Indian Constitution At Work Chapter 10 The Philosophy Of The Constitution

The classical western liberalism always privileges rights of the individuals over demands of social justice and community values.

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1. Freedom of speech and expression of ideas.

2. Freedom of religion and faith.

3. Equal access to public places.

4. Right to Life.

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1. Indian liberalism's first stream started with Rammohan Roy. He emphasised individual rights, especially the rights of women.

2. The second stream included thinkers like K.C. Sen, Justice Ranade and Swarai Vivekanand. They introduced the spirit of social justice within orthodox Hinduism.

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The term ‘mutual exclusion’ means this both religion and state must stay away from the internal affairs of one another. The statement not intervene in the domain of religion; religion likewise should not dictate state policy or influence the conduct of the state. In other words, mutual exclusion means that religion and state must be strictly separated.

The Constitution is needed for the following reasons:

1. The Constitution provides a framework within which a government has to work.

2. It controls the misuse of power by the government.

3. It minimises the chances of disputes among the various organs of the Government as it clearly defines their powers and functions.

4. It safeguards the fundamental rights of the citizens.

The four main ideals written in the Preamble of the Indian Constitution are given below:

1. Justice: Every citizen of India will have social, economic and political justice.

2. Liberty: Every citizen will have the liberty of thought, expression, belief, faith and worship.

3. Equality: Every citizen will be provided with the equality of status and of opportunity.

4. Fraternity: All the citizens of India have been assured about the dignity of the individual and the unity and integrity of the nation.

There are many salient features of the Indian Constitution. Its main four features are:

1. It establishes a Sovereign, Democratic, Republic in India.

2. It establishes a Secular State in India.

3. It provides fundamental rights and fundamental duties to the citizens of India.

4. It establishes a Parliamentary form of Government in India.

The term ‘secular’ means that the State has no religion of its own. The State is neither religious nor anti-religious. The State observes complete neutrality in religious matters. India is a Secular State. In the Indian Constitution from Articles 25 to 28, the right to Freedom of Religion has been granted to all the persons residing in India. Accordingly all the persons are equally entitled to freedom of conscience and the right to freely progress, practise and propagate the religion of their choice.

Secular state is must and critical for the national unity. Secularism is first and foremost doctrine that opposes all forms of inter-religious domination. An equally important dimension of secularism is its opposition to intra-religious domination. It is a normative doctrine which seeks to realize a secular society, i.e. one devoid of either inter-religious or intra-religious domination. Put positively it promotes freedom within religions, and equality between as well as within religions. Secular state is must to allow freedom of religion to members of their religious groups. If we value peace, freedom and equality, religious institutions and state institutions must be separated.

Judicial review means the power of the Courts to review the Acts and orders of the legislative and executive wings of Government and to declare them, when challenged by the affected persons, null and void if they are against the provisions of the Constitution. Unlike the American Constitution, the Indian Constitution has specially provided for the judicial review. Under the Indian Constitution, Parliament is not a sovereign body as the Supreme Court can strike down the acts passed by the Parliament. Similarly the orders of the executive are subject to judicial review. This power of the Supreme Court extends to the orders issued and laws passed by the State Legislatures also.

The Constitution of India has established the federal form of Government in India. Therefore, it is called the Union of States. In India, a federation has been established consisting of 28 States and 7 Union Territories. Two main federal features of the Indian Constitution are the following:

1. Division of Powers: Like any other federal country, in India also the powers have been divided between the union and the States. These powers are divided into the three lists i.e. Union List, State List and Concurrent List.

2. Written Constitution: The Indian Constitution is a written Constitution consisting of 395 Articles and twelve Schedules. In the Constitution every detail concerning the Union Government and the State Governments had been given.

(a) It is connected with the value of ‘social justice’. Because the right to equality for men and women or for any castes, creed or sex i.e. no discrimination should be made for the individual on the basis of caste, creed or sex etc. It is an issue of gender justice.

(b) There will be different slabs of tax on different consumer items. It is based on the principle of utility. The different slabs are due to the utility of different items. So it is linked with economic justice.

(c) Religious instructions will not be given in any government school. It is connected with the value of secularism.

(d) There shall be no begar or forced labour. It means no exploitation of any section of the society. Thus it is also connected with social justice.

C.

Bring independence from colonial rule.

A.

that state will have nothing to do with religion

D.

that state will recognise rights of religious groups

E.

that state will have limited powers to intervene in affairs of religions.

Unique Features of Indian Constitution:

1. The lengthiest Constitution: It is the written Constitution. It is the lengthiest Constitution in the world. It is a book of more than 250 pages and 12 Schedules.

2. A unique blend of Unitary and Federal Character: According to the Constitution of India has been declared federal and it looks federal but it has a unitary bias. Thus Indian Constitution is federal in form but unitary in spirit.

3. The Fundamental Rights and the Directive Principles of State Policy: In our Constitution Indian citizens have been provided with six fundamental rights. Also for the establishment of social and economic democracy and for the welfare of its citizens, some directives have been given to the Central and the State Governments.

