indian polity gist of ncert

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N.C.E.R.T. Polity

PART - III

GIST OF INDIANPOLITYFROM

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What is a constitution? What are its functions?What role does it perform society? How does aconstitution relate to our daily existence?

The first function of a constitution is toprovide a set of basic rules allow for minimalcoordination amongst members of a society.

Specification of decision making powersA constitution is a body of fundamental that

principles according to which a state is constitutedor governed. But what should these fundamentalrules be? And what makes-them fundamental?Well, the first question-you will have to decide iswho gets to decide what the laws governing thesociety should be? You may want rule X, but othersmay want rule Y. How do we decide whose rules orpreferences should govern us? You may think therules you want everyone to live by are the best;but others think that their rules are the best. Howdo we resolve this dispute? So even before youdecide what rules should govern this group youhave to decide: Who gets to decide?

The constitution ho provide an answer to thisquestion. It specifies the basic allocation of powerin a society. It decides who gets to decide what thelaws will be. In principle, this question, who getsto decide, can be answered in many ways: in amonarchical constitution, a monarch decides; insome constitutions like the old Soviet Union, onesingle party was given the power to decide. But indemocratic constitutions, broadly speaking, thepeople get to decide. But this matter is not sosimple. Because even if you answer that the peopleshould decide, it will not answer the question: howshould the people decide? For something to be law,should everyone agree to it? Should the peopledirectly vote on each matter as the ancient Greeksdid? Or should the people express their preferencesby electing representatives? But if the people actthrough their representatives be elected? Howmany should there be?

This the function of the constitution. Itis an authority that constitutesgovernment in the first place.

In the Indian Constitution for example, it isspecified that in most instances, Parliament getsto decide laws and policies, and that Parliamentitself be organised in a particular manner Beforeidentifying what the law in any given society is,you have to identify who has the authority to enactit. If Parliament has the authority to enact laws,there must be a law that bestows this authority onParliament in the first place.

Limitations on the powers of governmentBut this is clearly not enough. Suppose you

decided who had the authority to make decisions.But then this authority passed laws that youthought were patently unfair. It prohibited YOUfrom practising your a religion for instance. Or itenjoined that clothes of certain colour wereprohibited, or that you were not free to sing certainsongs or that people who belonged to a particulargroup (caste or religion) would always have to serve

others and would not be allowed to retain anyproperty. Or that government could arbitrarilyarrest someone, or that only people of a certainskin colour would be allowed to draw water fromwells. You would obviously think these laws wereunjust and unfair. And even though they werepassed by a government that had come intoexistence based on certain procedures there wouldbe something obviously unjust about thatgovernment enacting these laws. Constitutionslimit the power of government in many ways. Themost common way of limiting the power ofgovernment is to specify certain fundamentalrights that all of us possess as citizens and which

The second function of a constitutionis to specify who has the power tomake decisions in a society. It decideshow the government will beconstituted.

GIST OF N.C.E.R.T

WHY DO WE NEED ACONSTITUTION



no government can ever be allowed to violate. Theexact content an interpretation of these rightsvaries from constitution to constitution. But mostConstitutions will protect a basic cluster of rights.Citizens will be protected from being arrestedarbitrarily and for no reason. This is one basiclimitation upon the power of government. Citizenswill normally have the right to some basic liberties:to freedom of speech, freedom of conscience,freedom of association, freedom to conduct a tradeor business etc. En practice, these rights can belimited during times of national emergency andthe constitution specifies the circumstances underwhich these rights may be withdrawn.

So the third function of a constitution isto set some limits on what a governmentcan impose on its citizens. These limitsare fundamental in the sense thatgovernment may never trespass them.

Aspirations and goals of a societyMost of the older constitutions limited

themselves largely to allocating decision-makingpower and setting some limits to g2vernmefltpower. But many twentieth century constitutions,of which the Indian Constitution is the finestexample, also provide an enabling framework forthe government to do certain positive things, toexpress the aspirations and goals of society. TheIndian Constitution was particularly innovative inthis respect. Societies with deep entrenchedinequalities of various kinds, will not only have toset limits on the power of government, they willalso have to enable and empower the governmentto take positive measures to overcome forms ofinequality or deprivation.

For example, India aspires to be a society thatis free of caste discrimination. if this is oursocietys aspiration, the government will have tobe enabled or empowered to take all the necessarysteps to achieve this goal. In a country like SouthAfrica, which had a deep history of racialdiscrimination, its new constitution had to enable-the government to end racial discrimination. Morepositively, a constitution may enshrine theaspirations of a society. The framers of the IndianConstitution, for example, thought that eachindividual in society should have all that isnecessary for them to lead a life of minimal dignityand social self-respect minimum material wellbeing, education etc. The Indian Constitutionenables the government to take positive welfaremeasures some of which are legally enforceable.

As we go on studying the Indian Constitution, weshall find that such enabling provisions have thesupport of the Preamble to our Constitution, andthese provisions are found in the section onFundamental Rights. The Directive Principles ofState of Policy also enjoin government to fulfilcertain aspirations of the people.

Fundamental identity of a peopleFinally, and perhaps even most importantly, a

constitution expresses the fundamental identityof a people.

The fourth function of a constitution isto enable the government to fulfil theaspirations of a society and createconditions for a just society.

This means the people as a collective entitycome into being only through the basicconstitution. It is by agreeing to a basic set ofnorms about how one should be governed, and whoshould be governed that one forms a collectiveidentity. One has many sets of identities that existprior to a constitution. But by agreeing to certainbasic norms and principles one constitutes onesbasic political identity. Second, constitutionalnorms are the overarching framework withinwhich one pursues individual aspirations, goalsand freedoms. The constitution sets authoritativeconstraints upon what one may or may not do. Itdefines the fundamental values that we may nottrespass. So the constitution also gives one a moralidentity. Third and finally, it may be the case thatmany basic political and moral values are nowshared across different constitutional traditions.

If one looks at constitutions around the world,they differ in many respects in the form ofgovernment they enjoin in many proceduraldetails. But they also share a good deal. Mostmodern constitutions create a form of governmentthat is democratic in some respects, most claimto protect certain basic rights. But constitutionsare different in the way they embody conceptionsof natural identity. Most nations are anamalgamation of a complex set of historicaltraditions; they weave together the diverse groupsthat reside within the nation in different ways.For example, German identity was constituted bybeing ethnically German. The constitution gaveexpression to this identity. The IndianConstitution, on the other hand, does not makeethnic identity a criterion for citizenship. Differentnations embody different conceptions of what therelationship between the different regions of a



nation and the central government should be. Thisrelationship constitutes the national identity of acountry.

The Authority of a ConstitutionWe have outlined some of the functions a

constitution performs. These functions explain whymost societies have a constitution. But there arethree further questions we can ask aboutconstitutions:

a) What is a constitution?

b) Row effective is a constitution?

c) Is a constitution just?

In most countries, Constitution is a compactdocument that comprises a number of articlesabout the state, specifying how the state is to beconstituted and what norms it should follow. Whenwe ask for the constitution of a country we areusually referring to this document. But somecountries, the United Kingdom for instance, do nothave one single document that can be called theConstitution. Rather they have a series ofdocuments and decisions that, taken collectively,are referred to a the constitution. So, we can saythat constitution is the document or set ofdocuments that seeks to perform the functions thatwe mentioned above.

But many constitutions around the world existonly on paper; they are mere words existing on aparchment. The crucial question is: how effectiveis a constitution? What makes it effective? Whatensures that it has a real impact on the lives ofpeople? Making a constitution effective dependsupon many factors.

Mode of promulgationThis refers to how a constitution comes into

being. Who crafted the constitution and how muchauthority did they have? In many countriesConstitutions remain defunct because they arecrafted by military leaders or leaders who are notpopular and do not have the ability to carry thepeople with them. The most successfulconstitutions, like India, South Africa and theUnited States, are constitutions which werecreated in the aftermath of popular nationalmovements. Although Indias Constitution wasformally created by a Constituent Assemblybetween December 1946 and November 1949, itdrew upon a long history of the nationalistmovement that had a remarkable ability to takealong different sections of Indian society together.The Constitution drew enormous legitimacy from

the fact that it was drawn up by people who enjoyedimmense public credibility, who had the capacityto negotiate and command the respect of a widecross- section of society, and who were able toconvince the people that the constitution was notan instrument for the aggrandisement of theirpersonal power. The final document reflected thebroad national consensus at the time. Somecountries have subjected their constitution to afull- fledged referendum, where all the people voteon the desirability of a constitution. The IndianConstitution was never subject to such areferendum, but nevertheless carried enormouspublic authority, because it had the consensus andbacking of leaders who were themselves popular.Although the Constitution itself was not subjectedto a referendum, the people adopted it as their ownby abiding by its provisions. Therefore, theauthority of people who enact the constitution helpsdetermine in part its prospects for success.

