Long story short

• Historical underpinnings
• Salient features
• Making of the Constitution
• The Preamble
• Union and its territories
• Citizenship
• Fundamental rights
• Directive principles
• Fundamental Duties

Historical underpinnings

The historical underpinnings of the Indian Constitution can be traced back to several sources, including the country’s ancient legal and political traditions, as well as more recent constitutional developments in British India and other countries.

The Indian Constitution was heavily influenced by the British parliamentary system, as well as the legal and constitutional practices of the United States, Canada, and other Commonwealth countries. The Indian Constitution also draws on the principles of the French Revolution, particularly the ideas of liberty, equality, and fraternity.

The Indian Constitution also incorporates many elements of India’s ancient legal and political traditions, such as the rule of law and the separation of powers. The Constitution also reflects the values of the Indian independence movement, which emphasized the need for a secular, democratic and socialist republic.

The Indian Constitution also contains references to various social and economic rights and directive principles, which are considered to be a reflection of the country’s history of social and economic inequality and the need for social reform.

Furthermore, Indian Constitution also incorporates many provisions from the Indian Independence Act 1947, Government of India Act 1935, Indian Council Act 1861 and 1892, Indian Council Act 1909, Minto-Morley Reforms, Montague-Chelmsford Reforms, Simon Commission Report, White Paper on Indian Constitutional Reforms, Cabinet Mission Plan and Nehru Report.

Regulating Act of 1773

It was a British law passed to reform and regulate the administration of the East India Company. The act was passed in response to a series of crises in India, including the Battle of Plassey in 1757, in which the East India Company’s army defeated the forces of the Nawab of Bengal, and the Bengal Famine of 1770, which resulted in the deaths of millions of people. The act established a new system of government for India, with a Governor-General and Council appointed by the British government to govern the company’s territories. The act also established a Supreme Court in Calcutta, which had jurisdiction over all British subjects in India, and it required the company to submit annual accounts to the British government. The act was significant as it marked the beginning of British government control over India and laid the foundation for the eventual establishment of the British Raj.

The Pitt’s India Act of 1784

The act aimed to address the problems that arose after the Regulating Act of 1773. The act established a new system of government for India, with a Board of Control appointed by the British government to oversee the company’s affairs and to supervise the Governor-General and Council in India. The act also established a new system of financial accountability for the company, with the requirement that the company’s revenues be paid into the British Treasury, and the company’s expenses are approved by the Board of Control. This act was significant as it marked a major step in the process of transferring control of India from the East India Company to the British government.

Charter Act of 1833

It played a key role in the constitutional history of India by transferring power to the British Crown, laying the foundation for the British Raj, and establishing the foundations for a centralized administration and Western-style education system in India. This ultimately led to the emergence of a Western-educated Indian elite, who would play a significant role in the Indian independence movement. The act also made provision for the appointment of a Governor-General of India and the creation of a legislative council, which had the power to make laws for British India but did not include any Indian representatives.

Act of 1858

The Act of 1858, also known as the Government of India Act 1858, is considered a significant event in the constitutional history of India, as it marked the end of the East India Company’s rule and the beginning of the British Raj, where the British Crown directly controlled and governed India through the Viceroy of India and the Secretary of State for India.

Government of India Act 1861

It allowed for greater Indian participation in the administration of British India and marked the beginning of a process of gradual constitutional reform that would continue throughout the British Raj. Unfortunately, the non-official Indian members appointed to the councils were still a minority and did not have any real power to influence the decisions.

Indian Councils Act 1892

The act expanded the membership of the Governor-General’s executive council and the legislative councils in the presidencies of Bengal, Bombay, and Madras, and created new legislative councils in other provinces.

The Indian Councils Act of 1909

Also known as the Morley-Minto Reforms, was an act of the British Parliament that aimed to increase the participation of Indians in the governance of British India. The act expanded the membership of the Imperial Legislative Council and the provincial councils. It allowed for the election of some members, in addition to the appointment of members by the British government. It was the first legislation that introduced communal representation through separate electorates for Muslims, which created a separate Muslim electorate and reserved seats for Muslims in the legislative councils. This move further deepened the communal divide between Hindus and Muslims and is considered a major factor in the partition of India in 1947.

Government of India Act of 1919

The Government of India Act of 1919, also known as the Montagu-Chelmsford Reforms, was an act passed by the British Parliament that implemented the recommendations of the Montagu-Chelmsford Report. The act aimed to increase the participation of Indians in the governance of British India and to bring about constitutional reform. The Act introduced a system of dyarchy or dual government. The Act also extended the franchise, separated the executive and legislative branches of government, and established a bicameral legislature for British India, consisting of a Council of State and a Legislative Assembly. The Act received mixed reactions in India, it was seen as a step forward in constitutional reform, but it was criticized by Indian nationalists for not going far enough in granting Indians real political power and for perpetuating British control over vital areas of governance. The act of 1919 was an important step towards the self-governance of British India, but it did not provide the complete autonomy that the Indians were demanding. Simon Commission was set up as part of the act after 10 years to review the act and reform it if necessary.

Government of India Act 1935

It aimed to further constitutional reform in British India and increase the participation of Indians in the governance of the country. The act was a result of the recommendations of the Joint Select Committee, which was set up to review the working of the Government of India Act 1919. It established a federal system of government, with powers divided between the British government and the Indian provinces. The Act also provided for the creation of an independent public service commission and the separation of the judiciary from the executive. It extended the franchise and provided for the establishment of a bicameral legislature at the centre, consisting of a Council of States and a Federal Assembly. The act was not implemented in its entirety due to the outbreak of World War II and the political developments in India. The act endeavoured to give a written constitution to the country.

