Salient Features of the Indian Constitution

Preamble

A preamble is often an introductory statement or preliminary explanation of a statute, constitution, or other formal document. It sets forth the purpose, goals, and foundational principles of the document it represents. Preambles can be found in various legal, political, and organizational contexts. Since the Law is written in technical language and may not be easy to understand, hence preambles are attached. The custom to attach preambles with the constitution started with US constitution, first written constitution in the modern world.

In Indian context, the preamble is based on the Objectives Resolution , which was moved in the Constituent Assembly by Jawaharlal Nehru on 13 December 1946. It was accepted in January 1947 and eventually adopted by the Constituent Assembly on 26 November 1949, coming into force on 26 January 1950.

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 26th day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Note: The preamble has been amended only once in 1976 during the Emergency in India. The then Indira Gandhi government, through 42 nd Amendment of the constitution, inserted the words " socialist " and " secular ", and the phrase "unity of the Nation" was changed to "unity and integrity of the Nation".

In 1960 Berubari Union Case, the Supreme Court held that 1) Wherever the meaning of constitution was unclear, we can take help of the Preamble to understand the minds of the constitution makers. 2) Preamble is not a part of the Indian constitution. 3) It does not confer any substantial powers upon the legislatures or other organs of the state.

As suggested by Pratap Bhanu Mehta, Indian constitution is cosmopolitan. While interpreting judiciary takes into account the legal traditions followed in different countries. In above case, it took the precedent from USA. In case of USA, Supreme Court of USA did not accept preamble as a part of the constitution.

In 1973 Keshavananda Bharati case, the Supreme Court changes its earlier stand. The court held that "Preamble is an integral part of the constitution". It further added that the "Preamble contains the 'basic structure' of the Indian constitution", and "the constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble". It was also remarked by the court that "although the elements of basic structure were not precisely defined, those mentioned in the Preamble were specifically included."

In this case, the Supreme Court admitted that earlier it had overlooked few facts about Preamble. In the constituent assembly, the Preamble was fully discussed, duly enacted and adopted just like any other part of the constitution. And while putting Preamble to the final vote, the constituent assembly president had said "The question is that the Preamble stand part of the Constitution". (And the motion was passed).

Significance of the Preamble

At the outset, by using the words WE, THE PEOPLE OF INDIA, preamble declares that the source of the Indian constitution is its people.

Sovereignty is considered as one of the essential attributes of a State. It is the defining feature of modern nation state. Sovereignty denotes the supreme power to make law lies with the state, and it is not subject to any internal or external authority.

The use of the word Sovereign in Preamble denotes that India is no more a colony. It is independent nation with right to self-determination. In both external and internal spheres, India has freedom to make policies.

Further, unlike the United States and Australia, where the sovereignty is divided between the Union and the States, in India, there is no division of sovereignty. Although there is division of powers between centre and states, the Union can override state in national interest in emergencies as well as normal times.

Ultimately the use of words 'We the People of India', at the beginning of Preamble, also suggests that the sovereignty ultimately belongs to the people of India, who in themselves are the source of the constitution.

Reinterpretation of Sovereignty

The sovereignty of India, and for that matter any contemporary nation, is often brought into question because of globalization. In an interconnected and interdependent world, no singular nation enjoys supreme authority over decision making. The membership of international organizations like UN, EU, international treaties, accords etc. cast obligations and put restrictions of sovereignty. The vested economic interests and the connected commerce, also restricts the ability to states to make unilateral decisions.

However, we can also say that this weakening of sovereignty in the era of globalization, depends on the bargaining power a nation enjoys vis-à-vis other nations. For example, a country like the United States will enjoy greater sovereignty compared to a country like Bangladesh.

In case of India, we are witnessing a phenomenal increase in the power of India. India is today recognized as emerging power, an economic power, a nuclear power, and a strongest contender for permanent seat in UN security council. We're witnessing a greater assertion of Indian sovereignty in international matters. The recent foreign policy decisions like import of Russian oil, or India's stand on Palestine issue, are reflective of that.

The founding fathers did not want the Indian constitution to be wedded to any particular political ideology or ism. Thus, the word 'socialist' was not included in the original constitution. In 42 nd Constitutional Amendment, the term was included in the preamble, reflecting the priority of erstwhile Indian government.

However, it is also to be noted that the Indian economic model always had the socialist leaning since independence. Based on the Soviet model, Indian leaders adopted a top-down, five-year plans. After British left the India, the country had large number of poor, and a redistribution of wealth was part of the state policy. Thus, we also see the socialist provisions in directive principles of state policy. The DPSPs direct the state to ensure social justice, equitable resource distribution, fair work conditions, equal pay, child welfare, free legal aid, and improved public health etc.

However, the socialist credentials of India are also questioned on the grounds that India adopted the liberalization policy in 1991. The current government policy of 'maximum governance, minimum government', the policy of disinvestment of public enterprises, free market competition and foreign investment, certainly indicate a shift towards liberalism in Indian polity.

We can also argue that India's socialism is distinct from Soviet-style command economies. Indian socialism emphasizes a mixed economy where both public and private sectors coexist. It underscores the states' responsibility to maintain key social infrastructure and to take care of the poor, and that perhaps explains India's public distribution system, which is largest in the world. At the end, for a country of India, with huge no. of poor in the world, socialism will always remain relevant.

The exact definition of secularism, like any other concept in political science, remains contested. Encyclopedia Britannic defines secularism as 'utilitarian ethic', designed for the physical, spiritual and moral improvement of mankind which neither affirms nor denies the theistic premise of religion.

The concept of secularism is western in origin. It is called as 'child of Christianity' or 'the product of modernity'. During the Dark Ages (medieval period) in Europe, religion, particularly Christianity, was often misused by political and religious authorities to consolidate power and control over the populace. The Church wielded significant influence, often intertwining religious dogma with governance. This led to abuses such as the Inquisition, where dissent and non-conformity were harshly punished, and the selling of indulgences, where people were made to pay for the forgiveness of sins.

