Lesson 1- Philosophy of the Indian Constitution,
Preamble and Basic Features
Objective resolution
Objective Resolution was moved in the first session of the
Constituent Assembly on 13, December, 1946 by Jawahar Lal Nehru. It was adopted
by the Assembly on 22, August, 1947 after debate and discussions. The
resolution was,in fact, the text defining the aims of the Constituent Assembly
which was responsible for deciding what had to go in the constitution making.
The resolution presented a moral commitment to the assembly to establish a
sovereign democratic republic with equality of status and equal opportunity.
The resolution was, of course, the basis for the Preamble which is known as the
spirit and soul of the Indian Constitution. Objective Resolution gave direction
to the constitution framers.
Basic Structure doctrine:
The Preamble says that people are the ultimate authority and
the constitution emerges from them. The word emerges is used rather than
emerged because the constitution can be amended according to time but not the
‘basic structure’. What does basic structure of the Constitution mean? Why does
it matter anyway? The objectives mentioned in the Preamble defines values and
ideals to be the norms followed by the state and the subjects, this constitutes
the basic elementof the Constitutions.
In Berubari case, the Court agreed that Preamble was in the
minds of the framers. Justice Gajendragadkar said that Preamble was not a part
of the Constitution. It does not confer any substantial powers upon the
legislatures or the other organs of the state. Later in another important
judgment, Sajjan Singh v. State of Rajasthan, the Court said that the Preamble
has been marked by precision, is of deep deliberation and the framers of the
constitution attached special significance to it. The Court suggested that
Preamble should be considered as part of the Constitution. In Golakh Nath v.
State of Punjab, the Court said that the Preamble epitomizes principles on
which the government was to function, it also called it ‘soul’of the
Constitution-eternal and unaltered.
In the Minerva Mills, 1980, the Supreme Court ruled that
Parliament could not use its limited power and turn it into an absolute power,
and upheld the basic structure doctrine. In the same light, Justice Y.V.
Chandrachud struck down the provisions of the 42nd amendment that were not
repealed by 44th amendment.
In 1976, ‘socialist’, ‘secular’, ‘unity of the Nation’ were
added to the Preamble by the forty second amendment act in 1976. How these
words could be added to the Preamble when the Court said that basic structure
of the Constitution cannot be amended and Preamble is part of the Constitution.
It was believed that these additions did not make any substantial difference to
the nature of the Indian politics. Also, the forty second amendment which was
passed by the Parliament in the time of emergency was highly criticised.
The Preamble
Preamble is the introduction to the Constitution. It is the
spirit and soul of the Constitution. It is the mould in which the constitution
is cast. The preamble to the Constitution contains the values which were valid
and still are in the present, vital for Indian politics and social life. The
spirit of the Preamble will be relevant for the times to come. People that
framed the Constitution hoped that values should percolate down to the
grassroots. Preamble presents a kind of bird’s eye view of these key values. In
these key values and concepts there is an establishment of new social order
based on justice which is social, economic and political, liberty of thought
and expression, belief, faith, worship, equality of status and opportunity and
most importantly fraternity.
Empowerment of the people as an agenda of the Constitution
is as important as the rule of law character of the document. It is not merely
a normative piece but it must be actually in action and result. The Constitution
directs the state to promote special areas of education and economics interest
of the weaker section as directed by the Preamble and the objective resolution.
As discussed above that the key words make the Constitution come alive.
Text of the Preamble:
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;
Andto 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
Sovereignty: India is proclaimed to be sovereign by
the Preamble to the Constitution of India. The British crown no longer has
possession and it no longer has any dependency on it; it cannot be called a colony
or a dominion. To be a sovereign both, externally and internally, India not
only needs to be free from foreign rule but also to take decision on its own
for the people and the territory without any interference. India possesses
supreme political power as an independent authority and has a right to govern
itself also, it can acquire foreign territory and cede any part of Indian
territory in accordance to the Constitution.
The words of the preamble reflects the source of authority
of the people. From this authority of the people. From this authority emerges
the will of the people. Popular sovereignty is significant because the
Constitution expressed it when it derives the ultimate authority of all
government institutions from the will of the people. This authority is updated
in regular intervals via the process of elections.
