Constitutional Values & Fundamental Principles of the ConstitutionPPT.pptx

Foundational Stones of Constitution - Four Pillars - Constitutional Amendments - Fundamental Rights - Landmark Judgments

1. CONSTITUTIONAL VALUES AND FUNDAMENTAL PRINCIPLES OF THE INDIAN CONSTITUTION BY K. SRI BHARATHI

2. INTRODUCTION The Constitution is a document based on a moral vision. We need to adopt a political philosophy approach to the constitution. What do we mean by a political philosophy approach to the constitution? First, we need to understand the conceptual structure of the constitution.

3. Furthermore, we must attempt to work out a coherent vision of society and polity conditional upon an interpretation of the key concepts of the constitution. We must have a better grasp of the set of ideals embedded in the constitution. Finally, the Indian Constitution must be read in conjunction with the Constituent Assembly Debates in order to refine and raise to a higher theoretical plane, the justification of values embedded in the Constitution. A philosophical treatment of a value is incomplete if a detailed justification for it is not provided.

4. FRAMING OF THE CONSTITUTION The Constitution is the brain child of the Constituent Assembly. The Constituent Assembly was set up in 1946. After three years of intense debating the makers of the Constitution delivered the ‘ Grundnorm ’.

5. DESTRUCTION OR EVOLUTION? The Government of India Act 1935 was largely incorporated in the present day Constitution. Our constitution has also borrowed principles from Constitutions of Countries around the world at the risk of being called a “borrowed document”. However, Indian Constitution is rooted in principles found in its own scriptures and it has evolved and adopted the principles according to the political needs of the country.

6. It can be best expressed in the words of Hon’ble Mr. Justice J.C. Shah, “ The Constituent Assembly which gave the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set-up... The process was not one of destruction, but of evolution. ”

7. THE OBJECTIVE RESOLUTION The method which the Constituent Assembly adopted in making the Constitution was to first lay down the objectives: India will be a Sovereign Republic It will be a union of states. Each state shall retain its autonomy over its boundaries. All the power are derived from the people People’s right justice, equality, liberty and fraternity will be secured.

8. v. Special provisions to be made for backward classes. vi. Constitution shall embody fundamental rights and directive principles. vii. Detailed provisions regarding working of bodies to be established under the Constitution. viii. Detailed provisions regarding execution of executive and administrative powers as laid down. ix. Detailed temporary transitional provisions to ensure smooth transition from the old system to the new one.

9. FOUNDATIONAL STONES OF CONSTITUTION SOVEREIGNITY DEMOCRACY REPUBLIC SOCIALISM SECULARISM

10. THE FOUR PILLARS Justice Liberty Socio Economic Political Thoughts Expression Faith Belief Worship

11. Equality Fraternity Status Opportunity Dignity Securing Sovereignty and Integrity

12. SOVEREIGNTY The Preamble distills the heart and soul of the Constitution. It declares India “a sovereign socialist secular democratic republic”. Being sovereign means having complete political freedom and being the supreme authority. It implies that India is internally all powerful and externally free. It is free to determine for itself without any external interference (either by any country or individual) and nobody is there within to challenge its authority.

13. This feature of sovereignty gives us the dignity of existence as a nation in the international community. Though the Constitution does not specify where the sovereign authority lies but a mention of ‘We the People of India’ in the Preamble clearly indicates that sovereignty rests with the people of India. This means that the constitutional authorities and organs of government derive their power only from the people.

14. DEMOCRACY The Preamble reflects democracy as a value. As a form of government it derives its authority from the will of the people. The people elect the rulers of the country and the elected representatives remain accountable to the people.

15. The people of India elect them to be part of the government at different levels by a system of universal adult franchise, popularly known as ‘one man one vote’. Democracy contributes to stability, continuous progress in the society and it secures peaceful political change. It allows dissent and encourages tolerance. And more importantly, it is based on the principles of rule of law, inalienable rights of citizens, independence of judiciary, free and fair elections and freedom of the press.

16. REPUBLIC India is not only a democratic nation but it is also a republic. The most important symbol of being a republic is the office of the Head of the State, i.e. the President who is elected and who is not selected on the basis of heredity, as is found in a system with monarchy. This value strengthens and substantiates democracy where every citizen of India is equally eligible to be elected as the Head of the State. Political equality is the chief message of this provision.