These practices generated widespread discontent and criticism, contributing to major movements like the Reformation, which challenged the Church's authority and corruption. The resultant conflicts and the desire for religious freedom fostered the development of the concept of secularism. It advocates for the separation of church and state, ensures that religious institutions do not interfere with government affairs (state sovereignty), individuals have the freedom to follow their own beliefs (freedom of conscience), and there is strict separation of personal and political spheres.

This principle of secularism became foundational in modern democracies, promoting religious tolerance and protecting civil rights.

At this point, it becomes important to understand that the Indian concept of religion is profoundly different from that of the West. India is home to a multitude of religions including Hinduism, Islam, Christianity, Sikhism, Buddhism, and Jainism, fostering a naturally inclusive and pluralistic approach. Unlike the predominantly monotheistic traditions in the West, Indian religious thought embraces a wide spectrum of theistic, non-theistic, and atheistic beliefs. Religion in India permeates daily life, influencing social customs, festivals, art, and community activities, and is viewed more as an integrated way of life rather than just a set of doctrines. This contrasts sharply with the role of religion in the West, where secular and religious spheres are more distinctly separated.

Consequently, the concept of secularism also needs to be understood in the Indian context. While the European secularism emerged as a response to conflict between Church and the State, that is not the case with India. Thus, Indian secularism aims to maintain equal respect and treatment for all religions rather than excluding religion from the public sphere. It balances religious freedom with state neutrality, recognizing vast religious diversity. This concept supports the idea of "sarva dharma sam-bhava" (equal respect for all religions), which differs from the Western notion of secularism that emphasizes a strict separation between church and state.

History of Indian Secularism

It is suggested that he idea of India as a secular state is a response of Congress to the demand of Pakistan by Muslim League. While Pakistan was created as a religious state, for the Muslims living in Indian subcontinent, the idea of India was a secular state, which where religion is not the basis of its formation.

As a consequence, one of the most distinctive and debatable features of Indian model is the special rights which are enjoyed by the minorities. This is also the main reason that Hindu rightist scholars like Arun Shauri and the leaders like Advani calls constitutional/congress model of secularism as a model of minority appeasement and thus 'pseudo secular'. According to Arun Shauri, secularism is based on the equality before law, equal treatment of all citizens, which is missing in the Indian model. Indian model is a combination of western and indigenous. It often includes contradictory principles. i.e. 1) simultaneous existence of rights of an individual as well as groups 2) simultaneous existence of universal citizenship along with multi-cultural citizenship or differentiated citizenship.

Secularism in Indian Constitution

• Fundamental rights 14,15, 16 and 17, inter-alia, prohibit discrimination on the basis of religion.
• Articles 25-30 provides the religious freedom to individual as well as to religious minorities.
• The idea of communal electorate was abolished by the constituent assembly.
• Further, the provisions like universal adult franchise, independent judiciary and an autonomous election commission, reinforce the idea of secular India.
• Apart from the above provisions in original constitution, secularism as a feature of Indian nationalism was made explicit by adding the word 'secular' in preamble by 42nd Amendment Act.

Scholarly Perspectives on Indian Secularism

Pandit Nehru saw secularism as religious neutrality. Gandhi, on the other hand understood that religion cannot be separated from life of Indians. He believed that Indian secularism would mean communal harmony based on spirit of toleration drawn from ideals of Ashoka. Thus, he described secularism as 'sarva dharma sam-bhava' (equal disposition towards all religions). In his own words, "those who say religion has nothing to do with politics do not know what religion is."

Ambedkar believed that democracy is in the root of secularism. He advocated protection of minority rights, reform of Hindu institutions as a feature of Indian secularism.

De Smith started academic debate on status of India as a secular state. According to him, there are three essential features of secularism: 1) Universal citizenship / equality of status, 2) Freedom of religion, 3) separation between religion and state. According to him India has some of the features but not all. Third feature is missing.

Smith was skeptical of success of secularism in India considering 80% of population is Hindu. In his view, in such situations, minorities appear to be custodians of state. It means minorities have to be cautious of state remaining secular. Mark Galanter questions this approach of Smith and calls it ethnocentric. For Galanter, there is no point evaluating Indian state on standards of European model.

Pratap Bhanu Mehta has criticized the Indian model. For him, Indian secularism appears rational in theory, but in practice it gives scope for plausibility. It is a balancing act. It legitimizes vote bank politics, and Congress used it to placate one group or another at different times. This model in fact promotes communalism in garb of secularism and keeps all communities insecure at all times.

Ashish Nandi in his book Anti Secular Manifesto, rejects the idea of secularism calling it western. He says that instead of separating religion from state, there is need of promoting religion in public sphere, emphasizing on dialogue, imparting religious education in school to minimize politicization of religion.

T.N. Mohan is pessimistic in context of success of project of secularism in Indian society. He believes that in South Asia, religion is 'way of life', and any artificial attempts of separation cannot be successful.

According to Romilla Thapar, existing model a 'faint /weak model of secularism'. India needs a bold, Marxist model of secularism.

According to Prof. Rajiv Bhargav, Indian model is known as principled distance model. He has given seven features of Indian model.

• There is strict separation between state and religion. The boundaries are porous.
• Indian state is not averse to religion, at the same time, state does not identify with particular religion.
• Different religions are in the foundation of the state. The national symbols, policies etc. are grounded in religion, especially Buddhism and Hinduism.
• Indian model is politically negotiated model. It is a bargain between majority and minority.
• He suggests that Indian model is not based on any overarching idea. It has been developed as a mere response to erstwhile circumstances.
• There is no active hostility, nor passive indifference towards religion.
• To conclude, Indian model is substantive model.

Rajiv Bhargav further gives three models of secularism.

• Strict neutrality of state towards religion e.g. France
• Ultra-procedural like the United States. The US constitution mentions anti-establishment clause. It clearly mentions neither federal nor state government can either promote a religion or declare it official religion.
• Substantive model of secularism, built on the values of liberty, equality, fraternity, dignity. e.g. India

Secularism and Indian Judiciary

In the landmark case of S.R. Bommai v. Union of India (1994), the Supreme Court explicitly stated that secularism is a basic feature of the Indian Constitution and was there even before the 42 nd amendment. The court emphasized that the state must have no religion of its own and should treat all religions with equal respect and consideration.

