The Due Process Clause, found in both the Fifth and Fourteenth Amendments of the U.S. Constitution, guarantees that no person shall be deprived of life, liberty, or property without due process of law. This clause essentially ensures that individuals are treated fairly by the government and are provided with certain procedural protections before any deprivation of their fundamental rights occurs.
Definition and advantages:
Definition: The Due Process Clause ensures that the government must respect all legal rights owed to a person according to the law. It requires that fair procedures be followed before any significant deprivation of life, liberty, or property occurs. Due process can encompass various aspects, including notice of the proceedings, the opportunity to be heard, the right to present evidence, the right to confront witnesses, the right to counsel, and the right to a fair and impartial decision-maker.
Advantages: a. Protection of Individual Rights: The Due Process Clause acts as a safeguard against arbitrary government actions that could infringe upon an individual’s fundamental rights. It ensures that individuals are treated fairly and justly under the law. b. Legal Certainty: By establishing clear procedures and standards for legal proceedings, the Due Process Clause promotes legal certainty and predictability. Individuals can have confidence that their rights will be protected and that they will receive a fair hearing before any deprivation of their rights occurs. c. Preservation of Rule of Law: The Due Process Clause reinforces the principle of the rule of law by requiring that government actions be conducted according to established legal procedures. It prevents government officials from acting arbitrarily or abusing their power. d. Checks Government Power: By imposing limitations on governmental actions, the Due Process Clause serves as a check on government power. It prevents the government from arbitrarily depriving individuals of their rights without proper justification and legal procedures.
Relationship between Due Process Clause and Constitution
The relationship between the Indian Constitution and the Due Process Clause of the United States Constitution is one of legal influence and constitutional evolution. While the Indian Constitution does not explicitly mention a “Due Process Clause” like the U.S. Constitution does, it incorporates principles of procedural fairness and substantive justice that are akin to due process.
In India, the concept of due process is embodied in Article 21 of the Constitution, which states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This provision ensures that individuals cannot be deprived of their life or personal liberty except through fair and just legal procedures. Over time, Indian courts have interpreted Article 21 expansively to encompass both procedural and substantive aspects of due process.
The Indian Supreme Court has held that Article 21 includes not only procedural due process, ensuring fair procedures before any deprivation of life or personal liberty, but also substantive due process, which protects fundamental rights from arbitrary executive or legislative action. This interpretation has led to the recognition of various rights and liberties as inherent in the concept of due process, including the right to privacy, dignity, and equality.
While the Indian approach to due process may differ in some respects from the American understanding, there are clear parallels in their commitment to protecting individual rights and ensuring justice through fair legal procedures. Both systems recognize the importance of limiting government power and safeguarding fundamental liberties through principles of due process, albeit within their respective constitutional frameworks and legal traditions.
Challenges:
The Due Process Clause in the Indian Constitution, embodied in Article 21, faces several challenges in its application and interpretation. Here are some of the key challenges:
Judicial Interpretation: One challenge is the task of judicial interpretation to determine the scope and content of due process rights under Article 21. Courts must balance individual rights with the state’s interest in law enforcement and public order, often leading to complex legal debates and varying interpretations.
Backlog and Delay in Legal Proceedings: Despite the constitutional guarantee of due process, the Indian legal system grapples with significant backlogs and delays in legal proceedings. This delay can undermine the effectiveness of due process rights, as individuals may not receive timely justice or fair treatment.
Access to Justice: Access to justice remains a challenge for many individuals, particularly marginalized communities and economically disadvantaged groups. Limited access to legal aid, high legal costs, and procedural barriers can hinder individuals’ ability to exercise their due process rights effectively.
Police Brutality and Custodial Rights: Cases of police brutality, custodial violence, and abuse of power raise concerns about violations of due process rights, including the right to life and personal liberty. Ensuring accountability and adherence to due process standards within law enforcement agencies is essential to prevent such abuses.
Inconsistent Implementation: Due process rights may not be uniformly implemented across different states and regions of India. Variations in legal practices, judicial capacity, and administrative efficiency can lead to inconsistencies in the application of due process principles, affecting the realization of constitutional rights for all citizens.
Emerging Issues: New and emerging challenges, such as the intersection of technology with privacy rights, environmental concerns, and socio-economic inequalities, pose additional complexities for the application of due process in the Indian context. Adapting constitutional principles to address these evolving issues requires ongoing legal and institutional reforms.
Addressing these challenges requires a concerted effort from all stakeholders, including the judiciary, legislature, executive, legal professionals, civil society organizations, and the public. Strengthening legal infrastructure, enhancing access to justice, promoting judicial accountability, and fostering public awareness of constitutional rights are essential steps toward upholding the principles of due process in India.
Conclusion:
Overall, the Due Process Clause plays a crucial role in ensuring justice, fairness, and the protection of individual rights within the legal system of the United States.
In conclusion, while the Indian Constitution does not explicitly mention a “Due Process Clause” like its American counterpart, the concept of due process is embedded in Article 21, which safeguards the right to life and personal liberty. However, the application of due process in India faces various challenges, including judicial interpretation, backlog and delay in legal proceedings, access to justice issues, police brutality concerns, inconsistent implementation, and emerging legal complexities.
Despite these challenges, the Indian judiciary has played a vital role in interpreting and expanding the scope of due process rights, ensuring their relevance and applicability in contemporary contexts. Efforts to address these challenges require a holistic approach involving legal reforms, judicial accountability measures, enhanced access to justice mechanisms, and public awareness initiatives.
Ultimately, upholding the principles of due process is essential for promoting justice, protecting individual rights, and strengthening the rule of law in India. By addressing the challenges and continuing to evolve in response to new legal complexities, India can further advance the realization of due process rights and ensure the effective protection of fundamental liberties for all its citizens.
Confederation and federation are two distinct forms of political organization, each with its own set of principles, characteristics, and implications for governance. While both systems involve the distribution of power between a central authority and constituent political units, they differ significantly in terms of the degree of centralization, the relationship between the central government and the constituent units, and the overall structure of governance.
Confederation Definition
A confederation is a type of government made up of a league of independent nations or states. Each state is independent and has its own authority and autonomy, but they come together for some sort of shared government. Usually, states form a confederation to help maintain peace between the states, provide mutual defence, or address a crisis.
A confederation is created when independent states come together to form some sort of shared government. It maintains the maximum authority for the individual states and minimal authority for the shared government.
A confederation is a union of groups of states where the central government is weak but the state governments are strong. In a confederation, the state or local government enjoys supreme power or sovereignty, whereas the national government only wields power granted by the states. Even most of the confederations have allowed the local governments to nullify a federal law within their own territory. The Commonwealth of Independent States, Union State, and European Union are examples of the present confederation. Most of the confederations gradually turned into federations, Swiss Cantons turned into Switzerland; the Modern German Federation preceded the German confederation; and the Articles of Confederations (1781–89) gave birth to the constitution of United States
Confederation Government
The governmental system of a confederation usually includes representatives from each state who serve in a common or central legislature. The central government usually works together to address issues that affect all of the members of the confederation, such as maintaining peace treaties, organizing mutual defence, proposing laws, and implementing policies that impact the confederation. But the central government is usually pretty weak and tries not to interfere with the states’ governments.
Each state usually has its own independent government, which has much more power than the central government. For example, a nation in a confederation might have its own executive and legislative branch to create policies related to finances, social welfare, and infrastructure. But they come together with the other members of the confederation to address issues that impact all of them, like economics, commerce, and security.
