interferes with the freedom of movement of people, freedom of speech and expression
and right to life because daily wage workers are not allowed to work.

According to the Supreme Court, Hartal is not illegal because it does not include an
element of force.

The Right to form an association can be restricted by Parliament by law to require

forces and police Forces.

The Parliament can enact the Army Act, Air Force Act, Navy Act, Police Act, etc.
under which the right to form political association has been denied to these forces.
These forces cannot form trade unions and therefore they cannot go for strike.
Article 19 (1) (d):

It guarantees the Right to Freedom of Movement throughout the territory of India.

It means no part of India should be made inaccessible to a citizen.

58
 3

to move.

Restrictions:
However, this right can be restricted on the grounds of the security of the country,
maintenance of public order, morality, decency, and in the interests of scheduled
tribes, etc.
Example: North East Frontier Area (NEFA)
Article 19 (1) (e):
It guarantees the Right to residence and settlement throughout the territory of India.
In fact, this right is called the corollary of the previous right i.e., Article 19 (1) (d).
The grounds of restriction to this right are similar to the above right i.e., Article 19
(1) (d).
Article 19 (1) (g):

It guarantees the Right to Vocation i.e., the right to profession, occupation, trade or

But the State can impose necessary qualifications in the form of educational
qualifications, physical fitness, mental capacity, loyalty to the State, etc.
Exception:
A reasonable restriction can be imposed in the public interest where the State can
take over a trade or business partially or completely.
Example: Sell of liquor, defence article manufacturing, etc.
Article 20:
It deals with protection in respect of conviction for offences.

Article 20 provides three types of protection.

Article 20 (1):
It prohibits the State from enacting ex-post facto criminal legislation.
This means the State cannot enact a criminal law and give retrospective effect to
criminal law.
But it does not prohibit civil legislation and gives it retrospective effect.

59
 4

Under Article 20 (1), an act in order to be a criminal act i.e., punishable must be so
declared in the law at the time of commissioning of the act.
An act that is not a criminal law at the time of its commission cannot be subsequently
made into a criminal act and the individual is punished for that.
Article 20 (2):
It prohibits the State from practising double jeopardy. It means punishing an individual
more than once by a court of law for the commission of a single criminal act.
This means if a civil servant is dismissed or removed from service by his department
on the basis of his criminal conviction in a court of law does not amount to double
jeopardy.
Because the department is not a court of law.
Article 20 (3):
It prohibits the State from compelling an individual to provide self -incriminating
evidence means a confession made by a person against himself cannot be the basis of
his punishment.
It means compelling an individual to make a statement and use the statement against
the individual himself and procure punishment under the rule of law.
This article is given to save the citizen from the might and oppression of the State.
Under the Prevention of Terrorism Act, (POTA) of 2002 the confession can be used by
the police provided the confession should be informed to the judiciary within 24 hours.
Article 21

It guarantees all individuals the right to life and personal liberty. As the Constitutional
form of Government continues to evolve in India under the present Constitution, it is
Article 21 that has undergone the greatest changes due to the liberal interpretation
provided by the Supreme Court.
According to the Supreme Court, Article 21 guarantees not merely the right to life
but the right to a dignified life also. All other fundamental rights and directive principles
are also ultimately aiming to extend this quality of life to people.
Article 21 guarantees the right to quality of life; therefore, the other fundamental
rights and directive principles revolve around the right to life and without the right to
life other fundamental rights become meaningless.

60
 5

Thus, Article 21 has emerged as the fundamental of all fundamental rights and has
emerged as the backbone of Part III and Part IV of the Constitution.
Even if other fundamental rights and directive principles have not been provided. Under
the Constitution and independent judiciary by providing a liberal interpretation to
Article 21 i.e., the Right to Life can implicitly bring all other fundamental rights for
the people to enjoy.

As the Supreme Court has observed Article 21 is a composite right and has given the
right to the largest number of inferred rights or implied rights namely

Right to Primary Education

Right to Privacy

Right to Health of the Workers

Right Against Cruel Punishment

Right Against Arbitrary Dismissal

Right Against Denial of Wages

Right to Speedy and Fair Trial

Right to Clean and Liveable Environment

Right to Corruption-Free Administration

It is Article 21 that makes a difference between a Constitutional State and a Police

State. Thus, Article 21 has contributed the maximum to the evolution of the
Constitution. Article 21 removes arbitrariness from the decision-making process.

Procedure Established by Law:

The phrase means according to usage and practice as

laid down by statute. It originated in England. Under this doctrine, the court, while
examining a law verifies whether the law has been passed by a competent legislature
and whether the prescribed procedure has to be followed by the legislature while passing
the law.

The court cannot go behind the motives of the law and cannot declare any law as
unconstitutional. However, unreasonable or oppressive a law may be unless the law was
passed without procedural formality.

61
 6

Thus, this doctrine relies more on the good sense of the legislature and the strength of
public opinion in the country. It provides protection for the individual only against the
arbitrary action of the executive but not against that of the legislature.