The substantive provisions of a constitutionIt is the hallmark of a successful Constitution

that it gives everyone in society some reason to goalong with its provisions. A Constitution that, forinstance, allowed permanent majorities to oppressminority groups with society would give minoritiesno reason to go along with the provision of theConstitution. Or a constitution that systematicallyprivileged some members at the expense of others,or that systematically entrenched the power ofsmall groups in society, would cease to commandallegiance. If any group feels their identity is beingstifled, they will have no reason to abide by theconstitution. No constitution by itself achievesperfect justice. But it has to convince -people thatit provides the framework for pursuing basicjustice.

Do this thought experiment. Ask yourself thisquestion: What would be the content of some basicrules in society, such that they gave everyone areason to go along with them?

The more a constitution preserves the freedomand equality of all its members, the more likely itis to succeed. Does the Indian Constitution, broadlyspeaking, give everyone a reason to go along withits broad outlines?

Balanced institutional designConstitutions are often subverted, not by the

people, but by small groups, who wish to enhancetheir own power. Well crafted constitutionsfragment power in society intelligently so that nosingle group can subvert the constitution. One way



of such intelligent designing of a constitution is toensure that no single institution acquiresmonopoly of power. This is often done byfragmenting power across different institutions.The Indian Constitution, for example, horizontallyfragments power across different institutions likethe Legislature, Executive and the Judiciary andeven independent statutory bodies like the ElectionCommission. This ensures that even if oneinstitution wants to subvert the Constitution,others can check its transgressions. An intelligentsystem of checks and balances has facilitated thesuccess of the Indian Constitution.

Another important aspect of intelligentinstitutional design is: that a constitution muststrike the right balance between certain values,norms and procedures as authoritative, and at thesame time allow enough flexibility in its operationsto adapt to changing needs and circumstances. Toorigid a constitution is Likely to break under theweight of change; a constitution that is, on theother hand, too flexible, will give no security,predictability or identity to a people. Successfulconstitutions strike the right balance betweenpreserving core values and adapting them to newcircumstances. You will notice the wisdom ofmakers of the Indian Constitution in the chapteron the Constitution as a living document (Chapter9}. The Indian Constitution is described as a livingdocument. By striking a balance between thepossibility to change the provisions and the limitson such changes, the Constitution has ensuredthat it will survive as a document respected bypeople. This arrangement also ensures that nosection or group can, on its own, subvert theConstitutioit

MAKING OF THE INDIAN CONSTITUTION:As far back as in 1928. Motilal Nehru and eight

other Congress leaders drafted a constitution forIndia. In 1931, the resolution at the Karachisession of the Indian National Congress dwelt onhow independent Indias constitution should look,like. Both these documents were committed to theinclusion of universal adult franchise, right tofreedom and equality and to protecting the rightsof minorities in the constitution of independentIndia. Thus some basic values were accepted byall leaders much before the Constituent Assemblymet to deliberate on the Constitution.

The familiarity with political institutions ofcolonial rule also helped develop an agreement overthe institutional design. The Indian constitution

adopted many institutional details and proceduresfrom colonial laws like the Government of IndiaAct 1935.

Years of thinking and deliberation on theframework of the constitution had another benefit.Our leaders gained confidence to learn from othercountries, but on our own terms. Many of ourleaders were inspired by the ideals of FrenchRevolution, the practice of parliamentarydemocracy in Britain and the Bill of right in theUS. The socialist revolution in Russia had inspiredmany Indians to think o shaping a system basedon social and economic equality. Yet they were notsimply imitating what others had done. At eachstep they were questioning whether these thingssuited our country. All these factors contributed tothe making of our Constitution.

The drafting of the document called theconstitution was done by an assembly of electedrepresentatives called the Constituent Assembly.Elections to the Constituent Assembly were heldin July 1946. It held its first sitting on 9 December1946 and re-assembled as Constituent Assemblyfor divided Indian on 14 August 1947. Its memberswere elected by indirect election by the membersof the Provisional Legislative Assemblies that hadbeen established in 1935. The ConstituentAssembly was composed roughly along the linessuggested by the plan proposed by the committeeof the British cabinet, known as the CabinetMission. According to this plan: Each Province and each Princely State or group

of States were allotted seats proportional oftheir respective population roughly in the ratioof 1:1.000000. As a result the Provinces (thatwere under direct British rule) were to elect292 members while the Princely States wereallotted a minimum of 93seats.

The seats in each Province were distributedamong the three main communities, Muslims,Sikhs and general, in proportion to theirrespective populations.

Members of each community in the ProvisionalLegislative Assembly elected their ownrepresentatives by the method of proportionalrepresentation with single transferable vote

The method of selection in the case ofrepresentatives of Princely States was to bedetermined by consultation.

Composition of the Constituent AssemblyAs a consequence of the Partition under the

plan of 3 June 1947 those members who were



elected from territories which fell under Pakistanceased to be members of the Constituent Assembly.The numbers in the Assembly were reduced to 299of which 284 were actually present on 26 November1949 and appended their signature to theConstitution as finally passed. The Constitutionwas thus framed against the backdrop of thehorrendous violence that the Partition unleashedon the sub-continent. But it is a tribute to thefortitude of the framers that they were not onlyable to draft a constitution under immensepressure, but also learnt the right lessons fromthe unimaginable violence that accompaniedPartition. The Constitution was committed to anew conception of citizenship, where not only wouldminorities be secure, but religious identity wouldhave no bearing on citizenship rights.

But this account of the composition of theConstituent Assembly that drafted the Constitutiontouches upon only the surface of how ourConstitution was made. Although, the members ofthe Assembly were not elected by universalsuffrage, there was a serious attempt to make theAssembly a representative body. Members of allreligions re given representation under thescheme described above; in addition, the Assemblyhad twentysix members from what then known asthe Scheduled Classes. In terms of the Congressdominated the Assembly occupying as many aseighty-two per cent of the seats in the assemblyafter the Partition. The Congress itself was such adiverse party that it managed to accommodatealmost all shades of opinion within it.

The Principle of DeliberationThe authority of the Constituent Assembly does

not come only from the fact that it was broadly,though not perfectly, representative. It comes fromthe procedures it adopted to frame the Constitutionand the values its members brought to theirdeliberations. While in any assembly that claimsto be representative, it is desirable that diversesections of society participate, it is equallyimportant that they participate not only asrepresentatives of their own identity or community.Each member deliberated upon the Constitutionwith the interests of the whole nation in mind.There were often disagreements amongstmembers, but few of these disagreements couldbe traced to members protecting their owninterests.

There ere legitimate differences of principle.And the differences were many: should India adopt

a centralised or decentralised system ofgovernment? What should be the relations betweenthe States and the centre? What should be thepowers of the judiciary? Should the Constitutionprotect property rights? Almost every issue thatlies at the foundation of a modem state wasdiscussed with great sophistication. Only oneprovision of the Constitution was passed withoutvirtually any debate: the introduction of universalsuffrage (meaning that all citizens reaching acertain age, would be entitled to be votersirrespective of religion, caste, education, genderor income). So, while the members felt no need atall to discuss the issue of who should have the rightto vote, every other matter was seriously discussedand debated. Nothing can be a better testament tothe democratic commitment of this Assembly.

1. Jhaverbhai Vallabhai Patel (1875-1950)born: Gujarat. Minister of Home, Informationand Broadcasting in the InterimGovernment. Lawyer and leader of Bardolipeasant satyagraha. Played a decisive rolein the integration of the Indian princelystates. Later: Deputy Prime Minister.

2. Abul Kalam Azad (1888-1958) born: SaudiArabia. Educationist, author and theologian;scholar of Arabic. Congress leader, active inthe national movement. Opposed Muslimseparatist politics. Later Education Ministerin the first union cabinet.