We can see some of the characteristics of a confederation in the European Union (EU). Each country runs its own separate government, but as members of the European Union, they also come together to make important decisions together. For example, France has its own president and parliament, but it also sends representatives to the European Union.
The EU was formed in order to create more peace between the European countries following World War II. Today, the European Union provides a central authority for things like interstate commerce, the European economy, and political stability.
By definition, the difference between a confederation and a federation is that the membership of the member states in a confederation is voluntary, while the membership in a federation is not.
Sometimes confederation is erroneously used in place of federation. Some nations that started out as confederations retained the word in their titles after officially becoming federations, such as Switzerland. The United States of America was a confederation before it became a federation with the ratification of the current U.S. constitution in 1788.
One of the defining characteristics of a confederation is its decentralized nature. Power is dispersed among the constituent units, which may have their own laws, institutions, and policies. The central government’s role is typically limited to coordinating common interests, such as defense, foreign affairs, and trade, and it may lack the authority to compel compliance from the constituent units. Confederations tend to be flexible, allowing for the negotiation of agreements and the modification of the terms of the relationship between the central government and the constituent units.
Historically, confederations have been associated with loose alliances of sovereign states, such as the Confederate States of America during the American Civil War or the Swiss Confederation. While confederations can foster cooperation and preserve the autonomy of member states, they may also face challenges in achieving unity and coherence in decision-making, especially in times of crisis. Without a strong central authority, confederations may struggle to address common challenges or respond effectively to external threats.
What is a federation?
In contrast to confederation, federation is a political system in which power is divided between a central authority and constituent political units, such as states or provinces, with each level of government possessing significant powers and responsibilities. Federations are characterized by a dual system of government, in which the central government and the constituent units each have their own spheres of authority, as outlined in a constitution or similar foundational document.
One of the key features of federation is its balance between centralization and decentralization. While the central government retains authority over certain areas, such as defense, foreign policy, and currency, the constituent units also have their own spheres of authority, which may include areas like education, healthcare, and transportation. This division of powers allows federations to accommodate regional diversity while also providing for coordination and cooperation on matters of national importance.
Federations are often established to promote unity and integration among diverse regions or populations within a single political entity. By providing for both central governance and regional autonomy, federations seek to balance the interests of different constituent units while promoting cooperation and solidarity. Federations may also offer mechanisms for resolving disputes between the central government and the constituent units, such as judicial review or intergovernmental negotiations.
Historically, federations have been associated with large, diverse countries seeking to accommodate regional differences and promote national unity, such as the United States, Canada, and Australia. While federations can offer stability, coherence, and efficiency in governance, they may also face challenges in managing tensions between the central government and the constituent units or ensuring uniformity and equality across the federation. Disputes over the division of powers, fiscal responsibilities, or cultural identity can strain the federal system and test its resilience.
Comparison chart
Confederation
Federation
Sovereignty
Held by the member states. In a confederation, the federal government is accountable to the member states, who are the ultimate authorities.
Held by the federal government. In a Federation, the federal government will hold the ultimate authority and the member states will be subordinate to it.
Central Authority
The central authority of a confederation is usually a weak body appointed by the member states.
The central authority of a federation is a federal government, which governs the member states.
Powers of the Central Authority
Usually, they will focus on joint foreign policy and defense matters, but rarely will they have the power to do much more than that.
Determined by the constitution of the federation but will generally have rights to exercise control over the diplomatic, military, economic, and legal spheres of the member states.
Differences between the Confederation and Federalism
Centralization vs. Decentralization of Power:
Confederation: In a confederation, power is highly decentralized, with the constituent states or regions retaining significant sovereignty. The central government is relatively weak and typically only has authority over matters explicitly delegated to it by the constituent units. The constituent units often have the ability to withdraw from the confederation.
Federalism: In a federal system, power is divided between the central government and constituent units, such as states or provinces. While the central government retains authority over certain areas (such as defense, foreign policy, and currency), the constituent units also have their own spheres of authority, which may include areas like education, transportation, and healthcare.
Supremacy of Central Authority:
Confederation: In a confederation, the constituent units are considered sovereign entities, and the central government’s authority is limited to the powers explicitly granted to it by the constituent units. The central government typically lacks the power to compel compliance from the constituent units.
Federalism: In a federal system, the central government holds a supreme position within its sphere of authority. The Constitution or a similar legal document outlines the division of powers between the central government and the constituent units, and the central government has the authority to enforce its laws and decisions on matters within its jurisdiction.
Flexibility vs. Rigidity:
Confederation: Confederations tend to be more flexible, as the constituent units often retain the ability to modify the terms of their relationship with the central government or even withdraw from the confederation altogether. Changes to the confederation typically require the consent of all constituent units.
Federalism: Federal systems are often more rigid, with the division of powers between the central government and constituent units typically outlined in a constitution or similar foundational document. Changing this division of powers usually requires a formal amendment process, which can be complex and may require the consent of multiple levels of government.
Integration vs. Autonomy:
Confederation: In a confederation, the constituent units maintain a high degree of autonomy and may pursue their own policies in many areas. The central government’s role is typically limited to coordinating common interests and providing collective defense or other shared services.
Federalism: In a federal system, while the constituent units have a degree of autonomy, they are more integrated into the overall political system. The central government plays a significant role in setting national policy and ensuring uniformity across the country in certain areas.
Overall, while both confederation and federalism involve the distribution of power between a central authority and constituent units, they represent different approaches to organizing political systems, with confederations being more decentralized and loosely connected, and federal systems being more integrated and centrally governed.
Confederation and federation are two government systems in which states or provinces come together for political, economic, social, or security reasons. Even though they are often confused, they are quite different. In a confederation there is no new central government and constituents maintain their autonomy, independence and sovereignty. Conversely, members of a federation are subject to laws and regulations created by the federal government, although they maintain a certain degree of autonomy. Today, the number of existing confederations is limited, while the number of federations is quite high. The main difference between the two is the constitution (absent in the case of a confederation), which creates legal ties among member states and sets the balance of power between central and local authorities.
Comparative Analysis:
Confederation and federation represent two distinct approaches to organizing political systems, each with its own strengths and weaknesses. Confederations emphasize decentralization, autonomy, and flexibility, allowing sovereign states or regions to cooperate while preserving their individual sovereignty. Federations, on the other hand, seek to balance centralization and decentralization, providing for both central governance and regional autonomy within a single political entity.
While confederations offer flexibility and autonomy, they may struggle to achieve unity and coherence in decision-making, especially in times of crisis. Without a strong central authority, confederations may be ill-equipped to address common challenges or respond effectively to external threats. Federations, by contrast, offer stability, coherence, and efficiency in governance, but they may face challenges in managing tensions between the central government and the constituent units or ensuring uniformity and equality across the federation.
Case Laws:
In India, the distinction between confederation and federation is not as pronounced as in some other countries due to its unique system of governance. India operates as a federal state with a strong central government and constituent units (states and union territories) that have varying degrees of autonomy. However, there are still relevant case laws that illustrate the principles of federalism and the relationship between the central government and the states. Here are a few notable Indian case laws related to federalism:
State of West Bengal v. Union of India (1963): In this case, the Supreme Court of India addressed the principles of federalism and the distribution of powers between the central government and the states. The court emphasized the importance of maintaining the federal structure of the Indian Constitution and upheld the rights and autonomy of the states. This case reaffirmed the federal nature of the Indian state and set a precedent for the interpretation of federal principles in Indian law.