Due Process of Law:

The phrase Due Process of Law means that the Court shall examine the law not only
from the point of view of the legislature's competence and the procedural formalities.
It also from the broader angle of the inherent goodness of the law while applying the
principle of natural justice. Thus, it confers greater power to the judiciary.
It means the procedure prescribed by the law has to be fair, just and reasonable and
not fanciful, oppressive or arbitrary. It provides protection to the individual both
against the arbitrary action of the executive and that of the legislature.
The Indian Constitution under Article 21 provides for only the Procedure Established
by Law. However, the Supreme Court in the Maneka Gandhi Case interpreted Due
Process of Law under Article 21 by incorporating the principle of natural justice.
Principle of Natural Justice:
These are the universal principle that state:
No man shall be punished and unheard.
No man shall be the judge of his own case.
An authority shall act bonafide without any bias.
The objective of the Principle of Natural Justice is to exclude the chances of arbitrariness
and seek to ensure a degree of fairness in the process of decision-making. This seeks to
humanise the decision-making process. They emphasise that action must be supported
by reason.
According to the Supreme Court, they are not incorporated but inherent principles of
the Constitution.
They are one of the basic principles on which the Constitutional structure has been built
since they are the universal principle so they are binding on all authorities including
the Judiciary, Private Organisations, Individuals, etc. They are regarded as the basic
rights of an individual.
The Supreme Court held that these principles are inherent in the right to equality
under Article 14 and also under Article 21. By reading these principles under Article

62
 7

21 the Supreme Court has incorporated the doctrine of due Process of Law under the
Constitution.
These principles are so pervasive in the Constitution as they can be regarded as Part of
the Basic Structure of the Constitution.

KS Puttaswamy Case (2017)

The Supreme Court in the KS Puttaswamy Case (2017) ruled that privacy is a
natural right that inheres in all-natural persons and it can only be denied by the
State action that passes all three of the following three criteria:
Such state action must have a legislative mandate;
It must be pursuing a legitimate state purpose; and
It must be proportionate.

Article 21 A:
It was introduced in the Constitution by the 86th Constitutional Amendment Act.
Under Article 21 A, the State shall provide free and compulsory education to all
children between the age group of 6 14 years by means of law.

Article 21 A guarantees the right to primary education for children between the age
group of 6 14 years.

To provide free education is the responsibility of the State and to provide compulsory
education is the responsibility of the parents.

The 86th Constitutional Amendment Act also introduced a new Fundamental Duty
under Article 51A (k).

This fundamental duty reads that it should be the duty of every parent to provide
education to his or her child between the age of 6 14 years.

Subramanian Committee Recommendations:

According to the Subramanian Committee, there is a need to increase expenditure to

6% of GDP.

A new All India Service i.e., Indian Education Service should be established under which
teachers should be evaluated every year.

63
 8

Online education should be promoted even board examinations on demand can be given
online.

There is a need to increase investment in vocational courses.

Information and Communication Technology should be promoted.

Suggestions to improve education at the elementary level.

There should be an investment in quality education.

There should be an improvement in the quality of teachers.

Introduction of vocational courses in schools especially Information and

Communication Technology related.

Landmark Cases Related Article 19

Romesh Thapar Vs State of Madras, 1950:

In the case, the Supreme Court upheld that freedom of press is inherently associated
with freedom of speech and expression. This case was referred by the Supreme Court
a number of times in Shreya Singhal Case 2015.
Shreya Singhal Vs Union of India Case 2015:

In this case, the Supreme Court decided a question related to the Fundamental Right
of Freedom of Speech and Expression guaranteed by Article 19(1)(a) of Indian
Constitution.
In this case, section 66A of IT act 2000 is called unconstitutional and void because
section 66A authorised imposition of restriction on freedom of speech and expression.
The language of this section was so subjective that it covered restrictions both within
and without limits of constitutionally permissible legislative actions.

Important Cases Related to Article 21

Maneka Gandhi Vs Union of India Case:

In this case, the Supreme Court established the relationship between Article 19 and
21. In this case, the Supreme Court expanded the scope of Article 21 of the Indian
Constitution.

In the Maneka Gandhi case, the Supreme Court also established the relationship
between Article 14 and 19.

64
 9

Justice Retired Puttaswamy Vs Union of India case 2017:

This case mainly dealt with the question whether privacy is a constitutional protected
value under Indian Constitution.
In this case, the Supreme Court held that Right to Privacy is part of Article 21 of
Indian Constitution. The Supreme Court stated that the right to privacy is an
absolute necessity and the right to privacy is a fundamental right.

Joseph Shine Vs Union of India case 2018:

In this case, the Supreme Court struck down section 497 of IPC, which criminalised
adultery, the court decriminalised adultery.
Navtej Singh Johar Vs UOI case 2018:
In this case, the Supreme Court upheld the right of LGBTQ community to have
intimate relations with people of their choice and their right to privacy and dignity.
In this case, the Supreme Court partially struck down section 377 of IPC.

65
 2

Fundamental Rights (Part - 5)

Article 32

It is remedial in nature. In this sense, it states that an individual has the right to move

the Supreme Court in order to get his fundamental right enforced if they are violated.

