The Preamble serves as the introduction or the preface to the Constitution and
contains the summary or essence of the Constitution. It has also been referred
as the 'Soul of the Constitution'. The fundamental rights and directive
principles are considered essential for the development of the personality of
every individual and preserve human dignity.
The Constitution is a fundamental law of a country which reflects the
fundamental principles on which the government of that country is based. It lays
down the framework and principal functions of various organs of the government
as well as the modalities of interaction between the government and its
citizens. The Constitution of India is an organic living document. It is an
instrument which makes the government work. It is the supreme and final law of
India. Various amendments such as 7th, 42nd, 73rd, and 74th have introduced
substantial changes to the original Constitution of India. The 42nd Amendment
Act is also called as the "Mini Constitution�, as it introduced many changes to
Therefore, it changed or increased the number of Articles, Parts and Schedules.
Presently, the Constitution of India has 25 Parts, 12 Schedules and
approximately more than 470 Articles. However, the original Articles and Parts
are not changed but sub-articles, sub-parts are added in original ones.
Preface to the Constitution of India: The Preamble
The Preamble to the Constitution sets out the philosophy on which the political
system of our country rests. It clearly establishes the main objectives of the
Indian Constitution. Preamble is normally known as the Preface or
Introduction to the Constitution, which contains the spirit or essence of
the Constitution. Constitution of America was the first Constitution in the
world to begin with a Preamble. India, like some other countries, also followed
this practice. The Preamble of Indian Constitution is based on an Objective
Resolutions, drafted and moved by Pandit Jawaharlal Nehru on 13th December, 1946
and passed by the Constituent Assembly.
Components of the Preamble
- Source of Authority of the Constitution:
The Preamble states that the Constitution derives its authority from the
people of India
- Date of Adoption of the Constitution:
It stipulates 26th November, 1949, as the date of adoption of the
- Nature of Indian State:
It states India to be a Sovereign, Socialist, Secular, Democratic and
- Objectives of the Constitution:
It specifies justice, liberty, equality and fraternity as the objectives of
Importance of Preamble
As observed by the Supreme Court of India, the Preamble is a key to unravel the
minds of the makers of the Constitution. Preamble embodies the ideals and
aspirations of the people of India. Preamble also contains the enacting cause,
which brings the Constitution into force. It has been amended only once by the
42nd Constitutional Amendment Act (1976), which added three new words Socialist,
Secular and Integrity. Like the Directive Principles of State Policy, the
Preamble is also non-justiciable in nature and therefore cannot be enforced in a
court of law. It does not provide definite and real power to the three organs of
the State (Legislature, Executive and Judiciary), nor limits to their powers
under the provisions of the Constitution. If conflict arises between Preamble
and main provision of Constitution, it is the main provision which prevails.
The Preamble as in our Constitution
We, The People of India, having solemnly resolved to constitute India into a
SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its
JUSTICE social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity arid integrity
of the nation;
In our Constituent Assembly this 26th day of November, 1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Terms used in the Preamble
Sovereign means, India is not dependent on or dominion of any country but an
independent country. It has a free government, which is directly elected by the
people and makes laws that govern the people. Popular sovereignty is also one of
the basic structures of the Constitution of India.
The word 'socialist' was added to the Preamble by the 42nd Amendment Act of
1976, but even before that, the Constitution had socialistic elements in the
form of Directive Principles of State Policy. Socialism means, ownership of
productive forces by the government.
The term 'secular' was also added by the 42nd Constitutional Amendment Act.
Indian Constitution follows the positive concept of secularism i.e. State itself
has no religion but respect all religions in equal sense.
Democracy is basically of two types i.e. Direct and Indirect. Direct democracy
is a form of government in which people vote on policy initiatives directly.
There are four devices of direct democracy, namely, Referendum, Initiative,
Recall and Plebiscite. In indirect democracy, people vote for their
representatives not directly like in Indian parliamentary system.
Constitutional government is of two types, namely, Republic and Constitutional
monarchy. Unlike Britain, India is republic, means there exists no hereditary
ruler in India and all the authorities of the state are directly or indirectly
elected by the people.
Indian Constitution ensures three kinds of justice, which are as follows:
- Political Justice:
In India, it is guaranteed by universal adult suffrage without any sort of
- Social Justice:
It means there is no discrimination on the grounds of caste, religion, race,
sex of place of birth. It is ensured by Articles 15, 17 and 18 specifically.
- Economic Justice:
It means there is no discrimination on economic grounds.
Our Constitution provides liberty at thought, expression, belief, faith and
worship. Liberty is essential for free society that helps in mental and
spiritual development of an individual.
Our Constitution brought the concept of equality from the French Revolution. It
ensures equality of status and opportunity.
It is enshrined in the Constitution that a sense of brotherhood prevails amongst
all sections of the people.
Preamble: Part of the Constitution
In Berubari Union Case (1960), the Supreme Court despite observing that
the Preamble shows the general purposes behind the several provisions in the
Constitution and is thus a key to the minds of the makers of the Constitution,
held that the Preamble is not a part of the Constitution.
In Kesavananda Bharati Case (1973), the Supreme Court rejected
its earlier opinion as expressed in Berubari Case and held that, "The Preamble is
a part of the Constitution.�
It has been observed that the Preamble is of extreme importance and the
Constitution should be read and interpreted in the light of the grand and noble
vision expressed in the Preamble.
In this case, Supreme Court also propounded the concept of basic features of
Constitution and stated that democratic form of government, federal structure,
unity and integrity of the nation, secularism, socialism, social justice and
judicial review are basic features of the Constitution.
Recently the Supreme Court has noted two things:
- The Preamble is neither a prohibition upon the powers of Legislature nor
the source of power to Legislature.
- It is not enforceable in courts because it is non-justiciable.
In LIC of India Case (1995), Supreme Court again held that the Preamble is an
integral part of the Constitution. Like any other part of the Constitution, the
Preamble was also enacted by the Constituent Assembly, but after the enactment
of rest of the Constitution. The reason for inserting the Preamble at the end
was to ensure that it was in conformity with the Constitution as adopted by the
Amendment in the Preamble
In the historic Kesavananda Bharati Case (1973), honourable Supreme Court
overruled its earlier view (as opined in Berubari Case) and held that the
Preamble can be amended under Article 368, subject to the condition that no
amendment is done to the basic feature. The Preamble has been amended only one
time in 1976, by the 42nd Constitutional Amendment Act, which added three new
words Socialist, Secular and Integrity to the Preamble. This amendment was held
to be valid as it was assumed that these amendments are clarifying and
qualifying in nature. They are already implicit in the Preamble.
In the S.R. Bommai Case, 1993 (regarding the dismissal of three BJP Governments
in Madhya Pradesh, Rajasthan and Himachal Pradesh), Justice Ramaswamy said that,
the Preamble of the Constitution is an integral part of the Constitution, Some
of the basic features of the Constitution are, Democratic form of government,
Federal structure, Unity and Integrity of the nation, Secularism, Socialism,
Social justice and Judicial review.
The Indian Constitution is first and foremost a social legal document. The
majority of its provisions are either directly aimed at furthering the goals of
the social revolution or attempt to foster this revolution by establishing the
conditions necessary for its achievement. Fundamental Rights derived their
inspiration from USA Constitution. The Fundamental Rights of the Constitution
are rightly described as the Magna Carta of Indian Constitution. The Fundamental
Rights are Justiciable and contain a very long and comprehensive list. In fact,
the Fundamental Rights in Indian Constitution are more elaborate than that of
other Constitutions of the world. They uphold the equality of all individuals,
dignity of individuals, large public interest and unity of the nation.
Meaning and Importance of Fundamental Rights
The Fundamental Rights promote the idea of political democracy. It means they
prevent the establishment of an authoritarian and despotic rule in the country
and protect the liberties and freedoms of the people against the invasion by the
State. In brief, the Fundamental Rights aim at establishing 'a government of
laws and not of men.'
