The Constitution of India Its Provisions, Landmark Judgments and The Contemporary Trending Issues at a Glance
The Constitution of India is considered to be the largest Constitution of the world which was originally having 395 Articles divided in twenty two Parts along with nine Schedules which presently stands at more than 460 Articles in twenty five Parts and 105 Constitutional amendments till date. Because of this huge and ever-expanding size, people are generally afraid of going through the same that too when for each interpretation of the provisions there are plenty of available landmark judicial pronouncements. In this article, it will be endeavored to put forward precisely the overall gist of the Constitution along with mentioning ratio decidendi/rationale of few landmark judgments of the Apex Court of India which contributed a lot to change the Indian Constitutional outlook keeping in view the need of the ever-changing time. Further, this article shall also to endeavor to highlight the contemporary issues relating to the Constitution of India.
I. Introduction
The Constituent Assembly2 made the Constitution of India, 1950 (which is also known as borrowed Constitution for its borrowing features) in two years, eleven months and eighteen days and was adopted and enacted on 26th November, 1949 and subsequently got enforced in toto on 26th January, 1950. Our Constitution is federal in normal times but becomes unitary during emergency.3
To remember as to what the Constitution provides for or what is the contents and the sequence of different Parts and Schedules of the Constitution, one need to put few questions before him keeping in view the fact that Constitution of India is a general framework made in order to run India as a whole and the common sense answers can lead to grab the sequence that he can never forget again.
The questions and answers should be like following:
1. As it is the Constitution of India then what is India4? Part-I (Art. 1-4) deals with this. 1st Schedule specifies the names of the States and the Union Territories.
2. Who are the citizens of India? Part-II (Art. 5-11) talks about this. In adherence with Art. 11 the Citizenship Act, 1955 has been enacted by the Parliament which provides the modes of acquisition and termination.
3. What are the rights of its citizens? Part-III (Art. 12-35) provides for the six Fundamental Rights5 of the citizens of India which are also known as Magna Carta of Indian Constitution. Art. 32 and 226 provides for five specific writs which may be invoked by the Supreme Court and High Courts in India respectively for protecting the Fundamental Rights of the people. Art. 32 has been said by Dr. B. R. Ambedkar to be the Heart and Soul of the Constitution of India.
4. What are the duties of the State6 to ensure the welfare of its citizens? This is discussed in Part-IV (Art. 36-51) under the head of Directive Principles of State Policy. The implementation of these non-justiciable principles depends on the economic capacity of the State and these should be interpreted in harmony with the Fundamental Rights7.
5. What are the duties of the citizens of India? Part-IVA (Art. 51A) of the Constitution got inserted through the 42nd Constitutional Amendment Act, 19768 which provides a list of 11 fundamental duties.
6. Who runs India? It is a well-known fact that there are three organs of the Govt. viz., the executive, the legislature and the Judiciary and each of them are divided in three levels i.e., Central level (All India), particular State or Union Territory level and local level (District, village, town). Part-V provides for the central/union executive i.e, the President of India9, the Vice President of India, Union Council of ministers, Attorney General of India (Art. 52-78), Union Legislature i.e., Loksabha, Rajyasabha10 (Art. 79-122, Art. 123 provides for the power of President to make ordinance in urgent cases where the legislature is not in session), Union Judiciary i.e., the Supreme Court of India (Art. 124-147), Art. 148-151 provides for Comptroller and Auditor General of India.
Part VI (Art. 152-237) provides for State executive (Art. 152-167) i.e, the Governor of the State, Council of Ministers, the Advocate General of the State, the State Legislature (Art. 168-212) i.e., the Legislative Assembly and the Legislative Council (only in six States currently11). Art. 213 provides for the power of Governor of the State to make ordinance in urgent cases where the legislature is not in session and the Judiciary (Art. 214-237).
Parts- VIII (Art. 239-242), IX (Art. 243-243O) and IX-A (243P-243ZG) provides for the governments of the Union Territories, Panchayat at Village level (11th Schedule specifies their subject matters) and Municipalities (12th Schedule specifies their subject matters) at town level respectively.
7. There are certain areas in India where autonomous governments are run which are not bound to follow the general provisions relating to local self govt. and can make their own laws, now, the question is that what are the provisions meant for them? Part-X under Articles 244-244A answers this question. These areas are known as Scheduled and Tribal areas and the provisions relating to the administration of the same are provided in 5th Schedule. The Sixth Schedule specifically deals with the administration of tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram.
With these questions and answers the portion of various types of governments that run us comes to end. But India is a big country with twenty eight states and eight Union Territories, so, now the question arises as to:
8. What shall be the relationship between the Union and the States in regard to legislative and administrative matters? Part XI under Art. 245-255 deals with Legislative relation read with 7th Schedule which provides for three Lists viz., Union List, State List and Concurrent List. Administrative relations are provided in Articles 256-263.