Towards independence(1942-47)

• Cripps mission: It was a diplomatic effort in 1942 by the British government to secure Indian support for their war effort during World War II. The mission was led by Sir Stafford Cripps, a British cabinet minister, and was intended to negotiate an agreement between the British government and Indian political leaders for Indian participation in the war. However, the mission failed as Indian leaders, particularly the Indian National Congress, rejected the proposal as it did not address their demand for full independence from British rule. The mission is significant in Indian history as it marked a significant setback in Anglo-Indian relations and further solidified the Indian independence movement.
• Quit India Movement: Also known as the August Movement, was a civil disobedience movement launched in India in 1942 in response to Mahatma Gandhi’s call for immediate independence from British rule. The movement was launched at the height of World War II and called for the British to immediately leave India and transfer power to the Indians. The movement was marked by widespread acts of non-violent civil disobedience and strikes and was met with solid repression by the British government. Despite the harsh response, the movement is widely considered to have been a turning point in India’s struggle for independence and played a significant role in pressuring the British to eventually leave India in 1947.
• Wavell plan: It was a proposal put forth by British Field Marshal Archibald Wavell in 1945 to address the political situation in British India, which was facing increasing demands for independence. The plan proposed the creation of a new executive council with equal numbers of Hindu and Muslim members, as well as representatives of other minorities, to serve as an advisory body to the British government. The plan also proposed the formation of a new British-Indian army, with equal representation of all communities, and the establishment of a joint defence council for India and Pakistan. The Wavell Plan was rejected by the Muslim League and the Indian National Congress and ultimately led to the partition of India and the creation of the independent states of India and Pakistan in 1947.
• Simla conference: It was a meeting held in 1945 between the British Prime Minister Clement Attlee, and the leaders of the Indian independence movement, including Jawaharlal Nehru, Sardar Patel, and Maulana Abul Kalam Azad. The conference was held in Simla, India, and its purpose was to discuss the transfer of power from British colonial rule to Indian independence. The conference failed to resolve, and the British government later announced plans to divide British India into two separate countries, India and Pakistan.
• Cabinet mission: It was a group of British politicians sent to India in 1946 to negotiate a political settlement between the Indian National Congress and the Muslim League and to finalize plans for the transfer of power from British colonial rule to Indian independence. The mission was headed by Lord Pethick-Lawrence, Secretary of State for India, and included Sir Stafford Cripps, a prominent Labour Party politician, and A. V. Alexander, First Lord of the Admiralty. The mission proposed a federal structure for independent India, but the proposals were rejected by both Congress and the Muslim League, leading to the eventual partition of India.
• Interim government: The Interim Government of India was formed in 1946 due to negotiations between the British government and the Indian National Congress and Muslim League as part of the Cabinet Mission Plan. It was established as a transitional government to oversee the transfer of power from British rule to Indian independence. The government was headed by Jawaharlal Nehru as Prime Minister and included other key leaders. The Interim Government served for about one year until the formation of the independent government of India on August 15, 1947.
• Mountbatten Plan: The Mountbatten Plan, also known as the June 3rd Plan, was a proposal for the partition of British India presented by Lord Louis Mountbatten, the last British Viceroy of India, to the British government in 1947. The plan proposed the division of British India into two separate independent countries: India and Pakistan. The plan was accepted by the British government, and India and Pakistan gained independence on August 15, 1947. The partition led to large-scale communal violence and forced migration, resulting in the deaths of hundreds of thousands of people.

Indian Independence Act of 1947

The Indian Independence Act of 1947 was an Act of the British Parliament that partitioned British India into the two independent Dominions of India and Pakistan. It was passed on July 18, 1947, and came into effect on August 15, 1947. The Act provided for the transfer of power from the British government to the government of India and Pakistan and also made provisions for the division of British Indian territory, including the division of the British Indian Army, the Indian Civil Service, and other administrative services. The Act also provided for the abolition of the British Paramountcy, which had previously been the authority of the British government over the Indian princely states. It was a significant step in the process of Indian independence from British colonial rule.

Salient features

1. Size of the Constitution: It is the lengthiest-ever written constitution. This is due to it got reproduced a large portion of the Government of India Act 1935, constitution makers do not want to leave any doubts or issues in future, and also contains the constitutional provisions for states. It is also one of the most comprehensive constitutions, covering a wide range of topics such as the organization of the government, fundamental rights, directive principles of state policy, and the procedures for amending the Constitution. The size of the Indian Constitution reflects the diverse and complex nature of Indian society, and the need to provide for a wide range of rights and protections for citizens. Additionally, the Indian Constitution has been amended over 100 times since its adoption in 1950, which has added to its size and complexity.
2. Written constitution: Even though the constitution is written, conventions also play a part insofar as they are in keeping with the provisions of the constitution.
3. Rigid-Flexible constitution: A combination of both rigid and flexible types as some articles can be easily amended. At the same time, some need a special majority(Article 368) to amend including ratification by one-half of the state legislatures.
4. quasi-federal constitution: a federal constitution with a strong unitary or pro-centre bias. federal in structure but unitary in spirit. Normally federal but can become unitary in emergencies.
5. Parliamentary system: A parliamentary system with an elected president as nominal or constitution head. A parliamentary system will give a more responsible executive on the other hand a presidential system will provide a more stable executive.
6. A mix of parliamentary sovereignty and judicial supremacy: The powers and functions of each body are defined and delimited in the constitution. So both Parliament and the supreme court are supreme in their spheres.
7. Adult franchise: Universal adult franchise with one man one vote
8. Fundamental rights: Fundamental rights are defined and enforceable. Any violations can be challenged in court as defined in the law. But there are certain restrictions and that too is defined. The constitution presents a balance between the rights of the individual on the one hand and the interest of society and the needs of the state’s security on the other hand.
9. Directive Principles of State Policy: Inspired by the Irish constitution, DPSPs are non-enforceable socio-economic rights of the people, which are expected to guide the governance of the country.
10. Citizenship: Single citizenship with a federal structure inspired by the British constitution
11. Fundamental duties: Inspired by the Constitution of Russia fundamental duties were incorporated in Part IV-A of the Constitution by the 42nd Constitutional Amendment Act, 1976 on the recommendations of the Swaran Singh Committee.
12. Independent judiciary: An independent judiciary with the power of judicial review. The word of the supreme court is the final law of the land.