1.B.A Political Science 1st Lesson Important Notes
2.B.A Political Science 2nd Lesson Important Notes
3. B.A Political Science 3rd Lesson Important Notes
4.B.A Political Science 4th Lesson Important Notes
5. B.A. Political Science 5th Lesson Important Notes
Ideals:
Socialist: The word socialist was added in the
constitution in the forty second amendments in 1976 but even before the term
was added, the Constitution had a socialist content in the form of certain
Directive Principles of State Policy Articles 38, 39, 40. Socialist pattern of
society pushing forward a socialist order. It has been explained at length in
five-year plan documents.
The Constitution Bill which was the Forty fifth Amendment
Bill tried to define ‘Socialist’. Socialist would mean ‘free from all forms of
exploitation-social, economic and political’. Unfortunately, the Bill was
passed without the definition
Democratic socialismlike that of Indian polity has faith in
a 'mixed economy' where both public and private sectors co-exist side by side'.
In Nakara v. Union of India, 1983, the Supreme Court said that democratic
socialism aims to end poverty, ignorance, disease and inequality of opportunity
and Indian socialism is a blend of Marxism and Gandhism, leaning heavily
towards Gandhian socialism.
The Courts read word ‘socialist’ with Articles 14 and 16, to
deduce a fundamental right to equal pay for equal work. The courts also struck
down a statute which failed to achieve the socialist goal to the fullest
extent. After the addition of the word, they would interpret the Constitution
and lean more in the favour of nationalisation and state ownership but this
came to an end with the advent of liberalization and disinvestment in public
sector.
Secular: The term 'secular' was added by the 42nd
Constitutional Amendment Act of 1976. Just like the word socialist, 'secular
state' is not mentioned in the Constitution but the Constitution establishes a
secular state guaranteeing fundamental rights to freedom of religion in
Articles 25 to 28. The Constitution guarantees a person’s freedom of religion
and conscience and freedom for one who has no religion.
The idea of secularism in India is different from the
western notion of secularism. Donald Eugene Smith defines Indian secularism, he
writes, “The secular state is a state which gives individual and corporate
freedom of religion, is not constitutionally connected to religion, nor does it
seek either to promote or interfere with religion. “The Indian Constitution
embodies a positive kind of secularism where all religions have the same status
and support from the state.
Indian Constitution gives full opportunity to all persons to
profess, practice and propagate religion of their choice. Constitution
restraints the State from discriminating on grounds of religion. Single
citizenship is assured to all persons irrespective of their religion. In Bal
Patil v Union of India, 2005, The Supreme Court said that the concept of
secularism to put it in a nutshell is that the State will have no religion.
Interestingly, secularism is translated in hindinot as dharmnirpeksha but as
panthnirpekhsa which literally means independent of sects and in the sense,
state neutrality in the matters of religion.
Democratic: Democracy comes from Greek words ‘demo’
which means ‘the people’ and ‘kratos’ means ‘government’. Democratic polity is
basic feature of our Constitution, it cannot be amended. The Indian
Constitution provides for representative parliamentary democracy under which
the executive is responsible to the legislature for all its policies and
actions. Universal adult franchise, periodic elections, rule of law,
independence of judiciary, and absence of discrimination on certain grounds are
the manifestations of the democratic character of the Indian polity.
The term 'democratic' is used in the Preamble in the broader
sense embracing not only political democracy but also social and economic
democracy. In mere political terms, democracy means the right of every citizen
to freely vote in election. The principle of ‘one person one vote’ applies
here. But it does not only mean so. It calls upon establishment of equality of
status and opportunity. It guarantees social and economic justice. Dr.
Ambedkar, in Constituent Assembly Debates, said that political democracy is
nothing without social and economic democracy.
Republic: The term 'republic' in our Preamble says
that India has an elected head called the President, elected indirectly for a
fixed period of five years. All powers of the head is derived from the
Constitution. The word ‘republic’ comes from a Latin word ‘Res publicus’
meaning ‘of the people’. The idea of republic emphasises on the people to be
supreme with no privileged class and no discrimination admission to public
offices. The head of the state is elected by people and in a republic form of
government, the people choose the representatives. In the Federalist Papers,
Madison says, “Republic is a government which derives its powers directly or
indirectly from the great body of the people, and is administered by persons
holding their offices during pleasure, for a limited period, or during good
behaviour.”