Therefore, without remedy the fundamental rights may not be a real right.

It is Article 32 that conferred the legal status on fundamental rights and makes

fundamental rights enforceable, that is why, the Constitution has made Article 32

itself as a fundamental right. It talks about the Right to Constitutional Remedies.

Dr. B. R. Ambedkar describes Article 32 as fundamental of all fundamental rights and

the heart and soul of the Constitution. Because the whole Constitution would become

null and void without any protection. It provides teeth to the fundamental right to

bite.

If Fundamental Rights are violated then they can approach the Supreme Court under

Article 32, and High Court under Article 226 of the Constitution.

Sub Clauses:

Article 32(1): It says that in case of violation of fundamental rights, anybody can

approach the Supreme Court directly.

Article 32(2): It empowers Supreme Courts and High Courts to issue writs in the

nature of Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo-Warranto to

enforce fundamental rights. Writs have been borrowed from the English Constitution.

Article 32(3): It empowers quasi-judicial bodies like CAT (Central Administrative

Tribunal), SAT (State Administrative Tribunal), IT tribunals to issue writs.

Article 32 (2)

It empowers the Supreme Court to issue prerogative writs, such as Habeas Corpus,
Mandamus, Prohibition, Certiorari and Quo-warranto.

66
 3

Under Article 32 (2) the Supreme Court has a duty to implement fundamental rights
if they are violated.

Writ jurisdiction had been borrowed from the English Constitution.

Under the Indian Constitution the Supreme Court and High Court enjoy writ
jurisdiction under Article 32 and Article 226 respectively. The subordinate courts do
not enjoy writ jurisdiction. The power of judicial review is implicit under the writ
jurisdiction of the Supreme Court and High Courts.
Further, the Supreme Court has expanded this scope of writ jurisdiction by including
the concept of Public Interest Litigation (PIL) under its jurisdiction.

Article 32 (3) empowers the Parliament to confer the direction on other bodies.

The Parliament enacted the Administrative Tribunal Act of 1985 which has conferred
jurisdiction on the Central Administrative Tribunal and the State Administrative
Tribunal.

Habeas Corpus:

This writ is issued in order to safeguard or protect individual liberty such as the Right
to Freedom of Movement.

It can be issued both against the public authority or an individual.

It is issued to determine whether the detention of a person is legally justified or not.

It can be preferred before the Court by any individual or organisation and not
necessarily only by aggrieved individuals. Therefore, the principal locus standi does not
imply in the case of a writ of Habeas Corpus. It means legal justification for an individual
to approach the Court for seeking justice.

Habeas Corpus literally means to have the body. It means to have the production of a
detained person physically before the court in order to ascertain the ground of his
detention.

However, if the material facts related to his detention are presented to the Court, then
the Court may not insist upon the physical production of the detained person. If the
Court finds its detention is illegal it will order for his release immediately.

67
 4

Mandamus:

It literally means Therefore, the writ is issued in the form of command

by the Court. It can be issued only against a person holding public office or against a
public authority. For Example, the Vice Chancellor of Delhi University holds a public
office and the MCD Commissioner is a public authority.

It cannot be issued against an individual or private organisation. It is issued in order to

enforce statutory rights but not a private right.

The right created by law is called the statutory right and other rights are called private
rights.

The court issued this writ if a public office or a public authority has failed to discharge
his official duty and, in the process, the legal right of an individual is violated.

Only the aggrieved individual can approach the court to file the writ of Mandamus.
However, this writ cannot be issued against the President or a Governor of a State.

Prohibition:

This writ can be issued against the Judicial or a quasi-judicial body like CAT (Central
Administrative Tribunal), SAT, Income Tax Tribunal, etc.

It is issued in order to ensure that the judicial or quasi-judicial body keeps within its
limits of jurisdiction and does not usher that is assumed excess jurisdiction.

If a judicial or quasi-judicial body takes up a case in excess of his jurisdiction then his
writ of prohibition prohibits the judicial or quasi-judicial body from proceeding with
the trial of the case only the aggrieved individual can file the writ of prohibition.

Certiorari:

This writ is similar to the writ of prohibition.

It is issued in order to quash i.e., to cancel the judgement, direction or order issued by
a judicial or quasi-judicial body in excess of his jurisdiction.

The writ of Certiorari can also be issued against the executive body, if it performs quasi-
judicial functions.

Quo-Warranto:

68
 5

It literally means

The object of this writ is to ensure that a person occupying a public office is qualified
to hold that office.

Therefore, this writ can be issued only against a person holding a public office.

It can be preferred by any individual whether he himself is qualified to hold that office
or not.

When this writ is issued by the Court then the person holding the public office stands
removed from his public office.

Difference between Writ Jurisdiction of Supreme Court and High Court

Supreme Court (Under Article 32) High Court (Under Article 226)

The Supreme Court can issue the The High Court can issue writs for the

writs only for the enforcement of enforcement of both fundamental rights

fundamental rights and not for the and other legal rights.

enforcement of other legal rights. Under Article 226 the High Courts are

The Supreme Court is under the not under constitutional duty to enforce

Constitutional obligations to enforce fundamental rights. The High Courts may

fundamental rights if they are found or may not enforce the fundamental

violated. rights.