In cases such as Shah Bano Begum (1985), the judiciary has balanced religious practices with the need for social reforms. The court ruled in favor of alimony for a Muslim woman, emphasizing that personal laws should not contravene the fundamental rights guaranteed by the Constitution.

According to Indian judiciary, while freedom of religion is a fundamental right, anything that is pernicious and exploitative cannot be allowed to remain outside the control of law simply because it is paraded under the garb of religion.

Vedic Idea of Secularism

While Hinduism is understood as a one religion, Vedic literature describes multiple religious practices. Bhagavad-Gita describes four dominant systems of religious practice i.e. karma-yoga, jnana-yoga, dhyāna-yoga, and bhakti-yoga. Further, Gita also gives a hierarchy among these systems, giving the highest position to bhakti yoga. Then, there are other Vedic literatures which describe other practices such as Vaishnava, Shaiva, and Shakta.

Given the wide variety of religious systems and the choice available to an aspirant, there was an effective secularism in the Vedic system. Teachers of different schools were not in conflict with each other although they did compete. We can give following features of Vedic Idea of Secularism.

• It did not distinguish between faith versus rationality. Thus, religion was not a mere 'individual faith', rather a knowledge that can be understood through reason.
• It did not aim to relegate the religious knowledge into the private sphere; in fact, it encouraged open debate between the systems to find out the truer system.
• The acceptance of a system of religion by a king was by no means an enforcement of the system across his kingdom. It was a personal choice of the king, and it did not preclude other's choices. e.g. after Kalinga war, although Ashoka became an active proponent of Buddhism, he did not try to destroy the Vedic system. By permitting the choice of alternative religions, the ruler remained secular.

The Greek word 'demos' indicate people, while the word 'kratos' indicate rule or government. Thus, the word democracy denote government by the people, as against monocracy /monarchy (rule of a single person) or aristocracy (rule of the aristocratic few). Democracy assumes that the sovereignty lies with the people, and each person has same value irrespective of their birth, education or economic or social status. People are their own masters and have an inalienable right to rule themselves in any way they like.

Democracy also acknowledge that people have differences and institutes civilized ways to settle the differences. It includes debates, discussions, persuasion and the elections. Based on the day-to-day involvement of citizens in political affairs, we have direct or indirect democracies.

India is representative democracy with a free and fair elections under an autonomous election commission. While there is indirect democracy at the state and national level, there is also a direct democracy at the level of village in the form of gramsabha.

While India is the best example of democratic governance in the third world, it still remains a 'procedural democracy' in comparison to the Western countries (which are called 'substantive democracies'). The public representatives are not held accountable on a day-to-day basis, often go back on their promises, and people are powerless to do anything about it.

There are even problems in terms of procedural democracy. Still there is huge use of money and muscle power in Indian elections, and Indian politics suffers from criminalization.

To make India democracy in a true spirit, there is an urgent need for electoral reforms, to strengthen institutions, promote political education and encourage public participation in in governance beyond voting.

The concept of republic is similar to that of democracy. The preamble to the Indian Constitution uses the word "republic" to signify that India is a sovereign state with an elected head of state. This means the head of state is not inherited through a monarchy. It emphasizes that power lies with the people and their elected representatives. Public offices are open to all citizens based on merit, not heredity. By declaring India a republic, the preamble highlights the democratic nature of the government and its commitment to equality and the rule of law.

Justice denotes harmonization of interests between individuals, between groups and between individuals and groups on the one hand and interests of the community on the other. Justice seeks to provide each person with their due, balancing individual needs and societal rules.

It is important to note that the preamble does not talk about the justice in a narrow, legalistic manner. Rather, it seeks to establish justice at societal, economical and political level.

Social justice denotes creating a fair and equal society by addressing and rectifying inequalities. It involves ensuring that all individuals have equal access to opportunities, rights, and resources, regardless of their identity or socio-economic status. The concept of social justice encompasses issues such as poverty, education, healthcare, employment, and housing.

In addition to preamble, the Article 38(1) also talks about social justice. It suggests: that "the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life." Article 38(1). Then there are also directive principles which direct the state to secure social justice for its citizens.

Economic justice seeks to address and rectify economic inequalities by promoting fair wages, equitable distribution of wealth, and access to essential services such as education, healthcare, and housing. It involves creating conditions where everyone can participate fully in the economy and have the opportunity to improve their economic status. It emphasizes reducing poverty, preventing exploitation, and ensuring that economic growth benefits all sections of society equitably.

In this regard, article 39 of Indian constitution direct the state to secure 1) right to an adequate means of livelihood 2) ensure that there is no concentration of wealth 3) there is equal pay for equal work 4) children are not abused because of economic necessity and 5) free legal aid is available weaker sections (39A). Apart from this, there are other articles as well, which talk about economic justice (maternity relief, living wage, free and compulsory education etc.)

Political justice refers to the fair and equitable distribution of political power and the rights and opportunities for all individuals to participate in the political process. Dr. Ambedkar believed that political justice would be meaningless unless it was coupled with social justice. In his own words,

"On 26th January, 1950, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic structure, we will have inequality. In politics, we will be recognizing the principle of one man one vote and one vote one value. In our social and economic structure, we continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? If we continue to deny it for long, we will do so only by putting our political democracy in peril."

The other principles mentioned in Preamble i.e. LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and FRATERNITY, are quite self-explanatory and hence have not been elaborated here.

Fundamental Rights & Duties

While the Preamble creates an idea of an ideal state, Part III, IV and VI A, taken together seeks to give shape that idea.

Part III of constitution gives certain fundamental rights to Indian citizens as well as non-citizens (aliens). The constitution divides these rights further into six categories. 1) right to equality, 2) right to life and liberty 3) right against exploitation 4) religious freedom 5) rights of minorities and 6) right to constitutional remedy.

While the constitution establishes very high ideals for right to equality, in practice various complex issues surround the debate on this topic. The main areas of contestation include reservation policies, persisting caste discrimination, gender inequality, issues of religious and ethnic minorities, access to justice and economic inequality.