Making of the Constitution

The concept of a constituent assembly had always been linked with the growth of the national movement in India. In opposition to the 1919 Act, in 1922 it was Mahatma Gandhi who made the first definite reference to a constituent assembly even though without those words or under that particular name.

1. In 1922, a joint meeting of members of the two houses of the central legislature was held in Simla which decided to call a convention for the framing of the constitution. (1919 act created the bicameral legislature at the central level)
2. Under the presidentship of Sir Tej Bahadur Sapru, in April 1924, a “National Convention” was held and they drafted a “Commonwealth of India Bill”.
3. With slight amendments of a committee by all party conference held in January 1925, the bill was sent to an influential labour party member and was presented in the House of Commons. (The fate of the Bill was sealed due to the defeat of the Labour Party at that time)
4. In November 1927, the Simon Commission formed faced backlash due to there were no Indians in the review commission.
5. The Motilal Nehru Report in 1928 was an important milestone in the Indian freedom struggle and helped to shape the future of the country. It set the stage for the drafting of the Indian Constitution and the establishment of a democratic and secular republic. It calls for dominion status for India, a federal government with limited powers, provincial governments with wide-ranging powers, fundamental rights, an independent judiciary, abolition of untouchability and the establishment of a secular state.
6. A formal call for a constituent assembly was put forward by a Congress working committee in 1934. And also it reiterates a constituent assembly elected based on adult suffrage.
7. After the failure of the Cripps mission no updates till world war 2 ended in 1945.
8. As per the Cabinet Mission in 1945, a representative body consisting of members elected from the provincial assemblies and nominated by the princely states is formed as the constituent assembly.
9. The constituent assembly started working on December 9 1946 and the assembly became complete after the partition in 1947. The assembly was believed to be sovereign and representative.
10. The Objective Resolution was moved by Nehru on 13 December 1946 and finally adopted on 22 January 1947, which acts as the philosophy and guiding principle for the creation of the Constitution.

The basic idea was to retain the fundamentals of our polity but also evolve with time. The constitution is not a complete break free from the colonial past, but a progressive one. For instance, institutions and conventions took along, because those were born on Indian soil and had the foundation, so they decided to grow from there, instead of a new one.

The Preamble

The preamble is the fundamental values and philosophy of a constitution.

It begins with the phrase “We, the people of India” and emphasizes the principles of justice, liberty, equality, and fraternity. The core idea is to give the people a “sovereign democratic republic”. It underscores the importance of democracy, secularism, and socialism, and affirms the sovereignty, unity, and integrity of the nation. Some words are still vaguely defined, those words need a definite description to work as expected to build a just society.

Sovereignty

American sociologist Charles Cooley defines a sovereign state as “where there resides within itself a supreme and absolute power acknowledging no superior”. In political science terms, sovereignty means absolute and supreme power is not controlled by any internal or external forces. Unlike the USA and Australia, In India, there is a separation of powers, but no division in sovereignty. All the organs and functionaries of the Union and the States draw their power only from the people of India. The power ultimately rests with the people, who can elect their representatives and hold them accountable for their actions. In the Keshavananda Bharti Case, Justice Mathew said India was “sovereign” because it could make or unmake any decision concerning itself without any interference from the outside.

Socialism

It signifies the commitment of the Indian state to build a socialist society through the establishment of an egalitarian social, economic and political order. It implies the creation of a society where there is no exploitation, and the nation’s wealth is distributed equally among all its citizens. However, it is important to note that India follows a mixed economy, which means that while there are private enterprises, the state also plays an active role in the economic development of the country. Added to the preamble via the 44th Amendment.

Secularism

Added to the preamble via the 42nd Amendment in 1976.

Donald Eugene Smith defines secularism as: “The secular state is a state which gives individual and corporate freedom of religion, is not constitutionally connected to a particular religion, nor does it seek either to promote or interfere with religion”.

Justice M. H Beg said in Ziyauddin Burhammudin Bukhari Vs. Brijmohan Ramdass Mehra and Bros.(1975): “The secular state, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices”

In the Kesavananda Bharti case and Minerva Mills case, secularism was held to be a part of the basic structure.

In S.R. Bommai Vs. Union of India(1994) SC justified the imposition of President’s rule in the BJP-ruled states in the aftermath of the Babri Masjid demolition, on the ground of threat to ‘secularism’.

In the Ayodhya case(1995), SC said: “It is clear from the constitutional scheme that it guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the state itself. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our constitution.”

Unlike the West, in India, secularism was never born out of the conflict between the church and the state. It was perhaps rooted in India’s history and culture, a very likely response to her pluralism or the desire of the founding fathers to be just and fair to all communities irrespective of their numbers. India’s secularism is based on the principle of “Sarva Dharma Sambhav” which means equal respect and tolerance towards all religions. In contrast, in the West, secularism is primarily about keeping religion separate from the state and ensuring that the government does not favour any particular religion.

In the Shah Bano case of 1985, SC upheld the idea of secularism, but due to political pressure, the government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which nullified the SC judgement.

The basic idea is to have a polity that doesn’t discriminate based on religion, caste, etc and strives to have a social order free from communal conflicts, but based on social, economic and political justice.

Democracy

Democracy is a form of government in which power is held by the people, either directly or through elected representatives. It is based on the principles of popular sovereignty, political equality, and majority rule, while also protecting the rights of minority groups and promoting the rule of law. In a democratic system, citizens have the right to participate in the decision-making process of the government and hold their leaders accountable through regular elections and other forms of democratic participation. Men and women of 18 years and above have the right to vote as per Article 326 and the executive is responsible to the popular house of the legislature as per Articles 75(3) and 164(2).