4. The Fundamental Duties: By the 42nd Amendment in 1976, ten Fundamental duties have also been inserted in Indian Constitution.

5. Blend of Flexibility and Rigidity: The Indian Constitution is a blend of flexibility and rigidity. Some of the articles as change in the name of any state or in the boundaries etc. are amended by a simple majority of the Parliament. Some articles of the Constitution can be amended by 2/3 majority of the members of Parliament. But some important Articles of the Constitution can be amended by passing a 2/3 majority with ratification by at least 50 percent of the states.

No doubt, India is the largest liberal democratic country of the world. Since the day it started its working, the Indian Constitution had been encouraging equal regard among all communities of the country. This was not easy in India, first because communities do not always have a relationship of equality, they tend to have hierarchical relationships with one another (as in the case of caste.)

Second, when these communities do see each other as equals, they also tend to become rivals (as in the case of religious communities).

This was a very big challenge for the framers of the Indian Constitution how to make communities liberal in their approach and foster a sense of equal respect among them under existing conditions of hierarchy or intense rivalry.

Individuals every where (including India) also belong to cultural communities and every such community has its own values, traditions, customs and language shared by its members. Most of the Indians have openly acknowledged the value of communities.

India is a land of multiple cultural communities. It was important to ensure that no one community systematically dominates others. This made it mandatory for our Constitution to recognise community-based rights.

One such fundamental rights is the right of religious communities to establish and run their own educational institutions, such institutions may receive money from the government.

This provision shows that the Indian Constitution does not see religion merely as a ‘Private’ matter concerning the individual.

I. Meaning: Simply the responsibility of doing some work is known as duty. Duty is that positive or negative work that a man has to do, he may be willing for that or not. The fundamental duties are those duties which are essential for every citizen for his own progress, the progress of the society and for the well-being of the nation.

The Constitution which came into force on 26th January, 1950 did not contain the chapter of fundamental duties. The chapter on fundamental duties was inserted in our Constitution through 42nd Amendment of the Constitution in 1976 after Part IV of the Constitution, Part IVA is inserted in the Constitution which lays down fundamental duties of the citizens. The fundamental duties are intended to serve as a constant reminder to every citizen that while the Constitution specially conferred upon him certain fundamental rights, equally the citizens also are required to observe certain basic norms of democratic conducts and democratic behaviours. For the first time a set of 10 fundamental duties of citizens have been enumerated.

II. Fundamental Duties of the Indian Citizens:

1 It is the duty of every citizen to abide by the Constitution and respect its ideals and institutions, the National Flag and National Anthem.

2. It is the duty of the citizens to cherish and follow the noble ideals which inspired our national struggle for freedom.

3. It is the duty to uphold and protect the sovereignty, unity and integrity of India.

4. It is the duty of every citizen to defend the country and render national service when called upon to do.

5. It is the duty to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women.

6. It is the duty of every citizen to value and preserve the rich heritage of our composite culture.

7. It is the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and have compassion for living creatures.

8. It is the duty of the citizen to develop the scientific temper, humanism and the spirit of inquiry and reform.

9. It is the duty of every citizen to safeguard public property and to adjure violence.

10. It is the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of achievements.

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In this discussion we find that Jayesh thinks that our Constitution is only a borrowed document. Here the sense of the critic is that there is nothing original in the Constitution of India. Many sections have been taken word by word from the Government of India Act 1935. Similarly many provisions have been borrowed from the constitutions of other countries of the world. There is nothing indigenous about it. There is no mention of the sabha or the samiti of the Hindu period. There is also no reference to the political institutions of medieval India. But Saba says that is there anything as Indian and Western in the case of values and ideas. There are similarity in the case of values and ideas and there in no difference when we say equality between men and women. And if it is then it is not right to reject anything only due to its being western. When Jayesh said that after the fighting for independence we should not follow the policies of British. But Neha gave the argument that in our national movement we were not against the British but we were against the principle of colonialism. That has nothing to do with adopting a system of government that we wanted, wherever it came from Thus it may be said that there is nothing wrong in borrowing a political institution which otherwise work well. Moreover, it is difficult to fit in the ancient political institutions of India in a modern constitutional set up.

An important criticism of the Indian Constitution is that it is unrepresentative. Indian Constitution was framed by a Constituent Assembly constituted in November, 1946 through indirect election of its members by provincial legislatures under the provisions of Cabinet Mission Plan 1946. The Assembly consisted of a total 389 members of which 292 were to be elected from the Provinces, 93 were to be nominated from Princely States and four members were to be nominated from Chief Commissioner's areas. Each Provincial Assembly elected its members for the Constituent Assembly through the single transferable vote system. The method of representation in Princely States was to be decided with their consultation. The Mount Batten Plan of 3rd June 1947 announced partition of the country. So the membership of the Indian Constituent Assembly was reduced to 299 after partition and only 284 members signed the Constitution on 26 Nov. 1949.