Affirmative action policies, such as caste-based reservations in education and employment, have been a contentious issue since independence. While aimed at addressing historical injustices and promoting social inclusion, it also raises concerns about perpetuating caste divisions, reverse discrimination, fairness in access to opportunities, and compromise on merit. The debate is still not settled. There is increasing reservation, first for OBCs and now for EWS, and we are witnessing increasing demand by various communities for reservation.

Despite constitutional guarantee, caste-based discrimination remains deeply entrenched in Indian society. Issues such as untouchability, caste-based violence, and social exclusion continue to affect millions of Dalits and marginalized communities, highlighting the gap between constitutional ideals and ground realities.

Despite legal provisions for gender equality , women in India still face various forms of discrimination and violence, including unequal access to education, employment, and property rights. In recent Sabarimala Temple Entry Case (2018) , Supreme Court, lifted the ban on the entry of women of menstruating age (10-50 years) into the Sabarimala temple in Kerala. The court held that the ban on women's entry into the temple violated their fundamental rights to equality and freedom of religion.

In another instance, in Shayara Bano v. Union of India (2017) case, the Supreme Court declared the practice of instant triple talaq (talaq-e-biddat) unconstitutional, stating that it violated the fundamental rights of Muslim women, including the right to equality and dignity. The court held that triple talaq was arbitrary and discriminatory and struck it down as illegal and void.

To conclude, despite the progress made through landmark judgments, legislative reforms, and social movements, challenges persist in translating constitutional ideals into tangible realities for all citizens. However, the judiciary's proactive role in interpreting and safeguarding these fundamental rights, offer hope for a more equitable and just society. Moving forward, it is essential to foster greater awareness, dialogue, and collective action to bridge the gap between constitutional principles and lived experiences. This will ensure that every individual can truly enjoy the fruits of equality and dignity as envisioned by the framers of the Indian Constitution.

Article 19 i.e. freedom of speech and expression is considered as the most essential pre-requisite for a functioning democracy. This right also includes freedom of the press.

However, it should also be noted that this is not an absolute right. Constitution imposes several 'reasonable restrictions' in exercise of these rights.

One of the most contested issues under freedom of speech and expression is contempt of court. While the power has been accorded to the court to protect the dignity of the institution, the court serves as both the aggrieved party and the adjudicator, leading to questions about impartiality and fairness. The case for contempt leaves a wide room for subjective interpretation and can result in inconsistent enforcement and punishments. This can have a chilling effect on free speech and weaken democratic principles of transparency and accountability. In the recent Prashant Bhushan Case (2020), senior advocate Prashant Bhushan was found guilty of contempt of court for his tweets criticizing the Supreme Court. While the fine was nominal one rupee, it certainly sets a bad precedent.

Thus, while contempt laws serve a legitimate purpose, there is a need for reform to ensure they are not misused. This can be done by defining the contempt, and providing procedural safeguards.

Other issues under Article 19 include hate speech, defamation, regulation of media and online content, political speech, academic freedom etc.

Article 20 talks about protection in respect of conviction of offences.

Article 21, which talks about right to life and personal liberty, presents an interesting case of judicial interpretation of Indian constitution. Over a period of time, the judiciary have widely interpreted Article 21, so that it now includes a whole gamut of right under it. It includes, inter-alia, right to rehabilitation, right to clean environment, right to privacy, right to speedy trial, and even rights of the animals.

The ongoing debates on this article revolve around the issues of death penalty, right to end one's life (euthanasia), custodial deaths and extrajudicial killings, right to privacy etc.

Article 21 A , right to education, was inserted by the eighty sixth constitutional amendment in 2002.

Article 22, which provides for preventive detention is criticized as a blot on Indian constitution. Pt. Nehru promised that there shall be no black law in Indian constitution. However, the provision of arbitrary detention, undermines civil liberty and is often misused for political purposes.

These rights aim to protect individuals from various forms of exploitation and ensure their dignity and well-being. However, several issues and challenges surround the effective implementation of these provisions. It includes bonded labour among marginalized communities, human trafficking, child labour, debt labour, exploitation of women and Dalits etc.

While constitution sets a high bar when it comes to religious freedom, we witness many conflicts in day-to-day social life. The issues surrounding religious freedom include forced conversions, inter-religious marriages, state intervention in religious practices (Sabarimala case, triple talaq etc.), freedom of expression conflicting with religious sensitivities, Uniform Civil Code etc.

Providing for the enforcement of fundamental rights, Dr. Ambedkar described Art 32 as the very heart and soul of the constitution.

In the words of Justice Bhagwati, "These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a 'pattern of guarantee' on the basic structure of human rights and impose negative obligations on the State not to encroach on individual liberty in its various dimensions".

Over period of time, Supreme Court have taken a stand that fundamental rights are not only 'negative' i.e. only puts limitations on state, but also have a 'positive' content. Thus, fundamental rights also put certain responsibilities on the state. This has become the basis of judicial activism, with public interest litigation (PIL) as a by-product.

Somnath Lahiri, on the issue of limitations imposed on fundamental rights, commented that "I feel that many of these fundamental rights have been framed from the point of view of a police constable... you will find that very minimum rights have been conceded and are almost invariably followed by a proviso. Almost every article is followed by a proviso which takes away the right almost completely."

The Fundamental Duties of citizens in India, as outlined in Article 51A of the Constitution, are as follows:

These fundamental duties were added to the Constitution by the 42nd Amendment Act in 1976, aimed at promoting a sense of responsibility and patriotism among citizens. While the last duty (k) was added by the 86 th Amendment Act in 2002 (Right to Education).

• It is a feature of socialist countries.
• In liberal countries, the purpose of constitution is to put limit on govt.
• It is also non-enforceable and hence problematic.
• Fundamental duties had not made any change in the quality of citizens in India.
• Fundamental duties are vaguely worded.
• It is not clear how citizens will develop 'scientific temper' without basic education.
• It was not a part of original constitution.

Directive Principles

The part IV Indian constitution (articles 36-51) lays down certain Directive Principles of State Policy. Although not justiciable, meaning they cannot be enforced by the courts, they are 'fundamental in governance of the country', and it is the duty of the State to apply these principles in making laws.

