Monday 27 August 2012

THE UNION AND ITS TERRITORY


  • According to Article 1 - India, that is Bharat, shall be a Union of States.
  •  India is indestructible union of destructible states.
The territory of India shall comprise—
a.                    the territories of the States;
b.                   the Union territories specified in the First Schedule; and
c.                    such other territories as may be acquired.
  • Article 3 Says Parliament by law passed with simple majority can form new States and alter the areas, boundaries or names of existing States.
  •  No Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President.
  • The Bill then referred by the President to the Legislature of that State for expressing its views within specified period of time.
  • The Bill can be introduced if State does not expresses its views.
  • Parliament is not bound to accept the views expressed by State Legislature.
  • States Reorganisation:
  •  The political units devised in 1950 after Independence, in many cases, lacked economic viability or a suitable administrative machinery because the borders of these states, inherited from British India.
  • Language was made the basis of this reorganisation based on the Congress Party resolution of 1920 in Nagpur Session as it would help replace the caste and religion-based identities with less controversial linguistic identities.
  • On 17 June 1948, Rajendra Prasad, the President of the Constituent Assembly, set up the Linguistic Provinces Commission (aka Dar Commission) to recommend whether the states should be reorganized on linguistic basis or not. The Commission recommended that "the formation of provinces  exclusively on linguistic considerations is not in the larger interests of the Indian nation".
  • In 1948 Congress, at its Jaipur session, set up the "JVP committee" to study the recommendations of the Dar Commission. The committee comprised Jawaharlal Nehru and Vallabhbhai Patel, in addition to the Congress president Pattabhi Sitaramayya. In its report dated 1 April 1949, the Committee stated that the time was not suitable for formation of new provinces, but also stated "if public sentiment is insistent and overwhelming, we, as democrats, have to submit to it, but subject to certain limitations in regard to the good of India as a whole".
  • By the 1952, the demand for creation of a Telugu-majority state in the parts of the Madras State had become powerful. Potti Sreeramulu, one of the activists demanding the formation of a Telugu-majority state, died on 16 December 1952 after undertaking a fast-unto-death. Subsequently, the Telugu-majority Andhra State was formed in 1953.
  • In December 1953, States Reorganisation Commission was appointed by government of India to study creation of states on linguistic lines. This was headed by Justice Fazal Ali. The commission presented a report in 1955 recommending the reorganization of Indian states into 16 states and 3 Union Territories. Finally, The States Reorganization Act was passed in 1956.
  • This abolished the British system of provinces and princely states. In its place, new states were drawn based on ethnicity and language.
  • 1 May 1960 - Bombay State was split into the linguistic states of Gujarat and Maharashtra by the Bombay Reorganization Act.
  •  1962 - The former French and Portuguese colonies in India were incorporated into the Republic as the union    territories of Pondicherry, Dadra and Nagar Haveli, Goa, Daman and Diu.
  •  1 December 1963 - Nagaland was made a state.
  • 1966 - The Punjab Reorganization Act of 1966 divided the Punjab along linguistic lines, creating a new Hindi-speaking state of Haryana on 1 November, transferring the northern districts of Punjab to Himachal Pradesh, and designating Chandigarh, the shared capital of Punjab and Haryana, a union territory.
  •  25 January 1971 - Statehood was conferred upon Himachal Pradesh.
  • 21 January 1972 - Statehood was conferred upon Manipur, Meghalaya and Tripura.
  •  26 April 1975 - The Kingdom of Sikkim joined the Indian Union as a state.
  •  1987 - Arunachal Pradesh and Mizoram became states on 20 February, followed by Goa on 30 May, while Goa's northern exclaves of Daman and Diu became a separate union territory.
  •  2000 - three new states were created; Chhattisgarh (1 November 2000) was created out of eastern Madhya Pradesh, Uttaranchal (9 November 2000), since renamed Uttarakhand, was created out of the Hilly regions of northwest Uttar Pradesh, and Jharkhand (15 November 2000) was created out of the southern districts of Bihar. 