Its writ jurisdiction extends over the Its jurisdiction is limited to territorial
whole of India. jurisdiction.

69
 2

Directive Principles of State Policy

Directive Principles of State Policy

The Directive Principles of State Policy are directions to the state while formulating

policies, enacting laws and legislating.

The Directive Principles of State Policy have been borrowed from the Constitution of

Ireland.

They epitomise the ideals of people.

They have evolved along with the Constitutional form of Government.

The Directive Principles seek to establish a welfare state as opposed to Laissez-

faire/regulatory state.

Regulatory state: It performs only one function which is the maintenance of law and

order, carrying out day-to-day administration of the country.

It leaves the economic development of the people to the individuals themselves.

On the other hand, the welfare state performs a dual function, that is as a regulatory

state and actively participates in the economic development of the people.

Therefore, the welfare state is inherently more dynamic than the regulatory state.

The Directive Principles are in the nature of general direction or instruction to the

state.

Directive Principles are a unique blend of:

Socialism

Gandhism

Western Liberalism

The freedom struggle of India

They embody the aims which the state must bear in mind while formulating policies

and making laws.

They seek to provide methods to empower the people.

70
 3

They constitute a very comprehensive social, economic and administrative programme

for a modern democratic state.

However, they are non-justiciable in nature, that is they cannot be enforced in a court
of law. They will be enforceable only when they are included in the policy formulated
by laws enacted by the state.

Why are Directive Principles non-justiciable in a court of law?

The Directive Principles of State Policy are non-justiciable in nature because of the
following reasons:

At the time the Constitution NOTE:

came into force India lacked Even though it is non-justiciable in nature,

material resources to the Constitution of India says under Article

implement some of the 37 it is fundamental in the governance of

Directive Principles of State the country.
Policy like free and compulsory
education because free and compulsory education requires tremendous material
resources to be implemented that is why India decided to keep this provision under
Directive Principles.

Difference between Fundamental Rights and Directive Principles:

Fundamental Rights Directive Principles

These are justiciable in the court of law They are non- justiciable in the court of

under Article 32 in the Supreme Court law.

and under Article 226 in the High

Court.

These are static in nature : Where they These are dynamic in nature: Where

seek to represent a set of rights and they urge the state to perform

71
 4

preserve a set of rights enjoyed by the something positive in the form of

individual. benefits to the people.

Fundamental Rights are a negative Directive Principles are a positive

obligation of a state. affirmation of a state.

The Fundamental Rights seek to Directive Principles seek to establish

establish political democracy in the social and economic democracy in the

country. country.

These are provided in a strict legal sense. These are provided in a general sense.

Relationship between the Fundamental Rights and Directive Principles:

Article 37 states that the Directive Principles are not enforceable in a court of law.

Nevertheless, they are fundamental in the governance of the country.

It is the duty of the state to incorporate the Directive Principles in the policies

formulated and the laws enacted in order to promote the welfare concept but the

supreme court in the Champakam Dorairajan Vs State of Madras case 1951, held that

the Directive Principles cannot override the fundamental Rights. Directive Principles

have to confirm and run as a subsidiary to the Fundamental rights.

In the case of any conflict between the Fundamental Rights and Directive Principles,

the Fundamental Rights will prevail. The Supreme Court held that the Directive

Principles were inferior to Fundamental Rights.

The decision of the Supreme Court came in the way of enacting social legislation such

as the Zamindari Abolition Act and the Land Reforms Acts.

The Supreme Court subsequently realised the importance of the Directive Principles

and propounded the Kerala Education Bill Case of 1957.

72
 5

The theory of harmonisation observed that Directive Principles cannot override

Fundamental Rights.

Nevertheless, in determining the scope and extent of the Fundamental Rights the court

may not completely ignore the Directive Principles and the Directive Principles and

Fundamental Rights shall be harmoniously constructed and the court must attempt to

give effect to both the Directive Principles and Fundamental Rights as much as possible.

Under the theory of harmonisation the court held that there is no inherent conflict

between the Directive Principles and Fundamental Rights and they supplement each

other in establishing political, social and economic democracy.

In view of this the court has the responsibility to interpret the C onstitution in such a

way to the social objective held out by the Directive Principles, with the individual rights

guaranteed by the Fundamental Rights.

This is the mandate of the Constitution not only to the legislature and the executive

but also to the court. Therefore, the provision in Part III should be interpreted having

regard to the Directive Principles.

The Directive Principles are also relevant to consider what are reasonable restrictions

on Fundamental Rights. However, if only one interpretation is possible which leads to

a conflict between the Fundamental Rights and the Directive Principles, the court has

no choice but to give effect to the Fundamental Rights in preference to the Directive

Principles.

On the basis of the whole interpretation the Supreme Court held the Bank

Nationalisation Act- 1971, as unconstitutional and void which were passed to give

effect to Article 39 (b) and 39 (c) as unconstitutional and void as they violated Article

14, 19 and 13.