The Fundamental Rights have been declared as essential rights in order that
human liberty may be preserved, human personality are developed and an effective
social and democratic life be promoted. In the Maneka Gandhi vs. Union of India
Case, 1978, Justice Bhagwati observed:
"These Fundamental Rights represent the basic values cherished by the people of
this country since, the Vedic times and they are calculated to protect the
dignity of the individual and create conditions, in which every human being can
develop his personality to the fullest extent.�
The Fundamental Rights are guaranteed and protected by the fundamental laws.
They also play an important role for the all-round development i.e. material,
intellectual, moral and spiritual, of the individuals that are why these rights
are named as Fundamental Rights.
Originally, the Constitution provided seven Fundamental Rights namely:
- Right to Equality
- Right to Freedom
- Right against Exploitation
- Right to Freedom of Religion
- Cultural and Educational rights
- Right to Property
- Right to Constitutional Remedies
Right to Property was deleted from the list of Fundamental Rights and made a
Legal Right under Article 300-A in Part XII of the Constitution by the 44th
Amendment Act, 1978. Now, there are only six Fundamental Rights.
The Fundamental Rights weave a pattern of guarantee on the basic structure of
human rights and impose negative obligations on the State not to encroach on
individual liberty in its various dimensions.
Fundamental Rights at a Glance
Fundamental Rights have been grouped in following six categories:
Right to Equality (Articles 14-18)Article14: Equality before law and equal protection of laws.
Article 15: Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth.
Article 16: Equality of opportunity in matters of public employment.
Article 17: Abolition of untouchability and prohibition of its practices.
Article 18: Abolition of titles except military and academic
Right to Freedom (Articles 19-22)Article 19: Protection of six rights regarding freedom of speech, etc.
Article 20: Protection in respect of conviction for offences.
Article 21: Protection of life and personal liberty.
Article 21(A): Right to elementary education.
Article 22: Protection against arrest and detention in certain cases.
Right against Exploitation (Articles 23-24)Article 23: Prohibition of traffic in human beings and forced labour.
Article 24: Prohibition of employment of children in factories, etc.
Right to Freedom of Religion (Articles 25-28)Article 25: Freedom of conscience and free profession, practice and propagation
Article 26: Freedom to manage religious affairs.
Article27: Freedom as to payment of taxes for promotion of any particular
Article 28: Freedom as to attendance at religious instructions or religious
worship in certain educational institutions.
Cultural and Educational Rights (Articles 29-30)Article 29: Protection of language, script and culture of minorities.
Article 30: Right of minorities to establish and administer educational
Right to Constitutional Remedies (Article 32)Article 32: Provides institutional framework for the enforcement of the
Fundamental Rights by the Supreme Court.
Articles 15, 16, 19, 29, 30 are available to citizen only while others are
enjoyable by non-citizens as well. Dr B.R. Ambedkar has called Article 32 as the
most important amongst all the Fundamental Rights and thus the heart and soul of
Nature of Fundamental Rights
The Fundamental Rights are individual rights and are enforceable against the
State and not against individuals except Right Against Untouchability (Article
17), Right Against Exploitation (Articles 23 and 24) and Right to Personal
Liberty (Article 21) whereby in case of violation, an individual, who has
violated these rights can be taken to the court of law.
The Fundamental Rights are regarded as limitations on the powers of State. They
are also negative obligations upon the State because they are mostly negatively
quoted that restrain government from doing something unjust. The Fundamental
Rights have to be exercised subject to the limitations embodied in that very
part itself. Thus, the rights are not absolute or unrestricted. Absolute rights
cannot exist in a modern State. If, the rights are uncontrolled and absolute, it
may lead to chaos and anarchy in the society.
Restrictions on Fundamental Rights
The Fundamental Rights of an individual have been restricted under some or all
of the following grounds under various articles:
- For the security of the State
- For the maintenance and promotion of the interest of women, children and
the socially and educationally backward classes.
- To maintain friendly relations with foreign states.
- In case of defamation.
- Contempt of courts.
- For the maintenance of public order, decency and morality.
Classification of Fundamental Rights
As discussed earlier, these rights have been grouped into six categories, which
are as follows:
- Right to Equality (Articles 14 -18)
Equality before Law and Equal Protection of Laws (Article 14)
The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. Equality before law is a
negative concept. It signifies that no one is above the law. The concept has
been borrowed from United Kingdom's Constitution. It is based on the concept of
Rule of Law, which was propounded by A.V. Dicey.
The essential characteristics of the Rule of Law are as follows:
- The Supremacy of law which means that all persons (individuals and
government) are subject to law
- The concept of justice emphasises interpersonal adjudication, law based
on standards and the importance of procedures.
- Restrictions on the exercise of discretionary powers.
- The doctrine of judicial precedent.
- The common law methodology.
- Legislation should be prospective and not retrospective.
- Underlying moral basis for all laws.
Equal Protection of Laws
The concept of equal protection of laws is based on Section 1 of the 14th
Amendment of the Constitution of the United States of America adopted on 28th
July, 1868. It does not mean equal application of law for all people
irrespective of the circumstances under which they are placed. It means equality
as per law in equal circumstances i.e. equality among equals. There should be no
discrimination between one person and another in similar circumstances.
Inequality among unequal is the basis of reservation policy in India and
Affirmative Action Positive Discrimination in USA, Canada, Britain in employment
to backward classes in Public Services of Centre and their respective State.
- Under Article 361(1), the President, or the Governor of a State, shall
not be answerable to any court for the exercise and performance of the
powers and duties of his office or for any act done or purporting to be done
by him in the exercise and performance of those powers and duties
- No criminal proceedings shall be initiated or continued against the
President or the Governor of a state in any court during his term of office.
- No process for the arrest or imprisonment of the President, or the
Governor of a state, shall be issued from any court during his term of
- No civil proceedings in which relief is claimed against the President or
the Governor of a state, shall be initiated during his term of office in any
court in respect of any act done or purporting to be done by him in his
- Whether before or after he entered his office as President or as
Governor of a State, until the expiry of 2 months after the notice in
writing has been delivered to the President or the Governor, as the case may
- Or left his office stating the nature of the proceedings, the cause of
action therefore, the name, description and place of residence of the party
by whom such proceedings are to be instituted and the relief which it
- Under international law, the visiting head of government and foreign
diplomats posted in the country are not subject to the jurisdiction of local
Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place
of Birth (Article 15)
The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, and place of birth or any of them. This right is
available only to citizens.
- Article 15(3) Nothing in this article shall prevent the state from
making any special provision for women and children.
- Article 15(4) Nothing in this Article or in Clause (2) of Article 29
shall prevent the state from making any special provision for the
advancement of any socially and educationally backward classes of citizens
or for the Scheduled Castes and the Scheduled Tribes.
- The 93rd Constitutional Amendment Act, 2005 inserted Article 15(5),
which authorises the State to make special provisions for the advancement of
any socially and educationally backward classes of citizens or for the
Schedule Castes and the Schedule Tribes in so far as such special provisions
relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than
the minority educational institutions referred to in Clause(1) of Article
The Mandal Commission was established in India in 1979, by the Janata Party
Government under Prime Minister Morarji Desai with a mandate to investigate the
conditions of the socially and educationally backward classes and suggest
measures for their advancement. It was headed by Indian Parliamentarian
Bindheswari Prasad Mandal. In 1980, the commission's report affirmed the
affirmative action practice under Indian law whereby, members of lower castes
(known as Other Backward Classes (OBCs) and Scheduled \ Castes and Tribes) were
given exclusive access to a certain portion of government jobs and slots in
government universities and recommended changes to these quotas, increasing them
by 27% to 49.5%.
It was after 10 years in 1990 that the V.P. Singh Government
declared reservation of 27% government jobs for the OBCs. Pursuant to Supreme
Court ruling, Ram Nandan Committee was appointed to identify the creamy layer
among the OBCs. It submitted its report in 1993, which was accepted. Government
also established National Commission for Backward Classes in 1993, by an Act of
Parliament. It considers inclusions in and exclusions from the lists of castes
notified as backward for the purpose of job reservation.