S.R. Bommai v. Union of India (1994): The S.R. Bommai case is one of the most significant cases related to federalism in India. The Supreme Court ruled that the power of the central government to dismiss a state government under Article 356 of the Constitution (President’s Rule) is subject to judicial review. The court laid down guidelines to prevent arbitrary use of Article 356 and emphasized the importance of preserving the federal structure of the Indian Constitution. This case strengthened the principles of federalism and the autonomy of state governments in India.
Kesavananda Bharati v. State of Kerala (1973): Although not directly related to federalism, the Kesavananda Bharati case is crucial for understanding the federal structure of the Indian Constitution. In this landmark case, the Supreme Court upheld the doctrine of the “basic structure” of the Constitution, which includes federalism among its core principles. The court ruled that while Parliament has the power to amend the Constitution, it cannot alter its basic structure. This case reinforced the federal character of the Indian Constitution and affirmed the autonomy of both the central and state governments.
Union of India v. H.S. Dhillon (1972): This case dealt with the interpretation of Article 73 and Article 162 of the Indian Constitution, which delineate the respective powers of the central government and the state governments. The Supreme Court clarified that while Article 73 grants the central government powers to deal with matters related to Union territories and other areas not within the legislative authority of the states, Article 162 empowers state governments to enact laws on subjects within their legislative domain. This case highlighted the division of powers between the central and state governments in India’s federal system.
These cases demonstrate the significance of federalism in the Indian constitutional framework and the role of the judiciary in upholding the federal structure. While India operates as a federal state, the central government retains considerable authority, especially in matters of national importance. However, the judiciary plays a crucial role in safeguarding the autonomy of state governments and ensuring the balance of power between the center and the states.
Conclusion
Confederation and federation represent two different models of political organization, each with its own merits and limitations. Confederations prioritize decentralization and autonomy, while federations seek to balance centralization and decentralization within a single political entity. Understanding the differences between these two systems can provide insights into the complexities of governance and the challenges of accommodating regional diversity within a larger political framework. Ultimately, the choice between confederation and federation depends on a variety of factors, including historical context, cultural identity, and the aspirations of the people involved.
The Directive Principles of State Policy (DPSP) constitute a pivotal element in the constitutional framework of India. Enshrined in Part IV of the Indian Constitution, the DPSP are a set of guidelines and principles that outline the moral and socio-economic obligations of the state towards its citizens. While they are not enforceable by the courts, they serve as a directive to the government to frame policies that promote justice, equality, and the overall welfare of the people.
Origin and Evolution: The concept of Directive Principles draws inspiration from various sources, including the Irish Constitution. Dr. B.R. Ambedkar, the chief architect of the Indian Constitution, envisioned the DPSP as a means to achieve a just and egalitarian society. These principles were incorporated to balance the individual rights guaranteed by the Fundamental Rights with the collective welfare of society.
Nature and Significance: Unlike Fundamental Rights, which are justiciable and can be enforced by the courts, Directive Principles are non-justiciable. This means that citizens cannot approach the courts to seek their enforcement. However, they hold immense significance as they guide the state in its policy-making endeavors. The DPSP act as a moral compass, directing the government towards the establishment of a just social order.
Content of Directive Principles: The DPSP cover a wide range of issues, from economic and social justice to international relations. Some key principles include:
Equality and Justice (Article 38): The state shall strive to promote the welfare of the people by securing a social order characterized by justice, social, economic, and political.
Elimination of Inequalities (Article 39): The state shall direct its policies towards ensuring that the ownership and control of material resources are distributed to subserve the common good.
Prohibition of Child Labor (Article 24): The state shall endeavor to secure for children opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity.
Right to Work (Article 41): The state shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, education, and public assistance.
Environmental Protection (Article 48-A): The state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.
Balancing Act: The DPSP operate in tandem with the Fundamental Rights, striking a delicate balance between individual liberties and the collective good. While the Fundamental Rights are justiciable and can be enforced through legal remedies, the DPSP guide the government in formulating policies that reconcile conflicting interests and promote the common good.
Challenges and Criticisms: Over the years, the non-justiciability of the DPSP has led to criticisms. Some argue that these principles should be made justiciable to ensure accountability and adherence. Others believe that their implementation has been inconsistent, with governments often prioritizing political expediency over the long-term goals outlined in the DPSP.
Conclusion: The Directive Principles of State Policy in the Indian Constitution stand as a testament to the framers’ vision of a socially just and equitable society. While they may not be enforceable in a court of law, their significance lies in their ability to shape policies that promote the welfare of all citizens. As India continues to evolve, the DPSP remain a beacon, guiding the nation towards the realization of its constitutional ideals.
Textualism is a method of statutory interpretation that asserts that a statute should be interpreted according to its plain meaning and not according to the intent of the legislature, the statutory purpose, or the legislative history. A textualist endeavors to give effect to the words of the Constitution and statutes. If the meaning of the words is clear, the judge goes no further. If they are ambiguous, the judge attempts to discern their meaning using well-developed rules of construction.
Whereas textualist approaches to constitutional interpretation focus solely on the text of the document, originalist approaches consider the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding. Originalists generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and justices (and other responsible interpreters) is to construct this original meaning.
Textualism appeals to many, but especially those who accept the fixed view of the constitution, coupled with a belief that a constitution is, principally, one important device through which citizens are protected from unwarranted state power, including unwarranted judicial power. Requiring that judges interpret constitutional provisions in light of the meaning of the constitution’s text respects the role of its creators (sometimes, but not always, the founders of the state) in fixing, on behalf of the community, the basic framework of government and the limits within which state power is to be exercised. Political decisions about that proper framework and its constituent limits have, on this theory, already been made in a proper forum by those in whose hands such decisions were rightly placed. Their decisions have been communicated and should not, lest stability and legitimacy be threatened, be subject to continuous revisiting and review, particularly by (typically unelected) judges who lack the authority enjoyed by the constitution’s authors. The discovery of textual meaning is (it is thought) a largely factual matter, requiring none of the moral and political reasoning appropriately undertaken by the creators of the constitution. If constitutional change is required, the constitution itself sets procedures through which such changes can be affected. Should these prove ineffective and yet change still be warranted, then the people, as the sovereign power underlying constitutional democracies, have the authority to abandon the constitution through revolution, peaceful or not, and to substitute something else. But so long as the constitution remains in force, the semantic content of its rules must be taken as governing all matters of constitutional law.
Despite its obvious appeal, Textualism – or as it is sometimes called, “strict constructionism”—faces a number of difficulties. First, semantic content is not always fully determinate or stable from one generation to the next. This is especially true of words and phrases like “equality,” “due process of law,” “fundamental justice,” “free and democratic society,” “freedom of religion,” and so on. These seem to lack the determinate and relatively stable semantic content of phrases like “five-year term” or “two-thirds majority.” The evaluative concepts expressed by the former are highly contestable politically, perhaps even “essentially contestable,” and their understanding tends to vary from one generation to the next. They therefore cannot serve the role suggested by the fixed view.