Preamble to the Constitution of India


  • The preamble to the Constitution of India is a brief introductory statement that sets out the guiding purpose and principles of the document.
  • The ‘objective Resolution’ proposed by JL Nehru ultimately become the Preamble.
  • The preamble is not an integral part of the Indian constitution was first decided by the Supreme Court of India in BeruBari case therefore it is not enforceable in a court of law.
  • However, Supreme Court of India has, in the Kesavananda case, recognised that the preamble may be used to interpret ambiguous areas of the constitution where differing interpretations present themselves. Also, it can be amended by Parliament provided basic structure remains unchanged.
  •  In the 1995 case of Union Government Vs LIC of India also the Supreme Court has once again held that Preamble is the integral part of the Constitution.
  • As originally enacted the preamble described the state as a "sovereign democratic republic". In 1976 the 42nd Amendment changed this to as "sovereign socialist secular democratic republic".
Full text
“              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.             ”

Reading through the Preamble, one can see the purpose that it serves, namely, the declaration of
(1)     The source of the constitution,- people of India.
(2)     A statement of its objectives and
(3)    The date of its adoption.

Meaning

The enacting words "We, the people of India ...in our constituent assembly ...do here by adopt, enact and give to ourselves this constitution", signifies the democratic principle that power is ultimately rested in the hands of the people. It also emphasises that the constitution is made by and for the Indian people and not given to them by any outside power (such as the British Parliament). The wording is close to the preamble of the Constitution of Ireland, which had been adopted in 1937; it reads "We ourselves this Constitution". All the power emanates from the people and the political system will be accountable and responsible to the people.


     1.  Sovereign

The word sovereign means supreme or independence. India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people.

    2.   Socialist
  • The word socialist was added to the Preamble by the 42nd Amendment. It implies social and economic equality.
  • Social equality in this context means the absence of discrimination on the grounds only of caste, colour, creed, sex, religion, or language. Under social equality, everyone has equal status and opportunities.
  • Economic equality in this context means that the government will endeavor to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect emphasized a commitment towards the formation of a welfare state.

   3.       Secular

Indian Government shall respect all religions. It would not uplift or degrade any particular religion.

   4.      Democratic

The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as "one man one vote". Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education.

   5.       Republic

As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years. The post of the President of India is not hereditary. Every citizen of India is eligible to become the President of the country. 

Sources of Constitution of India


Sources of Constitution of India


1.Ideal of Justice in SOCIAL, EDUCATION,ECONOMIC and POLITICAL -- russia revolution 1917
2.Ideal of Liberty, Equality and fraternity -- French revolution 1789 to 1799
3.From govt of India Act 1935
1.federal scheme
2.office of Governor
3.Judiciary
4.public service commission
5.Emergency
6.Administrative details
4.British constitution
1.Parliamentary form of govt
2.Rule of law
3.legislation
4.single citizenship
5.cabinet form of govt
6.prerogative writs
7.Bi cameralism
5.US constitution
1.Fundamental rights
2.Independent judiciary
3.judicial review
4.Impeachment of President(tough procedure  to do this compared to India)
5.removal of supreme court judges
6.vice presidential ship
6.Irish
1.DPSP
2.nomination of members to Rajya sabha
3.electoral office and method of president election
7.Canada(pure federal country)
1.federation with strong center
2.Residuary power with center
3.appointment of state governors by center
4.advisory/review of supreme court
8.Australia
1.Concurrent list
2.Freedom of trade
3.commerce and interstate trade
4.joint sitting in the parliament
9.USSR
1.Fundamental duties
2.Preamble
10.South Africa
1.proceedure for amendment
2.election to the rajya sabha members
11.Japan
1.proceedures established by law
12.Weimer constitution of Germany
1.suspension of fundamental rights during emergency

Nature of Indian Constitution - Federal or Unitary



  • Article 1 of the Constitution of India says: - "India, that is Bharat shall be a Union of States."
  • The word 'Federation' is not mentioned anywhere in the Constitution.

A state is federal when it has following features:
(a)    There are two sets of governments and there is distribution of powers between the two.
(b)     There is a written constitution.
(c)    Supremacy of the Constitution.
(d)   Rigidity of the Constitution.
(e)    There is an independent judiciary to interpret the constitution and settle disputes between the centre and the states.