3. T.T. Krishnamachari (1899-19741 born:Tamil Nadu. Member Drafting Committee.Entrepreneur and Congress leader. Later:Finance Minister in the Union Cabinet.

4. Rajendra Prasad (1884-1963) born: BiharChairman of the Constituent Assembly.Lawyer, known for his role in theChamparan satyagraha. Three times thepresident of Congress. Later: the firstPresident of India.

5. JaIpal Singh (1903-1970) born: Jharkhanda sportsman and educationist. Captain of thefirst national Hockey team. FounderPresident of Adivasi Maha Sabha. Later:founder of Jharkhand Party.

6. H. C. Mookherjee (1887-1956) born: Bengal.Vice Chairman of the ConstituentAssembly. Reputed author and educationist.Congress leader. Member of All IndiaChristian Council and Bengal LegislativeAssembly. Later: Governor of West Bengal.



The voluminous debates in the ConstituentAssembly , where-each - clause of the Constitutionwas subjected toscrutiny and debate, is a tributeto. public reason at its best. These debates deservedto be memorialised -as one of the most significant

chapters in the history- of constitution making,.equal in importance to the French and Americanrevolutions.

ProceduresThe Constituent Assembly had eight major

Committees on different subjects. Usually,Jawaharlal Nehru, Rajendra Prasad, Sardar Patel,Maulana Azad or Ambedkar chaired theseCommittees. These were not men who agreed witheach other on many things. Ambedkar had been abitter critic of the Congress and Gandhi, accusing,them of not doing enough for the upliftment ofScheduled Castes. Patel and Nehru disagreed onmany issues. Nevertheless, they all workedtogether. Each Committee usually draftedparticular provisions of the Constitution whichwere then subjected to debate by the entireAssembly. Usually an attempt was made to reacha consensus with the belief that provisions agreedto by 411, would not be detrimental to any particularinterests. Some provisions were subject to the vote.The Assembly met for one hundred and sixty sixdays, spread over two years and eleven months.

Inheritance of the nationalist movementBut no constitution is simply a product of the

Assembly that produces it. An Assembly as diverseas the Constituent Assembly of India could nothave functioned if there was no backgroundconsensus on the main principles the Constitutionshould enshrine. These principles were forgedduring the long struggle for freedom. In a way, theConstituent Assembly was giving concrete shapeand form to the principles it had inherited fromthe nationalist movement. For decades precedingthe promulgation of the Constitution, thenationalist movement had debated manyquestions that were relevant to the making of theconstitution the shape and form of governmentIndia should have, the values it should uphold, theinequalities it should overcome. Answers forgedin those debates were given their final form in theConstitution.

Perhaps the best summary of the principlesthat the nationalist movement brought to theConstituent Assembly is the Objectives Resolution(the resolution that defined the aims of theAssembly) moved by Nehru in 1946. This resolutionencapsulated the aspirations and values behindthe constitution. Based on this resolution ourConstitution gave institutional expression to thefundamental commitments: equality, liberty,democracy, sovereignty and a cosmopolitan

7. G. Durgabal Desmukh (1909-1981) born:Andhra Pradesh. Advocate and publicactivist for womens emancipation. Founderof Aridhra Mahila Sabha. Congress leader.Later: Founder Chairperson of CentralSocial Welfare Board.

8. Baldev Singh (1901-1961) born: HaryanaA successful entrepreneur and leader of thePanthic Akali Party in the Punjab Assembly.A nominee of the Congress in theConstituent Assembly. Later: DefenceMinister in the Union Cabinet.

9. Kanhaiyalal Maniklal Munshi (1887-1971) born: Gujarat. Advocate, historianand linguist. Congress leader andGandhian. Later: Minister in the UnionCabinet. Founder of the Swatantra Party.

10.Bhimrao Ramji Ambedkar (1891-1956)born: Maharashtra. Chairman of theDrafting Committee. Social revolutionarythinker and agitator against caste divisionsand caste based inequalities. Later: Lawminister in the first, cabinet of post-independence India. Founder of RepublicanParty of India

11.Shyama Prasad Mukherjee (1901-1953)born: West Bengal. Minister for Industryand Supply in the Interim Government.Educationist and lawyer. Active in HinduMahasabha. Later: Founder President of

12.Jawaharlal Nehru (1889-1964) born: UttarPradesh. Prime Minister of the interimgovernment. Lawyer and Congress leader.Advocate of socialism, democracy and anti-imperialism. Later: First Prime Minister ofIndia.

13.Sarojini Naidu (1879.1949) born: AndhraPradesh. Poet, writer and political activist.Among the foremost women leaders in theCongress. Later: Governor of Uttar Pradesh.

14.Somnath Lahiri (1901-1984) born: WestBengal. Writer and editor. Leader of theCommunist Party of India. Later: Memberof West Bengal Legislative Assembly.



identity. Thus, our Constitution is not merely a maze of rules and procedures, but a moral commitmentto establish a government that will fulfil the many promises that the nationalist movement held beforethe people.

Institutional arrangementsThe third factor ensuring effectiveness of a constitution is a balanced arrangement of the institutions

of government. The basic principle is that government must be democratic and committed to the welfareof the people. The Constituent Assembly spent a lot of time on evolving the right balance among thevarious institutions like the executive, the legislature and the judiciary. This led to the adoption of theparliamentary form aid the federal arrangement, which would distribute governmental powers betweenthe legislature and the executive on the one hand and between the States and the central governmenton the other hand.

Provisions borrowed from constitutions of different countries

British United States Irish French CanadianConstitution Constitution Constitution Constitution Constitution

First Past the Post Charter of Funda- Directive Principles Principles of A quasi-federalParliamentary Form mental Rights, Power of State Policy Liberty, Equality form of govern-of Government The of Judicial Review and Fraternity ment (a federalidea of the rule of and independence system with-alaw Institution of of the judiciary strong centralthe speaker and government Thehis role Lawmaking idea of Residual procedure Powers



Some people believe that a constitution merelyconsists of laws and that laws are one thing, valuesand morality, quite another. Therefore, we canhave only a legalistic, not a political philosophyapproach to the Constitution. It is true that all lawsdo not have a moral content, but many laws areclosely connected to our deeply held values. Forexample, a law might prohibit discrimination ofpersons on grounds of language or religion. Such alaw is connected to the idea of equality. Such alaw exists because we value equality. Therefore,there is a connection between laws and moralvalues. One should look upon the constitution asa document that is based on a certain moral vision,and adopt a political philosophy approach to theconstitution. What do we mean by a politicalphilosophy approach to the constitution? We havethree things in mind.

First, we need to understand the conceptualstructure of the constitution. What does thismean? It means that we must ask questionslike what are the possible meanings of termsused in the constitution such as rights,citizenship, minority or democracy?

Furthermore, we must attempt to work out acoherent vision of society and polity conditionalupon an interpretation of the key concepts ofthe constitution. We must have a better graspof the set of ideals embedded in theconstitution.

Our final point is that the Indian Constitutionmust be read in conjunction with theConstituent Assembly Debates in order torefine and raise to a higher theoretical plane,the justification of values embedded in theConstitution. A philosophical treatment of avalue is incomplete if a detailed justificationfor it is not provided. When the framers of theConstitution chose to guide Indian society andpolity by a set of values, there must have beena corresponding set of reasons. Many of them,though, may not have been fully explained.

A political philosophy approach to theconstitution is needed not only to find out the moralcontent expressed in it and to evaluate its claimsbut possibly to use it to arbitrate between varyinginterpretations of the many core values in ourpolity. It is obvious that many of its ideals arechallenged, discussed, debated and contested indifferent political arenas, in the legislatures. inparty forums, in the press, in schools anduniversities. These ideals are variouslyinterpreted and sometimes wilfully manipulatedto suit partisan short term interests. We must,therefore, examine whether or not a seriousdisjunction exists between the constitutional idealand its expression in other arenas.