Textualism faces further difficulty. Even when the meaning of a word or phrase used in a constitution is constant and plain for all to see, it is not always the case that it is considered dispositive. For example, taken in terms of both its original and (perhaps different) contemporary meaning, the First Amendment of the American Constitution is clearly violated by a whole host of American laws, e.g., those proscribing incitement, perjury, and libel. Taken literally, the First Amendment renders unconstitutional any law that in any way restricts freedom of speech. If so, then it is unconstitutional in the United States to punish untruthful witnesses, prevent primary school teachers from uttering vicious racial slurs against their minority students, or convict those who incite crowds to violence. But such state actions have never been understood to violate the First Amendment, leading to the inevitable conclusion that more than semantic meaning governs its interpretation and application. And this is generally, if not universally, true of modern states and their constitutions. But if more than meaning governs, what else counts? The most obvious choice, especially for those attracted to the fixed view, are the “intentions” of the framers. In response to the suggestion that the American First Amendment prohibits laws against perjury, a defender of the fixed view is likely to reply: “But that can’t possibly be what the framers had in mind—what they intended—in choosing the words they did.” This leads us to a second type of interpretive theory, originalism, which focuses not on word meaning but on the intentions of those by whose actions the constitution’s various provisions came into existence.
Federalism is a government system in which authority is split between two or more tiers of government, such as the central government and the states or provinces. Federalism allows for regional autonomy and variety within a larger political body.
The Indian Constitution established a federal framework that has certain unitary elements. It is frequently referred to as a quasi-federal system because it incorporates aspects of both federation and union. The Union government and the state governments are given different legislative, administrative, and executive powers under the Constitution. The legislative powers are divided into three lists: the Union List, the State List, and the Concurrent List, which represent the powers given to the union government, the state governments, and the powers shared by them. The Constitution also provides for the establishment of a multilevel or multilayered federation with multiple modes of political power distribution.
In its setting, Indian federalism is unique in that it went from a unitary system under British rule to a federal system after independence. Over time, Indian federalism has faced a number of challenges and issues, including the integration of princely states, state linguistic reorganization, regional movements and demands for autonomy, center-state relations and conflicts, fiscal federalism and resource sharing, cooperative federalism and inter-state coordination, and so on.
India has a federal structure, yet it leans more toward a unitary government. It is frequently referred to as a quasi-federal system since it combines elements of both a federal and a unitary system. According to Article 1 of the Indian Constitution, “India, that is Bharat, shall be a union of states.” The term “federation” is not mentioned in the constitution.
Elements of federalism were introduced into modern India by the Government of India Act of 1919 which separated powers between the centre and the provincial legislatures.
Federal Features of the Indian Union
Governments at two levels – centre and states
Division of powers between the centre and states – there are three lists given in the Seventh Schedule of the Constitution which gives the subjects each level has jurisdiction :
Union List
State List
Concurrent List
Supremacy of the Constitution – The basic structure of the Constitution is indestructible as laid out by the judiciary. The Constitution is the supreme law in India.
Independent judiciary – The Constitution provides for an independent and integrated judiciary. The lower and district courts are at the bottom levels, the high courts are at the state levels and at the topmost position is the SC. All courts are subordinate to the Supreme Court.
Unitary Features of the Indian Union
The flexibility of the Constitution – The Constitution is a blend of flexibility and rigidity. Certain provisions of the Constitution can be easily amended. In case the amendments seek to change aspects of federalism in India, the provision to bring about such amendments is not easy.
More power vests with the Centre – the constitution guarantees more powers with the Union List. On the Concurrent List of subjects, the parliament can make laws that can override the laws made by a state legislature on some matters. The parliament can also make laws regarding certain subjects in the State List.
Unequal representation of states in the Rajya Sabha – the representation of the states in the upper house is based on the states’ populations. For example, Uttar Pradesh has 31 seats and Goa has 1 in the Rajya Sabha. In an ideal federal system, all the states should have equal representation.
The executive is a part of the legislature – in India, the executive in both the centre and the state is a part of the legislature. This goes against the principle of division of powers between the different organs of the government.
Lok Sabha is more powerful than the Rajya Sabha – in our system, the Lok Sabha is more powerful than the upper house and unequal powers to two houses is against the principle of federalism.
Emergency powers – The centre is provided with emergency powers. When an emergency is imposed, the centre has increased control over states. This undermines the autonomy of the states.
Integrated judiciary – The judiciary in India is integrated. There is no separate judiciary at the centre and the state levels.
Single citizenship – In India, only single Citizenship is available to citizens. They cannot be citizens of the state as well. This helps in increasing the feeling of nationality as it forges unity amidst regional and cultural differences. It also augments fundamental rights such as the freedom of movement and residence in any part of the nation.
Governor’s appointment – The Governor of a state acts as the centre’s representative in the state. The state government does not appoint the governor, the centre does.
New state formation – the parliament has the power to alter the territory of a state by increasing or reducing the area of the state. It can also change the name of a state.
All India Services – Through the All India Services such as the IAS, IPS, etc. the centre interferes with the executive powers of the states. These services also offer uniformity in administration throughout the nation.
Integrated election machinery – The Election Commission of India is responsible for conducting free and fair elections at both the centre and the state levels in India. The members of the EC are appointed by the president.
Veto over state bills – The governor of a state can reserve certain kinds of bills for the president’s consideration. The president enjoys absolute veto on these bills. He can even reject the bill at the second instance that is when the bill is sent after reconsideration by the state legislature. This provision is a departure from the principles of federalism.
Integrated audit machinery – the president of the country appoints the CAG who audits accounts of both the centre and the states.
Power to remove key officials – the state government or state legislature does not have the authority to remove certain key government officials even at the state level like the election commissioner of a state, judges of the High Courts or the chairman of the state public service commissions.
Article 14 treats all people the same in the eyes of the law. This Article is described in two parts – which states and commands the State not to deny to any person ‘equality before the law’. Another part of it also commands the State not to deny the ‘equal protection of the laws’.
This provision states that all citizens will be treated equally before the law and avoids any kind of discrimination.
The law of the country protects everybody equally.
Under the same circumstances, the law will treat people in the same manner.
Bombay High Court Goa Bench recently delivered a judgment
While the Central Government is vested with wide powers in matters of deportation, such powers must be exercised fairly and without any hint of arbitrariness, the bench emphasised.
The Goa bench of the Bombay High Court recently observed that Article 14 of the Constitution, which provides for equality before the law, applies not only to citizens but also to ‘non-citizens’ in India [Olga Rosnina vs the Foreigners Regional Registration Office].
A division bench of Justices Mahesh Sonak and Bharat Deshpande made the observation while ordering the authorities not to deport a foreign national since the authorities had not sought any clarification from the foreigner on the alleged breach of Visa condition.
“At least a clarification could have been sought from the petitioner and upon considering the same, a decision could have been taken. This was not done. Therefore, on this short ground, we set aside the impugned deportation order,” the judges held.
In the August 7 order, the bench also emphasised that the authorities ought to have complied with the principles of natural justice and fair play since the foreign national said that she had not violated any of her Visa conditions.
“Principles of natural justice and fair play are an essential concomitant of Article 14 of the Constitution of India. This Article protects not only the citizens but also non-citizens,” the Court said.
The Court added that the Central government must exercise its deportation powers fairly.
“Whilst the Central Government is vested with wide powers in matters of deportation, such powers must be exercised fairly and without any hint of arbitrariness. This was not some case of threat to the internal security of the country or like matters,” the bench underscored.
It, therefore, quashed a deportation order passed on May 17, 2023, against the foreign national.
The authorities had claimed that the foreign national was granted a “work Visa”, but had indulged in “business” and thus violated the conditions of her Visa.
The judges, however, noted that the foreign national had resigned from her company so there was no doubt about compliance with the terms and conditions of the Visa.
After such resignation, the foreign national also applied for a dependency visa. However, her plea was dismissed by the authorities in view of the deportation order passed against her in May.