Republican character

American sociologist Charles Cooley defines a republican form of government as “a government by representatives chosen by the people”. Justice Hidayatullah says: “A Republic is a state in which the supreme power rests in the final analysis with the people and not with a single individual like a king or the like. India is still a part of the commonwealth but as “a sovereign state”. The aim is to attain social and economic democracy via political democracy.

Justice

Justice refers to the concept of fairness, equality, and righteousness in society. The Constitution strives for social, economical and political justice. Social justice implies that all citizens are treated equally irrespective of their status in society. Article 15 prohibits discrimination in the matter of access to public places. Article 38 says “State to secure a social order for the promotion of the welfare of the people.” Economic justice would require that the rich and the poor are treated alike and that efforts are made to bridge the gap between them. Political justice means equal share for all citizens in the right to participate in the political process without any discrimination.

Liberty

In Western traditions, liberty is a negative concept. It refers to an economic and political doctrine that advocates for minimal government intervention in economic affairs and a free market system based on supply and demand. But in the Indian context, liberty means the right to “liberty of thought, expression, belief, faith and worship”. The Constitution recognizes the importance of liberty as a fundamental right and ensures its protection through various provisions and safeguards.

Equality

The term “equality” in the Preamble of the Constitution of India refers to the principle of social, economic, and political equality for all citizens without any discrimination. It implies that all individuals should be treated equally before the law and have equal access to opportunities and resources, regardless of their religion, race, caste, gender, or place of birth. The Constitution of India provides various provisions and safeguards to promote and ensure equality, such as affirmative action for disadvantaged groups, abolition of untouchability, and prohibition of discrimination on various grounds.

Fraternity

In the Preamble of the Indian Constitution, fraternity means a sense of brotherhood and common humanity transcending all kinds of divisions among people, including those based on religion, race, language, and region. It emphasizes the importance of unity and integration among the diverse people of the country. The idea of fraternity is closely linked with the principles of democracy, socialism, and secularism, which form the basis of the Indian Constitution. The Constitution seeks to promote fraternity by ensuring that every citizen enjoys equal rights and opportunities, and by protecting the rights of minorities and weaker sections of society. The concept of fraternity is an essential part of India’s democratic and secular identity and helps to promote social harmony and national unity.

The Dignity of the Individual

The ultimate goal is to preserve and promote the dignity of the Individual. Improve the quality of life for the individual through fundamental rights and issuing DPSP for social development.

Unity and Integrity of the Nation

Unity and integrity of the nation are needed to protect an individual’s dignity. Only through universal brotherhood, the nation can be kept under unity. So it is equally important to have unity and integrity of the nation on one side and fraternity on the other.

Union and its territories

Indian Union is an indestructible union of destructible states. The first schedule of the constitution contains details about the name, territory of states and union territories. The name “Bharat” represents the rich diversity of Indian culture and traditions and is a symbol of the country’s unity in diversity.

Article 1: name and territory of states and union territories

Article 2: parliament can admit or create new states. for instance, Sikkim was an independent kingdom until 1975 and merged with the union of India through the 35th Constitution amendment.

Article 3: states can be altered by the parliament. even though states have a say in it, it is not binding on the president and parliament.

Article 4: alteration of states can be done via simple majority through ordinary legislation. The Berubari Union case was a landmark that dealt with the issue of the cession of territory. The case arose in the context of a boundary dispute between India and Pakistan over the Berubari Union, a small strip of land in present-day West Bengal. The Supreme Court of India held that the cession of territory required the amendment of the Indian Constitution and that the Parliament had no power to cede Indian territory to a foreign state without amending the Constitution. And it was done through the 9th constitution amendment. The case had significant implications for India’s federal structure and the balance of power between the Centre and the States.

Citizenship

Citizenship is a two-way relationship between a state and an individual. The individual has obligations like paying taxes, following laws and showing allegiance to the state. In return, the state offers rights, privileges and protection to the individual. There existed no concept of Indian citizenship before 26 November 1949. This relationship is regulated by national law and recognized by International law. The Indian citizenship act of 1955 laid down the law for the acquisition and termination of citizenship.

Article 5: Citizenship through domicile. A permanent residence and the intention to reside there indefinitely are two important ingredients constituting a ‘domicile’. Citizenship is denoted by domicile and not vice-versa.

Article 6: Citizenship for Migrants from Pakistan

Article 7: Citizenship for migrants who went to Pakistan and came back

Article 8: Citizenship for NRI

Article 9: A person has voluntarily acquired the citizenship of a foreign state he shall forfeit the right of Indian citizenship.

Article 10: Right of the citizenship cannot be taken away unless there is parliament legislation for that. The Citizenship Act made it clear that corporations were not citizens.

Article 11: Parliament’s power to regulate the right of citizenship through law

The core idea behind Citizenship was to create an integrated Indian nation and a united fraternity.

The Citizenship Amendment Act (CAA) 2020 is an amendment to the Citizenship Act of 1955. It provides a path to Indian citizenship for illegal immigrants from three neighbouring countries - Afghanistan, Bangladesh, and Pakistan - who belong to six specific religious minorities: Hindus, Sikhs, Jains, Buddhists, Parsis, and Christians. The act has been controversial, with critics arguing that it is discriminatory as it excludes Muslims and violates the secular principles of the Indian Constitution. Protests have erupted across India against the act, leading to police action and violence in some instances. The Indian government has defended the act, stating that it is intended to protect persecuted minorities and not harm any Indian citizens. The act has been challenged in court and the legal proceedings are ongoing.