The parliament responded by enacting the 25th Amendment Act 1971 which

introduced a new article, namely Article 31 (c) in the constitution.

73
 6

It read if the state enacts a law to give effects to the directive given under Article
39 (b) and 39 (c) and in the directive given under Article 14, 19 and 31 the law
shall not be declared unconstitutional and void merely on this ground.

The Supreme Court in the Kesavananda Bharati case upheld the constitutional
validity of the 25th Amendment Act and on the basis of this, the court subsequently
declared the Bank Nationalisation Act and the Privy Purse (abolition) Act as
Constitutionally void.

The 42nd Amendment Act 1976 among other things amended Article 31 (c) which
in amended form read that if the state enacts the law to give effect to any of t he
Directive Principles and in the process if the law violated Article 14, 19 and 31, the
law shall not be declared as unconstitutional and void merely on the grounds of Article
31 (c). Further stated that any such law declaring that it is to give effect to the
Directive Principles shall not be questioned in a court of law.

The 44th Constitutional Amendment Act 1978 renamed Article 31 from the set of
fundamental rights and made it a right under Article 300 (A).

The changes introduced by the 42nd Amendment Act 1976 in Article 31 (c) was held
to be unconstitutional and void in Minerva mills case on the grounds that it violated
the court's power of judicial review and disturbs the balance between Part III and Part
IV and which are the parts of the basic structure of the Constitution.

Thus, the present position in terms of the relation between Fundamental Rights and
Directive Principles is that the two directions given under Article 39 (b) and 39 (c)
can prevail over the Fundamental Rights given under Article 14 and 19.

Importance of Directive Principles:

The Directive Principles are fundamentals in the governance of the country be cause
their implementation is essential for the establishment of a welfare state in the country.

They have not been given legal enforceability not because they are inferior to any part

of the Constitution, but because of the fact that implementation demands material

resources at the disposal of the state.

74
 7

As Dr. B.R Ambedkar observed that any responsible government will have to implement
Directive Principles otherwise it will be answerable to the people in the next election.
According to Dr. B.R Ambedkar they may not be enforceable in the court of law but
they are enforceable in the court of people.

Directive Principles may lack legal sanctions, but they enjoy the political sanctions.
They are the testing ground on which the performance of the government of the day
is judged.

They are also useful in determining the constitutional validity of certain laws.
Further they act as the lighthouse, constantly reminding the government of its
responsibility in taking the country towards the welfare goal.

As the former chief justice of India Justice H. J Kania observed that the Directive
Principles did not merely represent the majority of the constituent assembly, but it
represented the collective wisdom of the people of India as reflected through the
constituent assembly.

Relevance of DPSP in the era of Globalisation

In the era of globalisation, the relevance of the Directive Principles of State Policy (DPSP)
can be comprehended in various ways:

Balancing Economic Growth and Social Welfare: With globalisation driving substantial
economic growth in many nations but also exacerbating income inequality and social
disparities, DPSP aims to foster economic and social justice.

Environmental Sustainability: Given that globalisation often involves economic activities

that harm the environment, these principles can serve as a compass for the government
in pursuing sustainable development objectives and addressing environmental issues.

Preservation of Cultural and Educational Heritage: DPSP underscores the promotion of

India's unique cultural and educational values. This can help safeguard cultural diversity

and heritage in the midst of global cultural influences.

Social Welfare Initiatives: DPSP envisions the advancement of social welfare through

various means, such as ensuring access to education, healthcare, and social security.

75
 8

Protection of Labor Rights and Welfare: DPSP includes principles aimed at safeguarding

the interests of workers, which becomes pertinent in ensuring that globalisation benefits

all sectors of society, including the workforce.

Foreign Policy and International Relations: DPSP also encompasses principles pertaining

to international peace and security. In the era of globalisation, these principles can offer

guidance to the government in making foreign policy decisions and engaging with the

global community.

Ensuring Equitable Resource Access: Globalisation can sometimes lead to the

accumulation of resources and economic power in the hands of a few. DPSP principles

regarding the fair distribution of resources can help ensure that the advantages of

globalisation are distributed more equitably among all citizens.

Opinions on Directive Principles of State Policy

K.T. Shah compared these with

Nasiruddin Ahmad called these principles

T T Krishnamachari described DPSP as

Dr. B. R. Ambedkar described DPSPs as the

76
 2

Doctrine of Basic Structure - Amendment

Meaning of Amendment

Amendment is any type of change in the Constitution it involves addition, deletion,

modification, substitution or repealing of any provision of the Constitution.

Purpose of Amendment

The Constitution is the vehicle of social change. It is the dynamic instrument to ensure
social revolution. The Constitution should be in position to ensure the well-being of
people and social justice. It must take into account changing aspirations of people. It
must evolve with the passage of time.

According to Pt. Nehru, if amendment will be stopped then the growth of the Nation
will also be stopped.

According to Dr. B. Rao Ambedkar, there should be enough flexibility for the
amendment of the Constitution. An unamendable Constitution is the worst tyranny
of the time because such a constitution will not be able to fulfil aspirations of people.