17. 42 ND AMENDMENT TO THE CONSTITUTION The words “socialist” and “secular” were inserted into the preamble as part of the 42nd Amendment of the Constitution in 1976 during the Emergency imposed by then Prime Minister Indira Gandhi. Over her years in government, Indira Gandhi had attempted to cement her approval among the masses on the basis of a socialist and pro-poor image with slogans such as “ garibi hatao ” (Eradicate poverty). The 42nd Amendment to the Constitution, passed in 1976 when the Emergency was in place, replaced the words “sovereign democratic republic” with “sovereign socialist secular democratic republic”. It also changed “unity of the nation” to “unity and integrity of the nation”.

18. However, Dr B R Ambedkar argued: “What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself because that is destroying democracy al In 2020 BJP MP Rakesh Sinha moved a resolution in  Rajya Sabha  seeking to remove the word socialism from the preamble, saying, “You cannot tie a generation to a particular way of thinking. Besides, the Congress party which ruled the country for seven decades has changed its direction from being socialist to welfare to neo-liberalism. Its new liberal policies adopted in the 1990s have negated its own earlier positions.”together .”

19. A Writ Petition has also been filed in 2020 and 2022 seeking to remove the two terms from the Constitution.

20. SOCIALISM Social and economic inequalities have been inherent in the Indian traditional society. Which is why, socialism has been made a constitutional value aimed at promoting social change and transformation to end all forms of inequalities. Our Constitution directs the governments and the people to ensure a planned and coordinated social development in all fields. It directs to prevent concentration of wealth and power in a few hands. The Constitution has specific provisions that deal with inequalities in the Chapters on Fundamental Rights and Directive Principles of State Policy.

21. SECULARISM We all are pleased when anyone says that India is a home to almost all major religions in the world. In the context of this plurality (means more than one or two; many), secularism is seen as a great constitutional value. Secularism implies that our country is not guided by any one religion or any religious considerations. However, the Indian state is not against religions. It allows all its citizens to profess and practice any religion they follow. At the same time, it ensures that the state does not have any religion of its own. Constitution strictly prohibits any discrimination on the ground of religion.

22. JUSTICE At times you may also realise that living in a democratic system alone does not ensure justice to citizens in all its totality. Even now we find a number of cases where not only the social and economic justice but also the political justice is denied. Which is why, the constitution-makers have included social, economic and political justice as constitutional values. By doing so, they have stressed that the political freedom granted to Indian citizens has to be instrumental in the creation of a new social order, based on socio-economic justice. Justice must be availed to every citizen. This ideal of a just and egalitarian society remains as one of the foremost values of the Indian Constitution.

23. RELEVANT PROVISIONS Article 14, 15, 16 and 17 of the Indian constitution also reflect the idea of justice enshrined in the preamble of the constitution. All these articles are incorporated under part III of the constitution which gives fundamental rights to every citizen. Provisions relating to 'Equal Justice and Free Legal Aid' are enshrined under article 39A of the Indian constitution. Which give every citizen right to get free legal help from officers of the court. No one can be denied access to free legal aid

24. Article 38 and 39  of Indian Constitution defines distributive Justice. Distributive justice means fair distribution of resources among those who are in need of it. Indian Constitution defines 3 types of justice:- Social Justice Economic Justice Political justice SOCIAL JUSTICE: Social justice as a concept arose during industrial revolution of 19 th  century. Different definitions of social justice is provided by different institutions, for few it is fair and comprehensive distribution of goods among people for economic growth and for few its equality of status among individuals.

25. Social justice means greater good for larger number of people and unequals should be treated equally. The apex court in the  Kesavananda Bharati  case  held that social justice is part of Basic structure of the Indian constitution. In the Case of  S.R Bommai v. Union of India , the apex court held that social justice and judicial review are two basic features of the Indian constitution. Economic Justice: Economic justice means providing economic opportunity, economic equality and removing economic disabilities. It is always implemented under the umbrella of Social Justice.

26. Political Justice Political Justice means a system free from political arbitrariness. There should be political fairness in the working of the government. Political status of any person should not give him any advantage and he/she should be treated like every other citizen.

27. LIBERTY The Preamble prescribes liberty of thought, expression, belief, faith and worship as one of the core values. These have to be assured to every member of all the communities. It has been done so, because the ideals of democracy can not be attained without the presence of certain minimal rights which are essential for a free and civilized existence of individuals.

28. Article 19 All citizens shall have the right— (a) to freedom of speech and expression; (...) (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

29. Article 20 (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.   (2) No person shall be prosecuted and punished for the same offence more than once.   (3) No person accused of any offence shall be compelled to be a witness against himself.