Sometimes, the same ideal is interpreteddifferently by different institutions. We need tocompare these differing interpretations. Since theexpression of the ideal in the constitution hasconsiderable authority it must be used to arbitratein conflict of interpretation over values or ideals.Our Constitution can perform this job of arbitration.Constitution as Means of DemocraticTransformation

It is widely agreed that one reason for havingconstitutions is the need to restrict the exerciseof power. Modern states are excessively powerful.They are believed to have a monopoly over forceand coercion. What if institutions of such statesfall into wrong hands who abuse this power? Evenif these institutions were created for our safetyand well-being, they can easily turn against us.Experience of state power the world over shows thatmost states are prone to harming the interests ofat least some individuals and groups. If so, we needto draw the rules of the game in such a way thatthis tendency of states is continuously checked.Constitutions provide these basic rules andtherefore, prevent states from turning tyrannical.

Constitutions also provide peaceful, democraticmeans to bring about social transformation.Moreover, for a hitherto colonised people,constitutions announce and embody the first realexercise of political self-determination.

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PHILOSOPHY OF THECONSTITUTION



Nehru understood both these points well. Thedemand for a Constituent Assembly, he claimed,represented a collective demand for full self-determination because; only a ConstituentAssembly of elected representatives of the Indianpeople had the right to frame Indias constitutionwithout external interference. Second, he argued,the Constituent Assembly is not just a body of peopleor a gathering of able lawyers. Rather, it is anation on the move, throwing away the shell of itspast political and possibly social structure, andfashioning for itself a new garment of its ownmaking. The Indian Constitution was designed tobreak the shackles of traditional social hierarchiesand to usher in a new era of freedom, equality andjustice.

This approach had the potential of changingthe theory of constitutional democracy altogether:according to this approach, constitutions exist notonly to limit people in power but to empower thosewho traditionally have been deprived of it.Constitutions can give vulnerable people the powerto achieve Collective good.

Why do we need to go back to the ConstituentAssembly?

Why look backwards and bind ourselves to thepast? That may be the job of a legal historian togo into the past and search for the basis of legaland political ideas. But why should students ofpolitics be interested in studying the intentionsand Concerns of those who framed theConstitution? Why not take account of changedcircumstances and define anew the normativefunction of the Constitution?

In the context of America where theConstitution was written in the late 18th centuryit is absurd to apply the values and standards ofthat era to the 21st century. However, in India,the world of the original framers and our presentday world may not have changed so drastically. Interms of our values, ideals and conception, we havenot separated ourselves from the world of theConstituent Assembly. A history of our Constitutionis still very much a history of the present.

Furthermore, we may have forgotten the realpoint underlying several of our legal and politicalpractices, simply because somewhere down theroad we began to take them for granted. Thesereasons have now slipped into the background,screened off from our consciousness even thoughthey still provide the organizational principle tocurrent practices. When the going is good, this

forgetting is harmless. But when these practicesare challenged or threatened, neglect of theunderlying principles can be harmful. In short, toget a handle on current constitutional practice, tograsp their value and meaning, we may have nooption but to go back in time to the ConstituentAssembly debates and perhaps even further backin time to the colonial era. Therefore, we need toremember and keep revisiting the politicalphilosophy underlying our Constitution.

WHAT IS THE POLITICAL PHILOSOPHY OF OURCONSTITUTION?

It is hard to describe this philosophy in oneword. It resists any single label because it is liberal,democratic, egalitarian, secular, and federal, opento community values, sensitive to the needs ofreligious and linguistic minorities as well ashistorically disadvantaged groups, and committedto building a common national identity. In short,it is committed to freedom, equality, social justice,and some form of national unity. But underneathall this, there is a clear emphasis on peaceful anddemocratic measures for putting this philosophyinto practice.

Individual freedomThe first point to note about the Constitution

is its commitment to individual freedom. Thiscommitment did not emerge miraculously out ofcalm deliberations around a table. Rather, it wasthe product of continuous intellectual and politicalactivity of well over a century. As early as thebeginning of the nineteenth century, RammohanRoy protested against curtailment of the freedomof the press by the British colonial state. Royargued that a state responsive to the needs ofindividuals must provide them the means by whichtheir needs are communicated. Therefore, thestate must permit unlimited liberty of publication.Likewise, Indians continued to demand a freepress throughout the British rule.

It is not surprising therefore that freedom ofexpression is an integral part of the IndianConstitution. So is the freedom from arbitraryarrest. After all, the infamous Rowlatt Act, whichthe national movement opposed so vehemently,sought to deny this basic freedom. These and otherindividual freedoms such as freedom of conscienceare part of the liberal ideology. On this basis, wecan say that the Indian Constitution has a prettystrong liberal character. In the chapter onfundamental rights we have already seen how theConstitution values individual freedom, It might



be recalled that for over forty years before theadoption of the Constitution, every singleresolution, scheme, bill and report of the IndianNational Congress mentioned individual rights, notjust in passing but as a nonnegotiable value.

Social JusticeWhen we say that the Indian Constitution is

liberal, we do not mean that it is liberal only in theclassical western sense. In the book on PoliticalTheo you will learn more about the idea ofliberalism. Classical liberalism always privilegesrights of the individuals over demands of socialjustice and community values.

The liberalism of the Indian Constitution differsfrom this version in two ways. First, it was alwayslinked to social justice. The best example of thisis the provision for reservations for ScheduledCastes and Scheduled Tribes in the Constitution.The makers of the Constitution believed that themere granting of the right to equality was notenough to overcome age-old injustices suffered bythese groups or to give real meaning to their rightto vote. Special constitutional measures wererequired to advance their interests. Therefore theconstitution makers provided a number of specialmeasures to protect the interests of ScheduledCastes and Scheduled Tribes such as thereservation of seats in legislatures. TheConstitution also made it possible for thegovernment to reserve public sector jobs for thesegroups.

Respect for diversity and minority rights TheIndian Constitution encourages equal respectbetween communities. This was not easy in ourcountry, first because communities do not alwayshave a relationship of equality; they tend to havehierarchical relationships with one another (as inthe case of caste). Second, when thesecommunities do see each other as equals, theyalso tend to become rivals (as in the case ofreligious communities). This was a huge challengefor the makers of the Constitution: how to makecommunities liberal in their approach and fostera sense of equal respect among them underexisting conditions of hierarchy or intense rivalry?

It would have been very easy to resolve thisproblem by not recognising communities at all, asmost western liberal constitutions do. But thiswould have been unworkable and undesirable inour country. This is not because Indians areattached to communities more than others.Individuals everywhere also belong to cultural

communities and every such community has itsown values, traditions, customs and languageshared by its members. For example, individualsin France or Germany belong to a linguisticcommunity and are deeply attached to it. Whatmakes us different is that we have more openl3acknowledged the value of communities. Moreimportantly, India is a land of multiple culturalcommunities. Unlike Germany or France we haveseveral linguistic and religious communities. Itwas important to ensure that no one communitysystematically dominates others. This made itmandatory for our Constitution to recognisecommunity basted rights.

One such right is the right of religiouscommunities to establish and run their owneducational institutions. Such institutions mayreceive money from the government. Thisprovision shows that the Indian Constitution doesnot see religion merely as a private matterconcerning the individual.

SecularismSecular states are widely seen as treating

religion as only a private matter. That is to say,they refuse to give religion public or officialrecognition. Does this mean that the IndianConstitution is not secular? This does not follow.Though the term secular was not initiallymentioned, the Indian Constitution has alwaysbeen secular. The mainstream, westernconception, of secularism means mutual exclusionof state and religion in order to protect values suchas individual freedom and citizenship rights ofindividuals.

Again, this is something that you will learnmore about in Political Theory. The term mutualexclusion means this: both religion and state muststay away from the internal affairs of one another.The state must not intervene in the domain ofreligion; religion likewise should not dictate statepolicy or influence the conduct of the state. In otherwords, mutual exclusion means that religion andstate must be strictly separated.

What is the purpose behind strict separation?It is to safeguard the freedom of individuals. Stateswhich lend support to organised religions makethem more powerful than they already are. Whenreligious organisations begin to control thereligious lives of individuals, when they startdictating how they should relate to God or how theyshould pray, individuals may have the option ofturning to the modern state for protecting their



religious freedom, but what help would a state offerthem if it has already joined hands with theseorganisations? To protect religious freedom ofindividuals, therefore, state must not help religiousorganisations. But at the same time, state shouldnot tell religious organisations how to manage theiraffairs. That too can thwart religious freedom. Thestate must, therefore, not hinder religiousorganisations either. In short, states shouldneither help nor hinder religions. Instead, theyshould keep themselves at an arms length fromthem. This has been the prevalent westernconception of secularism.