However, a state is unitary when it is governed constitutionally as one single unit, with one constitutionally created legislature. All power is top down. A unitary state is a sovereign state governed as one single unit in which the central government is supreme and any administrative divisions (sub national units) exercise only powers that the central government chooses to delegate.

Federal Features of Indian Constitution

                   1.  Supremacy of the Constitution: The supremacy of the constitution means that both, the Union and the State Governments, shall operate within the limits set by the Constitution. And both the union government and the central government derive their powers from the constitution.

                  2.  Written Constitution: The Constitution of India is a written constitution. It is the most elaborate Constitution of the world.

                  3.  Rigid Constitution: The procedure of amending the Constitution in a federal system is normally rigid. Indian Constitution provides that some amendments require a special majority. Such an amendment has to be passed by majority of total members of each house of the Parliament as well as by two-thirds majority of the members present and voting there in. However, in addition to this process, some amendments must be approved by at least 50% of the states. After this procedure the amendment is signed by the head of the state i.e; the President. Since in India important amendments can be amended through this procedure Hence, Indian Constitution can  be considered as rigid constitution.

                4.  Division of Powers: In Indian constitution the powers of state and centre are clearly defined and there are very clear limits of both the centre and the state for law making powers. Our constitution enumerates three lists, viz.
·   the Union, consists of 97 subjects of national importance such as Defence, Railways, Post and Telegraph, etc
·   the State and List consists of 66 subjects of local interest such as Public Health, Police etc.
·   the Concurrent List. has 47 subjects important to both the Union and the State such as Electricity, Trade Union, Economic and Social Planning, etc.

              5.  Supremacy of the Judiciary: There is an independent judiciary to interpret the Constitution and to maintain its sanctity. The Supreme Court of India has the original jurisdiction to settle disputes between the Union and the States. It can declare a law as unconstitutional, if it contravenes any provision of the Constitution.

Unitary Features of Indian Constitution:

In spite of the fact that the Indian Constitution establishes a federal structure, it is indeed very difficult to put the Indian Constitution in the category of a true federation. The following provision of Indian constitution makes it unitary:

              1.  Union of States: Article 1 of the Constitution describes India as a “˜Union of States”, which implies two things: firstly, it is not the result of an agreement among the States and secondly, the States have no freedom to secede or separate from the Union. Besides, the Constitution of the Union and the States is a single framework from which neither can get out and within which they must function. The federation is a union because it is indestructible and helps to maintain the unity of the country.

             2.  Appointment of Governor: Art 155 and 156 provide that the Governor, who is the constitutional head of a State, is to be appointed by the President and stays only until the pleasure of the President  The Centre may take over the administration of the State on the recommendations of the Governor or otherwise. In other words, Governor is the agent of the Centre in the States. The working of Indian federal system clearly reveals that the Governor has acted more as central representative than as the head of the State. This enables the Union government to exercise control over the State administration.

             3.  Representation in the Legislature: The equality of units in a federation is best guaranteed by their equal representation in the Uppers House of the federal legislature (Parliament). However, this is not applicable in case of Indian States. They have unequal representation in the Rajya Sabha. In a true federation such as that of United State of America every State irrespective of their size in terms of area or population it sends two representatives in the upper House i.e. Senate.

              4.  Appointment on Key Positions: In addition to all this, all important appointments such as the Chief Election Commissioner, the Comptroller and Auditor General are made by the Union Government.

             5.  There is single citizenship.

             6.  There is no provision for separate Constitutions for the states. The States cannot propose amendments to the Constitution. As such amendments can only be made by the Union Parliament.

             7.   All India Services such as IAS and IPS have been created which are kept under the control of the Union.

             8.  In financial matters too, the States depend upon the Union to a great extent. The States do not possess adequate financial resources to meet their requirements. During Financial Emergency, the Center exercises full control over the States’ finances.

             9.  Unified Judiciary: The federal principle envisages a dual system of Courts. But, in India we have unified Judiciary with the Supreme Court at the apex.