Equality of Opportunity in Matters of Public Employment (Article 16)
There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the state. No citizen shall, on
grounds only of religion, race, caste, sex, descent, place of birth, residence
or any of them, be ineligible for or discriminated against in respect of, any
employment or office under the state. This right is available only to citizens.
- Parliament can prescribe residence as a condition for certain employment
in state or UT's or local authority
- Special favour can be given to SCs, STs and other weaker sections.
- Religion can be ground for discrimination in special cases e.g.
appointment of Imams in Madarsa.
In the Indra Sawhney vs. Union of India Case 1993, the Supreme Court observed
that reservation in appointments or in posts is confined to the initial
appointment and cannot extend to reservation in the matter of promotion. The
Constitution (77th Amendment) Act, 1995, amended Article 16 by inserting a new
clause 4A to provide for reservation in promotion for SCs and the STs.
Abolition of Untouchability (Article 17)
Untouchability is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of 'untouchability' shall be an
offence punishable in accordance with law. Untouchability is neither defined in
the Constitution nor in the Act. The Mysore High Court has, however, held that
the term is not to be understood in its literal or grammatical sense, but to be
understood as the practice as it had developed historically in this country.
Understood in this sense, it is a product of the Hindu Caste System according to
which particular sections amongst the Hindus had been looked down as
untouchables by other sections of that society.
The Parliament enacted the Untouchability
(Offences) Act, 1955. This Act was amended by the Untouchability (Offences) Act,
1976, in order to make the law more stringent to remove the evils of
untouchability from the society. It has now been named as "The Protection of
Civil Rights Act, 1955�. The Protection of Civil Rights Act prescribes
punishment which may extend to imprisonment up to 6 months and also with a fine,
which may extend to rupees 500 or both.
Abolition of Titles (Article 18)
It has four provisions
- No title, not being a military or academic distinction, shall be
conferred by the state
- No citizen of India shall accept any title from any foreign state.
- No person who is not a citizen of India shall, while he holds any office
of profit or trust under the state, accept without the consent of the
President any title from any foreign state.
- No person holding any office of profit or trust under the state shall,
without the consent of the President, accept any present, emolument, or
office of any kind from or under any foreign state.
Only those titles which can create artificial social barriers have been
abolished. The National Awards were introduced by the Centre in 1954, by
Presidential notifications. The Presidential notification made it clear that
these civilian awards cannot be used as titles and should not be attached as
suffixes or prefixes to the name of the awardees.
In the Balaji Raghavan vs. Union of India Case, 1996, the petitioners challenged
the validity of these National Awards and requested the court to prevent the
Government of India from conferring these awards. It was contended that the
National Awards are titles within the meaning of Article 18. The Supreme Court
held that the National Awards such as Bharat Ratna, Padma Bhushan, etc are not
violative of Article 18 of the Constitution. These were awards and not titles.
The National Awards are given to the people for rendering meritorious service to
the society or the state. Article 18 is not penal in nature, but only directory
2. Right to Freedom (Articles 19 to 22)
Protection of Six Freedom Rights
Article 19 guarantees that all citizens shall have the six rights. These are as
- Freedom of speech and expression
- To assemble peacefully and without arms.
- To form associations or unions or cooperative societies.
- To move freely throughout the territory of India.
- To reside and settle in any part of the territory of India.
- To practise any profession or to carry on any occupation, trade or
Originally, Article 19(1) had seven freedoms. But, Article 19 (1) (f) i.e. right
to freedom of property was omitted by the 44th (Constitutional) Amendment Act,
1978 and now it is a legal right enforced by law.
Right to Freedom of Speech and Expression [Article 19(1) (a)
The freedom of speech and expression guaranteed under Article 19(1) (a) means
the right to speak and to express one's opinion by word of mouth, writing,
printing, pictures or in any other manner. It is the right of a citizen to
express his views freely and openly. Openly means without any fear while freely
denotes that the citizen can choose any medium to express his opinion e.g.
printing, writing, putting banners and hoardings etc. It is to express one's
convictions and opinions or ideas freely, through any medium of communication or
visible representation such as gesture, signs and the like. The right to freedom
of speech and expression has been subjected to wide interpretations by the
The Supreme Court held that the freedom of speech and expression
includes the following:
- Right to propagate one's views as well as views of others
- Right to freedom of the press.
- Freedom of commercial advertisements.
- Government has no power on electronic media, which means that government
does not have monopoly. It refers to the right to telecast.
- Right against bandh called by a political party or organisation.
- Right against tapping of telephonic conversion.
- Right to know about government activities
- Freedom of silence.
- Right against imposition of pre-censorship on a newspaper.
- Right to demonstration or picketing but not right to strike etc.
Reasonable Restrictions on Freedom of Speech and Expression
Clause 2 of Article 19 provides: Nothing in sub-clause (a) of clause (1) shall
affect the operation of any existing law or prevent the state from making any
law in so far as such law imposes reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interests of the sovereignty and
integrity of India, the security of the state, friendly relations with foreign
states, public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offence.
Section 66A of IT Act prescribes the punishment for sending 'offensive' messages
through computers or any other communication device such as mobile phone or a
tablet and a conviction can fetch a maximum of three years in jail. On 24th
March 2015, the Supreme Court struck down Section 66A of IT Act reforming it as
Right to Know and To Obtain Information
It has been held that in a democratic government, it is elementary that citizens
ought to know what their government is doing. With a view to promote openness,
transparency and accountability in administration, the Right to Information act
came into operation from 12th October, 2005. The Act provides for furnishing
information by the public information officer on request from the person
desiring to obtain it. Penalty upto rupees 25,000 can be imposed for failure to
Rights of the Citizens/Voters to Know the Antecedents
The Supreme Court in Association for Democratic Reforms vs. Union of India Case,
2002, ruled that the right to know the antecedents of the candidates contesting
for MP or MLA including their criminal antecedents was fundamental and basic for
survival of democracy. The court said that the voter had the right to get
material information with respect to a candidate contesting election for a post,
which was of utmost importance in the democracy. This was implied in the freedom
of speech guaranteed by Article 19(1) (a).
Freedom of Assembly [Article 19 (1) (b)]
It guarantees to all citizens the right to assemble peaceful, and without arms.
It is a corollary of Article 19(1)(a). This right is not absolute, but
restricted. The assembly must be non-violent and must not cause any breach of
public peace. If the assembly is disorderly or riotous then it is not protected
under Article 19(1) (b) and reasonable restrictions may be imposed under Article
Reasonable Restrictions on Freedom of Assembly
The right to hold assembly conferred by Article 19(1)(b) is however not
absolute. It is subjected to the following limitations
- The assembly must be peaceful.
- It must be unarmed and the State may impose reasonable restrictions
under Clause (3) of Article 19 in the interest of public order or
sovereignty and integrity of India.
Freedom to Form Association [Article 19(1) (c)]
It guarantees the right to form associations. It includes the association of any
kind i.e. political, social or cultural. Further, it also means the right to
join or not to join any association or right to continue or not to continue with
the association. Some rights to be related to the right to freedom to form
association are given below:
- It gives rise to the right to form trade unions. It is a fundamental
right of workers to form trade unions
- The Supreme Court conferred that the Constitution does not recognise the
right to strike. It is a legal right but the strike must follow some rules.
Workers can strike only after giving due notice.
- In CPM vs. Bharat Kumar Case, 1998, the Supreme Court stated that bandh is
illegal. Bandh (a general strike) is illegal because it carries an element of
aggression or compulsion.
- The compulsion of shutting down offices, shops and disturbance to public
transport system, therefore violate a Fundamental Right of citizen (Right to
Freedom of Movement). Moreover, bandh prevents the workers to earn their daily
bread, therefore it violates the right to livelihood. It also violates the right
to freedom of speech and expression.
- The Supreme Court held that the hartal is not illegal because there is no
form of coercion involved to disturb the normal life.