If the Constitution is unamendable then people may resort to conflict and violence to
ensure amendment. That is why, provisions of amendment of the Constitution can be
considered as peaceful ways of bringing revolution.

Amendment Procedure under the Indian Constitution

India has adopted the fusion of two political systems i.e., Parliamentary sovereignty of
the British Government and Constitutional Supremacy of the USA.

Parliamentary sovereignty principle adopted by India makes its constitution flexible

because a large part of the Indian Constitution can be amended by parliament on its
own whereas some parts of the Indian constitution is rigid due to adoption of federal
principles under the Constitution. Therefore it can be said that the Indian
Constitution is a blend of rigid and flexible type.

Procedures of amendment under the Indian Constitution

1. Certain sections of the Indian Constitution can be amended by means of simple

majority which is also called as functional majority because the government is able to
function because of simple majority-more than 50% of members present and voting.

77
 3

2. Some parts of Indian Constitution require special majority which are two types-

1. Type 1:

1. More than 2/3 of members present and voting.

2. More than half of the total strength of the house

2. Type 2:

1. Certain section of Indian constitution, which take part in division of power

and distribution of power can be amended in following manner:

1. It must be passed by both the Houses of Parliament-by 2/3 of members

present and voting and more than half of the total strength of the
House.

2. It must be ratified by at least half of state legislatures through simple

majority.

2. Since division of power between States and Centre is affected, that is why
States have been given the power to ratify such an amendment.

Politics of Amendment:

Amendment has remained a bone of contention in the Indian context because an

unrestricted amendment will destroy the federalism feature of the constitution.

Constitutional supremacy says that the constitution is supreme in India and not the
organs created by the constitution. The Supreme Court of India is the final
interpreter of the constitution.

Any law passed by the Parliament is subject to Judicial review.

The original constitution under Article 368 provided the procedure to amend the
constitution.

A constitution does not speak through itself. A constitution speaks through the
judiciary.

Important Cases with respect to the Amendment:

AK Gopalan Vs State of Madras, 1950: The Supreme Court in AK Gopalan vs. State
of Madras, 1950 held that and are

78
 4

different from each other. Procedure established by law is provided under the Indian
Constitution. A law can be questioned only on procedural grounds.

Shankari Prasad Vs Union of India Case, 1951:

Article 368 included the

power to amend the Fundamental Rights guaranteed in Part III as well.

The constitutional validity of the First Amendment Act (1951), which curtailed
the right to property, was challenged.

The word includes only ordinary laws and not the

constitutional amendment acts (constituent laws).

Parliament can abridge or take away any of the Fundamental Rights by enacting
a Constitutional Amendment Act and such a law will not be void under Article
13.

Golaknath Vs State of Punjab Case, 1967:

The court reversed its earlier stance that the Fundamental Rights can be
amended.

It said that Fundamental Rights are not amenable to the Parliamentary

restriction as stated in Article 13 and that to amend the Fundamental rights a
new Constituent Assembly would be required.

It stated that Article 368 gives the procedure to amend the Constitution but
does not confer on Parliament the power to amend the Constitution.

24th Amendment Act, 1971:

Golak Nath
case (1967) by enacting the 24th Amendment Act (1971).

This Act amended Articles 13 and 368.

It declared that the Parliament has the power to abridge or take away any of the
Fundamental Rights under Article 368 and such an act will not be a law under
the meaning of Article 13.

Kesavananda Bharati Vs State of Kerala Case, 1973:

The Supreme Court overruled its judgement in the Golak Nath case (1967).

79
 5

It upheld the validity of the 24th Amendment Act (1971) and stated that
Parliament is empowered to abridge or take away any of the Fundamental
Rights.

At the same time, it laid down a

It ruled that the constituent power of Parliament under Article 368 does not

This means that the Parliament cannot abridge or take away a Fundamental
Right that forms a .

42nd Amendment Act, 1976:

This Act amended Article 368 and declared that there is no limitation on the
constituent power of Parliament and

No amendment can be questioned in any court on any ground including that of

the contravention of any of the Fundamental Rights.

Minerva Mills Vs Union of India Case, 1980:

This case again strengthens the Basic Structure doctrine.

The judgement struck down the 42nd Amendment Act 1976, declaring it to be
violative of the basic structure.

The judgement makes it clear that the Constitution, and not the Parliament is
supreme.

In this case, the Court added two features to the list of basic structure features.
They were: judicial review and balance between Fundamental Rights and Directive
Principle of State Policy.

The judges ruled that a limited amending power itself is a basic feature of the
Constitution.

80
 2

Amendment, Doctrine of Basic Structure

Politics of Amendment

The issue of amendment and scope of amending power of parliament has been a

matter of debate in Indian context. The controversy associated with the

procedure and powers are:

From the point of view of Centre-State relation It is said that the

procedure of amendment favors Centre, state cannot initiate amendment,

large part of amendment can be initiated even without ratification by states.

Territorial integrity of state is not ensured- Under Article 3, the name area

and boundary of state can be changed without consent of state.

