Indian Constitution

Historical background (in brief)

• Regulating Act 1773 (first step to control the East India Company); Pitt's India Act 1784; Charter Acts of 1813, 1833, 1853; Government of India Act 1858 (the Crown took over; Viceroy); Indian Councils Acts 1861, 1892, 1909 (Morley–Minto: separate electorates); Government of India Act 1919 (Montagu–Chelmsford: dyarchy in provinces); Government of India Act 1935 (provincial autonomy, federation, a Federal Court, bicameralism — a large part of the Constitution's structure is drawn from it); Indian Independence Act 1947.
• Nehru Report (1928) — the first attempt by Indians to draft a constitution; Objectives Resolution moved by Jawaharlal Nehru on 13 December 1946 (adopted 22 January 1947), which became the basis of the Preamble.
• Cabinet Mission Plan (1946) proposed the Constituent Assembly.

The Constituent Assembly

Original Constitution: 395 Articles, 22 Parts and 8 Schedules. Now: about 470 Articles (numbering with additions such as 21A, 243A), 25 Parts and 12 Schedules (after amendments). The original copies were handwritten by Prem Behari Narain Raizada in italic calligraphy, and decorated by Nandalal Bose and artists of Shantiniketan; the original is kept in Parliament House (helium-filled cases).

Other committees

• Union Powers Committee (Nehru), Union Constitution Committee (Nehru), Provincial Constitution Committee (Sardar Patel), Fundamental Rights and Minorities Committee (Patel), Rules of Procedure (Rajendra Prasad), Steering Committee (K. M. Munshi and others), States Committee (Nehru).

Sources of the Constitution

The Preamble

Text (summary): We, the people of India, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE — social, economic and political; LIBERTY — of thought, expression, belief, faith and worship; EQUALITY — of status and of opportunity; and to promote among them all FRATERNITY — assuring the dignity of the individual and the unity and integrity of the Nation; in our Constituent Assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this Constitution.

• The words "Socialist", "Secular" and "Integrity" were added by the 42nd Amendment Act, 1976 (during the Emergency). The Preamble has been amended only once.
• The source of authority is "We, the people"; the aim is the four objectives (justice, liberty, equality, fraternity).
• Key words: Sovereign — independent externally and internally; Socialist — democratic socialism (a mixed economy); Secular — no state religion, equal respect for all religions; Democratic — government by the people (universal adult franchise); Republic — head of state (the President) is elected, not hereditary.
• Is the Preamble part of the Constitution? In Berubari Union case (1960) the Supreme Court held that the Preamble is not a part of the Constitution; in Kesavananda Bharati v. State of Kerala (1973) it held that it is a part and can be amended (but the basic structure cannot be destroyed). In the LIC of India case (1995) the Court reaffirmed it. The Preamble is not enforceable in courts and is neither a source of power nor a limitation on it.
• Nani Palkhivala called the Preamble the "identity card of the Constitution"; K. M. Munshi called it the "horoscope of our sovereign democratic republic".

Fundamental Rights (Part III, Articles 12–35)

Fundamental Rights are the basic human rights guaranteed by the Constitution to all citizens (some to all persons). They are justiciable (enforceable in court) and are limitations on the State. They are called the Magna Carta of India. They are not absolute; reasonable restrictions may be imposed.

• Article 12: defines "State" — the Government and Parliament of India, the Government and legislature of each state, and all local and other authorities within the territory of India (including PSUs and bodies under government control).
• Article 13: laws inconsistent with fundamental rights are void — the basis of judicial review. "Law" includes ordinances, orders, bye-laws, customs. Article 13 also carries the doctrine of eclipse, severability and waiver.

Six rights

(The Right to Property — earlier Article 31 — was removed from the fundamental rights by the 44th Amendment 1978 and made a legal right under Article 300A.)

1. Right to Equality (Articles 14–18)

• Article 14: equality before the law (a British concept — no one is above the law) and equal protection of the laws (an American concept — like treatment for those in like circumstances). It applies to all persons, and permits reasonable classification.
• Article 15: prohibits discrimination on grounds of religion, race, caste, sex or place of birth in access to shops, restaurants, wells, roads and so on; permits special provisions for women, children, SCs, STs and socially and educationally backward classes (15(4), 15(5)), and for the economically weaker sections (EWS) (15(6), 103rd Amendment).
• Article 16: equality of opportunity in public employment; allows reservation for backward classes (16(4)), promotion for SC/ST (16(4A)) and EWS (16(6)). (Indra Sawhney v. Union of India, 1992 — the Mandal Commission case — upheld 27 % OBC reservation, held that total reservation should not exceed 50 %, and introduced the "creamy layer" concept.)
• Article 17: abolition of untouchability; its practice is an offence (Protection of Civil Rights Act 1955; SC/ST (Prevention of Atrocities) Act 1989).
• Article 18: abolition of titles (except military and academic); citizens cannot accept titles from foreign states. (Bharat Ratna and Padma awards are not "titles" — Balaji Raghavan case, 1996.)