Fundamental rights

Justice Gajendragadkar described FR as the “very foundation and cornerstone of the democratic way of life ushered in this country by the constitution”

Fundamental Rights were constituted with the aim of the nation’s unity and the public’s interests. It also incorporates and implements the basic principles enunciated in the Universal Declaration of Human Rights.

According to Justice Bhagawati: “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.”

FR is not absolute but has reasonable restrictions. As Patanjali Sastry, CJI said in the State of West Bengal vs Subodh Gopal Bose of 1954, “The whole object of Part 3 of the constitution is to protect the freedoms and rights mentioned therein against arbitrary invasion by the State.”

Article 12: definition of a state. the definition is exhaustive and is subjected to the decision of the court under each case.

Article 13(2): The state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall to the extent of contravention be void.

Equality before the law or Equal protection of the laws

Article 14 enunciates the fundamental right of every person not to be denied “equality before the law” and “equal protection of the laws” within the territory of India. While the two concepts are similar, equality before the law emphasizes the importance of equal access to the legal system, while equal protection of laws emphasizes the importance of equal treatment under the law. Not only applicable to citizens but also to all persons. This article embodies the UDHR principle of “All are equal before the law and are entitled without discrimination to equal protection of the law”. Basically, the rule of law and equal justice.

It is observed by CJI Patanjali Sastri, that the second expression is a corollary of the first and it is difficult to imagine a situation in which the violation of the first will not be the violation of the second.

The core idea is that the law and its implementation should be non-discriminatory for all persons in similar circumstances.

SC said those who are not equal should not be treated equally. But only reasonable and rational classification is permissible.

In E. P. Royappa vs State of Tamil Nadu, Justice Chandrachud and Justice Krishna Iyer observed: “Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, canned and confined’ within traditional and doctrine limits”.

The arbitrary or reasonable classification is based on intelligible differentia and rational relationship between the differentia and the object sought. The scope of the application of this article is widened and determined by the court. Intelligible differentia is a legal term that refers to a characteristic or feature that distinguishes a class of persons or things from others.

Non-discrimination of religion, caste, sex, etc

Article 15 enjoins the state not to discriminate based on religion, caste, sex, place of birth or any of them. This right is exclusive to citizens only. 93rd constitutional amendment added clause (5) which empowers parliament to make special provisions for socially and educationally backward classes concerning admission to educational institutions. But the term “socially and educationally backward class” is not defined. SC held that “caste and poverty may be both relevant for determining the backwardness. But neither caste alone nor poverty alone could be the determining test.”

In State of UP vs Pradeep Tando of 1975 SC held that while reservations for candidates coming from rural areas are unconstitutional, for those coming from the Hill and Uttarakhand areas are valid.

In the Ashok Thakur vs Union of India, SC put its stamp of approval on 27% reservations for OBCs in educational institutions subject to the exclusion of creamy layer and a review of the quota every five years.

Equality of Opportunity in public employment

The basic principle in Article 16 is that of equality of opportunity and non-discrimination in public employment. Clauses (1) and (2) support this and clauses (3), (4), (4A), (4B) and (5) provide the exceptions. The clauses are treated differently in different cases. Article 16(4) empowers the state to make provisions for the reservation of appointments or posts in favour of any “socially and educationally backward classes” who are under-represented in the services. Also, SC has clarified that reservations under Article 16(4) are not a fundamental right, but a discretionary power of the State. This clause is considered an extension of the general rule to achieve the objective of equality, in some cases. But SC has also emphasized that the reservations should not be at the cost of efficiency in administration and should not violate the fundamental rights of other citizens(Article 335).

Mandal case: Officially known as Indra Sawhney vs Union of India, 1992, SC upheld the validity of 27% of reservation for OBC-NCL as per the Mandal commission report. SC also reiterates the total reservation quota should not exceed 50%, except in some extraordinary cases and the application of Article 335. Also, the reservation is for the initial employment alone but not for promotions.

Reservation to technical posts and super speciality courses in medical colleges are considered case-to-case and is not permissible to lower the qualification just for the sake of reservation. for instance, in Kartar Singh vs State of MP(1999) SC disallowed lowering of qualifications for admission to super speciality medical courses in favour of reserved category candidates.

Abolition of untouchability

Article 17 abolishes “untouchability” and forbids its practice in any form.

The Protection of Civil Rights Act, of 1976 is an important law in India that aims to protect the civil rights and liberties of citizens. It was enacted to abolish the practice of untouchability and to prevent discrimination based on caste, race, religion, or place of birth. The Act provides for penalties and imprisonment for those found guilty of practising untouchability and establishes special courts to try cases related to the offence. The Act has been instrumental in creating awareness and sensitizing people to the issue of discrimination and the need for equal rights for all citizens.

Abolition of titles

Article 18 provides for the abolition of titles. The article states that no citizen of India shall accept any title from a foreign state, and no person holding any office of profit or trust under the state shall accept any title from any authority without the consent of the President of India. The abolition of titles was an important step towards establishing equality and eliminating social distinctions based on caste, religion, and wealth.

Freedom of Speech and Expression

Article 19(1)(a) guarantees every Indian citizen the right to freedom of speech and expression. Although freedom of the press is not specified but is considered included in freedom of speech and expression. In Romesh Thapar vs State of Madras of 1950, Justice Pathanjali Sastri said: “Freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.”

Also in Indian Express Newspapers vs Union of India of 1985 SC said: “It is the primary duty of the courts to uphold the freedom of the press and invalidate all laws or administrative actions which interfere with its contrary to the constitutional mandate.”

In Maneka Gandhi vs Union of India of 1978 SC held that there are no geographical limitations to freedom of speech and expression.

The right to information is implicit in Article 19(1)(a). The Right to Information Act of 2005 specially confers all citizens the right to access information and makes it obligatory for all the public authorities to disclose information, but with certain restrictions.