Justice: Preamble places the idea of Justice above
other principles of liberty, equality and fraternity. The promise of principle
of justice is for all citizens. The term 'justice' in the Preamble pushes
forward social, economic and political justice by various provisions of
Fundamental Rights and Directive Principles.
Economic justice is reflected in Article 39 which directs the
State to try secure all citizen to have an adequate means of livelihood,
ownership and control of the material resources of community are so distributed
as best to subserve the common good, wealth is not concentrated and there is
equal pay for equal work. Economic justice would then mean equal treatment. And
reduction of gap between the rich and the poor
Political justice is essentially reflected in the right to
participation of people in political processes and institutions without any
discrimination. Article 39A states that the State shall secure that the
operation of the legal system promotes justice, on a basis of equal
opportunity, and other way, to ensure all opportunities for securing justice
are not denied to any citizen by reason of economic or other disability.
Liberty: The term 'liberty' means the absence of
restraints. The activities of individuals to be free from government
intervention. The Preamble to the Indian Constitution pushes forward a positive
notion of liberty where government has to provide opportunities for the
development of individual personalities. For the Preamble, liberty does not
only means absence of restraints, it also aims at securing liberty of thought,
expression, belief, faith and worship, through their Fundamental Rights,
enforceable in court of law, to all Indian citizen.
These restrictions are made to regulate fundamental rights
in the way that it does not endanger security of the state, friendly relations
with Foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence.
Equality: The term 'equality' means the absence of
special privileges to any section of the society. Positive notion of equality means
providing adequate opportunities for all individuals without any
discrimination. The Preamble secures equality of status and opportunity to all
citizens of India in all dimension of life; civic, political and economic. In
the legal aspect of equality all citizens are equal before law.
Fraternity and Dignity: The high ideals of justice,
equality and liberty are meaningless if fraternity is not promoted. Indian
fraternity find its strength in provisions of common citizenship which aims at
nation building with strong fellowship. Dr. Ambedkar in Constituent Assembly
debates said that fraternity means a sense of common brotherhood of all
Indians-of Indians being one people. He believed that the principle of
fraternity, which gives unity and solidarity, was difficult to achieve. It was
essentially reasoned on the inherent socio-economic inequality in India which
makes the need for the principle of fraternity direr.
Fundamental Duties in Article 51A makes it the duty of every
citizen of India to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic, regional or
sectional diversities, to uphold and protect the sovereignty, unity and
integrity of India and to promote harmony and brotherhood.
Features of Indian Constitution:
Written constitution: Indian Constitution is one of
the longest written constitutions. Parliament essentially operates within the
limits prescribed in the Constitution. The document also includes ordinary
legislatures and established political convention which other constitutions did
not include.
Amenability: Indian Constitution is neither rigid nor
flexile but a mixture of the two. In 368 lies the provision for amendment of
the text in the Constitution. There are two types of amendment processes.
Federal system of governance: Indian Constitution
establishes a federal system of government with a constitutional division of
powers between the union and the states. However, it does contain a number of
a-federal features such as a strong centre, a single Constitution, single
citizenship, appointment of state governor by the Centre. It should be noted
that the word ‘federation’ hasn’t been used in the text of the Constitution.
Fundamental Rights: Fundamental Rights promotes idea
of political democracy. Most importantly, Article 13 prohibits the State from
making a law that either takes away totally or abrogates in part a fundamental
right. They are enforceable by the courts for their violation.
Judicial Review: The Constitution of India adopts an
independent Judiciary with the power of judicial review which restricts the
supremacy of the Parliament. The Constitution itself gives power of Review to
the judiciary, both Supreme Court and High Court. It should be noted that
Judicial Review is itself a basic feature of the constitution and it cannot be
amended.
Transformative constitutionalism: Indian Constitution aims at transforming the society and to fulfil this aim, it empowers the State. Transformative constitutionalism essentially means the disruption of existing social structures with the means of law. Karl Klare coined the term and defined it as a long term project of constitutional enactments, interpretation and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic participatory and egalitarian direction. In similar vein one can observe the features of the Indian Constitution which are transformative in nature.
4.B.A Political Science Hons. History Lesson 4th Important Notes Part 2
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