9. From where the governments get funds (finances), properties, make contracts and how suits can institutes by or against them? Part XII (Art. 264-300A) talks about these. The concepts of GST (Art. 269A)12, Finance Commission (Art. 280)13, Consolidated Fund [Art. 266(1)]14, Contingency Fund (Art. 267).
10. How the trade, commerce and intercourse within the territory of India are carried out? Part XIII (Art. 301-307) deals with these.
11. What are the services under the Union Govt. and the respective State Governments and how appointments, dismissal or reduction in rank shall be made for those services? Part XIV (Art. 308-323). The Union Public Service Commission, all State Public Service Commissions fall under this Part.
12. If any dispute arises pertaining to administrative matters such as the appointment, conditions of service etc. of the persons appointed to the public services and posts then who will look into such matters and answer is that Parliament may make the Administrative Tribunals (Part XIVA, Art.323A). And if there are disputes regarding other specific matters15 then the Parliament may make other Tribunals such as Industrial Tribunal, Income Tax Appellate Tribunal etc. (Art. 323B).
13. Now, who will conduct and supervise the elections in India, who will maintain electoral roll India and most importantly who can vote in various elections in India? The President of India appoints the Election Commission of India which is all in all in this regard. There are also State Election Commissions which look after the election of local bodies in India. And, any person above eighteen years of age can vote in any election in India after the concerned age got reduced from twenty one to eighteen years by virtue of the 61st Constitutional amendment Act, 1988. This whole theme has been discussed under Part XV (Art. 324-329).
14. As in our country, there are certain classes of population viz., Scheduled Castes, Scheduled Tribes and Other Backward Classes, so, who are they? How are they determined? Who determines them? What is the Constitutional position of National Commissions for S.C., S.T., and O.B.C.s respectively? All these matters are provided in Part XVI (Art.330-342). President of India, after due consultation with the Governor of the concerned State specifies the enlistment of any caste into the four walls of S.C., S.T. and O.B.C. As per Art. 334, reservation policy for S.C. and S.T. were initially provided for ten years but in every ten years it has been extended for more ten years. Recently, in 2019, it has been further extended till 2029.
15. Now, Part XVII (Art. 343-351) deals with the official languages of the Union, State and Courts in India. It is to be noted that although Hindi in Devanagari script has been given priority in many aspects over other languages but India does not have any National language rather there are twenty two official languages as has been notified from time to time in the 8th Schedule and Hindi is one of them. In Supreme Court and High Courts, English language is followed but the Constitution is silent as to which language is to be followed by lower Courts in India.
16. There are three types of emergency in India, viz., (i) National Emergency on the ground of war or external aggression or armed rebellion (Art.352), (ii) Emergency in States due to failure of Constitutional Machinery in a State and failure to comply with or give effect to the direction given by the Union under Articles 356 and 365 respectively; (iii) Financial Emergency on the ground of threatening financial stability or credit of India. The President of India, upon his satisfaction of the urgency of the situation, is empowered to declare any of the above said emergencies in India.
17. Part IX (Art. 361-367) is miscellaneous in nature. Art. 361 immunes the President of India and the Governors of respective States from being arrested or against initiation of any criminal proceeding during their term of office. Art. 366 is definition clause which provides many definitions of the terms used in the Constitution itself including Article, clause, corporation tax, scheduled caste, scheduled tribe, existing laws etc. and as per Art. 367 if the said definition clause does not include any specific term then the assistance of the General Clauses Act, 1897 may be taken.
18. Part XX (Art. 368) provides for the amendment of the Constitution of India which is of two types i.e., (i) by simple majority of the Parliament and (ii) special majority of the Parliament with consent of States subject to the basic structure doctrine as enunciated in the famous case of Keshvananda Bharti V/s State of Kerala16. This doctrine says that the matters which are the very essence of the Constitution can be taken away such as independence of judiciary, secular nature of State, and supremacy of the Constitution, separation of powers between the Legislature, the Executive and the Judiciary etc.
19. Part XXI (Art. 369-392) provides for temporary, transitional and special provisions for many States including the former State of Jammu & Kashmir, Nagaland, Mizoram, Sikkim, Goa etc. These special provisions give special autonomy to the specified States.
20. Part XXII (Art. 393-395) talks about short title, commencement and authoritative texts in Hindi of the Constitution of India. Art. 393 provides that the short title of this Constitution may be called as the Constitution of India. Art. 394 says that this Constitution has been commenced in two part. The first part containing many provisions relating to Citizenship, Election, Finance Commission, Definition clause, interpretation clause, and short title got commenced on 26th day of November, 1949 and the rest of the provisions got commenced on 26th day of January, 1950.