Reasonable limits or restrictions can be imposed on the exercise of the right to freedom of speech and expression under Article 19(2) in the interests or on the grounds of:

1. Security of the state
2. Friendly relations with foreign countries
3. Public order
4. Decency or morality
5. Contempt of court
6. Defamation
7. Incitement to offence
8. Sovereignty and integrity of India

If a situation arises which is a threat to the security of the state and are serious and aggravated forms of public disorder, the restriction to the freedom of speech and expression can be imposed under Article 19(2).

With a view to avoiding embarrassment to India through persistent and malicious propaganda, restrictions can be imposed on the right to freedom of speech on the ground of friendly relations with foreign countries under Article 19(2).

Public order means something that affects the community at large and not a few individuals. Restrictions can be imposed on the grounds of public order under Article 19(2).

Decency or morality means conforming to standards of good behaviour and social propriety. Article 19(2) of the Constitution inserts decency or morality as grounds for restricting the freedom of speech and expression.

contempt of court is an offence of being disrespectful of a court of law and its officers. It can impose a reasonable restriction on freedom of speech under Article 19(2). In Barada Kant vs Registrar Orissa High Court of 1974, Justice Krishna Iyer laid down that: “The cornerstone of the contempt law is the accommodation of two constitutional values - the right to free speech and the right to independent justice. The ignition of contempt action should be substantial and mala fide interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel.”

In M. R. Parashar vs Farooq Abdullah of 1984, SC said: “Bona fide criticism of any system or institution is aimed at inducing the administration of that system or institution to look inwards and improve its public image. Courts do not like to assume the posture that they are above criticism and that their functioning needs no improvement.”

the law of defaming a man to hatred, ridicule or contempt is ground to restrict the freedom of speech. IPC 499 criminalise defamation.

SC held that incitement to murder or other violent crimes would generally endanger the security of the state. And is a valid ground for restriction on freedom of speech under Article 19(2).

any challenge to the sovereignty and integrity of the nation is a valid reason to impose restrictions on freedom of speech.

Freedom to Assemble

Article 19(1)(b) secures all citizens of India the right to assemble peacefully and without arms. Article 19(3) empowers the state to impose reasonable restrictions on the right in the interest of the sovereignty and integrity of India or public order.

Freedom of Association

Article 19(1)(c) guarantees all citizens the right to form associations and unions for pursuing lawful purposes. Under Article 19(4) reasonable restrictions can be imposed on this right in the interests of the sovereignty and integrity of India or public order or morality. The right to strike is not an implicit right of this and is subjected to appropriate industrial legislation.

Freedom of movement and Residence

Article 19(1)(d) guarantees all citizens the right to move freely throughout the territory of India. Article 19(1)(e) guarantees all citizens the right to reside and settle in any part of the territory of India. Under Article 19(5) reasonable restrictions can be imposed on these rights by law “in the interests of the general public or for the protection of the interests of any scheduled tribe”. To protect the interests of scheduled tribe and their own distinct culture, language and customs unrestricted entry to their areas are restricted.

Freedom of Profession and Trade

Under Article 19(1)(g) every citizen has the right to practice any profession or to carry on any occupation, trade or business. Also, the state can impose reasonable restrictions on this right “in the interest of the general public.” Under Article 19(6) state has also been empowered to prescribe professional or technical qualifications to carry out certain occupations, trades or businesses.

Protection in Respect of Conviction for Offences

Article 20 safeguards the right of persons accused of crimes. With the 42nd Amendment, article 20 cannot be suspended even during an emergency by an order under Article 359.

Under Article 20(1) the legislature is prohibited to make criminal laws having retrospective effect. So no person shall be convicted for any past criminal act before a law is created. But this immunity cannot be claimed against preventive detention or against demanding security from a person. Also, it applies only to criminal offences but would not cover trial nor is a person protected from civil liability. This provision safeguards individuals from ex post facto laws, which are laws that retroactively change the legal consequences or status of actions that were committed before the enactment of such laws. Ex post facto laws are considered unjust and arbitrary as they violate the principle of legal certainty and fairness.

Article 20(2) of the Indian Constitution is a fundamental right that protects individuals from being prosecuted and punished for the same offence more than once. This provision embodies the principle of double jeopardy, which means that no one can be put in danger twice for the exact cause. The purpose of this provision is to prevent harassment and oppression of an individual by repeated prosecutions for the same offence. This doesn’t immunize a person from proceeding which are not before a court of law. Also, this clause is limited to criminal proceedings, so the person can be prosecuted again in the civil court.

Article 20(3) of the Indian Constitution is a fundamental right that protects individuals from being compelled to be a witness against themselves. This provision embodies the principle of the right against self-incrimination, which means that no one can be forced to give evidence that may incriminate them or expose them to criminal liability. The purpose of this provision is to ensure fairness and justice in criminal proceedings and to prevent coercion and torture of accused persons.

Protection of Life and Personal Liberty

Article 21 guarantees that no person shall be deprived of his life or personal liberty “except according to procedure established by law.” The right is available to both citizens and aliens.

In Maneka Gandhi vs Union of India 1978, SC held that the right to live is not merely confined to physical existence but includes within its ambit the right to live with human dignity.

In the pavement dwellers’ case, SC held that the right to livelihood is included in Article 21.

Right to education

Article 21A added as a new article by the Constitution (86th Amendment) Act 2022 provides for free and compulsory education for all children between the age of 6 to 14 years.

Protection against arrest and detention

Article 22(1) of the Indian Constitution is a part of the fundamental rights that protect against arrest and detention in certain cases. It states that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice. This clause applies to both citizens and non-citizens who are arrested for any offence under any law. It ensures that the arrested person is aware of the charges against him or her and has access to legal aid.

Article 22(2) of the Indian Constitution is a part of the fundamental rights that protect against arrest and detention in certain cases. It states that every person who is arrested and detained in custody 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 the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. This clause applies to both citizens and non-citizens who are arrested for any offence under any law.