30. Article 21 No person shall be deprived of his life or personal liberty except according to procedure established by law.

31. Article 22 (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.   (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.   (3) Nothing in clauses (1) and (2) shall apply—   (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.

32. Shreya Singhal v. Union of India- Thoughts and Expression The Supreme Court of India invalidated Section 66A of the Information Technology Act of 2000 in its entirety.  The Petitioners argued that Section 66A was unconstitutionally vague and its intended protection against annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, or ill-will were beyond the scope of permissible restrictions under Article 19(2) of the Indian Constitution. The Court agreed that the prohibition against the dissemination of information by means of a computer resource or a communication device intended to cause annoyance, inconvenience or insult did not fall within any reasonable exceptions to the exercise of the right to freedom of expression. It further found that because the provision failed to define terms, such as inconvenience or annoyance, “a very large amount of protected and innocent speech” could be curtailed and hence its sweep was overly broad and vague.

33. Sardar Syedna Taher Saifuddin v State of Bombay The Supreme Court applied the ERP test to determine whether the Bombay Prevention of Excommunication Act, 1949 violated the fundamental rights under Articles 25 and 26 of the Dawoodi Bohra Community. The Head Priest of this community was vested with certain powers, one of which included the power of excommunication, which was to be exercised in accordance with the tenets of the community. Such power, it was argued, was integral to the religious faith and beliefs of the Dawoodi Bohra Community which was a religious denomination under Article 26 of the Constitution. With a 4:1 majority, the 5 Judge Bench of the Supreme Court upheld the right and power of excommunication bestowed upon the Head Priest of the Dawoodi Bohra Community. It was further observed that what constitutes an essential practice is to be gathered from the texts and tenets of the religion. The legislature, the Court added, was not permitted to reform a religion out of existence or identity.

34. Maneka Gandhi v. Union of India The Honourable Supreme Court held that the right to travel and go outside the country must be included in the Right to Personal Liberty. It stated that “personal liberty” given in Article 21 had the widest amplitude and covered a variety of rights related to the personal liberty of a person. The scope of personal liberty was, hence, greatly increased and it was held to include all the rights granted under Article 21, as well as all other rights related to the personal liberty of a person. Such a right could only be restricted by a procedure established by law, which had to be “fair, just and reasonable, not fanciful, oppressive or arbitrary.

35. EQUALITY Equality is as significant constitutional value as any other. The Constitution ensures equality of status and opportunity to every citizen for the development of the best in him/her. As a human being everybody has a dignified self and to ensure its full enjoyment, inequality in any form present in our country and society has been prohibited. Equality reflected specifically in the Preamble is therefore held as an important value

36. Article 14 Equality before law .—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

37. Article 15 The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (...) (3) Nothing in this article shall prevent the State from making any special provision for women and children (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

38. Article 16 There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (...) (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State

39. Naz Foundation v. Government of NCT, Delhi- Equality of Status This case became a milestone in Indian legal history. The Delhi High Court struck down the infamous section 377 of the Indian Penal Code or the ‘sodomy law’. Naz Foundation struck a powerful blow for the liberation of a group that had long been stigmatised and discriminated against, in public and in private. It also did something more: through its focus on non-discrimination, equality, inclusion and dignity, it also liberated Indian equality jurisprudence from its six- decade old fetters of intelligible differentia and rationl nexus. From “equals must be treated equally and unequals unequally” to inclusion, dignity and equal moral membership.

40.   Navtej Singh Johar v. Union of India  (2018), The Supreme Court, said that the Right to dignity means the right to “full personhood”, and “includes the right to carry such functions and activities as would constitute the meaningful expression of the human self.” In this case, a very important aspect of human dignity was talked about – the control over one’s own intimate relations.

41. State of Kerala v. N.M.Thomas - Equality of Opportunity The Judgment of the Supreme Court in N.M.Thomas is a landmark decision propagating the right to equality. The following are the three salient features: Rights to equality and equality of opportunity are individual rights. These are substantive rights designed to overcome asymmetrical social and individual barriers to accessing basic public goods. Since in India these differences are imposed based on caste and groups, these groups have to be taken into consideration even though the rights remain individual.