These principles guide the state in promoting social and economic welfare. Various guidelines mentioned in these directive principles impose on state - ensuring adequate means of livelihood, equal pay, and protection against exploitation, free legal aid, village panchayats, right to work and education, humane working conditions, worker participation in management etc. Further, DPSPs call for a uniform civil code, early childhood care, upliftment of weaker sections, environmental protection, preservation of national heritage, and ultimately ask the state to contribute towards international peace.

The inclusion of all these socio-economic rights under part IVA came as a disappointment to some members of constituent assembly. Because DPSPs are not legally enforceable, it undermines the authority of constitution. There should not be any non-enforceable part in the constitution as it creates scope for discretion, and also becomes problematic for judiciary. It also limits the choice of future governments with respect to the formulation of policies, and in certain ways, DPSPs also undermine federalism since some of the DPSPs contains subjects which are also part of the state list (e.g. public health, education, village panchayat, agriculture etc.)

While these provisions are non-justiciable, it was thought that the moral force behind these guidelines will ensure that the government would take them seriously. Further, it was also expected that people would also hold government responsible for implementing these directives. In essence, these Directive Principles can be said to contain three things: 1) The goal and objectives that we as a society should adopt; 2) Certain rights that individuals should enjoy apart from fundamental rights; 3) Certain policies that government should adopt.

We can give following instances where the stated made some policy decision, giving effect to directive principles.

Right to Education Act, 2009: DPSP (Article 45), provides for free and compulsory education for all children until they complete the age of 14 years. The Right to Education Act mandates free and compulsory education for children between the ages of 6 and 14.

Similarly, DPSP (Article 47) directs the state to raise the level of nutrition and the standard of living and to improve public health. To give effect to this provision, National Food Security Act, 2013 was passed. The act aims to provide subsidized food grains to approximately two-thirds of India's population.

We can also give instance of MGNREGA Act 2005, which guarantees 100 days of wage employment per year to rural households and tries to implement Article 41, which asks the state to provide right to work and public assistance in cases of unemployment.

There is an interesting relation between these two parts of the constitution, which have been written down next to one another. The fundamental rights are justiciable and enforceable by the courts, meaning individuals can seek judicial remedies if these rights are violated. In contrast, DPSPs are non-justiciable, meaning they are not enforceable by any court. Apart from legal status, there is also ideological difference between these provisions. While the fundamental rights belong to the school of liberalism, the directive principles, which seek to give voice to socio-economic rights, belong to the school of socialism. While Part III seeks to protect individual freedoms, part IV focuses on collective welfare. Consequently, there have been conflict between fundamental rights and directive principles since the formation of constitution.

Often, an attempt to give effect to directive principles, contradicts with fundamental rights. This results in judicial intervention. We can trace out the following pattern in Supreme Court judgements in this regard.

In Champakam Dorairajan Case (1951), supreme court ruled that fundamental rights would prevail over DPSPs in case of conflict. In this case, the supreme court held that the communal reservation order of the Madras government was unconstitutional as it violated the fundamental rights of the petitioner.

Later, in Sajjan Singh case (1965), court upheld the power of Parliament to amend any part of the Constitution, including Fundamental Rights. This was however overturned in 1967, when in Golak Nath case, supreme court held that parliament could not amend fundamental rights to abrogate them, giving them a higher status over DPSPs.

In the landmark decision in Kesavananda Bharati case (1973), supreme court introduced the doctrine of the "basic structure" of the Constitution. It ruled that parliament could amend any part of the Constitution but could not alter its basic structure. This case struck a balance between fundamental rights and DPSPs, emphasizing that both sets of principles are essential.

In Minerva Mills Case (1980), the court reaffirmed the importance of the balance between Fundamental Rights and DPSPs, ruling that a harmonious interpretation was necessary, and neither could undermine the other.

It was realized that political democracy without social and economic is a contradiction. Thus, one cannot be sacrificed at the cost of other. Directive principles were not given immediate effect, not because they were not important but because country lacked resources, if given the status of enforceable rights and govt. unable to enforce it, it would create constitutional crisis.

KC Markandan suggests that this conflict between fundamental rights and DPSPs is artificial. Trying to elaborate on the intention of constitution makers, he suggests that if the conflict between these two parts was so obvious, why did the constituent assembly at all put these in this fashion. Why there was right to property as fundamental right in one hand, while the DPSPs ask the state to ensure that material resources so distributed as best to subserve the common good.

Markandan argues that the constituent assembly expected that when the state chose to implement DPSPs, the judiciary would allow the government to discharge its constitutional function, instead of asserting its own right to enforce fundamental rights. He suggests that in fact Part III and IV originally belonged to the same list and based on (1) whether these could be assured to the citizens (hence enforceable) and (2) difficult to ensure (hence impractical to be legally enforced), they were classified as fundamental rights and directive principles.

Further, it is also argued that directive principles rare in fact, more important than fundamental rights. This is so, because while the former are concerned with rights of society as a whole, against the latter which only talks about individual rights.

Thus, KC Markandan blames Indian judiciary for interpreting the constitution, contrary to the intention of founding fathers. For him, the framers of Indian constitution saw no incongruity, nor any possibility of conflict between parts III and IV of the constitution. The constitutions makers envisioned that the three organs of the state will work together, and the judiciary will enforce fundamental rights, so long it does not conflict with directive principles. The reality has been different.

Gandhian school of thought suggests that DPSPs reflect the socio-economic justice principles espoused by Mahatma Gandhi and should be given priority to achieve a welfare state. On the other hand, the advocates of individual liberties stress the primacy of Fundamental Rights, arguing that they form the core of democratic freedom and must be protected against state encroachment.

While the courts have evolved the doctrine of harmonious construction, the Parliament can enact laws and amend the Constitution to clarify the relationship between the two contesting provisions of Indian constitution.

Initially, the Right to Property was a Fundamental Right under article 19(1)(f), guaranteeing all citizens the right to acquire, hold, and dispose of property. Further, article 31 provided protection against the compulsory acquisition of property by the state. It ensured that property could be taken only for public purposes and required the payment of compensation.