The Court, therefore, ordered the authorities to reconsider the foreign national’s plea for a dependency visa and not to deport her at least for two months, within which her plea needs to be decided.
Balancing Continuity & Evolution Constitutional texts worldwide are subject to two distinct modes of interpretation. One approach, known as “originalism”, which involves interpreting and applying the Constitution in alignment with its original intent at the time of drafting. The two primary tenets of originalism assert that the constitutional meaning was predetermined upon textual adoption and that the discernible historical meaning of the constitutional language carries legal significance, often prevailing in most circumstances.
In contrast, “living constitutionalism” adopts a more dynamic approach, frequently aligning with contemporary jurisprudence. Advocates of this theory contend that societal circumstances and ideals evolve, necessitating corresponding transformations in the legal content of constitutional doctrine. Acknowledging that the Constitution cannot remain static indefinitely, proponents assert that it must be amenable to the expectations and values of successive generations.
A living constitution demonstrates adaptability to new situations, evolves organically through time, and remains responsive to societal changes, all without requiring formal modification. Broad and Open-Ended Language – Foundation for Interpretation The phrase “living constitutionalism” is believed to have its origins in Howard Lee McBain’s book titled “The Living Constitution,” initially published in 1927. Living constitutionalism represents a legal theory and interpretative method within constitutional law that underscores the dynamic and evolving nature of the Constitution.
This perspective posits that the legal content of constitutional doctrine is subject to change in response to shifting circumstances and societal values. At its core, living constitutionalism advocates for a departure from rigidly adhering to the original intent or understanding of the Constitution’s framers at the time of its inception. Instead, it proposes that the Constitution should be interpreted in the context of contemporary conditions and cultural advancements.
However, it is often argued for a more adaptable and flexible approach to constitutional interpretation, recognizing the need for the Constitution to be responsive to the ever-changing requirements and ideals of society. Central to the living constitutionalism framework is the belief that the framers intentionally drafted the Constitution with broad and open-ended language, allowing for varied interpretations and future applications.
This approach contends that constitutional provisions should be given a dynamic and evolving meaning to address present-day social, political, and technological developments. As such, living constitutionalism promotes a view of the Constitution as a living and responsive document, capable of accommodating the evolving needs and aspirations of successive generations. Rejecting Originalism – Turning Point in Evolution of the Indian Constitution The Indian Constitution, a dynamic and living document, is presently perceived and applied as such, despite its historical evolution. Initial cases that arose soon after the Constitution’s enactment demonstrate an interpretation aligned with the framers’ intentions. The judgement on Supreme Court Advocates on Record Assn. v. Union of India W.P. 1303 OF 1987 marked a pivotal moment when the Court decisively rejected the originalism theory of interpretation, emphasizing that the Constitution should not be limited to the framers’ perspectives, constrained by the conditions and outlook of their time.
The Court acknowledged the unforeseen nature of contemporary issues, the existence of undiscussed matters, and controversial deferred issues with conflicting intentions. Preserving Core Values – The Focal Point in Jurisprudential Exploration Justice Kaul’s judgment further developed this perspective, affirming that the Constitution must adapt to reflect the evolving facets of modern society and that “core values” inherent in the Constitution manifest themselves diversely in varying ages, situations, and conditions, all while finding a strong foundation in the Preamble, which elevates human dignity. Also, the landmark K.S. Puttaswamy (2017) 10 SCC 1. judgement introduced two significant theoretical concepts in constitutional law, i.e., living constitutionalism and natural rights support. Although living constitutionalism is not explicitly enshrined in the Indian Constitution, the Supreme Court of India has embraced this approach in several monumental rulings.
Consequently, this approach prompted a series of landmark judgments, primarily focusing on the Parliament’s authority to amend the Constitution and the extent of such amendments. The Indian Constitution is a vibrant and adaptable instrument, continually responding to societal transformations, upholding its core values, and remaining receptive to interpretive nuances that foster a just and evolving legal landscape. The question of the Parliament’s constitutional amendment powers remains a focal point in the jurisprudential exploration of the Constitution’s dynamic character. Balancing Core Values and Societal Progress through Living Constitutionalism Preserving the bedrock of the Indian Constitution stands as a momentous undertaking in the seminal case of Sajjan Singh v. State of Rajasthan. AIR 1965 SC 845.
Embedded within the majority of the Indian Constitution are fundamental aspects that are deemed immutable. Justice Khanna discerns the principal advantage in the form of fundamental rights extended to all citizens. Notably, Article 368 of the Indian Constitution grants the Parliament the authority to amend any provision, encompassing Fundamental Rights. A profound jurisprudential debate ensued, wherein respondents in the landmark Golaknath Judgment I.C. Golaknath and Ors. v. State of Punjab and Anr. 1967 SCR (2) 762. contended that the framers did not intend for the Constitution to be rigid, while petitioners asserted that Parliament lacked the jurisdiction to modify basic rights. The Court ultimately ruled that Parliament could not alter the Fundamental Rights.
The landmark decision in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. ushered in the concept of living constitutionalism in India. At its core, this judgment centred on the pivotal question of Parliament’s power to amend any aspect of the Constitution, including Fundamental Rights. Through a majority verdict, the Supreme Court firmly held that while Parliament retains the authority to amend the Constitution, it is restrained from altering its fundamental structure or essential features.
Living Constitutionalism in Action In the Kesavananda Bharati case, the Court introduced the doctrine of basic structure, encompassing the notion that certain foundational aspects of the Constitution are impervious to amendment, as they constitute the very essence of the constitutional framework. Embracing a living constitutionalist approach, the Court acknowledges that the Constitution’s interpretation must safeguard its core values while adapting to the ever-evolving fabric of society. This jurisprudential stance ensures the preservation of the Constitution’s fundamental principles while allowing for pragmatic adaptations that cater to the progress and welfare of the nation.
Living constitutionalism is an interpretive paradigm in constitutional law that accentuates the dynamic and adaptive character of the Constitution, necessitating its interpretation to align with prevailing societal circumstances. This approach contends that the Constitution should be construed in light of present-day realities, reflecting evolving societal values and understandings of constitutional principles. Illustrative examples of living constitutionalism in action are evident in the interpretations of the Commerce Clause, the landmark Brown v. Board of Education decision, and the historic Obergefell v. Hodges Obergefell v. Hodges 576 U.S. 644 (2015) decision. In these instances, the application of living constitutionalism enabled the Constitution to respond to changing social dynamics and evolving conceptions of constitutional norms. Notwithstanding its detractors, proponents of living constitutionalism maintain that this approach fortifies the Constitution’s sustained relevance and efficacy in addressing contemporary challenges and safeguarding individual rights.
The word federalism derived from the Latin word “feodus “which means agreement. Elements of federalism were introduced into modern India by the govt of India act of 1919 .which separated powers between the center and states. The word federation is not mentioned in the Indian constitution .India is a federal system but with more tilt towards a unitary system of government. It is sometimes considered a quasi-federal system as it has features of both a federal and a unitary system. Article 1 of the Indian Constitution states, ‘India, that is Bharat, shall be a union of states’
Federalism is a system of govt in which two sets of governments operate on the same group of people. That means controlled by two levels of govt. The central govt usually oversee the issues of the entire country,other look after the issues of local concern.
Purpose of the federalism ;
Preventing concentration of power in the hand of one tire of govt .
Generating strength of the nation through the union .