            10. Power to make laws: The Constitution of India empowered the central government to make laws on the subjects in the state list. It is exercised only on the matters of national importance and that too if the Rajya Sabha agrees with 2/3 majority. The constitution establishes a strong Centre by assigning all-important subjects to the Centre as per the Union List. The State Governments have very limited powers.

            11. Power to form new states and to change existing boundaries: Under Art 3, center can change the boundaries of existing states and can carve out new states. This should be seen in the perspective of the historical situation at the time of independence. At that time there were no independent states. There were only provinces that were formed by the British based on administrative convenience. At that time States were artificially created and a provision to alter the boundaries and to create new states was kept so that appropriate changes could be made as per requirement. It should be noted that British India did not have states similar to the States in the USA.

            12. Emergency Provisions: The President of India can declare three different types of emergency under article 352, article 356 and article 360 for an act of foreign aggression or internal armed rebellion, failure of constitutional machinery in a state and financial emergency respectively.. During the operation of an emergency, the powers of the State Governments are greatly curtailed and the Union Government becomes all in all.

Conclusion

From the above discussion it is seen that the constitution of India is neither a complete federation nor it is completely unitary. It has the features of both. In the words of D.D.Basu, the Constitution of India is neither purely federal nor unitary, but is a combination of both. It is often defined to be quasi-federal in nature. Thus we can safely say that, it is primarly Unitary having some fedral features.




Constitutional Remedies


Article 31: Compulsory acquisition of property
Repealed by the Constitution 44th Amendment Act, 1978.

 Article 32: Remedies for enforcement of rights conferred by this Part
It provides right to move Supreme Court for the enforcement of Fundamental rights. To enforce the Fundamental rights  Supreme Court shall have power to issue 5 types of writs:

a.   Habeas corpus - It requires a person under arrest to brought before court.
·   This ensures that a prisoner can be released from unlawful detention.
·   This can be issued against State or Private Individual.

b.   Mandamus – Issued against public authority for enforcement of legal rights only.
·         Private rights cannot be enforced by this writ.
·         It cannot be issued against President or Governor.

c.    Prohibition – issued by a superior court against inferior court or quasi judicial bodies to prevent it from exceeding its jurisdiction.

d.   Certiorari- It is issued to quash the order passed by an inferior court or tribunal in excess of its jurisdiction.
Prohibition is available before the order is passed while Certiorari is available after the order is passed to nullify the order.

e.   Quo warranto – It is issued to prevent a person from holding a public office for which he is not authorized.

 Article 33: Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.

Parliament by law may determine to what extent any of the rights conferred by this Part shall apply to, -
a.                    the members of the Armed Forces; or
b.                   the members of the Forces charged with the maintenance of public order; or
c.                    persons employed by the State for purposes of intelligence or counter intelligence.

 Article 34: Parliament by law may restrict rights conferred by this Part while martial law is in force in any area.

Cultural and educational rights



Article 29: Protection of interests of minorities
1.   Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
2.   No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 30: Right of minorities to establish and administer educational institutions
  •       All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
  •       In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution.
  •       Right to administer does not mean that the State cannot interfere in case of maladministration.
  •        Supreme Court held that the State can take regulatory measures to promote the efficiency and excellence of educational standards.
  •        Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could only be through a common entrance test conducted by State or a university.



Right to Freedom of Religion


  • The objective of this right is to sustain the principle of secularism in India.
  •  All religions are equal before the State and no religion shall be given preference over the other.

Article 25: Freedom of conscience and free profession, practice and propagation of religion
1.   All persons are entitled to freedom of conscience and are free to profess, practice and propagate religion subject to public order, morality and health,
2.   Nothing in this article shall prevent the State from making any law regulating  economic, financial, political or  secular activity associated with religious practice;
  •   The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

 Article 26: Freedom to manage religious affairs
Subject to public order, morality and health, every religious denomination shall have the right –
a.    to establish and maintain institutions for religious and charitable purposes;
b.    to manage its own affairs in matters of religion;
c.     to own and acquire movable and immovable property; and
d.     to administer such property in accordance with law.

Article 27: Freedom as to payment of taxes for promotion of any particular religion
No person shall be compelled to pay any taxes for the promotion of a particular religion.

Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions
1.   No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
2.   Educational institution which is administered by the State but established under religious endowment can impart religious instruction.
3.   Educational institution recognized by the State or receiving aid out of State funds can impart religious instruction but it cannot compel its students to attend such instructions.

Right against Exploitation


Article 23: Prohibition of traffic in human beings and forced labour
  •             Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
  •             Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on ground only of religion, race, caste or class or any of them.

Article 24: Prohibition of employment of children in factories, etc.
No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous work.

Right to Freedom


The Right to Freedom is embodied in Articles 19–22.

Article 19

All citizens shall have the right -

    (a)    to freedom of speech and expression;
·  Freedom of the Press is not mentioned separately anywhere in the constitution. It is included in Freedom of Speech and Expression.
·  Also, Right to information is recognized under Freedom of Speech and Expression.
·  State by law can imposes reasonable restrictions on the exercise of this right in the interests of the sovereignty and integrity of India, the 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.

    (b)   to assemble peaceably and without arms;
·  State by law can imposes reasonable restrictions on the exercise of this right in the interests of the sovereignty and integrity of India or public order.

    (c)    to form associations or unions;
·   State by law can imposes reasonable restrictions on the exercise of this right in the interests of sovereignty and integrity of India or public order or morality.
·   It does not give right to strike.

    (d)   to move freely throughout the territory of India;
·   State by law can imposes reasonable restrictions on the exercise of this right in the interests of the general      public or for the protection of the interests of any Schedule Tribe.

    (e)    to reside and settle in any part of the territory of India;
·   State by law can imposes reasonable restrictions on the exercise of this right in the interests of the general public or for the protection of the interests of any Schedule Tribe.

(f)   to property*** (repealed by 44th constitutional Amendment 1978 and transferred to Art. 300A) right to property is no longer a fundamental right, though it is still a constitutional right.
        
(g)  to practice any profession, or to carry on any occupation, trade or business.
·   This cannot prevent the State from making any law for prescribing professional or technical qualifications necessary for practicing any profession.

Article 20: Protection in respect of conviction for offenses
Three types of protection are available under this article:
·   Ex-post facto legislation: An ex-post-facto law is a law which imposes penalties retroactively (i.e from back date).
A person can be punished for a offence only under the laws enforceable at the time of commission of the offence.
No criminal law can increase the quantum of punishment from the previous date.
·   Double jeopardy: No person shall be prosecuted and punished for the same offence more than once.
·   Prohibition against self incrimination: No person accused of any offence shall be compelled to be a witness against himself.

 Supreme Court of India is of the view that Narco, Polygraph or Brain mapping tests conducted on any person without their consent violates Right to Self-Incrimination guaranteed under Article 20(3).

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.
  • In the A K Gopalan case of 1950, the Supreme Court was of the opinion that, in India, there exists “procedure established by law” which means that a law that is duly enacted by legislature is valid if it has followed the correct procedure. It gives legislative an upper hand and they may enact laws which may not be fair from a liberal perspective.
  • However, in Maneka Gandhi vs Union of India case (1978) SC import the concept of “due process of law” from American Constitution which means that laws made by the legislature should be just and fair. Also, it gives authority to SC to examine the spirit of the law made by legislature.
  • This article has become the most important article as Supreme Court has given this article widest interpretation. It has subsumed in it all the rights necessary for life e.g Right to clean air.
  •  The right to life does not include the right to die, and hence, suicide is an offence.
  • Article 21(A) (incorporated by 86th Amendment Act, 2002) it made the right to primary education part of the right to freedom. According to it, State would provide free and compulsory education to children from six to fourteen years of age.


Article 22: Protection against arrest and detention in certain cases.

            1.  No person shall be detained in custody without being informed of the grounds for such arrest.
Also, the arrested person has the right to consult a legal practitioner of his choice.

2.  The arrested person shall be produced before the nearest magistrate within  twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate.

The detained person shall not be kept in custody beyond the period authorize by the magistrate.
3.                  The rights under clauses (1) and (2) are not available to -
·         enemy alien; or
·         Person detained under any law providing for preventive detention.
  • Preventive detention shall not be extended beyond three months after which an Advisory Board will review.
  • Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is likely to commit a crime.