42. The implication of this judgment is the incorporation of disparate impact analysis into equality law. This is because Article 16(4) is based entirely on this principle. The lack of representation in government services raises the initial presumption of inequality which is then substantiated by investigations into backwardness. Until N.M.Thomas Article 16(4) remained an exception to the equality code along with whatever principles that underlay it. However, once it is accepted that 16(4) is a facet of 16(1) it becomes clear that disparate impact is contained not only within the meaning of equality of opportunity under Article 16(1), but must also be “read back” into Article 14 and 15(1) and into the broader jurisprudence of equality and non-discrimination.

43. FRATERNITY There is also a commitment made in the Preamble to promote the value of fraternity that stands for the spirit of common brotherhood among all the people of India. In the absence of fraternity, a plural society like India stands divided.

44. Therefore, to give meaning to all the ideals like justice, liberty and equality, the Preamble lays great emphasis on fraternity. In fact, fraternity can be realized not only by abolishing untouchability amongst different sects of the community, but also by abolishing all communal or sectarian or even local discriminatory feelings which stand in the way of unity of India.

45. Article 15 (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—  (a) access to shops, public restaurants, hotels and places of public entertainment; or

46. Article 17 " Untouchability " is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of " Untouchability " shall be an offence punishable in accordance with law.

47. Article 23 (1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.   (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them

48. Article 25 (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.   (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.  

49. Article 26 Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— (...) (b) to manage its own affairs in matters of religion;

50. UNION OF TRINITY Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity... Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative... Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. - Dr.B.R.Ambedkar

51. While fraternity was the bridge that would make liberty and equality meaningful, its role was not merely auxillary . Ambedkar’s reference to the “union of trinity” reflected the insight that the content of liberty and equality (which were otherwise abstract terms) would be shaped by fraternity. The dependence was mutual. Fraternity itself could not be defined in isolation from liberty and equality. The three pillars of liberty, equality and fraternity hold up an elaborate constitutional structure that places the individual front and centre. That is how we must understand the transformative constitution.

52. SALIENT FEATURES OF THE CONSTITUTION

53. WRITTEN CONSTITUTION As has been stated earlier, the Constitution of India is the longest written constitution. It contains a Preamble, 395 Articles in 22 Parts, 12 Schedules and 5 Appendices. It is a document of fundamental laws that define the nature of the political system and the structure and functioning of organs of the government. It expresses the vision of India as a democratic nation. It also identifies the fundamental rights and fundamental duties of citizens. While doing so, it also reflects core constitutional values.

54. FLEXIBILITY As regards Constitutions, generally written constitutions are rigid. It is not easy to bring about changes in them frequently. The Constitution lays down special procedure for constitutional amendments. In the unwritten constitution like the British Constitution, amendments are made through ordinary law-making procedure. The British Constitution is a flexible constitution. In the written constitution like the US Constitution, it is very difficult to make amendments. The US Constitution, therefore, is a rigid constitution

55. However, the Indian Constitution is neither as flexible as the British Constitution nor as rigid as the US Constitution. It reflects the value of continuity and change. There are three ways of amending the Constitution of India. Some of its provisions can be amended by the simple majority in the Parliament, and some by special majority, while some amendments require special majority in the parliament and approval of States as well.

56. FUNDAMENTAL RIGHTS AND DUTIES The Constitution of India includes fundamental rights in a separate Chapter which has often been referred to as the ‘conscience’ of the Constitution. Fundamental Rights protect citizens against the arbitrary and absolute exercise of power by the State. The Constitution guarantees the rights to individuals against the State as well as against other individuals. The Constitution also guarantees the rights of minorities against the majority. Besides these rights, the Constitution has provisions identifying fundamental duties, though these are not enforceable as the fundamental rights are. These duties reflect some of the basic values embodied in the Constitution.

57. DIRECTIVE PRINCIPLES In addition to Fundamental Rights, the Constitution also has a section called Directive Principles of State Policy. It is a unique feature of the Constitution. It is aimed at ensuring greater social and economic reforms and serving as a guide to the State to institute laws and policies that help reduce the poverty of the masses and eliminate social discrimination. In fact, as you will study in the lesson on “India-A Welfare State”, these provisions are directed towards establishment of a welfare state.