- ESMA (Essential Services Maintenance Act, 1968 and Essential Services
Amendment Act, 1981) The citizens involved in delivery of essential services
cannot go on strike (Telecommunication, Administration, etc).
Right to Freedom of Association
An association means "a collection of persons who have joined together for a
certain object, which may be for the benefit of the members or the improvement,
welfare of advantage of the public or some scientific, charitable or similar
It is a term of widest connotation Article 19(1)(c) includes the right to form
companies, societies, partnership firms, trade unions, clubs, political parties
and the like body of persons. It is the right of every citizen, to be a member
of or to associate himself, with any organization, association, union, club,
company or society.
According to the Supreme Court, the right to form association includes the right
to join, to continue or not to continue with an association. Right to form trade
unions emanates from this right.
Freedom of Movement [Article 19(1)(d)]
It guarantees to citizens the right to move freely throughout the territory of
India. The word 'throughout' means no part of the country can be made
inaccessible to the people of India, The word freely means wherever one likes
and whichever way one likes.
On the basis of the above provision, the following reasonable restrictions can
be imposed on the Freedom of Movement:
- In the interest of country's security.
- For protecting the interests and culture of the schedule tribes.
- For maintenance of public order, decency and morality.
Freedom of Residence [Article 19(1) (e)]
It is a corollary of Article 19 (1) (d). It provides that the right to reside
and settle down throughout the territory of India. This right is subject to
certain reasonable restrictions in the areas like the Scheduled areas or border
areas. Broadly speaking, the two rights contained in Articles 19(1)(d) and
19(1)(e) are parts of the same right and are complementary and often go
together. The object behind the guarantee contained in 19(1) (d) and 19(1) (e)
is to make Indian citizens open and broad minded. It is to put an end to petty
and parochial considerations. These provisions have thus, removed all internal
barriers within territory of India or any of its parts.
Right to Practise Any Profession or to Carry on Any Occupation, Trade or
Business [Article 19(1) (g)]
The term 'Occupation' means some activity by which a person is occupied or
engaged. It would be an activity of a person undertaken as a means of livelihood
or a mission of life. The term 'Profession' has been interpreted to mean an
occupation requiring the exercise of intellectual skill, often coupled with
manual skill. The term 'Business' means any activity involving the production,
distribution and consumption of wealth and the production and availability of
material services, while Trade is an activity concerning the sale and purchase
Clause (6) of this Article provides that, Nothing in sub-clause (g) of the said
Clause shall affect the operation of any existing law in so far as it imposes or
prevent the state from making any law imposing, in the interests of the general
public, reasonable restrictions on the exercise of the right conferred by the
said sub-clause and in particulars, nothing in the said sub-clause shall affect
the operation of any existing law in so far as it relates to or prevent the
state from making any law relating to:
- The professional or technical qualifications necessary for practising
any profession or carrying on any occupation, trade or business.
- The carrying on by the state or by a corporation owned or controlled by
the state of any trade, business, industry or service, whether, to the
exclusion, complete or partial of citizens or otherwise.
- Immoral (trafficking women and children) or dangerous (harmful drugs or
explosives) profession, business and trade.
Protection in Respect of Conviction for Offences (Article 20)
No person shall be convicted of any offence, except for violation of a law in
force at the time, of the commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence. No person shall
be prosecuted and punished for the same offence more than once. No person
accused of any offence shall be compelled to be a witness against himself.
An analysis of Article 20 leads us to the following conclusions
- No Ex-post Facto Law: It means enacting a law and giving retrospective
effect to it. Criminal legislations cannot be given retrospective effect,
but they should be given a prospective effect.
- No Double Jeopardy: It means not punishing an individual twice for the
- No Self-incrimination: It means not compelling an individual to make a
statement and making use of that statement against himself. This is to save
the individual from the arbitrary acts of the executive.
Protection of Life and Personal Liberty (Article 21)
No person shall be deprived of his life or personal liberty except according to
procedure established by law. Article 21, which cannot be suspended even during
emergency, secures two rights;
Right to Life
The right to life does not merely mean the continuance of a person's animal
existence. It means "the fullest opportunity to develop one's personality and
potentiality to the highest level possible in the existing stage of our
civilization�. The right implies a reasonable standard of comfort and decency.
Right to Life under Article 21 on face appears to be a colourless article.
However, this article has been receiving the widest interpretations by the
courts. It has given rise to more number of inferred rights. Inferred right is
one which is not explicitly provided in the Constitution, but has been implied
under the existing Constitution by the judiciary by giving liberal
Different facets of right to life are as follows:
- Right to dignified life
- Right to reputation.
- Right to livelihood.
- Right of a couple to adopt a son for making their life more meaningful.
- Right not to commit suicide.
- Right to shelter
- Right against cruel punishment.
- Right against denial of wages.
- Right to speedy trial.
- Right to live in unpolluted environment.
- Right to health and timely medical aid.
- Right against delayed execution
- Right to die with dignity.
- Right to sleep. (Supreme Court judgment on the police lathi charge in
Ramlila Maidan on Baba Ramdev's supporters at midnight).
- Right of women to be treated with decency and dignity.
- Right to privacy.
- Right to marry the person of one's choice.
Right to Personal Liberty
Procedure Established by Law
It's a doctrine that originated in Britain. Procedure established by law means
that judiciary will look whether there is a law passed to the effect or not. It
shall see whether the law has been passed by , competent authority or not and
whether it has been passed in the prescribed manner or not.
Due Process of Law
The ideas of due process of law have been borrowed from the US Constitution. It
says that while looking into the interpretation of law, the court shall look
into all the provisions of the procedure established by law and should also see
that whether that law is just, fair and reasonable or not.
Thus, while procedure established by law looks at only the letter of the law,
due process of law looks at both the letter and spirit of the law.
Different facets of right to personal liberty are as follows:
- Right to privacy
- Right to go abroad.
- Right against illegal detention.
- Right to bail.
- Right against hand-cuffing.
- Right to write a book.
- Right against solitary confinement.
- Right to socialize.
- Under-trials not to be kept with convicts.
Right to Education (Article 21 (A))
The State shall provide free and compulsory education to all children of the age
of 6 to 14 years in such a manner as the state may, by law, determine. Article
21-A was added by the 86th Constitution (Amendment Act), 2002.
Protection against Arrest and Detention in Certain Cases (Article 22)
Article 22 grants protection to persons who are arrested or detained. Detention
is of two types punitive and preventive. Punitive Detention is to punish a
person for an offence committed by him/her after trial and conviction in a
Preventive means detention of a person without trial and conviction by a person
for a past offence, but to prevent him/her from committing an offence in the
The other concepts are as follows
- No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he be
denied the right to consult and to be defended by a legal practitioner of
- Every person, who is arrested and detained in custody shall be produced
before the nearest Magistrate within a period of 24 hours of such arrest
excluding the time necessary for the journey from the place of arrest to the
court of the Magistrate and no such person shall be detained in custody
beyond the said period without the authority of a Magistrate.
Article 22 (3) Nothing in clauses (1) and (2) shall apply
- To any person who for the time being is an enemy alien or
- To any person who is arrested or detained under any law providing for
Article 22 says that these rights are not available to the enemy aliens and
secondly the person detained under the preventive detention laws.
Right against Custodial Death
In Hemadhar Hazarika vs. Union of India 2007 case, the Guwahati High Court
declared that every Citizen has a right to life and to live with human dignity
under Article 21. Since, the death in police custody is a violation of the
Fundamental Right to life, the legal heir can claim compensation. Even the
custodial death in Army is a violation of the Article 21.
Safeguards against Arrest or Detention made under Preventive Detention Law
[Articles 22(4) to (7)]
A person arrested under a preventive detention law cannot be detained beyond 3
months. If he is to be detained beyond 3 mouths, his detention shall be approved
by an Advisory Communities/Board Headed by a sitting judge of the concerned High
The other two members shall be sitting or retired Judges of the High Court. The
opinion of the advisory board confirming the detention must be obtained before
the expiry of the first 3 months of detention.