Conditions in India were different and torespond to the challenge they posed, the makersof the Constitution had to work out an alternativeconception of secularism. They departed from thewestern model in two ways and for two differentreasons.

Rights of Religious Groups First, as mentionedalready, they recognised that intercommunityequality was as necessary as equality betweenindividuals. This was because a personsfreedom and sense of self-respect was directlydependent upon the status of her community.If one community was dominated by another,then its members would also be significantlyless free. If, on the other hand, their relationswere equal, marked by an absence ofdomination, then its members would also walkabout with dignity, self-respect and freedom.Thus, the Indian Constitution grants rights toall religious communities such as the right toestablish and maintain their educationalinstitutions. Freedom of religion in Indiameans the freedom of religion of bothindividuals and communities.

States Power of Intervention Second,separation in India could not mean mutualexclusion. Why is it so? Because, religiouslysanctioned customs such as untouchabilitydeprived individuals of the most basic dignityand -self-respect. Such customs were so deeplyrooted and pervasive that without active stateintervention, there was no hope of theirdissolution. The state simply had to interferein the affairs of religion. Such interventionwas not always negative. The state could alsohelp religious communities by giving aid toeducational institutions run by them. Thus,the state may help or hinder religiouscommunities depending on which mode ofaction promotes values such as freedom and

equality. In India separation between religionand state did not mean their mutual exclusionbut rather principled distance, a rather complexidea that allows the state to be distant from allreligions so that it can intervene or abstainfrom interference, depending upon which ofthese two would better promote liberty, equalityand social justice. We have hitherto mentionedthree core features these can also be seenas the achievements of our Constitution.

First, our Constitution reinforces and reinventsforms of liberal individualism. This is animportant achievement because this is donein the backdrop of a society where communityvalues are often indifferent or hostile toindividual autonomy.

Second, our Constitution upholds the principleof social justice without compromising onindividual liberties. The constitutionalcommitment to caste-based affirmative actionprogramme shows how much ahead India wascompared to other nations. Can one forget thataffirmative action programmes in the U.S. werebegun after the 1964 Civil Rights Movement,almost two decades after they wereconstitutionally entrenched in India?

Third against the background of inter-communal strife, the Constitution upholds itscommitment to group rights (the right to theexpression of cultural particularity). Thisindicates that the framers of the Constitutionwere more than willing to face the challengesof what more than four decades later has cometo be known as multiculturalism.

Universal franchiseTwo other core features may also be regarded

as achievements. First, it is no mean achievementto commit oneself to universal franchise, speciallywhen there is widespread belief that traditionalhierarchies in India are congealed and more orless impossible to eliminate, and when the rightto vote has only recently been extended to womenand to the working class in stable, Westerndemocracies.

Once the idea of a nation took root among theelite, the idea of democratic self governmentfollowed. Thus, Indian nationalism alwaysconceived of a political order based on the will ofevery single member of society. The idea ofuniversal franchise lay securely within the heartof nationalism. As early as the Constitution of IndiaBill (1895), the first non-official attempt at drafting



a constitution for India the author declared thatevery citizen i e anyone born in India had a rightto take part in the affairs of the country and beadmitted to public office. The Motilal Nehru Report(1928) reaffirms this conception of citizenship,reiterating that every person of either sex who hasattained the age of twenty-one is entitled to votefor the house of Representatives or Parliament.Thus from very early on, universal franchise wasconsidered as the most important and legitimateinstrument by which the will of the nation was tobe properly expressed.

FaderalismSecond, by introducing the articles concerning

Jammu and Kashmir (Art. 370) and the North-East(Art, 371), the Indian Constitution anticipates thevery, important concept of asymmetric federalism.We have seen in the chapter on federalism thatthe Constitution has created a strong centralgovernment. But despite this unitary bias of theIndian Constitution, there are importantconstitutionally embedded differences between thelegal status and prerogatives of different sub-unitswithin the same federation. Unlike theconstitutional symmetry of American federalism,Indian federalism has been constitutionallyasymmetric. To meet the specific needs andrequirements of some sub-units, it was always partof the original design to have a unique relationshipwith them or to give them special status.

For example, the accession of Jammu andKashmir to the Indian union was based on acommitment to safeguard autonomy under Article370 of the Constitution. This is the only State thatis governed by its own constitution. Similarly,under Article 371A, the privilege of special statuswas also accorded to the North-Eastern State ofNagaland. This Article not only confers validity onpreexisting laws within Nagaland, but also protectslocal. Many other States too, are beneficiaries ofsuch special provisions. According to the IndianConstitution, then, there is nothing bad about thisdifferential treatment.

Although the Constitution did not originallyenvisage this, India is now a multi-lingualfederation. Each major linguistic group is politicallyrecognised and all are treated as equals. Thus, thedemocratic and linguistic federalism of India hasmanaged to combine claims to unity with claimsto cultural recognition. A fairly robust politicalarena exists that allows for the play of multipleidentities that complement one another.

National identityThus, the Constitution constantly reinforces

a common national identity. In the chapter onfederalism, you have studied how India strives toretain regional identities along with the nationalidentity. It is clear from what is mentioned abovethat this common national identity was notincompatible with distinct religious or linguisticidentities. The Indian Constitution tried to balancethese various i4entities. Yet, preference was givento common identity under certain conditions. Thisis clarified, in the debate over separate electoratesbased on religious identity which the Constitutionrejects. Separate electorates were rejected notbecause they fostered difference between religiouscommunities as such or because they endangereda simple notion of national unity but because theyendangered a healthy national life. Rather thanforced unity, our Constitution sought to evolve truefraternity, a goal dear to the heart of Dr. Ambedkar.As Sardar Patel put it, the main objective was toevolve one community.

PROCEDURAL ACHIEVEMENTSAll these five core features are what might be

called the substantive achievements of theConstitution. However, there were also someprocedural achievements. First, the Indian Constitution reflects a faith

in political deliberation. We know that manygroups and interests were not adequatelyrepresented in the Constituent Assembly. Butthe debates in the Assembly amply show thatthe makers of the Constitution wanted to beas inclusive in their approach as possible. Thisopen-endedness indicates the willingness ofpeople to modify their existing preferences, inshort, to justify outcomes by reference not toself-interest but to reasons. It also shows awillingness to recognise creative value indifference and disagreement.

Second, it reflects a spirit of compromise andaccommodation. These words, compromise andaccommodation, should not always be seenwith disapproval. Not all compromises are bad.

If something of value is traded off for mere self-interest, then we naturally have compromised inthe bad sense. However, if one value is partiallytraded off for another value, especially in an openprocess of free deliberation among equals, then thecompromise arrived in this manner can hardly beobjected to. We max lament that we could not haveeverything but to secure a bit of all things



important cannot be morally blameworthy. Besides,a commitment to the idea that decisions on themost important issues must be arrived atconsenua1ly rather than by majority vote is equallymorally commendable.

The Preamble of the Constitution reads like apoem on democracy. It contains the philosophyon which the entire Constitution has been built.It provides a standard to examine and evaluateany law and action of government, to find outwhether it is good or bad. It is the soul of theIndian Constitution.

WE, THE PEOPLE OF INDIA, having solemnlyresolved to constitute India a SOVEREIGN,SOCIALIST, SECULAR, DEMOCARATICREPUBLIC and to secure to all its citizens:JUSTICE, social, economic and political;LIBERTY of thought, expression, belief, faith andworship;

EQUALITY of status and of opportunity; and topromote among them all

FRATERNITY assuring the dignity of theindividual and the unity and integrity of thenation; IN OUR CONSTITUTENT ASSEMBLYthis twenty-sixth day of November, 1949, doHEREBY ADOPT, ENACT AN? ?IVE TOOURSELVES THIS CONSTITUTION.WE, THE PEOPLE O INDIA The constitution has been drawn up and

enacted by the people through theirrepresentatives, and not handed down to themby a king or any outside powers.

SOVEREIGN People have supreme right to make decisions

on internal as well as external matters. Noexternal power can dictate the government ofIndia.