Clauses (3) to (7) of Article 22 cover cases of preventive detention under a law. Preventive detention is for preventing an illegal act and not for punishing a person for any illegal activity.

Right against exploitation

Article 23 protects against exploitation through traffic in human beings, begar and other forced labour. This is not to allow the state or anyone to compel a person to work against his will or to misuse the human person in any way. Exceptions are allowed in military services, social services, etc.

Article 24 prohibits the employment of children below the age of 14 in factories or mines or any other hazardous job.

Freedom of conscience and religion

Article 25 lays down that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. This right to religious freedom is however subject to public order, morality health and other fundamental rights. The right is allowed for the essential practice of the religion and is subjected to judicial interpretation.

Freedom to manage religious affairs

Article 26 allows all religious denominations to establish and maintain institutions for religious and charitable purposes, to manage their affairs in matters of religion, and to own and acquire and administer property. The administration is subjected to law and the right is however subject to public order, morality and health. but not subject to other fundamental rights.

Freedom not to pay taxes for religious promotion

Article 27 says that no person shall be compelled to pay any taxes for expenses on the promotion or maintenance of any particular religion. It reiterates the Indian form of secularism which gives equal respect for all religions.

Freedom not to attend religious instruction

Article 28 forbids any religious instructions being imparted in educational institutions wholly maintained by state funds. So every person has the freedom not to participate in religious instructions or worship.

Protection of interests of minorities

Article 29 guarantees to every section of the citizen residing anywhere in India and having a distinct language, script or culture the right to conserve the same. Since the word minority is used in the title and not defined anywhere in the article, this right is available to any section of citizens.

Right of minorities to establish and administer educational institutions

Article 30(1) of the Indian Constitution says that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. This clause grants minorities the autonomy and freedom to preserve and promote their culture and identity through education. The right is subject to the regulatory power of the state. The state can legislate in the interests of social welfare, industrial relations, academic standards, efficiency, discipline, health, sanitation, public order and morality.

Right to property

44th constitution amendment act, 1978 repealed articles 19(1)(f) and article 31 from fundamental rights. Article 300A was added to provide that no person shall be deprived of his property save by authority of law. Thus right to property ceased to be a fundamental right and remains a constitutional and legal right. Article 300A gives protection against executive action but not against legislative decisions.

Right to constitutional remedies

Article 32 guarantees the right to move the highest court in case any fundamental rights are violated. This right cannot be suspended unless provided in the Constitution. During an emergency, the right to move court is suspended under article 359, but not for articles 20 and 21. This right is considered part of the basic structure of the Constitution. Supreme court can issue writs and under Article 226 High courts can also issue writs.

Habeas corpus is a writ guaranteed under Article 32 of the Constitution of India. This writ allows any person to request a court to order the state to bring a person suspected to be illegally detained or imprisoned. The court can then assess the legality of the detention. Article 22 of the Indian constitution safeguards the rights of detenus. 

The purpose of the mandamus is to keep public authorities within their jurisdiction while performing public functions. Mandamus is not issued when the government has no legal obligation to do so. Mandamus can be issued for the violation of fundamental rights, for compelling inferior courts and other judicial bodies to exercise their jurisdiction, and quashing illegal orders.

A prohibition writ is a judicial writ issued by a superior court to an inferior court or tribunal to prevent it from exceeding its jurisdiction or usurping a jurisdiction it does not possess. The writ of prohibition is also known as the ‘stay order’ as it stops the lower court or tribunal from continuing the proceedings or passing any order that is contrary to law. 

Quo warranto is a judicial writ issued by a superior court to an inferior court or a public authority to inquire into the legality of a claim of a person to a public office. The literal meaning of quo warranto is ‘by what authority or warrant’. The writ of quo warranto can be issued against any person who holds a public office under the State or Central Government or any statutory or non-statutory body.

Certiorari is a judicial writ issued by a superior court to an inferior court or tribunal to quash or set aside a decision or order that is illegal, erroneous, or exceeds the jurisdiction of the lower court or tribunal. The literal meaning of certiorari is ’to be certified’. The purpose of the writ of certiorari is to ensure that the lower courts and tribunals act within their limits of authority and do not violate the principles of natural justice.

Article 33 empowers Parliament to modify the application of fundamental rights to the armed forces or forces charged with the maintenance of public order, intelligence personnel, etc in the interest of the discharge of duties and maintenance of discipline.

Under Article 34 Parliament may by law indemnify any person for anything done in contravention of fundamental rights for maintenance of order during the operation of martial law.

Article 35 lays down that the power to make laws to give effect to certain specified fundamental rights shall vest only in the Union parliament and not in state legislatures.

Directive principles

Inspired by the Irish constitution and principles of the welfare state the Directive Principles of State policy are included in Part IV of the constitution. It can be considered a non-legal right of the community. Article 37 declares that the Directive Principles are “fundamental in the governance of the country” and that “it shall be the duty of the state to apply these principles in making laws.” But DPSP is non-binding. It is added to achieve the ideal of a democratic welfare state and to bring about social and economic revolutions. It is to create a just social order with inequalities and inequities removed.

Even the fundamental rights may be amended by Parliament to implement the Directives and such legislation may be held valid if it is not violating any basic features of the Constitution.

Dr B. R. Ambedkar said: “It is the intention of the assembly that in future both the legislature and the executive should not merely pay lip service to these principles enacted in this part, but that they should be made the basis of all executive and legislative action that may be taken hereafter in the matter of the governance of the country.”

Justice K. S. Hedge said: “The purpose of the fundamental rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available to all. The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution the constitution seeks to fulfil the basic needs of the common man and to change the structure of our society. It aims at making the Indian masses free in the positive sense.”

Article 38 which is the core of the DPSP lays down 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 national life.