58. INTEGRATED JUDICIAL SYSTEM Unlike the judicial systems of federal countries like the United States of America, the Indian Constitution has established an integrated judicial system. Although the Supreme Court is at the national level, High Courts at the state level and Subordinate Courts at the district and lower level, there is a single hierarchy of Courts. At the top of the hierarchy is the Supreme Court. This unified judicial system is aimed at promoting and ensuring justice to all the citizens in uniform manner. Moreover, the constitutional provisions ensure the independence of Indian judiciary which is free from the influence of the executive and the legislature

59. SINGLE CITIZENSHIP Indian Constitution has provision for single citizenship. Do you know what does it mean? It means that every Indian is a citizen of India, irrespective of the place of his/her residence or birth in the country. This is unlike the United States of America where there is the system of double citizenship. A person is a citizen of a State where he/she lives as well as he/she is a citizen of U.S.A. This provision in the Indian Constitution definitely reinforces the values of equality, unity and integrity.

60. UNIVERSAL ADULT FRANCHISE The values of equality and justice are reflected in yet another salient feature of the Constitution. Every Indian after attaining certain age (at present 18 years) has a right to vote. No discrimination can be made on the basis of religion, race, caste, sex, descent, and place of birth or residence. This right is known as universal adult franchise.

61. FEDERALISM Federal system reflects the constitutional value of unity and integrity of the nation, and more importantly the value of decentralization of power. The parliamentary form of government reflects the values of responsibility and sovereignty vested in the people. The core principle of a parliamentary government is the responsibility of the executive to the legislature consisting of the representatives of the people.

62. DIVISION OF POWER There are two sets of government created by the Indian Constitution: one for the entire nation called the union government (central government) and another for each unit or State, called the State government. Sometimes, you may also find the reference of a three-tier government in India, because besides the Union and State governments, local governments-both rural and urban- are also said to constitute another tier. But constitutionally India has a two-tier government. The Constitution does not allocate separate set of powers to the local governments as these continues to be under their respective State governments.

63. The division has been specified in the Constitution through three Lists: the Union List, the State List and the Concurrent List. The Union List consists of 97 subjects of national importance such as Defence , Railways, Post and Telegraph, etc. The State List consists of 66 subjects of local interest such as Public Health, Police, Local Self Government, etc. The Concurrent List has 47 subjects such as Education, Electricity, Trade Union, Economic and Social Planning, etc. On this List both the Union government and State governments have concurrent jurisdiction

64. However, the Constitution assigns those powers on the subjects that are not enumerated under Union List, State List and Concurrent List to the Union government. Such powers are known as Residuary Powers. If there is any dispute about the division of powers, it can be resolved by the Judiciary on the basis of the constitutional provisions.

65. INDEPENDENCE OF JUDICIARY Another very important feature of a federation is an independent judiciary to interpret the Constitution and to maintain its sanctity. The Supreme Court of India has the original jurisdiction to settle disputes between the Union and the States. It can declare a law as unconstitutional, if it contravenes any provision of the Constitution. The judiciary also has the powers to resolve disputes between the Union government and the State governments on the constitutional and legal matters related to the division of powers.

66. CONCLUSION The constitutional values are reflected in the entire Constitution of India, but its Preamble embodies ‘the fundamental values and the philosophy on which the Constitution is based’. These are: sovereignty, socialism, secularism, democracy, republican character, justice, liberty, equality, fraternity, human dignity and the unity and integrity of the Nation.

67. The Constitution affirms the basic principle that every individual is entitled to enjoy certain rights as a human being and the enjoyment of such rights does not depend on the will of any majority or minority. No majority has the right to abrogate such rights. In fact, the legitimacy of the majority to rule is derived from the existence of these rights. These rights include all the basic liberties such as the freedom of speech, movement and association, equality before the law and equal protection of laws, freedom of religious belief, and cultural and educational freedoms. The Constitution has classified these rights into seven categories and one of them is the right to constitutional remedies which entitles every aggrieved person to approach even the Supreme Court of India to restore to him/her any fundamental right that may have been violated.

68. The prime importance of these rights is that while the will of the majority decides how these freedoms are to be implemented, the existence of the freedoms themselves is not subject to that will. On the contrary, these freedoms set the conditions under which the will of the majority is to be formed and exercised. They establish the framework of “democratic legitimacy” for the rule of the majority. It must be stressed, however, that the fundamental rights guaranteed by the Constitution are not absolute.

69. Individual rights, however basic they are, cannot override national security and general welfare. For, in the absence of national security and general welfare, individual rights themselves are not secure. Freedom of speech does not mean freedom to abuse another person; freedom of movement does not mean freedom of settlement/movement to “sensitive areas”. The Constitution has made express provisions dealing with such limitations of fundamental rights so that those who seek to enjoy the rights may also realise the obligations attending them.

70. THANK YOU