SOCIALIST Wealth is generated socially and should be

shared equally by society. Government shouldregulate the ownership of land and industryto reduce socio-economic inequalities.

SECULAR Citizens have complete freedom to follow any

religion. But there is no official religion.Government treats all religious beliefs andpractices with equal respect.

DEMOCRATIC A form of government where people enjoy equal

political rights, elect their rulers and holdthem accountable. The government is runaccording to some basic rules.

REPUBLIC The head of the state is an elected person and

not a hereditary position.

JUSTICE Citizens cannot l discriminated on the grounds

of caste, religion and gender. Socialinequalities have to be reduced. Governmentshould work for the welfare of all, especially ofthe disadvantaged groups.

LIBERTY There are no unreasonable restrictions on the

citizens in what they think, how they wish toexpress their thoughts and the way, they wishto follow up their thoughts in action.

EQULITY All are equal before the law. The traditional

social inequalities have to be ended. Thegovernment should ensure equal opportunityfor all.

FRATERNITY All of us should behave as if we are members

of the same family. No one should treat a fellowcitizen as inferior.



During our freedom struggle, the leaders of thefreedom movement had realised the importanceof rights and demanded that the British rulersshould respect rights of the people. The MotilalNehru committee had. demanded bill of rights asfar as back as in 1928. It was therefore, naturalthat when India became independent and theConstitution was being prepared, there were notwo opinions on the inclusion and protection ofrights in the Constitution. The Constitution listedthe rights that would be specially protected andcalled them fundamental rights.

The word fundamental suggests that theserights are so important that the Constitution hasseparately listed them and made special provisionsfor their protection. The Fundamental Rights areso important that the Constitution itself ensuresthat they are not violated by the government.

Fundamental Rights are different from otherrights available to us. While ordinary legal rightsare protected and enforced by ordinary law,

Fundamental Rights are protected and guaranteedby the constitution of the country. Ordinary rightsmay be changed by the legislature by ordinaryprocess of law making, but a fundamental rightmay only be changed by amending the Constitutionitself. Besides this, no organ of the governmentcan act in a manner that violates them. Judiciaryhas the powers and responsibility to protect thefundamental rights from violations by actions ofthe government. Executive as well as legislativeactions can be declared illegal by the judiciary ifthese violate the fundamental rights or restrictthem in an unreasonable manner. However,fundamental rights are not absolute or unlimitedrights. Government can put reasonablerestrictions on the exercise of our fundamentalrights.

Right to Equality:It provides for equal access to public places like

shops, hotels, places of entertainment, wells,bathing ghats and places of worship. There cannot

Right to Equality Right to liberty and Personal freedoms Right to: Equality before law Speech and expression Equal protection of laws Assemble peacefully Prohibition on discrimination on ground Form association

of religion Move freely throughout the territory of India Equal access to shops, bathing ghats, Reside and settle in any part of India

hotels etc. Practice any profession or to carry on any Equality of opportunity in employment occupation, trade or business. Abolition of titles Right to life and liberty; Abolition of untouchability Rights of the accused and convictsRight to freedom of religion Cultural and educational Rights of

minority groups Freedom of conscience and profession; Protection of language, culture of minorities; Freedom to manage religious affairs; Right of minorities to

freedom to give religious instructions in educational institutionscertain institutions Right to Constitutional remedy

Right against exploitation Right to move the courts for issuance of writs Prohibition of forced labour; Prohibition of employment of children

in hazardous jobs

GIST OF N.C.E.R.T

FUNDAMENTAL RIGHTS IN THEINDIAN CONSTITUTION



be any discrimination in this access on the basisof caste, creed, colour, sex, religion, or place ofbirth. It also prohibits any discrimination in publicemployment on any of the above mentioned basis.This right is very important because our societydid not practice equal access in the past.

The practice of untouchability is one of thecrudest manifestations of inequality. This hasbeen abolished under the right to equality. Thesame right also provides that the state shall conferno title on a person except those who excelthemselves in military or academic field. Thusright to equality strives to make India a truedemocracy by ensuring a sense of equality ofdignity and status among all its citizens.

Read the Preamble to our Constitution? Youwill find that the Preamble mentions two thingsabout equality: equality of status and equality ofopportunity. Equality of opportunity means that allsections of the society enjoy equal opportunities.But in a society where there are various kinds ofsocial inequalities, what does equal opportunitymean? The Constitution clarifies that thegovernment can implement special schemes andmeasures for improving the conditions of certainsections of society: children, women, and thesocially and educationally backward classes. Youmay have heard about reservations in jobs, andin admissions. You would have wondered why thereare reservations if we follow the principle ofequality. in fact Article 16(4) of the constitutionexplicitly clarifies that a policy like reservation willnot be seen as a violation of right to equality. Ifyou see the spirit of the Constitution, this isrequired for the fulfilment of the right to equalityof opportunity.

Article 16 (4): Nothing in this article shallprevent the State from making anyprovision for the reservation ofappointments or posts in favour of anybackward class of citizens which, in theopinion of the State, is not adequatelyrepresented in the services under theState.

RIGHT TO FREEDOMEquality and freedom liberty, are the two rights

that are most essential to a democracy. It is notpossible to think of the one without thinking ofthe other. Liberty means freedom of thought,expression and action. However it does not meanfreedom to do anything that one desires or likes. Ifthat were to be permitted then a large number of

people will not be able to enjoy their freedom.Therefore, freedoms are defined in such a mannerthat every person will enjoy her freedom withoutthreatening freedom of others and withoutendangering the law and order situation.

Article 21: Protection of life and personallibertyNo person shall be deprived of hislife or personal liberty except according toprocedure established by law.

Right to life and personal libertyThe foremost right among rights to freedom is

the right to life and personal liberty. No citizen canbe denied his or her life except by procedure aslaid down under the law. Similarly no one can bedenied his/her personal liberty. That means noone can be arrested without being told the groundsfor such an arrest. If arrested, the person has theright to defend himself by a lawyer of his choice.Also, it is mandatory for the police to take thatperson to the nearest magistrate within 24 hours.The magistrate, who is not part of the police, willdecide whether the arrest is justified or not.

This right is not just confined to a guaranteeagainst taking away of an individuals life but haswider application. Various judgments of SupremeCourt have expanded the scope of this right. TheSupreme Court has ruled that this right alsoincludes right to live with human dignity, free fromexploitation. The court has held that right toshelter and livelihood is also included in the rightto life because no person can live without themeans of living, that is, the means of livelihood.

Preventive detentionOrdinarily, a person would be arrested after he

or she has reportedly committed some offence.However there are exceptions to this. Sometimesa person can be arrested simply out of anapprehension that he or she is likely to engage inunlawful activity and imprisoned for some timewithout following the above mentioned procedure.This is known as preventive detention. It meansthat if the government feels that a person can be athreat to law and order or to the peace and securityof the nation, it can detain or arrest that person.This preventive detention can be extended onlyfor three months. After three months such a caseis brought before an advisory board for review.

On the face of it, preventive detention lookslike an effective tool in the hands of thegovernment to deal with anti-social elements orsubversives. But this provision has often been



misused by the government. Many people thinkthat there must be greater safeguards in this lawso that it may not be misused against people forreasons other than that which are really justified.In fact, there is a clear tension between right tolife and personal liberty and the provision forpreventive detention.

Other freedoms: You can see that under theright to freedom there are some other rights aswell. These rights however are not absolute. Eachof these is subject to restrictions imposed by thegovernment.

For example right to freedom of speech andexpression is subject to restrictions such as publicorder, peace and morality etc. Freedom to assembletoo is to be exercised peacefully and without arms.The government may impose restrictions in certainareas declaring the assembly of five or morepersons as unlawful. Such powers can be easilymisused by the administration. The genuineprotest against an act or policy of government bythe people may be denied permission. However, ifthe people are aware and vigilant in regard to theirrights and choose to protest against such acts ofadministration such misuse becomes rare. In theConstituent Assembly itself, some members hadexpressed their dissatisfaction about restrictionson rights.

Rights of accusedOur Constitution ensures that persons accused

of various offences would also get sufficientprotection. We often tend to believe that anyonewho is charged with some offence is guilty.However, no one is guilty unless the court hasfound that person guilty of an offence. It is alsonecessary that a person accused of any crimeshould get adequate opportunity to defend herselfor himself. To ensure a fair trial in courts, theConstitution has provided three rights:

no person would punished for the same offencemore than once,

no law shall declare any action as illegal froma backdate, and

no person shall be asked to give evidenceagainst himself or herself.