Preventive Detention means the detention of a person without trial in such
circumstances that the evidence in possession of the authority is not sufficient
to make a legal charge.
The justification for preventive detention is suspicion or reasonable
apprehension, reasonable probability, of the impending commission of an act
prejudicial to the state. The aim is to prevent the abuse of freedom by
anti-social and subversive elements.
The Supreme Court in A.K Gopalan vs. State of Madras Case, 1950, explained the
necessity of provisions relating to preventive detention and observed: This
sinister-looking feature, so strangely out of place in a democratic
Constitution, which invests personal liberty with the sacrosanctity of a
Fundamental Right and so incompatible with the promises of its Preamble, is
doubtless designed to prevent the abuse of freedom by anti-social and subversive
elements which might imperil the national welfare of the infant republic.
3. Right against Exploitation (Articles 23 to 24)
Prohibition of Traffic in Human Beings and Forced Labour (Article 23)
Article 23 (1) provides that, Traffic in human beings and begar and other
similar forms of forced labour are prohibited and any contravention of this
provision shall be an offence punishable in accordance with law. Trafficking in
human beings means engaging in slavery and servitude and forcing women, children
and the crippled in immoral activities. Begar means forced labour with or
without payment. Article 23(2) states that, Nothing in this article shall
prevent the State from imposing compulsory service for public purposes and in
imposing such service, the State shall not make any discrimination on grounds
only of religion, race, caste or class or any of them. For example, during
elections, the State can compel the government officials to do duties and during
war the state can compel the individuals to work in auxiliary units.
A note on Article 23 Article 23(1) envisages legislation for the enforcement of
the constitutional prohibition. Section 37(4) of the Indian Penal Code is one
such enactment, though a pre-Constitution one. Specific legislation also exists
regarding immoral trafficking in women and girls and regarding bonded labour.
The Immoral Trafficking (Prevention) Act, 1956, was initially enacted as the
'Suppression of Immoral Traffic in Women and Girls Act, 1956' in pursuance of
the International Convention for the Suppression of the Traffic in persons and
of the exploitation of the prostitution of others signed at New York on 9th May,
1950. This Act was amended twice, once in 1978 and second time in 1986.
Prohibition of Employment of Children in Factories (Article 24)
No child below the age of 14 years shall be employed to work in any factory or
mine or engaged in any other hazardous employment. This right can be enforced
against both the State and an individual. Recently, Union Cabinet approved a
proposal for amending the Child Labour (Prohibition and Regulation) Act 1986, to
ban employment of children aged up to 14 in any form of industry.
It will be an offence to employ such children not only in factories or
industries (as it is at present,) but also in homes or in farms, if their labour
is meant to serve any commercial interest. It is to be noted that Article 24
does not abolish child labour in its present form because children below 14
years of age can be employed in non-hazardous industries.
4. Right to Freedom of Religion (Articles 25-28)
Freedom of Conscience and Free Profession, Practice and Propagation of Religion
Article 25 (1) States that, Subject to public order, morality and health and to
the other provisions of this part, all persons are equally entitled to freedom
of conscience and the right to freely profess, practice and propagate religion.
This clause secures to every person:
- Freedom of Conscience: The expression 'freedom of conscience' means the
inner-freedom of an individual to mould his religious views. Any belief
which is genuinely and conscientiously held attracts the protection of
- To Profess: It means to declare freely and openly one's faith or belief.
It is to declare one's belief in such a way that it would be known to those
whom it may concern.
- To Practise: It means to perform religious duties, rites or rituals.
- To Propagate: It means to spread and publicise one's religious views.
However, it does not confer a Fundamental Right on an individual to convert
others to his own religion. Supreme Court made a distinction between
religious beliefs and opinion on one hand and religious practice and conduct
on the other. The state cannot interfere in case of the former, but it can
do so, in case of the latter.
Freedom to Manage Religious Affairs (Article 26)
Subject to public order, morality and health, every religious denomination or
any section thereof shall have the right:
- To establish and maintain institutions for religious and charitable
- To manage its own affairs in matters of religion.
- To own and acquire movable and immovable property.
- To administer such property in accordance with law.
However, the affair of these institutions can be regulated for the maintenance
of public order, decency, health, morality etc.
Freedom from Payment of Taxes for Promotion of any Particular Religion (Article
No person shall be compelled to pay any taxes, the proceed of which are
specifically appropriated in payment of expenses for the promotion or
maintenance of any particular religion or religious denomination.
This provision prohibits only levy of a tax and not a fee. This is because the
purpose of a fee is to control secular administration of religious institutions
and not to promote or maintain religion. Thus, a fee can be levied on pilgrims
to provide them some special service or safety measures. Similarly, a fee can be
Freedom as to Attendance at Religious Instructions or Religious Worship in
Certain Educational Institutions (Article 28)
- No religious instruction shall be provided in any educational
institution wholly maintained out of State funds. (Clause 1
- Nothing in Clause (1) shall apply to an educational institution which is
administered by the State, but has been established under any endowment or
trust which requires that religious instruction shall be imparted in such
institution. (Clause 2)
- No person attending any educational institution recognised by the State
or receiving aid out of State funds shall be required to take part in any
religious instruction that may be imparted in such institution or to attend
any religious worship that may be conducted in such institution or in any
premise attached thereto unless such person or, if such person is a minor,
his guardian has given his consent thereto. (Clause 3)
- Cultural and Educational Rights (Articles 29 to 30)
Protection of Interests of Minorities (Article 29)
Any section of the citizens residing in the territory of India or any part
thereof having a distinct language, script of culture of its own shall have the
right to conserve the same.
No citizen shall be denied admission into any educational institution maintained
by the state or receiving aid out of state funds on grounds only of religion,
race, caste, language or any of them.
Right of Minorities to Establish and Administer Educational Institutions
- Article 30 (1) says that all minorities, whether religious or
linguistic, shall have the right to establish and administer educational
institutions of their choice
- Clause 1(A) added by the 44th Amendment, in effect, provides that if the
property of any such institution is acquired, the compensation paid would be
proper and adequate, so, that the right given by the article remains
- Clause (2) provides that in the matter of giving aid, the State shall
not discriminate against minority managed institutions. Thus, the protection
under Article 30 is confined only to minorities (religious or linguistic)
and does not extend to any section of citizens (as under Article 29).
However, the term 'minority' has not been defined anywhere in the
- The right to administer, however, does not mean right to
maladministration. The right is subject to regulatory power of the state.
- Legislation in the interests of social welfare, industrial relations,
academic standards, efficiency, discipline, health, sanitation, public
order, morality, reasonable regulation to prescribe syllabus, etc does not
violate Article 30 so long as it does not deprive the minority of its right
to manage the institution.
6. Right to Constitutional Remedies (Article 32)
It is true that a declaration of Fundamental Rights is meaningless unless there
is effective machinery for the enforcement of the rights. It is remedy, which
makes the right real. If, there is no remedy, there is no right at all. It was
therefore, in the fitness of things that our Constitution makers having
incorporated a long list of Fundamental Rights have also provided for an
effective remedy for the enforcement of these rights under Article 32 of the
Article 32 itself is a Fundamental Right. It confers one of the 'highly
cherished rights'. This right has been held to be an important and integral part
of the basic structure of the Constitution. It empowers an individual to
approach the Supreme Court directly in case his one or more Fundamental Rights
are violated. Article 32 has been described as the cornerstone of the democratic
edifice raised by the Constitution. In the Ramesh Thapar v. State of Madras
Case, 1950, the Supreme Court held that it is because of this article that the
Supreme Court should be declared as the guardian or protector of Fundamental
The apex court further held that the Supreme Court could not,
consistently, with the responsibility laid upon it, refuse to entertain
applications seeking protection against infringements of such rights.
For the proper enforcement of the Fundamental Rights, Article 32(2) gives the
Supreme Court the power to issue writs. A writ is an order or command issued by
a court in writing under its seal.
Writs originated under the Roman law, but have been developed under the British
Constitution. The concept of writs has been borrowed from the British
Constitution. It is in the nature of a command or prohibition from performing
certain acts that are specified in the orders of the court.