Article 39 directs the State to follow certain principles of policy to ensure social and economic justice. It covers the right to livelihood, the distribution of resources, the prevention of concentration of wealth, equal pay for equal work, the protection of workers and children, and the development of children.

Article 40 compels the State to take appropriate measures for establishing Village Panchayats and bestowing them with authority for functioning as units of self-government. The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.

Article 41 demands that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Articles 42 and 43 provide for endeavouring to secure workers of a living wage, humane conditions of work, maternity relief, a decent standard of life and full enjoyment of leisure and social and cultural opportunities.

Article 44 of the Indian Constitution defines a Uniform Civil Code (UCC). It says, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” A UCC means that all sections of the society irrespective of their religion shall be treated equally according to a national civil code, which shall apply to all uniformly. It covers areas like marriage, divorce, maintenance, inheritance, adoption and succession of the property. The debate for a UCC dates back to the colonial period in India. While criminal laws were codified and became common for the whole country, personal laws continued to be governed by separate codes for different communities. The proponents of UCC argue that it will promote national integration, gender justice, equality and dignity of women. The opponents of UCC contend that it will violate the fundamental right to freedom of religion and infringe upon the cultural diversity of India. In S. R. Bommai vs Union of India of 1994, SC upheld the legislative power of parliament to reform personal laws and urged the government to enact a uniform civil code to promote national integration.

The original Article 45 made a fundamental right and was inserted as Article 21A under the Constitution (Eighty-Sixth Amendment) Act, 2002. The amended Article 45 now states that “The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.”

Article 46 of the Indian Constitution is particularly aimed at the educational and economic interests of the weaker sections of society. These include Scheduled Castes, Scheduled Tribes, and Other Backward Classes. The article states that it is the responsibility of the State to prioritize and promote the upliftment of these sections of society in the context of education and economic interests. The article also mandates the State to protect them from social injustice and all forms of exploitation.

Article 47 provides that the State will regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State will endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and drugs which are injurious to health.

Article 48 provides that the State will endeavour to organise agriculture and animal husbandry on modern and scientific lines and will, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.

Article 48A provides that the State shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country. The article was inserted by the Constitution (Forty-second Amendment) Act, 1976. It reflects the growing awareness and concern for environmental issues in India and the world. It also reflects the Gandhian principle of harmonious co-existence with nature.

Article 49 of the Indian Constitution imposes a duty on the State to enact laws and take measures to safeguard the monuments and places and objects of national importance from any kind of damage or harm. It also implies a duty for the citizens to respect and cooperate with the State in achieving these objectives.

Article 50 of the Indian Constitution imposes a duty on the State to enact laws and take measures to separate the judiciary from the executive in the public services of the State. It reflects the democratic and liberal values of the Indian Constitution. In Keshavananda Bharati v. State of Kerala (1973) the Supreme Court held that Article 50 was a part of the basic structure of the Constitution and could not be amended or abrogated by Parliament.

Article 51 of the Indian Constitution imposes a duty on the State to enact laws and take measures to promote international peace and security. This includes respecting the sovereignty and territorial integrity of other countries, avoiding aggression and violence, supporting disarmament and non-proliferation, etc. The article also imposes a duty on the State to maintain just and honourable relations between nations. International treaties do not automatically become part of the national law, it has to be incorporated by legislation by the Union under Article 253. When it comes to conflicting terms, national law overrides international law.

The emphasis in the entire scheme of the constitution under the heading of the preamble, the Fundamental rights and the DPSP are on building an egalitarian society and on the concept of socio-economic justice. Fundamental rights and DPSP complement and supplement each other. If Fundamental rights represent the don’ts of the government, DPSP represents the dos. Fundamental rights are static and it tries to preserve the current settlements. But DPSP is dynamic and it tries to change this in order to achieve the objective of an egalitarian society. So some Fundamental rights have to undergo restriction in order to attain the objectives of DPSP.

Fundamental Duties

Added to the constitution via the 42nd Amendment in 1976 as Part 4A. It added 10 duties Article 51A (a) to (j). Via the 86th Amendment in 2002, an eleventh duty Article 51A (k) was added. The fundamental duties enshrined in Article 51A now are in consonance with Article 29(1) of the Universal Declaration of Human Rights which says: “Everyone has duties to the community in which alone the free and full development of his personality is possible.”

“A close scrutiny of the clauses of Article 51A indicates that a number of these clauses basically refer to such values as have been a part of the Indian tradition, mythology, religions and practices."(Verma Committee on Fundamental Duties, 1999)

Duty and Rights are inseparable and reconcilable. There can be no rights without duties. Discharge of duties strengthens their own rights.

Gandhiji said: “The source of right is duty. If we all discharge our duties, rights will not be far to seek. If leaving duties unperformed we run after rights, they will escape us like will o’ the wisp, the more we pursue them, the further they will fly.”

1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
2. To cherish and follow the noble ideals which inspired our national struggle for freedom.
3. To uphold and protect the sovereignty, unity and integrity of India.
4. To defend the country and render national service when called upon to do so.
5. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.
6. To value and preserve the rich heritage of our composite culture.
7. To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
8. To develop the scientific temper, humanism and the spirit of inquiry and reform.
9. To safeguard public property and to abjure violence.
10. To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement.
11. Every parent or guardian to provide opportunities for education to his child or ward between the age of 6 and 14 years.

Some laws are enacted in order to make the duties a legal obligation and courts can certainly take the fundamental duties of citizens into consideration while construing a law amenable to more than one interpretation. There are several cases in which fundamental duties are interpreted as important as any other law. The high court of Allahabad in Ram Prasad vs State of UP(1988) held that the addition of Part 4A in the constitution has brought the performance of citizenship duties within the sphere of constitutional law and the purview of courts. Fundamental duties must be discharged in order to attain the objective of a just society as enshrined in the preamble.