Over a period of time, the conflict arose when state tried to bring land reforms. These reforms violated the right to property. This led to a long battle, where the government claimed that rights can be compromised to give effect to directive principles whereas court held that the fundamental rights cannot be limited.

This conflict was solved by the 44th Amendment, passed in 1978. The amendment removed the right to property from the list of fundamental rights articles 19(1)(f) and Article 31 were repealed. The right to property was transferred to a legal right under Article 300A, which states that no person shall be deprived of his property except by authority of law. This change made the right non-justiciable under the scope of Fundamental Rights but still protected it as a constitutional right (since it's mentioned in constitution).

Parliamentary System

In a representative democracy, the two dominant political systems are presidential and parliamentary system. India follows a parliamentary system of government, where the executive branch derives its legitimacy from and is accountable to the legislature. We can make following comparison between the presidential and parliamentary system of governance.

Note: The above comparison is based primarily by comparing the Indian and the American political system. In practice, there can be many variants of the presidential/parliamentary system, and the details may vary accordingly.

Apart from Parliamentary and Presidential form of democracy, there also exists another type i.e Semi Presidential System. In such system, the president is not the nominal head but enjoys significant powers. Many European countries like France, Finland, Portugal have this type of system.

• Through the British acts of 1919 and 1935, India had already some experience with the parliamentary system of governance.
• Constitution makers also felt that since the executives are accountable to people's representatives in parliamentary system, the government would remain sensitive to public expectations.
• There is always a danger of personality cult in presidential executive.
• In the parliamentary form there are many mechanisms that ensure that the executive will be answerable to and controlled by the legislature or people's representatives.
• It is considered to be more representative. Because of the concept of plural executive i.e. Prime Minister (PM) and Council of Ministers (CoM). It is also supposed to be more democratic. It ensures the accountability of the government on day-to-day basis.

In practice, only USA have a thriving presidential system. In many third world countries, the presidential system has paved way for authoritarianism. Thus, Indian constitution makers were wise in adapting a parliamentary system for Indian democracy.

Amendment Procedures

The constitution defines the basic principles with which country should be governed. By nature, constitution have important characteristics of permanence and generality . A constitution, by nature, only mention the general principles and direction for the country's governance, because constitution makers cannot anticipate all the variety of situations that will arise in future. On the other hand, it is also not practical for a written constitution to specify all the rules and laws for future generations (nor is it desirable).

Further, a constitution that does not provide for the formal method of amendment, leaves room for violent and unconstitutional changes. In the words of C.J. Friedrich, a German political scholar, "a well-drawn constitution will provide for its own amendment in such a way as to forestall, as far as humanly possible, revolutionary upheavals."

Thus, the framers of Indian constitution kept the provision for amendment of Indian constitution. There are different procedures to amend different parts of constitution. This makes Indian amendment procedure unique, and also strikes a right balance between rigid and flexible constitution, making it an adapting, evolving, living document.

An amendment to the constitution is a formal change modifying the text of the Constitution. Strictly speaking, any small change, even an addition or removal of a symbol like comma is considered as an amendment to constitution.

Article 368 of Indian constitution provides for the procedure of amendment. Article 368 provides for amendment in two different ways.

An amendment to the constitution can be done only by a parliament, by a majority of the total membership of each house of parliament, and also a two thirds majority of the members present and voting.

A category of constitutional provisions (e.g. dealing with election of president, lists in seventh schedule, Art 368 itself etc.) require special majority in parliament (as mentioned above), as well as ratification by at least half of the state legislatures. The recent incidence of such an amendment can be a GST Bill, which was passed by Lok Sabha, Rajya Sabha, and then was ratified by half of the states.

Apart from Article 368, there are also separate cases where constitution can be amended. These amendments can be done by mere simple majority in both the houses of parliament.

This means that parliament will stand amended if a bill to that effect is passed in both the houses by a simple majority i.e. majority of members present and voting in parliament. Various articles that can be amended in this fashion include admission of new state under article 2, provisions relating with citizenship of India (article 11), provisions relating to salaries and allowance of MPs etc.

Judicial Review & Basic Structure

Judicial review is the power of judiciary to review acts of parliament and acts of executive. The power of judicial review, part of the system of checks and balances, aims to ensure rule of law, constitutionalism, and protect fundamental rights in a country.

In Constitution of India, primarily three articles deal with the subject of judicial review i.e. article 13, article 32 and article 226.

Article 13 states that any law that is inconsistent with or in derogation of the fundamental rights shall be void. This gives the judiciary the power to review and strike down laws, violative of fundamental rights. Further, article 32 provides the right to individuals to move the Supreme Court to enforce their fundamental rights. This includes the power of the Supreme Court to review laws and executive actions to ensure fundamental rights of the aggrieved. Lastly, article 226 empowers the High Courts to issue certain writs for the enforcement of fundamental rights and for any other purpose, enabling judicial review at the state level.

Judicial review is an invention of USA, declared by Justice Marshall in Marbury vs Madison case, 1803. In this case, for the first time the Supreme Court declared a law passed by Congress unconstitutional. This established the doctrine of judicial review. This principle allows the Supreme Court to declare an act of congress/parliament void if it is inconsistent with the constitution.

Since India has the provision of judicial review in constitution, i.e. the power to review the acts of parliament, it denotes that judiciary is superior to parliament. Thus, India is an example of judicial supremacy, and not parliamentary supremacy. It is also to be noted that the supremacy of constitution and supremacy of judiciary are one and the same thing because constitution is supreme but since it is interpreted by the court, 'constitution is what judges say'.

Contrary to Indian and American system, Britain is an example of supremacy of parliament.

The United Kingdom does not have a single written document that makes the constitution, like many other countries. Instead, it has an uncodified constitution, which means its constitutional framework is based on a combination of written and unwritten sources. These sources include acts of parliament, common law, or even certain conventions.

In Britain, judiciary have no power to review acts of parliament. In the absence of written constitution, there is no difference between constitutional law and ordinary law. Consequently, the British judiciary only reviews the act of executives and not of parliamentarians.

In USA, since written constitution exists, there is a limitation on congress with respect to law making. Hence in USA, legislative supremacy does not exist. Constitution provides for checks and balances.