Federal Features of the Indian Union
The constitution of India has not described India as a federation. However, Article 1 of Indian constitution describes India as a ‘’Union of States.’’ This means India is a union comprising various states which are an integral part of it. Here, the states cannot break away from the union. They do not have the power to secede from the union. In a true federation, the constituting units or the states have the freedom to come out of the union.
India is not a true federal government because it combines features of a federal government and the features of unitary government which can also be called as a quasi-federal government. Political Science classified Constitutions as unitary and federal, from the organizational standpoint, i.e; from the standpoint of distribution of governmental powers. In this context, Dicey observed that “Unitarianism… means the concentration of the strength of the state in the hands of one visible sovereign power…Federalism means the distribution of the force of the state among a number of co-ordinate bodies each originating in and controlled by the Constitution”. Broadly speaking, while in a unitary State, all power is vested in a single Central Government, without imposing any constitutional limitations upon its authority, and the local authorities operate as administrative agencies of the Central government, exercising such powers as the Central government might delegate to the latter. On the other hand, in the federal State, the Constitution divides the powers between the central and regional governments, each deriving its powers from the provisions of written Constitution, so that there is a sphere of autonomy belonging to the territorial organizations called States, which cannot be withdrawn or curtailed at the will of the central organization, called the Federal Government.
Federalism is thus a system of government of a country under which there exist simultaneously a federal or Central Government (legislature and executive) and several State or provincial legislatures and governments as contrasted with a unitary State. Both federal and State governments derive their powers from the federal Constitution, both are supreme in particular spheres and both operate directly on the people; the State governments accordingly are not exercising powers delegated by the federal governments, nor they are subordinate to it (though they may deal with less important matters). The foregoing legal test of federalism, when analysed, leads to the following broad features of a federal Constitution.
1. Written Constitution – A federal state derives its existence from the Constitution, just as a corporation derives its existence from the grant or statute by which it is created. Every power – executive, legislative or judicial- whether it belongs to the federation, or to the component States, is subordinated to and controlled by the Constitution. Therefore, a federal State requires a written Constitution for the obvious reason that in order to be workable and stable and the limitations upon them to be enforceable, must be precisely defined by a written instrument. Thus, even though Australia adopted the system of responsible government (or the Cabinet system) from the unwritten Constitution of the U.K., it had to be embodied in a written Constitution. When a federal polity possesses two constitutions as in the case of U.S.A. and Australia (one for the federation and another relating to the internal structure and administration of each State) and if there is a conflict between the two, then the Federal Constitution shall prevail.
2. Dual Government – The Constitution sets up a dual government – one government having authority over the whole territory of the country or nation which adopts that Constitution (i.e; the Units of the federation) and a Government for each of the regional units of which the federation is composed (i.e; the Units of the federation).
3. No Unilateral Change – The foregoing distribution of powers made by the Constitution cannot be changed or amended at the unilateral will of the parties to the federation, i.e; the Federal Government or the Regional Governments. The Constitution provides a process for changing its provisions, called ‘amendment’. In other words, the Federal nations generally have rigid Constitution.
4. Interpretation By Judiciary – The distribution of powers made by the Constitution must be guarded by the Judiciary, which is to interpret the Constitution as the ‘fundamental law’ of the land and to enforce its provisions against both the Federal and Regional Governments and to invalidate any of their acts which transgresses the limitations imposed upon them by the Constitution. Where the Federating States have separate Constitutions, the problem arises as to how far the Constitutional decisions of the Federal Supreme Court shall be binding upon the States and their Courts. In this context, it was laid down in the case of Marbury vs. Madison[4], that the Federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of constitutional system.
5.Division of powers: It is an essential feature of the federal constitution and division of power is done by the Constitution itself. The Constitution clearly demarcates and defines the power of the Union and the States. Both governments are independent in their rights, powers, and jurisdiction. e.g. In the Indian constitution subjects of national importance like defense, foreign affairs, currency, etc. fall under the domain of the centre while subjects of local importance like land, water, agriculture fall under the domain of the States.
6. Supremacy of the constitution: The Constitution is the main source of all the powers of the Executive, legislative, and judiciary. All the institutions function under the control of the Constitution, they derived their existence from the constitution. Supremacy is necessary for the smooth working of the federal government according to K.C. where.
7. Bi-cameral legislature: India has bi-cameral legislature – it is one of the essential features of Federalism in India. The Indian Parliament has the lower house (Lok Sabha) and the upper house (Rajya Sabha). Any amendments need the approval of both houses. Few of the states also follow the bi-cameral legislature. Examples of these states are Telangana, Andhra Pradesh, Karnataka, Bihar, among others
India
The federal scheme in the Constitution of India is adopted from the Government of India Act, 1935. The said Act made an innovation upon several precedents to make a treble enumeration of powers, in order to make it as exhaustive as possible and also to minimize judicial intervention and litigation. The three legislative lists (I, II and III) respectively enumerated the powers vested in the Federal Legislature, the Provincial Legislature and to both of them concurrently (Section 100). If however, a matter was not covered by any of the three Lists that would be treated as a residuary power of the Federal Parliament (Section 104) and Section 107 provided for predominance of federal law in case of inconsistency with a Provincial Law, in the concurrent sphere Borrowing the pattern of treble enumeration from the Government of India Act, 1935, the Constitution of India makes a three-fold division of powers namely;
a) List I or the Union List – It contains subjects over which the Union shall have exclusive powers of legislation, including 97 items. These include defense, foreign affairs, banking, currency and coinage; union duties and taxes and the like.
b) List II or the State List – It comprises of 66 items or entries over which the State Legislature shall have exclusive power of legislation, such as public order and police, local Government, public health and sanitation, agriculture, forests and fisheries, education, State taxes and duties, and the like.
c) List III or the Concurrent List – It gives concurrent powers to the Union and the State Legislatures over 47 items, such as Criminal Law and procedure, Civil Procedure, marriage, contracts, torts, trusts, welfare of labour, social insurance, economic and social planning.
Thus the framer of the Indian Constitution attempted to exhaust the whole field of legislation as they could comprehend, into numerous items, thus narrowing down the scope for filling up the details by the judicial process of amplifying the given items. Besides, wherever any conflict could be anticipated, the Constitution has given predominance to the Union jurisdiction, so as to give the federal system a strong central bias. Similarly, in all the cases which have come up to the Supreme Court, the Court has upheld the jurisdiction of the Union Parliament. Thus, in case of overlapping, the power of the State Legislature to legislate with respect to matters enumerated in the State List has been made subject to the power of the Union Parliament to legislate in respect of matters enumerated in the Union and Concurrent Lists, and the entries in the State List have to be interpreted accordingly.
Similarly, in the concurrent sphere, in case of repugnancy between a Union and a State law relating to the same subject, the former prevails. If, however, the State law was reserved for the assent of the President and has received such assent, the State law may prevail notwithstanding such repugnancy, but it would still be competent for Parliament to override such State law by subsequent legislation {Article 254(2).