2. Right to Freedom (Articles 19–22)

• Article 19 guarantees six freedoms to citizens: (a) speech and expression; (b) assemble peaceably without arms; (c) form associations or unions (and cooperative societies, added by 97th Amendment); (d) move freely throughout India; (e) reside and settle in any part; (g) practise any profession or carry on any occupation, trade or business. (The right to acquire, hold and dispose of property — 19(1)(f) — was deleted by the 44th Amendment.) Reasonable restrictions are allowed on grounds like sovereignty and integrity, security of the State, public order, decency and morality, contempt of court, defamation, incitement to an offence. Freedom of the press flows from 19(1)(a) (Romesh Thappar case).
• Article 20: protection in respect of conviction for offences — (a) no ex-post-facto law (no punishment under a law made after the act), (b) no double jeopardy (no prosecution and punishment twice for the same offence), (c) no self-incrimination (no one compelled to be a witness against oneself).
• Article 21: protection of life and personal liberty — "No person shall be deprived of his life or personal liberty except according to procedure established by law." The Supreme Court expanded it: in Maneka Gandhi v. Union of India (1978) the procedure must be fair, just and reasonable; it covers the right to livelihood (Olga Tellis), privacy (Puttaswamy, 2017 — a fundamental right), speedy trial, clean environment, health, dignity, shelter, free legal aid, education, sleep, speedy justice, and many others. Article 21A (86th Amendment, 2002): free and compulsory education for children aged 6–14 (implemented through the RTE Act 2009).
• Article 22: protection against arbitrary arrest and detention — the right to be informed of grounds, consult a lawyer, and to be produced before a magistrate within 24 hours (not counting travel time). These do not apply to enemy aliens and to persons detained under preventive detention laws; preventive detention beyond three months needs an Advisory Board.

3. Right against Exploitation (Articles 23–24)

• Article 23: prohibits human trafficking, forced labour (begar) and similar forms; allows compulsory service for public purposes (national service).
• Article 24: prohibits employment of children below 14 in factories, mines or hazardous work. (Later laws: the Child Labour (Prohibition and Regulation) Amendment Act 2016 prohibits work under 14 and hazardous work under 18.)

4. Right to Freedom of Religion (Articles 25–28)

• Article 25: freedom of conscience and the right to profess, practise and propagate religion (subject to public order, morality and health); the Sikhs' right to wear and carry kirpans is included; Hindu includes Sikhs, Jains, Buddhists for the purpose of social reform.
• Article 26: right of every religious denomination to manage its own religious affairs and property.
• Article 27: no person shall be compelled to pay taxes for the promotion of any particular religion.
• Article 28: no religious instruction in State-funded educational institutions (allowed in institutions administered by endowments and in private institutions with consent).

5. Cultural and Educational Rights (Articles 29–30)

• Article 29: protection of the interests of minorities — any section of citizens with a distinct language, script or culture has the right to conserve it; no denial of admission to state-aided institutions on grounds of religion, race, caste or language.
• Article 30: the right of all minorities (religious or linguistic) to establish and administer educational institutions of their choice.

6. Right to Constitutional Remedies (Article 32)

Dr B. R. Ambedkar called Article 32 the "heart and soul of the Constitution". A person whose fundamental right is violated may go directly to the Supreme Court. The Supreme Court has the power to issue writs; High Courts can issue writs under Article 226 (a wider power, also for ordinary legal rights).

• Suspension of fundamental rights: during a National Emergency (Article 359), the right to move the court for enforcement of some rights may be suspended; Article 19 is automatically suspended during a war or external aggression emergency (Article 358). Article 20 and 21 cannot be suspended (44th Amendment).
• Public Interest Litigation (PIL): introduced by Justice P. N. Bhagwati and Justice V. R. Krishna Iyer in the 1980s; relaxation of locus standi.
• Article 33: Parliament can restrict rights of the armed forces and police; Article 34: martial law; Article 35: Parliament alone can make laws to give effect to fundamental rights.

Landmark cases on fundamental rights