RIGHT AGAINST EXPLOITATIONIn our country there are millions of people who

are underprivileged and deprived. They may besubjected to exploitation by their fellow humanbeings. One such form of exploitation in ourcountry has been begar or forced labour without

payment. Another closely related form ofexploitation is buying and selling of human beingsand using them as slaves. Both of these areprohibited under the Constitution. Forced labourwas imposed by landlords, money lenders and otherwealthy persons in the past. Some form of bondedlabour still continues in the country, specially inbrick kiln work. It has now been declared a crimeand it is punishable.

The Constitution also forbids employment ofchildren below the age of 14 years in dangerousjobs like factories and mines. With child labourbeing made illegal and right to education becominga fundamental right for children, this right againstexploitation has become more meaningful.

RIGHT TO FREEDOM OF RELIGIONAccording to our Constitution, everyone enjoys

the right to follow the religion of his or her choice.This freedom is considered as a hallmark ofdemocracy. Historically, there were rulers andemperors in different parts of the world who didnot allow residents of their countries to enjoy theright to freedom of religion. Persons following areligion different from that of the ruler were eitherpersecuted or forced to convert to the officialreligion of the rulers. Therefore, democracy hasalways incorporated the freedom to follow thereligion of ones choice as one of its basic principle.

Freedom of faith and worshipIn India, everyone is free to choose a religion

and practice that religion. Freedom of religion alsoincludes the freedom of conscience. This meansthat a person may choose any religion or maychoose not to follow any religion. Freedom ofreligion includes the freedom to profess, follow andpropagate any religion. Freedom of religion issubject to certain limitations. The government canimpose restrictions on the practice of freedom ofreligion in order to protect public order, moralityand health. This means that the freedom ofreligion is not an unlimited right. The governmentcan interfere in religious matters for rooting outcertain social evils. For example in the past, thegovernment has taken steps banning practices likesati, bigamy or human sacrifice. Such restrictionscannot be opposed in the name of interference inright to freedom of religion.

The limitations on the right to freedom ofreligion always produce tensions between followersof various religions and the government. When thegovernment seeks to restrict some activities of any



religious group, people of that religion feel that thisis interference in their religion.

Freedom of religion becomes a matter ofpolitical controversy for yet another reason. TheConstitution has guaranteed the right to propagateones religion. This includes persuading people toconvert from one religion to another. However,some people resent conversions on the ground thatthese are based on intimidation or inducement.The Constitution does not allow forcibleconversions. It only gives us the right to spreadinformation about our religion and thus attractothers to it.Equality of all religions

Being a country which is home to severalreligions, it is necessary that the government mustextend equal treatment to different religions.Negatively, it means that government will notfavour any particular religion. India does not haveany official religion. We dont have to belong to anyparticular religion in order to be a prime ministeror president or judge or any other public official.We have also seen that under the right to equality,there is a guarantee that government will notdiscriminate on the basis of religion in givingemployment. The institutions run by the state willnot preach any religion or give religious educationnor will they favour persons of any religion. Theobjective of these provisions is to sustain andnurture the principle of secularism.CULTURAL AND EDUCATIONAL RIGHTS

When we talk of the Indian society, the imageof diversity comes before our minds. India is notmade up of a monolithic society. We are a societythat has vast diversity. In such a society that isfull of diversity, there would be social sectionswhich are small in numbers compared to someother groups.

Our Constitution believes that diversity is ourstrength. Therefore, one of the fundamental rightsis the right of the minorities to maintain theirculture. This minority status is not dependent onlyupon religion. Linguistic and cultural minoritiesare also included in this provision. Minorities aregroups that have common language or religion andin a particular part of the country or in the countryas a whole, they are outnumbered by some othersocial section. Such communities have a culture,language and a script of their own, and have theright to conserve and develop these.

All minorities, religious or linguistic, can setup their own educational institutions. By doing so,

they can preserve and develop their own culture.The government will not, while granting aid toeducational institutions, discriminate against anyeducational institution on the basis that it is underthe management of minority community.

RIGHT TO CONSTITUTIONAL REMEDIESOne would agree that our Constitution contains

a very impressive list of Fundamental Rights. Butmerely writing down a list of rights is not enough.There has to be a way through which they could berealised in practice and defended against anyattack on these rights.

Fundamental Duties of citizens In 1976, the 42nd amendment to the

Constitution was passed. Among otherthings, this amendment inserted a list ofFundamental Duties of Citizens. In all, tenduties were enumerated. However, theConstitution does not say anything aboutenforcing these duties.

As citizens, we must abide by theConstitution, defend our country, promoteharmony among all citizens, protect theenvironment.

However, it must be noted that ourConstitution does not make the enjoymentof rights dependent or conditional uponfulfilment of duties. in this sense, theinclusion of fundamental duties has notchanged the status of our fundamentalrights.

Right to constitutional remedies is the meansthrough which this is to be achieved. Dr. Ambedkarconsidered the right to constitutional remedies asheart and soul of the constitution, It is so becausethis right gives a citizen the right to approach aHigh Court or the Supreme Court to get any of thefundamental rights restored in case of theirviolation. The Supreme Court and the High Courtscan issue orders and give directives to thegovernment for the enforcement of rights.

The courts can issue various special ordersknown as writs.

Habeas corpus: A writ of habeas corpus meansthat the court orders that the arrested personshould be presented before it. It can also order toset free an arrested person if the manner orgrounds of arrest are not lawful or satisfactory.

Mandamus: This writ is issued when the courtfinds that a particular office holder is not doing



legal duty and thereby is infringing on the right ofan individual.

Prohibition: This writ is issued by a highercourt (High Court or Supreme Court) when a lowercourt has considered a case going beyond itsjurisdiction.

Quo Warranto: If the court finds that a personis holding office but is not entitled to hold thatoffice, it issues the writ of quo warranto andrestricts that person from acting as an office holder.

Certiorari: Under this writ, the court orders alower court or another authority to transfer amatter pending before it to the higher authority orcourt.

Apart from the judiciary, many othermechanisms have been created in later years forthe protection of rights. You may have heard aboutthe National Commission on Minorities, theNational Commission on Women, the NationalCommission on Scheduled Castes, etc. Theseinstitutions protect the rights of women,minorities or Dalits. Besides, the National HumanRights Commission has also been established bylaw to protect the fundamental and other kinds ofrights.

DIRECTIVE PRINCIPLES OF STATE POLICYThe makers of our Constitution knew that

independent India was going to face manychallenges. Foremost among these was thechallenge to bring about equality and well-being ofall citizens. They also thought, that certain policydirection was required for handling these problems.At the same time, the Constitution did not wantfuture governments to be bound by certain policydecisions.

Therefore, some guidelines were incorporatedin the Constitution but they were not made legallyenforceable: this means that if a government didnot implement a particular guideline, we cannotgo to the court asking the court to instruct thegovernment to implement that policy. Thus, theseguidelines are nonjusticiable i.e., parts of theConstitution that cannot be enforced by thejudiciary Those who framed our Constitutionthought that the moral force behind theseguidelines would ensure that the government wouldtake them seriously. Besides, they expected thatthe people would also hold the governmentsresponsible for implementing these directives. So,a separate list of policy guidelines is included in

the Constitution. The list of these guidelines iscalled the Directive Principles of State Policy.

DIRECTIVE PRINCIPLESGoalsWelfare of the people; Social, economic andpolitical justice;

Raising the standard of living; equitabledistribution of resources;

promotion of international peace

PoliciesUniform civil code; Prohibition of consumptionof alcoholic liquor;

Promotion of cottage industries;

Prevention of slaughter of useful cattle;

Promotion of village panchayats.

Non-justiciable rightsAdequate livelihood equal pay for equal work (formen and women)

Right against economic Exploitation. Right towork;

Right of children to free and compulsoryeducation

What do the Directive Principles contain? The chapter on Directive Principles lists mainly

three things:

the goals and objectives that we as a societyshould adopt;

certain rights that individuals should enjoyapart from the Fundamental Rights; and

certain policies that the government shouldadopt.You may get some idea of the vision of makers

of our Constitution by looking at some of theDirective Principles shown below.