Landmark Judgment on Fundamental Rights by the Supreme Court
The Supreme Court in March, 2015 gave a Landmark Judgment in Shreya Singhal v.
UOI (Union of India) Case. The Supreme Court stroked down the Sec. 66A of IT
Act, 2000 as ultra-vires or unconstitutional. Since this Section 66A of IT Act,
2000 was putting restrictions on Article 19(1) (a). Sec 66A reads that if anyone
who sends by means of a computer resource or a communication device any
information which causes annoyance, danger, insult, injury, enmity or hatred or
ill will, etc shall be punishable for a term (3-5) years. Actually Sec 66A was
ambiguous in its meaning and so was unconstitutional as it infringed the
Fundamental Right given under Article 19(1) (a).
Members of Armed Forces and the Fundamental Rights
Article 33 provides that Parliament may, by law, determine to what extent any of
the rights conferred by this part shall be restricted or abrogated so as to
ensure the proper discharge of their duties and the maintenance of discipline
among them. These rights would be restricted in their application to:
- The members of the armed forces
- The members of the forces charged with the maintenance of public order.
- Persons employed in any bureau or other organisation established by the
State for purposes of intelligence or counter intelligence.
- Persons employed in or in connection with, the telecommunication systems
set-up for the purposes of any force, bureau or organisation referred to in
Clauses (a) to (c).
Article 33 enables Parliament to modify Fundamental Rights in relation to
military or para-military forces, police forces and analogous forces. The
restrictions on the Fundamental Rights under Article 33 can be imposed only by
Parliament by law.
Prior to the 50th Constitutional Amendment Act, 1984, Article 33 empowered the
imposition of restrictions on Fundamental Rights only in respect of members of
Armed Forces or the forces charged with the maintenance of public order. The
amendment included the later two more categories of persons.
Restrictions on Fundamental Rights during the Operation of Martial Law
Article 34 provides "Notwithstanding anything in the foregoing provisions of
this Part, Parliament may, by law indemnify any person in the service of the
Union or of a State or any other person in respect of any act done by him in
connection with the maintenance or restoration of order in any area within the
territory of India where martial law was in force or validate any sentence
passed, punishment inflicted, forfeiture ordered or other act done under martial
law in such area.�
Article 34 empowers Parliament to make any law for indemnifying any person for
acts done during the operation of martial law.
The power of Parliament is
subject to two conditions, which are as follows:
- The act must have been done in connection with the maintenance or
restoration of order.
- Martial law must be in force in the area where the act was done.
In the proper sense of the term, martial law means 'the suspension of ordinary
government of a country or part of it by military tribunals.' It must be noted
that the Constitution does not have a provision authorizing proclamation of
martial law. However, it is implicit in the text of Article 34 that the
government may declare martial law in any part of the territory of India.
Article 35 (Legislation to give effect to the provisions of this part) provides
for powers to make laws on certain articles in this part only on the Parliament
and excludes the state legislatures jurisdiction from them. These Articles are
16(3), 32(3), 33 and 34. The jurisdiction to make laws for punishment under
articles, which declare certain Acts to be offences. This includes Article 17 on
untouchability and Article 23 on trafficking in human beings and forced labour
also lies exclusively with the Parliament and not State Legislatures.
Suspension of Fundamental Rights
Article 358 states that the Fundamental Rights provide under Article 19 are
automatically suspended when the National Emergency is proclaimed on the grounds
of war and external aggression.
However, if the National Emergency is proclaimed on the grounds of internal
armed rebellion, the rights under Article 19 are not automatically suspended.
Article 359 states that the President may by order can issue a proclamation to
suspend all the Fundamental Right mentioned in Part-III except Article 20 and
Article 21 during the national emergency situation in the whole country or in
the part of the country thereof.
Amendability of Fundamental Rights
The expression 'law' according to Article 13 includes any law passed by State,
by laws, rules, regulations, ordinances, directions, etc.
The (Constitution First Amendment) Act, 1951 added the Ninth Schedule to the
Constitution which mostly contains social legislations like the land reforms
acts and its provisions cannot be challenged in any court of law for
contravening any of the Fundamental Rights.
Article 15 (4) also added to protect the interests of the Scheduled Castes and
Scheduled Tribes and the policy of reservations was introduced. This amendment
act violated the Right to Equality, the Right to Property, and it was challenged
in the Shankari Prasad v. Union of India Case, 1951.
In this case, the Supreme Court held that the Parliament can amend the
Fundamental Rights. In Sajjan Singh v. State of Rajasthan, 1965 case, the
Supreme Court reiterated the same judgment. In Golaknath v. State of Punjab,
1967 case, the court reversed its decision and held that the Parliament has no
authority to amend the Fundamental Rights.
After this, the 24th Constitution Amendment Act was passed in 1971. It amended
Article 13 and introduced Article 13(4) which said that, nothing in this article
shall apply to amendment made under Article 368. It also changed the title of
Article 368, "The power of the Parliament to amend the Constitution and the
procedure thereof.� Nature of Article 368 was changed and 24th Amendment Act
established that any part of Constitution can be changed including the
This 24th Constitutional Amendment Act was challenged in the Kesavananda Bharati
v. State of Kerala Case, 1973, in this case, the Supreme Court propounded the
Doctrine of Basic Structure of the Constitution.
Amendments to the Fundamental Rights Since 1995
- 77th Constitutional Amendment Act, 1995:
The amendment introduced a new Article 16(4A), which provides that the
reservation in favour of the Scheduled Castes and Scheduled Tribes can be
made in promotion in the public services
- 81st Constitutional Amendment Act, 2000:
This amendment also adds another clause 4(B) in Article 16, which provides
that the number of unfilled posts of the Scheduled Castes, Scheduled Tribes
and Other Backward Castes shall not be included in the number of fresh
vacancies to be filled up. The implication of this amendment is that the
number of backlog vacancies shall lie beyond the permissible limit of 50% of
vacancies in the reserved category.
- 82nd Constitutional Amendment Act, 2000:
This amendment inserts a new provision in Article 335, which provides that
the state may relax the minimum qualifying marks for the Scheduled Castes
and Scheduled Tribes candidates in promotional examinations.
- 85th Constitutional Amendment Act, 2001:
It affects further amendment to Article 16(4A), which provides that
consequential seniority shall also be taken into consideration in promotions
of Scheduled Castes and the Scheduled Tribes candidates to various
- 86th Constitutional Amendment Act, 2002:
This amendment inserts Article 21A, which provides the Fundamental Right to
free and compulsory education to children from 6 to 14 years of age in a
manner determined by law by the State.
- 93rd Constitutional Amendment Act, 2005:
This Amendment Act inserts Article 15(5), which authorises the State to make
special provisions for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled
Tribes in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether
aided or unaided by the state, other than the minority educational
institutions referred to in clause(1) of Article 30.
Rights outside Fundamental Rights in Constitution
These rights are also known as Constitutional/Legal/Non-fundamental Rights.
- Article 300 A:
Right to Property: Person not to be deprived of property. This right is
saved by authority of law.
- Article 301:
Freedom of Trade, Commerce and Intercourse: Subject to the other provisions
of this part, Trade, Commerce and Intercourse throughout the territory of
India shall be free.
- Article 326:
Right to Vote: The elections to the Lok Sabha and the State
Legislative Assembly shall be on the basis of adult suffrage.
Though the rights and duties of the citizens are correlative and inseparable.
These serves as constant reminder to every citizen that while the Constitution
specifically confers to them certain Fundamental Rights, it also requires them
to observe certain basic norms and duties of democratic conduct and behaviour.
The Fundamental Duties of citizens were added to the Constitution by the 42nd
Amendment Act, 1976 upon the recommendations of the Swaran Singh Committee
constituted by the government. And it added a new part IVA and Article 51A in
the Constitution of India. Initially ten in number, the fundamental duties were
increased to eleven by the 86th Amendment Act, 2002 which added a duty on every
parent or guardian to ensure that their child or ward was provided opportunities
for education between the ages of 6 and 14 years. The Constitution of India does
not provide for their direct enforcement by the courts. Moreover, there is no
legal sanction against their violation. However, the Parliament is free to
enforce them by suitable legislation.