The Constitution of India is ever evolving but the basic values enshrined in this remain quite same till date. The 2nd Schedule provides for the allowances and emoluments made to the President of India, Governor of any State, Speaker and Deputy Speaker of House of People, Chairman and Deputy Chairman of the Council of States, Judges of the Supreme Court and the High Courts, Comptroller and Auditor General of India. 10th Schedule provides provisions as to Defection as a ground of disqualification of elected representatives and is also very important, especially in the present context where our elected representatives very often change their party from which they contested and join another.
II. Ratio decidendi/rationale of few landmark judgments of the Apex Court of India which contributed a lot to change the Indian Constitutional outlook
In the case of: Keshvananda Bharti V/s Union of India17, it was held by 7:6 majority that the constitutional amendments are not ‘laws within the meaning of Article 13 of the Constitution of India’ and there is nothing in the Constitution itself which prohibit the Parliament from amending the Constitution including Part III of the Constitution which provides for Fundamental Rights but such power of parliament can never be resorted to abrogate or amend the basis structure of the Indian Constitution such as Secularism, Federalism, Judicial Independence etc. which may also be known as implied limitations on the powers of the Parliament to amend the Constitution.
In the case of: Maneka Gandhi V/s Union of India18, it was held that there is a golden triangle between Art. 14, 19 and 21 of the Constitution of India and the fulfillment of one cannot be ensured if there is a breach of another. Further, the ambit of fundamental rights covered under Art. 21 is of high amplitude and there are unlimited unnamed fundamental rights enshrined under it which may from time to time show the light of the day. Furthermore, the Court opined that any procedure to be followed under any law must be just, fair and reasonable and should not be arbitrary, fanciful or oppressive. This judgment indeed gave a new dimension of the right to equality under Article 14 of the Constitution of India, 1950.
In the case of: Minerva Mills Ltd V/s Union of India19, the S.C. of India held that the Constitution of India is the supreme authority and not the Parliament of India. Parliament cannot do anything which does away the basic tenets of Indian Constitution. It further said that there is a nice balance between the three organs of the Government of India in the present democratic set up under the Constitution which should be respected. The Court simultaneously observed that the balance and harmony among Fundamental Rights under Part III and the Directive Principles of State Policy under Part IV also form part of the basic structure of the Constitution of India and the fundamental rights are not an end in themselves but they are means to an end and the end is specified in the directive principles
In the case of IR Cohelo20, the S.C. held that the Ninth Schedule of the Constitution of India is not exempted from Judicial Review. The constitutionals Courts in India are authorized to check the legitimacy and the validity of the Act. The legislature cannot simply put any matter in the Ninth Schedule if it violates the basic structure doctrine.
In the case of: Indra Sawhney V/s Union of India21 (Mandal Commission case), it was held that the Backward classes under Article 16(4) cannot be identified on the sole basis of economic criteria but the caste system and the representation of the subject matters into the concerned Government sector must also be taken into account. Article 16(4) is not an exception to Art. 16 (1) but an instance of the classification laid down by Article 16 (1). Backward classes in article 16(4) were different from the socially and educationally backward mentioned in Article 15(4). The concept of a creamy layer was laid down and it was directed that such a creamy layer be excluded while identifying backward classes. That is to say, Non Creamy Layer persons may avail the facility of reservation. Article 16(4) allows the classification of backward classes into backward and more backward classes. But the overall reservation shall not exceed 50 percent in total, moreover, reservation in promotions shall not be allowed. Any new disputes regarding criteria were to be raised in the Supreme Court only.
In the case of: Justice Puttuswami V/s Union of India22 (AADHAR case), the S.C. held that the right to privacy as an inherent and integral fundamental right emanates from Article 21 of the Constitution of India and under the same Article there is interrelationship between privacy, dignity and autonomy. This right of the persons should be protected. There must remain a nice balance between ensuring the right of privacy and the initiatives of the Government to implement its policies. Although, the right to privacy is not absolute but any incursion of the same by any state or non-state actor must satisfy the three fold test of: legitimate aim, proportionality and legality.
In the case of: Common Cause (a Regd. Society) V/s Union of India23 , The Supreme Court of India upheld the right to die with dignity as a fundamental right and allowed the practice of passive euthanasia (an act of withdrawal of life support) upon a person in permanent vegetative state of health but for that certain medical guideline have to followed although.