The governments from time to time tried togive effect to some Directive Principles of StatePolicy. They passed several zamindari abolitionbills, nationalised banks, enacted numerousfactory laws, fixed minimum wages, cottage andsmall industries were promoted and provisions forreservation for the uplift of the scheduled castesand scheduled tribes were made. Such efforts togive effect to the Directive Principles include theright to education, formation of panchayati rajinstitutions all over the country, partial right to



work under employment guarantee programmeand the mid-day meal scheme etc.

RELATIONSHIP BETWEEN FUNDAMENTALRIGHTS AND DIRECTIVE PRINCIPLES

It is possible to see both Fundamental Rightsand Directive Principles as complementary to eachother. Fundamental Rights restrain thegovernment from doing certain things whileDirective Principles exhort the government to docertain things. Fundamental Rights mainly protectthe rights of individuals while directive principlesensure the well-being of the entire society.

However, at times, when government intendsto implement Directive Principles of State Policy,it can come in conflict with the FundamentalRights of the citizen.

This problem arose when the governmentsought to pass laws to abolish zamindari system.These measures were opposed on the ground thatthey violated right to property. However, keepingin mind the societal needs that are greater thanthe individual interests, the government amendedthe Constitution to give effect to the DirectivePrinciples of State Policy. This led to a long legalbattle. The executive and the judiciary tookdifferent positions. The government claimed thatrights can be abridged for giving effect to DirectivePrinciples. This argument assumed that rightswere a hindrance to welfare of the people. On theother hand, the court held the view thatFundamental Rights were so important and sacredthat they cannot be limited even for purposes ofimplementing Directive Principles.

Right to PropertyBehind the controversy about the relationshipbetween rights and directive principles, therewas one important reason: in the Constitution,originally, there was a fundamental right toacquire, possess and maintain property. Butthe Constitution made it clear that propertycould be taken away by the government forpublic welfare. Since 1950, government mademany laws that limited this right to property.This right was at the centre of the long debateover the relationship between rights anddirective principles. Finally, in 1973, theSupreme Court gave a decision that the rightto property was not part of the basic structureof the Constitution and therefore, parliamenthad power to abridge this right by anamendment. In 1978, the 44th amendment to

the Constitution removed the right to propertyfrom the list of Fundamental Rights andconverted it into a simple legal right under.article 300 A.

This generated another complicated debate.This related to the amendment of the Constitution.The government was saying that Parliament canamend any part of the Constitution. The court wassaying that Parliament cannot make anamendment that violated Fundamental Rights.This controversy was settled by an importantdecision of the Supreme Court in KesavanandaBharati case. In this case, the court said that thereare certain basic features of the Constitution andthese cannot be changed by Parliament.Conclusion

In the writings of Jotirao Phuley (1827-1890),a radical social reformer from Maharashtra, we findone of the earliest expressions of the view thatrights include both freedom and equality. Duringthe national movement, this idea of rights wasfurther sharpened and expanded to constitutionalrights. Our Constitution reflected this longtradition and listed the fundamental rights. Since1950, the judiciary has functioned as an importantprotector of rights. Judicial interpretations haveexpanded the scope of rights in many respects. Thegovernment and administration of our countryfunction within this overall framework. Rightsenforce limitations on the functioning of thegovernment and ensure democratic governance ofthe country.



EXECUTIVEIn any organisation, some office holder has to

take decisions and implement those decisions. Wecall this activity administration or management.But administration requires body at the top thatwill take policy decisions or the big decisions andsupervise and coordinate the routineadministrative functioning. You may have heardabout the executives of bi companies, banks orindustrial units. Every formal group has a body ofthose who function as the chief administrators orthe executives of that organisation. Some officeholders decide the policies and rules andregulations and then some office holdersimplement those decisions in actual day to-dayfunctioning of the organisation. The word executivemeans a body of persons that look after theimplementation of rules and regulations in actualpractice.

In the case of government also, one body maytake policy decisions and decide about rules andregulations, while the other one would be in chargeof implementing those rules. The organgovernment that primarily looks after the functionof implementation and administration is called theexecutive.

Executive is the branch of governmentresponsible for the implementation of laws anpolicies adopted by the legislature. The executiveis often involved in framing of policy. The officialdesignations of the executive vary from country tocountry. Some countries have presidents, whileothers have chancellors. The executive branch isnot just about presidents, prime ministers andministers. It also extends to the administrativemachinery (civil servants). While the headsgovernment and their ministers, saddled with theoverall responsibility of government policy,altogether known as the political executive, thoseresponsible for day to day administration a calledthe permanent executive.WHAT ARE THE DIFFERENT TYPES OFEXECUTIVE?

Every country may not have the same type of

executive. You may have heard about the Presidentof the USA and the Queen of England. But thepowers and functions of the President of the USAare very different from the powers of the Presidentof India. Similarly, the powers of the Queen ofEngland are different from the powers of the Kingof Nepal. Both India and France have primeministers, but their roles are different from eachother.

To answer this question we will briefly outlinethe nature of executive existing in some of thesecountries. The USA has a presidential system andexecutive powers are in the hands of the president.Canada has a parliamentary democracy withconstitutional m6narchy where Queen ElizabethII is the formal chief of state and the PrimeMinister is the head of government. In France, boththe president and the prime minister a part of thesemi presidential system. The president appoints

System based on theprinciples of

collective leadership

System based onindividualleadership

ParliamentaryHead of the

government isusuallyknown

Minister.He is the

leader of themajority party

in Legislature.He is account-

able to thelegislature.

The head ofthe state may

beMonarch

President

SemiPresidential

systemHas the

President ashead of the

state.Has a primeminister ashead of thegovernmentPM and hisCouncil are

responsible tolegislature

Presidentialsystem

President isHead of the

state.He is also

the head ofthe Govern-

ment.

The Presidentis usuallydirectly

elected by thepeople.

He is notaccoutable to

legislature

ConstitutionalMonarchy

ParlimentaryRepublic

CeremonialExecutive

GIST OF N.C.E.R.T

INDIA - LOCATIONGIST OF N.C.E.R.T

EXECUTIVE



the prime minister as well as the ministers butcannot dismiss them as they are responsible tothe parliament. Japan has a parliamentary systemwith the Emperor as the head of the state and theprime minister as the head of government. Italyhas a parliamentary system with the president asthe formal head of state and the prime ministeras the head of government. Russia has a semi-presidential system where president is the headof state and prime minister, who is appointed bythe president, is the head of government. Germanyhas a parliamentary system in which president isthe ceremonial head of state and the chancellor isthe head of government. In a presidential system,the president is the Head of state as well as headof Government. In this system the office ofpresident is very powerful, both in theory andpractice. Countries with such a system includethe United States, Brazil and most nations in LatinAmerica.

In a parliamentary system, the prime ministeris the head of government. Most parliamentarysystems have a president or a monarch who is thenominal Head of state. In such a system, the roleof president or monarch is primarily ceremonialand prime minister along with the cabinet wieldseffective power. Countries with such systeminclude Germany, Italy, Japan, United Kingdom aswell as Portugal. A semi-presidential system hasboth a president and a prime minister but unlikethe parliamentary system the president maypossess significant day-to-day powers. In thissystem, it is possible that sometimes the presidentand the prime minister may belong to the sameparty and at times they may belong to two differentparties and thus, would be opposed to each other.Countries with such a system include France,Russia, Sri Lanka, etc.

PARLIAMENTARY EXECUTIVE IN INDIAWhen the Constitution of India was written,

India already had some experience of running theparliamentary system under the Acts of 1919 and1935. This experience had shown that in theparliamentary system, the executive can beeffectively controlled by the representatives of thepeople. The makers of the Indian Constitutionwanted to ensure that the government would besensitive to public expectations and would beresponsible and accountable. The other alternativeto the parliamentary executive was thepresidential form of government. But thepresidential executive puts much emphasis on thepresident as the chief executive and as source of

all executive power. There is always the danger ofpersonality cult in presidential executive. Themakers of the Indian Constitution wanted agovernment that would have a strong executivebranch, but at the same time, enough safeguardsshould be there to check against the personalitycult. In

indian polity gist of ncert

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