These apart, the vesting of residual power under the Constitution follows the precedent of Canada, for it is given to the Union instead of the States as in USA and Australia. The Constitution of India vests the residuary power i.e; the power to legislate with respect to any matter not enumerated in anyone of the three Lists,- in the Union Legislature (Article 248). However, the final determination as to whether a particular matter falls under the residuary power or not is that of the Courts. Moreover, even apart from the central bias in the normal distribution of powers, there are certain extraordinary provisions in the Indian Constitution which provide for expansion of the federal power in cases of emergency or other predominating national interests, instead of leaving it to the judicial interpretation as in USA, Australia or Canada, as we have noticed. These provisions therefore constitute additional limitations upon the powers of the State Legislatures. These exceptional circumstances are:
1. National Interest – In the national interest, Parliament shall have the power to make laws with respect to any matter included in the state List, for the temporary period, if the Council of States declares by the resolution of 2/3 of its members present and voting, that it is necessary in the national interest that parliament shall have power to legislate over such matters. Each such resolution will give rise a leases of one year to ten law in question. A law made by Parliament, which Parliament would not but for the passing of such resolution have been competent to make, shall, to the extent of the inconsistency, seas to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period (Article 249). The resolution of the council of states may be renewed for a period of one year at a time.
2. Proclamation of emergency – While a proclamation of emergency made by the parliament is in operation, parliament shall have similar power to legislate with respect to State subjects {Articles 250, 353(b)}. A law made by the parliament, which parliament would not but for the issue of such proclamation have been competent to make, shall, to the extent of in competency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period (Article 250).
3. By agreement between States – If the Legislatures of two or more States resolve that it shall be lawful for Parliament to make laws with respect to any matters included in the State List relating to those States, Parliament shall have such power as regards such States. It shall also be open to any States to adopt such Union Legislation in relation to itself by a resolution passed in that behalf in the Legislature of the state. In short, this is an extension of the jurisdiction of the union parliament by consent of the State Legislatures (Article 252).[17]
4. To implement Treaties – Parliament shall have the power to legislate with respect to any subject for the purpose of implementing treaties or international agreements and conventions. In others, the normal distribution of powers will not stand in the way of parliament to enact legislation for carrying out its international obligations, even though such legislation may be necessary in relation to a State subject (Article 253)
5. Proclamation of Failure of Constitutional Machinery in the States – When such a proclamation is made by the President, the President may declare that the powers of the Legislature of the State in question shall be exercisable by or under the authority of Parliament {Article 356(1)(b)
Comparison Between U.S.A. & India
On the plain reading of the Constitutions of India and America, it seems that the basic structures of the division of power are same. However, there are some apparent distinctions between the two setups. Firstly, under the Indian Constitution, the powers are relatively more enumerative than the USA. Unlike the latter, the former lays down as many as 211 items into three lists. Secondly, Indian Constitution provides three Lists namely; Union List, State List and Concurrent List whereas; in USA, there is a single enumeration of powers, which signifies that the Constitution simply enumerates the powers specially assigned to the Federal Legislature and leaves the entire unremunerated residue to the State Legislatures. Finally, in India Residuary Powers is given to the Union whereas; in USA, the same is given to the States.
Conclusion
Federalism originated in the experience gathered from political experiments that not merely defence but a number of other subjects, such as control of foreign affairs, inter-state and foreign commerce, export and import and the like, are matter of national interest which require to be dealt with by a national organisation whereas; other matters such as public order, public health, fire, water and electric supply services, which are the concern of the inhabitants of a particular local area and have problems of their own connected with the exigencies of that particular locality, would be best administered if entrusted to the representatives of that area. The basic concept of division of power is same even today in every federal structure. However, the principles of strictly separating the power between the two governments are not an easy task and disputes and differences are always there. The only golden rule seems to be that in case of conflict and doubt as to the appropriate government in relation of any matter is that the benefit should be given to the Central government. However, this rule is not always justifiable especially in the case of taxation simply because the Regional or State governments also need the finance to run the administration. Nevertheless, Federalism is appropriate to large countries like India where government from one center would be complicated and difficult and could readily be out of touch with the needs and desires of widely separated areas and to countries, where particular parts are radical, linguistic and legal or other particularities which they desire to have safeguarded. In short, in spite of some difficulties in interpreting the legislative entries of the federal structure, federalism will stay more importantly because of the globalization of the economy and the desire to achieve the “welfare state”.
Fundamental Rights (Part-III):- Fundamental rights are rights without which a human being cannot survive in dignified manner in a civilized society. Fundamental rights are known as “basic rights”. They are also known as negative rights or individual rights as it imposes negative obligations on the state so that it does not encroach on individual liberty. These rights are justifiable in nature so one can go to Courts if one’s right was violated or infringed
Fundamental rights are enshrined in Part III of Indian Constitution from Article 12-35. Initially there are seven fundamental rights but after the abolition of Zamidari Act, Right to Property was repealed. Six Fundamental rights are as follows:
i) Right to equality (Article 14-18) (ii) Right to freedom (Article 19-22) (iii) Right to freedom of religion (Article 23-24) (iv) Right against exploitation (Article 25-28) (v) Cultural and educational rights (Article 29-30) (vi) Rights to constitutional remedies (Article 31-32)
Directive Principles (Part-IV):- Part-IV of the constitution deals with “directive principles of state policy”. They are positive rights and impose positive obligations on the state. Directive Principles of State Policy. They are considered as positive rights as they impose positive obligations on the state. They are non-justifiable in nature yet they are important to provide guidelines to Legislature to formulate a policy. DPSP helps the State to attain its Socio-economical goals. DPSP are borrowed from Section -45 of the Irish Constitution of Ireland.
Article 36-51 of the Indian Constitution entails DPSP. Some of them are of current topics of debate in the Parliament. Some the DPSP are as follows: (i)Right to work (ii) Uniform Civil Code (iii) Right to education (iv) Maternity benefit.
Difference between Fundamental Rights and Directive Principals of State Policy
The first case in the Supreme Court pertaining to the conflict between Fundamental Rights and Directive Principles was State of Madras v. Champakam Dorairajan (AIR 1951 SC 226) . In this case the Madras Communal Government order which regulated admission to colleges on the basis of an ordinary ratio was challenged by petitioner as violating Articles 15 (1) and 29 (2). The Supreme Court invalidated the order which provided for communal reservation of seats for admission into a State educational institution, even though it was inspired by Article 46. According to the court, since Fundamental Rights are justifiable and enforceable rights, the directive Principles are not. The laws to implement Directive Principles could not take away Fundamental Rights. The Directive Principles should run subsidiary and conform to the Fundamental Rights.
Fundamental Rights
Directive Principles of State Policy
Part 3 of the Constitution of India contains the Fundamental Rights guaranteed to the citizens of India. Articles 12-35 of the Constitution of India deal with Fundamental Rights.
Directive Principles are written in Part 4 of the Constitution of India. They are given in Articles 36-51 of the Constitution of India.
The basic rights that are guaranteed to Indian citizens by the Constitution of India are known as Fundamental Rights
Directive Principles of the Indian constitution are the guidelines to be followed by the Government while framing policies.
Political Democracy is established in India with the help of Fundamental Rights given in the Constitution of India.
Economic and Social Democracy is established with the help of the Directive Principles of State Policy
The welfare of each and every citizen is promoted through the Fundamental Rights
The welfare of the entire community is fostered with the help of Directive Principles.
As per the law, the violation of Fundamental Rights is punishable.
Violation of Directive Principles is not a punishable crime unlike violation of Fundamental Rights
Fundamental Rights are justiciable as they can be enforced legally by the courts if there is a violation.
Directive Principles are not justiciable as they cannot be enforced by the courts if there is a violation.
If there is a law which is in violation of fundamental rights then the courts can declare it as invalid and unconstitutional.
If there is a law in violation of Directive Principles, then the courts do not have the power to declare it as invalid and unconstitutional.
Fundamental Rights are sometimes considered as a kind of restrictions imposed on the State.
Directive Principles are directions for the Government in helping it to achieve some particular objectives.