In case of India, it appears that constituent assembly envisaged parliamentary supremacy on lines of British system. Pandit Nehru used to believe that India has the concept of 'supremacy of parliament' to the extent that there is no limitation even on the amending power of Parliament. The early period was also the phase of strong government and passive judiciary.

In later period, in Keshavanand Bharati case 1973, Supreme Court asserted that Parliament does not have unlimited powers. The judiciary can strike down the laws of parliament if it infringes the 'basic structure' of Indian constitution.

This is an invention of the Indian Judiciary. It is normally understood that judiciary can only review the ordinary laws. Judiciary cannot review the amendment to constitution. Amendment is the feature of constitution itself, and an amendment represents will of the people. Since democracy abides by the principle of popular sovereignty, judiciary cannot strike down constitutional amendment.

We can say that the original constitution envisaged this type system in India. As said by Ambedkar, "If those who are dissatisfied with the Constitution have only to obtain a 2/3 majority and if they cannot obtain even (that)..., their dissatisfaction with the Constitution cannot be deemed to be shared by the general public."

However, in later period judiciary have invented the doctrine of basic structure. Established in 1973 Keshavananda Bharati case, the doctrine of basic structure checks the validity of constitutional amendment. It is to be noted that ordinary law can be questioned on the basis of the constitution itself (written provisions) and there is no need to evoke the basic structure doctrine. The constitutional amendments, however, needs to be tested on the basis of 'basic structure'.

What this 'basic structure' constitutes? it is not written in the constitution. It is to be determined by judiciary from time to time.

To sum up, Indian judiciary have following powers of judicial review

• To review the acts of executive
• To review the laws passed by parliament
• To review the constitutional amendments done by parliament

As discussed above, basic structure is a doctrine of judicial review, applied by higher judiciary in India to examine validity of constitutional amendments.

The evolution of the basic doctrine should be understood in context of the initial judicial disputes in India between fundamental rights and directive principles. As discussed earlier, Part 3 of the Indian constitution (fundamental rights) and Part 4 (DPSPs) are based on contradictory principles. Part 3 is based on the ideology of liberalism and gives primacy to individual rights. Part 4, on the other hand, is based on philosophy of socialism and gives primacy to the interest/rights of society, even at the cost of individuals.

In addition to underlying philosophies, the contradictory provisions of constitution also contributed to the conflict between the two parts of constitution.

Fundamental rights are guaranteed by constitution, including the right to enforcement of fundamental rights. Under article 13, it is a constitutional obligation of judiciary to declare any law as void in case it abridges any of the fundamental rights in part 3. According to article 32, it is duty of the supreme court to ensure that the rights in part 3 are enforced. Hence the court has been given power to issue writs.

On the other hand, article 37 mentions that the provisions in part 4 (DPSPs) are not enforceable by any court. Thus, while it is duty of supreme court to see that fundamental rights are enforced, it is not same when it comes to directive principles.

Thus, various attempts by government to implement part IV of constitution, the infringement of fundamental rights in the process, the judicial intervention to protect these rights, the attempts of government to limit judiciary through constitutional amendment, and the power of judiciary to review the acts of parliament... all of this together led to the innovation of the doctrine of basic structure by Indian judiciary. This, in effect changed the nature of Indian democracy from parliamentary sovereignty to judicial supremacy. The following topic discusses this evolution of basic structure doctrine in detail.

In this case, Champakam Dorairajan, a brahmin woman, challenged the Communal Government Order (G.O.) of Madras, which reserved seats in educational institutions for different communities. The case argued that this reservation violated her fundamental right to equality under Article 15(1) of the Indian Constitution.

In response, the Supreme Court held the Communal G.O. being inconsistent with the provisions of article 29 (2) in Part III of the Constitution is void under article 13. In the opinion of the court, "The directive principles of State policy laid down in Part IV of the Constitution cannot in any way override or abridge the fundamental rights guaranteed by Part III. On the other hand, they have to conform to and run as subsidiary to the fundamental rights laid down in Part III."

The Champakam Dorairajan case highlighted the need to reconcile fundamental rights with socio-economic reforms (DPSPs). To safeguard laws related to social justice from judicial scrutiny, the 1st Amendment was introduced.

The amendment added Article 15(4) to the Constitution, allowing the state to make special provisions for the advancement of socially and educationally backward classes or Scheduled Castes and Tribes.

The amendment also added the Ninth Schedule to Indian constitution, which listed various laws. Further article 31(B) was also amended to say that none of the Acts and Regulations specified in the Ninth Schedule shall be deemed to be void, on the ground that it takes away the rights mentioned in part III. This was done to protect land reform and other laws from judicial review.

(*The amendment also made changes to other parts of constitution, but we're not mentioning here since they're not much related to matter at hand.)

In this case, the validity of the 1st Constitutional Amendment was challenged in the Supreme Court. Shankari Prasad Singh Deo argued that the amendment violated fundamental rights.

It was the first case on the subject of amending power of parliament. The Supreme Court upheld the 1st Amendment and ruled that the power of parliament to amend the constitution under Article 368 includes the ability to amend fundamental rights. It implies that there are(were) no limitations on the power of parliament to amend the constitution.

It is suggested that this was the era of 'passive judiciary'. Since the elected government was strong, Judiciary avoided confrontation with executive.

In 1967, a case was filed by Henry and William Golak Nath, who owned substantial farmland in Punjab. They challenged the Punjab Security and Land Tenures Act, which aimed at land reforms and placed a ceiling on land holdings, leading to the acquisition of some of their land by the government. The key issue under consideration was, whether the Parliament had the power to amend part III of the constitution, which includes the fundamental rights.

In a landmark 6-5 decision, the Supreme Court ruled that parliament could not amend the fundamental rights. The court held that fundamental rights are "transcendental" and "immutable," and hence, beyond the amendment powers of the parliament under article 368.

This was the 1st example of judicial activism. It marked a significant departure from earlier rulings (like Shankari Prasad case), where it was held that Parliament could amend any part of the constitution, including fundamental rights.