Fundamental Duties of the Constitution say
that, it shall be the duty of every citizen of India:
- To abide by the Constitution and respect its ideals and institutions,
the National Flag and the National Anthem
- To cherish and follow the noble ideals which inspired our national
struggle for freedom.
- To uphold and protect the sovereignty, unity and integrity of India.
- To defend the country and render national service when called upon to do
- To promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional and
sectional diversities, to renounce practices derogatory to the dignity of
- To value and preserve the rich heritage at our composite culture.
- To protect and improve the natural environment including forests, lakes,
rivers and wildlife and to have compassion for living creatures.
- To develop the scientific temper, humanism and the spirit of inquiry and
- To safeguard public property and to abjure violence.
- To strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour
- To provide opportunities for education to his child or ward between the
ages of 6 and 14 years (86th Amendment 2002).
There is no provision for direct enforcement of these duties, but it can be
expected that in determining the constitutionality of a law which seeks to give
effect to those duties that court may consider such a law to be reasonable in
relation to Article 14 and Article 19 and thus save a law from being
Sources of Fundamental Duties
The Fundamental Duties in Indian Constitution are inspired by the Constitution
of the erstwhile USSR. Japanese Constitution also contains a list of Fundamental
Duties. The inclusion of Fundamental Duties in our Constitution also brings it
in line with Article 29(1) of the Universal Declaration of Human Rights, which
"Everyone has the duties to the community, in which alone the free and full
development of the personality is possible.''
Exercise of Fundamental Rights
entails duties to the community, which ensures the free and full development of
Significance of Fundamental Duties
Fundamental duties of citizens serve a useful purpose. In particular, no
democratic polity can ever succeed where the citizens are not participating
actively in the process of governance by assuming responsibilities and
discharging citizenship duties and coming forward to give their best to the
country. It serves as a reminder to the citizens that they should not only enjoy
their rights but should also be conscious of the duties towards their country.
They also help courts in examining the constitutional validity of a law.
Some of the Fundamental Duties enshrined in Article 51A have been incorporated
in separate laws. For instance, the first duty includes respect for the National
Flag and the National Anthem, disrespect of which is punishable by law. Article
51A is needed to treat all human beings equally, to respect each religion and to
confine it to the private sphere and not to make it a bone of contention between
different communities of this land.
Fundamental Duties serve as a warning against the anti-national and anti-social
activities like burning the national flag, destroying public property and so on.
Fundamental Duties are enforceable by law. Hence, Parliament can provide for the
imposition of appropriate penalty or punishment for failure to fulfill any of
Legal Provisions for Implementation of Fundamental Duties
The Verma Committee (1999) identified the existence of following legal
- The Prevention of Insults to National Honour Act, 1971
- The various criminal laws provide for punishment for encouraging enmity
- The Protection of Civil Rights Act, 1955.
- The Indian Penal Code declares the imputations and assertions
prejudicial to national integration as punishable offences.
- The Representation of People Act, 1951.
- The Wildlife Protection Act, 1972 and Forest Conservation Act, 1980.
Recommended reorienting approaches to school curriculum and teacher's
education programmes and professional education.
National Commission to Review the Working of the Constitution (NCRWC), 2002 and
Supreme Court in 2003 directed to implement recommendations of Justice Verma
Criticism of Fundamental Duties
Fundamental Duties as contained in Part IVA are criticised on the ground that
they are not exhaustive as they do not contain various important duties like
casting vote, paying taxes, family planning, etc. Also, some of the duties are
difficult to understand as they are vague and ambiguous. These duties are not
justiciable, they have been criticised as just being moral instructions.
Directive Principles of State Policy
An important feature of the Constitution is the Directive Principles of State
Policy. They have been enshrined in Part IV of the Constitution from Article 36
to 51. Although the Directive Principles are asserted to be fundamental in the
governance of the country, they are not legally enforceable.
Dr BR Ambedkar described Directive Principles as novel features of Indian
Constitution. Granville Austin has described the Directive Principles and the
Fundamental Rights as "The Conscience of the Constitution.� 'The Directive
Principles resemble the 'Instrument of Institutions' enumerated in the
Government of India Act, 1935.
Objective and Purpose behind the Directive Principles
The roots of the Directive Principles may be traced back to the 1931 Karachi
Resolution or further to the two streams of socialist and nationalist sentiments
in India that had been flowing ever faster, since the late twenties. The
inspiration for including the Directive Principles in the Constitution is drawn
from the Irish Constitution of 1937, which had copied it from the Spanish
The objective and purpose of principles are as follows:
- The Directive Principles set forth the ideals and objectives to be
achieved by the State for setting up India as a Social Welfare State, as
distinguished from a mere Police State. The basic aim of the Welfare State
is the attainment of substantial degrees of social, economic and political
equalities to provide the means, whereby, all its members can reach minimum
standards of economic security, civilised living, capacity to secure social
- The Directive Principles are indeed the precursor to the Economic,
Social and Cultural Rights specified in the International Covenant on
Economic, Social and Cultural Rights, 1966 (ICESCR).
- They reflect the consensus on the intrinsic necessity of these means and
envisage state action, which would facilitate the transfer and distribution
of power leading to transmission of power to the citizens and this is
loosely called Empowerment of the People.
- The Directive Principles contain the social, economic, cultural and
educational objectives of the State. These provide a motivation for a
peaceful political revolution. They provide a programme for social
reconstruction and economic upliftment of the people of India.
5. Article 36 provides that the meaning of state in this part of the
constitution is the same as that in the part III of fundamental rights.
Nature of Directive Principles
These are positive obligations. The Directive Principles impose positive
obligations on the State. The Directive Principles can be implemented by
executive action, as long as they do not contravene any law. The instruments of
the State have moral obligation to follow these directives and to act in
consonance with these directives.
They are non-justiciable as Article 37 expressly declares that the Directive
Principles shall not be enforceable by any court. But, this non-enforceable
nature does not reduce the importance of the Directive Principles, as these
directives have been, at the same time, declared as fundamental in the
governance of the country. It has been further laid down a duty of the State to
apply these Directive Principles while making laws.
Amendments Made in the Directive Principles
42nd Amendment Act, 1976
Article 39 (f) Provision of opportunities and facilities to children to develop
in a healthy manner and in a condition of freedom and dignity and protection of
childhood and youth against exploitation and against moral and material
Article 39 (A) Provision for equal justice and free legal aid in order to ensure
that justice is not denied to any citizen by reason of economic and other
Article 43 (A) To make provision for participation of workers in management of
Article 48 (A) Protection of environment and wildlife.
44th Amendment Act, 1978
Article 38(2) provides that the State shall strive to minimise the inequalities
in income and endeavour to eliminate inequalities in status, facilities and
opportunities, not only amongst individuals, but also amongst groups of people
residing in different areas or engaged in different vocations.
86th Amendment Act, 2002
This act modified the Directive Principles of State Policy. Article 45 provides
that the State shall endeavour to provide early childhood care and education for
all children until they complete the age of 6 years.
97th Amendment Act, 2011
Article 43 (B) provides that, the State shall endeavour to promote voluntary
formation, autonomous functioning, democratic control and professional
management of cooperative societies.
Significance of Directive Principles
- The Directive Principles has a great constitutional significance. They
have been declared fundamental in the governance of the country and it shall
be the duty of the State to apply these principles in making laws. (Article
- Though, these principles are not enforceable in the courts, yet no
government would dare to ignore them. Every government should take steps for
implementing Directive Principles of State policy as far as possible or
else, it would be criticised on the ground of non-fulfillment of the directives.
- These principles represent the deliberate wisdom of the nation and will
act as a constant reminder to the State for its implementation. Inclusion of
Directive Principles in the Constitution always gives a constitutional
recognition of the responsibility of the State to promote the social and
economic welfare of the people.