III. Contemporary issues relating to the constitution of india
As the Constitution of India is ever expanding law of the land so it is natural that new issues would arise from time to time on the basis of the political and legal situations and circumstances prevalent at any point of time. The following may be the few trending contemporary issues pertaining to the Constitution of India:24
i. Constitutional Morality vis-à-vis legislative and executive actions;
ii. Right to privacy and data protection in the present technology driven society;
iii. Permanent Commissions in defence forces for women;
iv. Tussle between Judicial supremacy and parliamentary supremacy through the eyes of the Constitution;
v. Right to education in the context of digital era;
vi. Right to life during Covid-19 pandemic situations;
vii. Right to security to migrant workers;
viii. Disputes and conflicts between States as to their physical boundaries: challenges and ameliorative measures;
ix. Doctrine of legitimate expectation etc.
IV. Conclusion
None can discuss the Constitution of India in an exhaustive manner because of its dynamic nature and ever-expanding new avenues of interpretation. It is the genus and law of the land from which all other laws flow. But definitely an effort can be made therein so as to make the common men aware about their primary and paramount law from which every other law flows. If one knows about the provisions of the Constitution then one will understand that this is a welfare document which demarcates the relationships between the Government and citizens, between the Central and the State government, between the different organs of the Government coupled with setting forth the primary responsibilities to be performed by the various organs of the Government and also the citizens. To enforce the provisions of the Constitution the legislature may come up with concerned enactments from time to time. And, any law is seen to be in contradiction with any of the provisions of the constitution then it will be declared by the Court of Law to be ultra-vires to the extent of such contradiction.
*****
Footnotes
1. Author is an Assistant Professor of Law at Rashtriya Raksha University, Gandhinagar (A Central University and an Institution of National Importance), India.
2. It was constituted under the Cabinet Mission Plan, 1946 and its total strength was 389 with Dr. Sachchidananda Sinha as its temporary President and Dr. Rajendra Prasad as its permanent President. Muslim League boycotted this. ↩
3. Said by Dr. B.R. Ambedkar. ↩
4. Art. 1 says that India that is Bharat shall be a union of States. So, the other name of India is Bharat. ↩
5. These are Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights, and Right to Constitutional Remedies. ↩
6. Art. 12 of the Constitution defines the term ‘State’ which includes Union Govt., State Govt., Local Govt. and other authorities of public nature ↩
7. Minerva Mills Ltd. V/s Union of India (1980). ↩
8. This Constitutional Amendment is also known as mini Constitution because of its gigantic nature. It changed the overall outlook of the Constitution of India. ↩
9. President of India is the executive head of the State. ↩
10. Allocation of seats are given in 4th Schedule of the Constitution of India. ↩
11. These are Andhra Pradesh, Bihar, Karnataka, Maharashtra, Telangana and Uttar Pradesh. ↩
12. Goods and Service Tax (GST) is an indirect tax for the entire country levied on the supply of goods and services. This has replaced many indirect taxes that previously existed in India. ↩
13. It was constituted in order to define the centre-state financial relations. It maintains fiscal federalism. ↩
14. It includes all the revenues that the Govt. receives through direct or indirect taxes, recoveries of loans, earnings from disinvestment and repayment of debts issued by the Centre. Expenditure incurred by the Govt. is met by the Consolidated Fund of India. ↩
21. (1992) Supp. (3) SCC 217 ↩
24. See also https://www.legalserviceindia.com/legal/ article-2591-contemporary-issues-in-india-under-constitutional-law.html ↩
- It was constituted under the Cabinet Mission Plan, 1946 and its total strength was 389 with Dr. Sachchidananda Sinha as its temporary President and Dr. Rajendra Prasad as its permanent President. Muslim League boycotted this.
- Said by Dr. B.R. Ambedkar.
- Art. 1 says that India that is Bharat shall be a union of States. So, the other name of India is Bharat.
- These are Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights, and Right to Constitutional Remedies.
- Art. 12 of the Constitution defines the term ‘State’ which includes Union Govt., State Govt., Local Govt. and other authorities of public nature
- Minerva Mills Ltd. V/s Union of India (1980).
- This Constitutional Amendment is also known as mini Constitution because of its gigantic nature. It changed the overall outlook of the Constitution of India.
- President of India is the executive head of the State.
- Allocation of seats are given in 4th Schedule of the Constitution of India.
- These are Andhra Pradesh, Bihar, Karnataka, Maharashtra, Telangana and Uttar Pradesh.
- Goods and Service Tax (GST) is an indirect tax for the entire country levied on the supply of goods and services. This has replaced many indirect taxes that previously existed in India.
- It was constituted in order to define the centre-state financial relations. It maintains fiscal federalism.
- It includes all the revenues that the Govt. receives through direct or indirect taxes, recoveries of loans, earnings from disinvestment and repayment of debts issued by the Centre. Expenditure incurred by the Govt. is met by the Consolidated Fund of India.
- See also https://www.legalserviceindia.com/legal/ article-2591-contemporary-issues-in-india-under-constitutional-law.html