The Union parliament can change the territory of the state by simple

majority.

The original constitution only talks about the procedure of amendment, it

did not talk about powers of amendment.

The Constitution also creates the scope of judicial review. Article 13 gave

Judiciary the powers to review legislative enactment in the context of

fundamental rights.

The above principles show that, in the context of India, the principles of

sovereignty do not exist, however, Directive Principles of State Policies at times

creates conditions that may result in limitation of Fundamental Rights.

The Constitution also mentions that the implementation of the directives is the

duty of the state.

Indian Constitution also does not mention the clear judicial supremacy. It only

talks about the procedure established by law. Court can inquire about legislative

acts on the basis of procedure. The concept of due process of law was not found

under the Indian Constitution.

81
 3

Article 21 of Indian Constitution says that no person shall be deprived of his life

and personal liberty except according to the procedure established by law.

The above provision created a complicated situation. This has resulted into

conflict between two branches of government, the two major cases in the initial

phase that brought the issue related to amendment power of parliament and the

nature of judicial review were:

Shankari Prasad Vs Union of India Case 1951.

A.K Gopalan Vs State of Madras Case 1950.

Shankari Prasad Vs Union of India Case 1951 has already been discussed in the

amendability of Fundamental Rights.

A.K Gopalan Vs State of Madras Case 1950- It was held that procedure

established by law is the principles given under Indian constitution and Supreme

Court cannot question the policy aspect that due process of law is not a feature

of Indian Constitution.

Assessment of amendment process in India

In the Indian context, the assessment process has helped in bringing social revolution.

The amendment process shows that the Indian Constitution is a living document. The

amendment process has evolved in three areas:

Political Evolution:

17th Constitutional Amendment Act, 1964: This amendment act prohibited

the acquisition of land used for personal agriculture unless price equal to

property market values was paid.

52nd Constitutional Amendment Act, 1985: It introduced anti-defection

law by adding 10th schedule under Indian Constitution. It was an attempt to

stop political corruption and the decline of Parliament.

73rd and 74th Constitutional Amendment Act, 1991: It introduced local

self-government in India.

82
 4

Social Evolution:

1st Constitutional Amendment Act, 1951: It allowed states to introduce

reservation for Scheduled Castes and Scheduled Tribes.

44th Constitutional Amendment Act, 1978: It abolished the Right to

Property.

86th C.A.A: It made right to education of F.R

93rd Constitutional Amendment Act, 2005: It made social provision for

socially and educationally backward classes of citizens in educational

institutions.

108th Constitutional Amendment Act, 2008: It seeks to reserve 1/3 of all

seats for women in Lok Sabha and State Legislative Assembly. The location of

reserved seats shall be determined by such authority as prescribed by

parliament.

Economic Evolution:

1st, 4th 17th and 44th Constitutional Amendment Act: They helped in

bringing land reforms and other economic reforms.

Conclusion:

Amendment is necessary to overcome the challenges which keep on emerging in any

political system. If amendment is allowed, then extra constitutional means will be

taken up by people. The amending procedure should be a fine balance of flexible and

rigid provision. If it is too rigid, there is danger of revolution, if it is too easy then

the ruling party can easily amend the Constitution. The Indian Constitution has

represented the fine balance and amendment acted as a safety valve in the Indian

context. However, there are limitations in the ways amendment to Indian

constitution has been made, amending device should not be invoked for each and

every purpose. Frequent amendments dilute the sanctity of the Constitution. It

should be done only when it becomes absolutely necessary. The process of

amendment in the Indian context also comes under criticism because there is no

constitutional provision that allows the state to initiate amendments.

83
 5

Doctrine of Basic Structure:

The doctrine emerged in 1973 in the Kesavananda Bharati case. It is an implied
power of the Judiciary rather than the expressed power under Article 368. The
doctrine of Basic structure is based on the theory of the Supremacy of the
Constitution. The doctrine of Basic Structure limits the power of legislature in the
context of making amendments. Judiciary is the guardian of the Constitution and
hence judiciary performs its job by using basic structure doctrine. From the point of
view of supporters of basic structure, the Constitution must survive. Power to amend
does not mean power to destroy the Constitution. In the context of social and
economic changes the amendment of the Constitution becomes inevitable. However,
it is necessary to remember that amendment is not equal to the creation of a new
Constitution. According to the critics of the doctrine of Basic structure- the doctrine
is an attempt of the judiciary to enlarge its power of Judicial Review. According to
the views of Sudhir Krishnaswamy, the author of the book-
the judiciary never attempted to outline the basic features
of the Constitution. There have been many cases when the Judiciary could not have
done so but it has avoided doing so. Initially, the doctrine has helped in saving the
damage to the Constitution or altering its identity. But gradually, it became a type
of administrative law where the Judiciary is reviewing the executive actions

of the Government, e.g., in case of application of Article 356. The author points out that
Judiciary has confused the basic structure review with other things and review of
executive decisions also.