- The Directive Principles contain the social, economic, cultural and
educational objectives of the State. These provide a motivation for a
peaceful political revolution. These also provide a programme for social
reconstruction and economic upliftment of the people of India. The Directive Principles
inscribe the ideas and aspirations of the people of India for which they had
fought against the foreign mule.
Relationship between the Fundamental Rights, Directive Principles and
The Directive Principles have been used to uphold the constitutional validity of
legislations in case of a conflict with the Fundamental Rights. Article 31C,
added by the 25th Amendment in 1971, provided that any law made to give effect
to the Directive Principles in Article 39(b) or (c) would not be invalid on the
grounds that they derogated the Fundamental Rights conferred by Articles 14, 19
The application of this article was sought to be extended to all the Directive
Principles by the 42nd Amendment in 1976, but the Supreme Court struck down the
extension as void on the ground that it violated the basic structure of the
The Fundamental Rights and Directive Principles have also been used together in
forming the basis of legislation for social welfare. The Supreme Court, after
the judgment in the Kesavananda Bharati Case, has adopted the view of the
Fundamental Rights and Directive Principles being complementary to each other,
each supplementing the other's role aiming at the same goal of establishing a
welfare state by means of social revolution.
Likewise, the Supreme Court has used the fundamental duties to uphold the
constitutional validity of statutes, which seeks to promote the objects laid out
in the Fundamental Duties. These duties have also been held to be obligatory for
all citizens subject to the state enforcing the same by means of a valid law.
The Supreme Court has also issued directions to the State in this regard, with a
view towards making the provision, effective and enabling citizens to properly
perform the duties.
Difference Between Directive Principles and Fundamental Rights
- While the Fundamental Rights constitute limitations upon State action,
the Directive Principles are in the nature of instruments of instruction to
the government of the day to do certain things and to achieve certain end by
- Fundamental Rights are justiciable but the Directive Principles are non-justiciable.
One can approach the courts even the apex court for the enforcement of
Fundamental Rights whereas one cannot approach the courts for the implementation
of the Directive Principles.
- The Directive Principles, however, require to be implemented by
legislation and so long as there is no law carrying out the policy laid down
in a directive, neither the state nor individual can violate any existing
law or legal right under colour of following directives.
- The Fundamental Rights lay down the negative obligation of the State.
They are prohibitive in character and are, in fact, in the nature of
injunctions requiring the State not to do certain things. Directive
Principles are, on the contrary, affirmative directions dealing with the
positive obligations of the State towards the citizens. They declare the
duty of the State to promote certain social and economic objectives.
- The main objective of Fundamental Rights is to establish political
democracy, by guaranteeing equality, liberty, religious freedom and cultural
rights but the aim of Directive Principles of State Policy is to establish
just social, economic and political order.
Conflict between Directive Principles and Fundamental Rights
The first important case regarding the conflict between the Fundamental Rights
and Directive Principles was the Champakam Dorairajan vs. State of Madras, 1951.
In this case, the Supreme Court ruled that the reservation of seat in the
educational institutions and public employment provided by the State of Madras
is unconstitutional and void as it violated Right to Equality. The Supreme Court
ruled that the Directive Principles shall remain subordinate to the Fundamental
However, Supreme Court realized the importance of the Directive Principles and
in Re Kerala Education Bill Case, 1958 formulated the Theory of
Harmonisation which means Fundamental Rights and Directive Principles are
supplementary to each other. Under this theory, the court held that there is no
inherent conflict between the Directive Principles and Fundamental Rights. They
are supplementary to each other and aim towards achieving the same goal. They
together constitute an integrated scheme, it is the duty of the court to
interpret the provisions of the Constitution in such a manner, so as to
harmonise the Fundamental Rights and Directive Principles as far as possible.
In 1967 Golaknath Case, the Supreme Court held that the Fundamental Rights
cannot be amended for the implementation of the Directive Principles.
The Supreme Court in the Minerva Mills Limited Case 1980 viewed that Part III
and Part IV of the Constitution are complementary and supplementary to each
other. The court observed that the Constitution was founded on the bed-rock of
balance between the Fundamental Rights and Directive Principles.
To give absolute primacy to one over the other was to disturb the harmony of the
Constitution. In the Rajan Dwivedi V. Union of India Case, 1983, the Supreme
Court held that both the Fundamental Rights and Directive Principles aim at the
same goal of bringing about a social revolution and the establishment of a
Welfare State. It is a mandate of the Constitution not only to the Legislature
and the Executive, but to the courts as well.
In conclusion, we may hold that there is no inherent conflict between the
Fundamental Rights and the Directive Principles. Both are complementary and
supplementary to each other and both work towards the aim of the establishment
of social and political democracy.
Supremacy of Directive Principles over Fundamental Rights
It was in 1971 that the first step was taken to provide supremacy for Directive
Principles in the form of Article 31C which was added to the Constitution by the
Constitution (25th Amendment) Act, 1971.
The effect of the insertion of Article 31C was to provide supremacy for
Directive Principles contained in Articles 39(b) and 39(c) over Fundamental
Rights contained in Articles 14, 19 and 31. It enhanced the utility of the
Directive Principles, which had stood the testimony of the Supreme Court in Kesavananda
Bharati Case 1973.
The court observed:
"In building up a just and social order,
it is sometimes imperative that the Fundamental Rights should be subordinated to
Directive Principles... economic goals have an uncontestable claim for priority
over ideological ones on the ground that excellence comes only after existence.
It is only if men exist that there can be Fundamental Rights.�
To further widen the scope of the Directive Principles, the 42nd Constitutional
Amendment Act, 1976 amended Article 31C for providing supremacy for all the
Directive Principles. The effect of amendment was to give overriding effect to
Directive Principles and to make them immune from being declared as violative of
the rights guaranteed by Articles 14, 19 or 31. However, the change incorporated
by 42nd Amendment was struck down by the Supreme Court in the Minerva Mills
Limited vs. Union of India Case, 1980. The court thus restored Article 31C to
its original status as inserted by the 25th Amendment Act, 1971. Thus, it
follows that the Directive Principles contained in Articles 39(b) and 39(c)
shall have supremacy over the Fundamental Rights contained in Articles 14 and
Directives Contained in other Parts
Besides the directives contained in Part IV, there are certain other directives
addressed to the State in other parts of the Constitution. Those directives are
also non-justiciable. These are as follows:
Article 335 enjoins that the claims of the members of the Scheduled Castes and
Scheduled Tribes shall be taken into consideration, consistently with the
maintenance of efficiency of administration, in the making of appointments to
services and posts in connection with the affairs of the Union or a State.
Article 350A joins every State and every local authority within the state to
provide adequate facilities for instruction in the mother tongue to children
belonging to linguistic minority groups.
Article 351 enjoins the Union to promote the spread of the Hindi language and to
develop it, so that it may serve as a medium of expression of all the elements
of the composite culture of India.
Though, the directives contained in Articles 335, 350A and 351 are not included
in Part IV, courts have given similar attention to them on the application of
the principles that all parts of the Constitution should be read together.
Implementation of Directive Principles
Governments at the Centre and State levels have taken several measures to
implement the Directive Principles since the commencement of the Constitution.
Some of these measures are as follows:
- Establishment of Planning Commission in 1950, which has through its Five
Year Plans, aimed at securing socio-economic justice
- Since Ist January, 2015, Planning Commission was replaced by NITI Aayog.
- Passing of land reform laws by most States.
- Passage of Minimum Wages Act, 1948. Child Labour Prohibition and
Regulation Act 1986, Abolition Act, etc
- Passage of Legal Service Authorities Act 1987 to establish a nationwide
network to provide free and competent legal aid to the poor.
- Passage of Wildlife (Protection) Act (1972), Forest (Conservation) Act
(1980), and Environment (Protection) Act (1986), etc
- Passage of Ancient and Historical Monument and Archaeological Sites and
Remains Act, 1951
- Establishment of Panchayati Raj through 73rd Amendment Act.