Some constitutional experts do not recognize the Constituent Assembly as sovereign body as it was created through the proposals of British Government. But after India became independent on Aug. 15, 1947, the Constituent Assembly functioned as sovereign entity for all practical purposes. Hence we see that Indian Constitution is indeed unrepresentative because the members of the Constituent Assembly were chosen by a restricted franchise and not by universal suffrage. But if we see and read the debate, that took place in the Constituent Assembly, we find that a vast range of issues and opinions were mentioned, members raised matters related to various social sections.

The Constitution of India has some limitations also. It cannot be said that it is a perfect and lawless document. Given the social conditions within which the Constitution was made, it was only natural that there may be many controversial matters, that there would be many areas that needed careful revision. There are many limitations to this Constitution. One of the most important limitations, it appears to have glossed over some important issues of gender justice; particularly within the family. It does not adequately attend to the gender justice. There are unequal rights to women regarding family property and children. Certain basic social economic rights were relegated to the section on Directive Principles rather than made an integral feature of Fundamental Rights. Equal pay for the equal work for both men and women will be secured by the state. It was given in Directive Principles and not in Fundamental Rights. If I were writing the Constitution today I would recommand some provisions for the empowerment of women. I would like to make equal pay for equal work for men and women, a fundamental right and consequently delete it from the directives. I would like to clearly enunciate the inheritence of property and make women equal to men. Just like the reservation of seats for disadvantaged sections, I would like to make the provisions for reservation of at least thirty three percent seats for women in the central and State Legislatures.

The Directive Principles of State Policy prescribe some ideals and policy directives which every government is supposed to follow it to realise the goal of an egalitarian society. They are specific expressions of the goals and ideals mentioned in the Preamble to the Constitution. Though distinct in nature, these principles are complementary to the fundamental rights in the sense that if latter aims at the establishment of political democracy, the former tries to realise socio-economic democracy. Until now, the Directive Principles of State Policy have not been implemented effectively due to various reasons. But Fundamental Rights are protected and guaranteed by the Fundamental Law i.e, Constitution of the country. Fundamental Rights are justiciable. This is the reason that in a poor country certain basic socio-economic rights were relegated to the section on Directive Principles rather than made an integral part of fundamental rights. It appears that our country was so poor at the time of the commencement of the Constitution that it was not possible to give the much pressure on the State. But these Directive Principles were embodied in the Constitution to give satisfaction to the people. Those principles are according to Article 37 of the Constitution 'Fundamental in the governance of the government and it shall be the duty of the State to apply these principles in making laws.” If the government does not show enthusiasm for implementing those principles, it will loose confidence of the people and cannot hope to remain in power.

(a) Understanding of Secularism: The Indian Constitution differs from the Western ideas in the light of understanding of secularism. According to the Western ideas secular states are observed as treating religion as a private matter. The religion is not given public or official recognition. But the Indian Constitution differs in this matter. All religions are honoured in the same manner. The state could also help religious communities by giving aid to educational institutions run by them.

(b) Articles 370 and 371: By introducing the article 370 concerning Jammu and Kashmir and article 371 concerning with North East, the Indian Constitution anticipates the very important concept of asymmetric federalism. Unlike the constitutional symmetry of American federalism, Indian federalism has been constitutionally asymmetric. The accession of Jammu and Kashmir to the Indian Union was based on a commitment to safeguard its autonomy under article 370 of the Constitution. This is the only state which is governed by its own Constitution. Article 371 A, the privilege of special status, was also accorded to the North Eastern State of Nagaland.

(c) Affirmative action: Again there is much difference between the Indian Constitution and Western ideas in the light of affirmative action. As in the context of America where the Constitution was written in late 18th century it is absurd to apply the values and standard of that era to the 21st century. But in India affirmative actions as in terms of our values, ideals and conception the Constituent Assembly made the Constitution which is full of affirmative actions. The political philosophy resists any single label because it is liberal, democratic, egalitarian, secular and federal, open to community values, sensitive to the needs of religious and linguistic minorities as well as historically disadvantaged groups and committed to building a common national identity. Freedom of expression, religious freedom, right to equality, social justice and community values are the main tenets of the Indian Constitution.

(d) Universal Adult Franchise: In Western democracies the right to vote has only recently been extended to women and to the working class. But in Indian Constitution universal franchise was adopted from the very beginning.

1928

Jammu and Kashmir

late 18th

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I. (a) This statement says that they are not relevant.
(b)  The Constituent Assembly debates are relevant even today because a history of our Constitution is still very much a history of the present but the above said statement argues that they are not relevant.
(c) This statement argues that Constituent Assembly debates are relevant even today.
II. (a) Yes, I do agree with the position. The debates of constituent Assembly are relevant so as to understand and interpret the various articles of the Constitution but they contain a lot of legal terms which the common man can't easily comprehen.

(b) I do agree with this statement. As we see that our Constitution during the period of fifty six years about 100 times has been amended.

(c) I agree with this position also because the most important challenges have not changed totally.