Fundamental rights can be suspended during a national emergency. But, the rights guaranteed under Articles 20 and 21 cannot be suspended.
Directive Principles of State Policy can never be suspended under any circumstances.
Fundamental Rights was borrowed from the Constitution of the United States of America
Directive Principles of State Policy was borrowed from the Constitution of Ireland which was in turn copied from the Constitution of Spain.
Relation between Fundamental Rights and DPSP:
Instead of having certain distinctions, Constitution Framers always talked about the coherence between Fundamental Rights and DPSP. Justice P.N. Bhagwati defines inter relation between Fundamental Rights and DPSP as “It is not possible to fit Fundamental Rights and DPSP in two different and strictly defined categories”. We can safely presumed from the above observations given by Constitution Framers that Fundamental Rights and DPSP are interrelated to each other.
In State of Bihar v.Kameshwar Singh 1952 1 SCR 889, the Apex Court relied on Article 39(b) and held that certain Zamidari Abolition Laws had been passed for a Public purpose within the meaning of Article 13(2). Directive Principles were not merely the policy of any particular party but were intended to be principles fixed by the Constitution for directing the State Policy. In Mohd Hanif Quereshi v. State of Bihar[1950] S.C.R. 869 at 891-892, petitioner argued that he was prevented from doing his occupation which is butchering of animals which include cow also and said that it lead to violation of Article 19(1)(g) of the Constitution. Then Supreme court rely on Article 48 of Indian constitution and held that preventing cows from butchering does lead to the violation of petitioner’s right and observed two important things:
a) the State should take note of the Directive Principles in determining the scope of Fundamental Rights (b) adopting the doctrine of harmonious construction. Court should give effect to both the Fundamental Rights and the Directive Principles.
In Unni Krishnan v State of Andhra Pradesh, 1993 AIR 2178, 1993 SCR (1) 594 Supreme court followed the same principle of Keshavanand Bharti case and held that Fundamental Rights and DPSP are supplementary and complementary to each other and provisions of Part III should be read under the light of Preamble and Directive Principles. In State of Tamil Nadu v. L. Abu Kavur Bai 1984 AIR 326, it was held that DPSP are not enforceable in Courts but it should be attempt of the Court to harmonize both of them and collision should be avoided as far as possible. In Gujarat Agricultural University v. Robhod Labhu Prachar AIR 2001 SC 70, Supreme Court implied Article 38 which deals to promote social order by welfare of the people and held that Government who is a guardian of people should eliminate inequalities in a status, and make endeavors to give maximum posts even at the first stage of absorption
Principle of harmonious construction:
In Kerala Education Bill, 19575 the Apex court while affirming the primacy of fundamental rights over the directive principles, it held that Court may not entirely ignore these Directive Principles of State Policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should give effect to both as much as possible. The Supreme Court began to assert that there is “no conflict on the whole” between the fundamental rights and the directive principles.
Harmonious construction can be defined as provision of Fundamental rights and DPSP should be read harmoniously or hand in hand. If any conflict occurs then court can refer to any particular law or interpret any law so as to give effect to both as far as possible. In the case of R. Coelho v. state of T.N.9 SC said that it is the responsibility of the government to adopt a middle path between individual liberty (Fundamental Rights) and public good (Directive Principles). In Minerva Mills v. Union of IndiaAIR 1980 SC 1789 case, Supreme Court observed that Fundamental rights are not end in themselves but are the means to an end. End is specific in Directive Principles. Indian Constitution is based on bedrock of balance between the two. To give absolute primacy to one over another is to disturb the harmony of Constitution. The harmony and balance between them is an essential feature of basic structure of Constitution.
Conclusion
Relation between Fundamental Rights and DPSP is cohesive in nature now and is an essential part of basic Structure of Indian constitution. Both are complementary and supplementary to each other. State should follow the guidelines enumerated in DPSP to protect Fundamental rights else they will have to face adverse consequences in next elections. Thus, the Directive Principles no longer remain merely a moral obligation of the Government. Despite differences, both cannot be seen as exclusive from each other; rather they should complement each other for effective governance of the country.
While Fundamental Right is more objective and has more imposing value, Directive Principles of State Policy in some ways are subjective because it is a kind of moral obligation which the State may or may not implement up to their discretion. Fundamental Rights are aimed at empowering people as it prohibits the State from taking extreme steps which is necessary for a democracy to survive
The moral responsibility of all people to support the unity of India and advance patriotism are known as the Fundamental Duties. These obligations, which are outlined in Part IV-A of the Constitution, affect both people and the country.
A Chapter IV-A with just one Article 51-A dealing with a Code of Ten Fundamental Duties for Citizens was added by the 42nd Amendment Act of 1976. Because rights and duties are related, fundamental duties are meant to act as a continual reminder to every citizen that while the constitution specifically granted them with certain Fundamental Rights, it also required them to obey some basic norms of democratic conduct and behaviour.
SCOPE
Fundamental duties are obligatory in nature. But there is no provision in the constitution for direct enforcement of these duties. There is no sanction either to prevent their violation. However the importance of fundamental duties can be gauged from the following facts:
a. As rights and duties are the two side of the same coin, it is expected that one should observe one’s duties in order to seek the enforcement of one’s fundamental rights, in the context if a person approaches the court for the enforcement of any of his fundamental rights, the court may refuse to take a lenient view of him if it comes to know that the concerned individual has no respect for what is expected of him by the state as a citizen of the country.
b. They can be used for interpreting ambiguous statutes. The court may look at the fundamental duties while interpreting equivocal statutes which admit of two constructions.
c. While determining the constitutionality of any law , if court finds that it seeks to give effect to any of the duties, it may consider such law to be ‘reasonable’, and thereby , save such law from unconstitutionality.
Value and Importance of fundamental duties in India :-
a) They serve as a reminder to the citizens that while enjoying their rights, they should also be conscious of duties they owe to their country, their society and to their fellow citizens.
b) They serve as a warning against the anti-national and antisocial activities like burning the national flag, destroying public property and so on.
c) They serve as a source of inspiration for the citizens and promote a sense of discipline and commitment among them. They create a feeling that the citizens are no mere spectators but active participants in the realization of national goals.
The importance of fundamental duties is that they define the moral obligations of all citizens to help in the promotion of the spirit of patriotism and to uphold the unity of India.
The chart below lists the 11 Fundamental Duties under Article 51-A that every Indian citizen must follow:
S.No
11 Fundamental Duties
1
Respect the Indian Constitution’s values and institutions, as well as the National Flag and National Anthem.
2
Keep in mind and uphold the great principles that motivated the nation’s fight for independence.
3
Maintain and safeguard India’s sovereignty, unity, and integrity.
4
When called upon, defend the country and perform national service.
5
Promote tranquilly and a feeling of universal brotherhood among all Indians, regardless of religious, linguistic, regional, or sectional differences, and condemn behaviours that are demeaning to women’s dignity.
6
To appreciate and protect the rich heritage of the country’s diverse culture
7
To preserve and develop the natural environment, including woods, lakes, rivers, and wildlife, as well as to have compassion for all living things.
8
Develop a scientific temperament, humanism, and an inquiring and reforming mentality.
9
To protect public property and to avoid violence
10
To strive for excellence in all spheres of individual and collective activity, so that the nation is always striving for greatyer levels of success and endevour.
11
Provide educational opportunities for his kid or ward between the ages of six and fourteen. The 86th Constitutional Amendment Act of 2002 added this duty.