Judiciary should apply restraint because it questions the representative body of

government. According to him, if people in government does not want, it will become
difficult for the judiciary to sustain the doctrine. The approach of judiciary has been
positivistic, (i.e., what is written into the Constitution rather than historical or political).
Basic structure doctrine involves the judiciary in complex issues. It brings tensions
between the two branches of the Government. The doctrine is in itself ambiguous because
at times the Constitution is in itself sharply divided. Moreover, no majority judgement is
available laying down the Basic Structure of the Constitution.

84
 6

Evolution of Basic Structure Doctrine:

1. Kesavananda Bharati case, 1973: Supreme Court has held that amendment of

Fundamental Rights cannot be accepted to the extent that it destroys the core. In

this case, judiciary has outlined the following features as basic structure:

Supremacy of the Constitution

Republican form of government

Separation of powers

Secularism

Federalism

2. Indira Gandhi Vs Raj Narain Case, 1975:

India is a sovereign democratic republic.

Concept of Rule of Law.

3. Minerva Mills Case, 1980:

Judicial Review is a basic structure.

Balance between Fundamental Rights and Directive Principles of State Policy is

basic structure.

4. S. R. Bommai case, 1993:

Secularism

Federalism

Basic structure is applied in case of both ordinary law as well as amendments.

85
 2

Fundamental Duties
Meaning of the concept of Duties
Duty is an obligation, duty is something we owe to others as social beings. In political
theory, Rights and Duties are inherently intertwined with each other.

Rights cannot last long without corresponding obligation. If only rights are given to
individuals, then individuals will have no constructive contribution to society and
individuals will become merely a critic.

In the absence of duties, it is difficult to exercise rights. Rights and duties both are
part of the same coin.

Views of Various Scholars with respect to Duties

Views of Gandhi

For Gandhi, duties are rights in embryonic form, if you want to enjoy rights you
will have to perform your duties. Without performance of duties, there are no
rights.

Views of John Locke

John Locke tells us that natural law guides us to respect the rights of others; this
shows one can enjoy rights when one is able to fulfil certain obligations.

Individuals possess rights only as a member of society.

Views of Laski

Enjoyment of rights by an individual also puts an obligation on him to let others

enjoy their rights.

Since the State protects the rights of individuals so it is the individual's duty to
perform rights towards the state.

Performance of .

Fundamental Duties and the Indian Constitution

Originally, the Indian constitution did not have a chapter of fundamental duties. The
constitution of liberal countries does not give a prominent place to duties in the
Constitution. Japan is perhaps the only liberal state which includes basic duties in the
Constitution.

86
 3

The concept of duties is a socialist tradition. In Indian context, the chapter on

Fundamental Duties was added as a result of the 42nd Constitutional Amendment
Act.

Fundamental duties were added in chapter IV-A of Indian Constitution. A new article
51-A came into existence which enumerated 10 fundamental duties. The 86th
Constitutional Amendment Act has added 11 th duty to the list of fundamental duties.

The introduction of fundamental duties was based on the recommendation of the

Swaran Singh committee.

During the emergency, it was realized that the concept of fundamental duties should
be incorporated. The incorporation of fundamental duties was not without
controversies, considering the circumstances under which fundamental duties were
added in the constitution. Political parties and scholars express their doubts on the
intention of government.

Criticism of Fundamental Duties

Fundamental duties are non-justiciable in nature i.e., they cannot be enforced in the
court of law.

Nani Palkhivala also expressed his doubt in the context that the duties enumerated
are inconsistent. For example, fundamental duties say it is the duty of every citizen to
develop scientific temper and spirit of enquiry, such is possible only when people are
educated. We cannot expect the performance of duties when masses are illiterate,
and society is traditional.

The duties are vaguely defined, for example, it is the duty of citizens to follow the
noble ideals which inspired the freedom struggle.

Everyone knows that there was the presence of liberals, socialist etc. in the freedom
struggle and they adopted different means and methods, so this particular duty is
not clearly defined with respect to its meaning.

The list of fundamental duties also includes duties related to preserving the rich and
composite culture of India but again it is vaguely defined.

87
 4

Concluding Remarks
In spite of the above criticism, fundamental duties have been accepted as part of the
Constitution. Even subsequent Constitutional Amendment Acts like the 44th
Constitutional Amendment Act did not make any change with respect to the list of
fundamental duties.

It has been suggested by the Verma Committee to sensitize people about fundamental
duties.

Fundamental Duties and Indian Way of Life

According to Subhash Kashyap, Part IV- A of Indian Constitution i.e., Fundamental
duties of Indian constitution are nothing but codification of Indian way of life.

In fact, these duties are an inherent part of Indian society, culture and tradition.
Various aspects of Indian culture and tradition exhibit the presence of these duties.
These duties are part of the collective conscience of people of India, that is, part of a
generalized belief system shared by people of India.

Moreover, these duties are reminded to the citizen that while claiming rights they
also need to be conscious of their duties as rights cannot last long without
corresponding obligations.

Unlimited rights will only bring chaos and disorganization in society. It means an
individual having only rights and no duties will merely become a critic, without
having any constructive contribution to society. That is why rights and duties should
go hand in hand as both are part of the same coin.

88