It is suggested that judiciary could take such a stand since the ruling government was relatively weak. We can note that year 1967 marks the beginning of breakdown of hegemony of Congress. And therefore, judiciary could make such pronouncement. The verdict of judiciary was criticized by people. Judiciary was accused for being elitist, putting restrictions in India's 'social revolution'. The decision created a constitutional impasse (stalemate), as it restricted parliament's ability to implement socio-economic reforms (give effect to DPSPs) through amendments that could affect fundamental rights.

In response to the Golakhnath judgment, which restricted parliament's power to amend fundamental rights, the government sought to restore this power through constitutional amendments.

Through 24 th constitutional amendment, article 13 and 368 were amended. It added clause 13(4), saying that 'nothing in this article shall apply to any amendment to this Constitution made under article 368.'

In article 368, it changed the title of the article from 'Procedure for amendment of the Constitution' to ' Power of Parliament to amend the Constitution and procedure therefor'.

In addition to making changes to article 13 and 368, the amendment also made it mandatory for president to give ascent to the amendment. Thus, president lost the power of 'absolute veto' in case of constitutional amendments. (The pocket veto was still retained by the president).

Following the 24th Amendment, the government sought further amendments to address socio-economic reforms, particularly in the context of property rights and Directive Principles of State Policy.

The amendment added article 31 C which stated that - if any law is made to give effect to the objectives of article 39(b) of 39(c) [DPSPs], such law will not be challenged on the ground that it contravenes Art 14,19 and 31. And such law cannot be questioned in any court.

The 24 th and 25 th amendments aimed to prioritize DPSPs over certain fundamental rights, particularly in implementing land reforms and other socio-economic measures. In process they also sought to restore the balance between the powers of parliament to amend the constitution and the power of judiciary to review these amendments.

While the things appear to be settled, in 1973, Keshavananda Bharati, the head of a Hindu matha (monastery) in Kerala, challenged the Kerala government's attempts to impose land reforms which affected the matha's property. He filed a petition against the Kerala Land Reforms Act, questioning the validity of the 24th, 25th, and 29th Constitutional Amendments which sought to curtail property rights and reinforce Parliament's amending powers.

This case once again raised the question whether parliament has unlimited power to amend the constitution, including fundamental rights.

The Supreme Court delivered a landmark judgment on April 24, 1973, with a thin 7-6 majority.

The Court upheld the validity of the 24th and parts of the 25th Amendments. The provision in 25 th amendment which said that 'any such law cannot be questioned in any court' was struck down. The judiciary agreed that the parliament has unlimited power to amend the constitution, except that it cannot alter or destroy the 'basic structure' of the constitution.

According to judiciary, "the basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the Constitutional structure. (These cannot be catalogued but can only be illustrated). "

• Supremacy of the Constitution;
• Republican and Democratic form of Government;
• Secular character of the Constitution;
• Separation of powers between the Legislature, the executive and the judiciary;
• Federal character of the Constitution;
• Sovereignty of the country;
• The dignity of the individual;
• The unity and the integrity of the nation.

During the Emergency period (1975-1977), the Indira Gandhi government sought to strengthen the executive's powers and limit judicial review through the 42nd Constitutional Amendment, often referred to as the "Mini-Constitution" due to its extensive changes.

The amendment was done to article 31C and it extended the protection of laws implementing directive principles to cover all of them, not just Articles 39(b) and 39(c).

Govt. also added clause (4) in Art 368 saying that no amendment of the constitution shall be called in question in any court on any ground.

Any ground means not even on the ground of 'basic structure'. Any court denotes even Supreme Court.

It also added clause (5) for same article 368(5) - For removal of doubts, there is no limitation whatsoever on the amending power of parliament.

Through this amendment, the government destroyed the harmony. The amendment made fundamental rights subordinate to directive principles. The amendment was seen as an attempt to curtail judicial independence and enhance the powers of the Parliament and executive, undermining the checks and balances of the Constitution.

Minerva Mills Ltd., a textile company, challenged the constitutionality of certain provisions of the 42nd Amendment that severely restricted judicial review and altered the balance between Fundamental Rights and Directive Principles.

Once again, in a landmark judgment, the Supreme Court struck down key sections of the 42nd Amendment, reinforcing the "basic structure doctrine" established in the Keshavananda Bharati case.

Articles 368(4) and 368(5), which barred judicial review of constitutional amendments, were declared unconstitutional.

The change in article 31C that extended the protection to all the directive principles (beyond Articles 39(b) and 39(c)) was struck down. The Court held that Directive Principles could not override Fundamental Rights beyond the specific provisions mentioned in the original Article 31C.

The Minerva Mills case reaffirmed the "basic structure doctrine," emphasizing that judicial review is an essential feature of the Constitution's basic structure. The court also asserted that balance and harmony between Fundamental Rights and Directive Principles form part of the Constitution's basic structure . ,

In this case, the court opined that the doctrine of basic structure is applicable with respect to the laws placed under 9th schedule also. However, it will be applied only for the laws which are placed after the day of the judgement of Keshavanand Bharati case (24th April 1973) and not for legislations before that.

The doctrine of basic structure is often criticized as an extreme example of judicial creativity. Instead of limiting itself to the written provisions, judiciary is trying to establish 'the metaphysical elements' of the constitution.

It is also noteworthy that the doctrine came into existence by the vote of just one judge. Six judges on the bench were against and seven were in favor.

Since Judiciary have not given the exhaustive list of what constitutes basic structure, it indirectly indicates that judiciary enjoys discretionary powers.

On the other hand, it is also suggested that there is no need to give exhaustive list, better to keep the provision as safety valve.

The fundamental logic is the difference between amendment and rewriting of the constitution. Even when constitution is amended, we should be able to understand the original constitution. Parliament cannot be equated with constituent assembly. Judiciary clarified that even when amendment is passed in both the houses with unanimity and absolute majority, then also amendment has to pass the test of basic structure. Parliament represents political majority whereas constituent assembly represented general will / popular sovereignty.

We can say that such an activism by judiciary was indeed desirable because executive was bent on destroying the constitution. Given the challenging times, judicial activism was needed against the overreach by executive. This innovation by Indian judiciary has ensured the survival of democracy in India. Had Judiciary not intervened, India would have gone in the way of other third world countries. Hence it was a necessary evil.