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October 5, 2004

 

CONSTITUTION OF INDIA

 

RIGHTS & DUTIES OF INDIVIDUALS

 

 

CONSTITUTION OF INDIA

 

Constitution of India was drafted by the Constituent Assembly of India.  It was originally elected before Independence for the United India.  It met first on the 9th of December 1946.  It worked for two years eleven months and eighteen days, before it adopted the Constitution.  The Constituent Assembly had held eleven sessions.  First six Sessions were spent in passing the Objectives Resolution, and Consideration of the Reports of various Committees including the one on Fundamental Rights.  The seventh to eleventh sessions debated the Draft Constitution.

 

After Partition of the Country, on 15th August 1947, the Members elected to the Constituent Assembly from Areas that remained with Indian Union, continued with the work of framing Free India’s Constitution.  All those elected from the areas that fell into the newly created Pakistan went to Pakistan, or resigned.  Baba Saheb Dr BR Ambedkar, elected in a by-election from the constituency vacated by Mandal, lost his Membership of the Constituent Assembly, as that fell into East-Pakistan, the present day Bangladesh.  He was thankfully re-elected to the Constituent Assembly from the seat vacated for him by Jayakar.  Baba Saheb was also elected to the Drafting Committee of the Constitution, and ultimately became the Chairman of the Drafting Committee.  As Chairman, he moved the Draft Constitution, defended or redrafted every provision of the Constitution.  The Constitution finally was moved by Baba Saheb, for adoption on 25th November 1949.  And the Constitution was approved on 26th November 1949.  Every year, Supreme Court of India and the legal fraternity celebrate 26th of November as Law Day.  The Constitution of India formally came into effect on 26th Jan 1950.  That day, free India became Sovereign Democratic Republic, and every year we remember and gratefully celebrate the day as the Republic Day of India.  And after Constituent (Forty-second Amendment) Act passed by Parliament, the Nation is said to be a Sovereign Socialist Secular Democratic Republic.

 

The Drafting Committee was elected on 29th August 1947, and met first on 30th August 1947.  It met for 141 days to prepare the Draft Constitution.  The Draft by the Constitutional Adviser had 243 Articles and 13 Schedules.  The drafting Committee worked on it and presented to the Constituent Assembly the Draft Constitution with 315 Articles and 8 Schedules.  At the end of Consideration of the Draft Constitution by the Constituent Assembly, the Articles were 386.  In its final form, it was 395 Articles and 8 Schedules.  Amendments tabled by Members were about 7,635.  Of those the ones actually moved were 2,473.

 

In comparison, the American Convention met on 25th May 1787, and completed the Constitution with only seven Articles and 21 sections in the first four, within four months, on 17th Sept 1787.  The Constitutional Convention of Canada met on 10th October 1884, and finished its task in two years and five months, with 147 Articles, by March 1867.  The Australian Constitutional Convention assembled in March 1891 and finished its work on 9th July 1900, with 128 Articles after a period of nine years.  All of them completed their work without considering any amendments.

 

We must always remember that Constitution is the basic Law of the Country.  It provides the rights, defines the duties, and delineates the responsibilities of every authority, official, institution and individual, living in the Country and governed by the Constitution.  All Authorities and Institutions derive their existence and power from the Constitution.  Hence every one of them have to work and function within the ambit of the Constitution.  All others, have to exist and operate, within the limits and boundaries of the Constitution.

 

The Preamble of the Constitution is more significant.  For, the Preamble reflects the sole of any Constitution.  It embodies the ideals and aspirations of the People who made the Constitution, adopted and accepted it for their governance and future.  It is part of the Constitution, and can be amended like any other provision in the Constitution, as long as that does not affect the basic character, principles and spirit of the Constitution.  All Laws, practices and procedures proceeding and that existed before the Constitution are repealed if they are in contradiction and are violative of any provisions of the Constitution.

 

 

The Preamble of the Indian Constitution reads as follows –

 

THE CONSTITUTION OF INDIA

 

PREAMBLE

 

    WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVERIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens :

 

    JUSTICE, social, economic and political;

 

    LIBERTY of thought, expression, belief, faith and worship;

 

    EQUALITY of status and opportunity;

 

and to promote among them all

 

    FRATERNITY assuring the dignity of the individual and unity and integrity of the Nation;

 

    IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

 

Apart from the PREAMBLE, the Constitution has 22 main Parts with 23 Chapters, 395 Articles and Nine Schedules.  These provide to every citizen many Rights and Freedoms.  And naturally with Rights and Freedoms come many Duties.

 

RIGHTS & DUTIES OF INDIVIDUALS

 

The Indian Constitution is one of the largest written Constitution, drafted after the path breaking and epoch-making French Revolution, American Revolution and Russian Revolution.  It also came after Industrial revolution in Europe, the Liberal Thinkers and their Ideas.  And it had been framed long after the Unification of the German and Italian Nations by Bismarck and Garibaldi.  Therefore, every Progressive and Noble Thoughts of the World have been adopted and built into Indian Constitution.  And in the words of Baba Saheb, framer of the Constitution - not to do so would have only been irrational.  The Indian Constitution, naturally had derived a lot from the unwritten British Constitution.  It had adopted the British Parliamentary System, British Legal System and Principles of Administration.  And it had also incorporated many main Provisions drawn from various Govt of India Acts made by the Imperial British for India and Indian People, and to the British Colonial Govt in India for its Governance.  Those were only to be expected.

 

The Rights Freedoms and Duties of the Individuals, as Citizens of the Country, had been built into the Constitution in various Parts Chapters and Articles.  It will be a Study of the whole Constitution, all the Parts, Articles and Schedules, if we are to talk of all the Rights and Duties.  For almost all the Articles and Provisions such as the Preamble and Schedule hold many promises and hopes to the Citizens, and even to other Individuals.  Some of the Rights are specific and special for specified segments of the Society, otherwise marginalised discriminated exploited and suppressed.  These are specifically in addition, and apart from those clearly laid out, as the Rights and Duties of all Citizens.

 

The Rights one can derive, depends upon the way the People or Individual agitate demand legislate and govern themselves, before the authorities, the political parties, elected peoples representatives, in the Legislatives and Parliament, before the political executives in the Govts, and ultimately before the Govts and Courts.  However, the significant and apparently clear Rights and Duties are, specifically discussed below.

 

RIGHTS OF INDIVIDUALS

 

The Constitution has been made by Indians for Indians and their Govts.  Sovereignty of the Nation, lies with the People.  In fact it is the People, who give the Rights to others, to all Institutions public and private, every individual in the Country - Citizens or not, and to themselves.  The People also provide the Directions to the Govts, the Political Parties and their Members, who come forward to represent them, and help Govern the Nation.

 

The Rights start from the Right to –

 

1.     Citizenship of the Country

2.     The hopes and expectations that flow from Part IV DIRECTIVE PRINCIPLES OF STATE POLICY

 

However, the Constitution Part IV on DIRECTIVE PRINCIPLES OF STATE POLICY, is only a Directive and guideline for the State, Parliament and Legislatives, Political Executives, Govts, the Bureaucracy and Planners, and to the People.  The DIRECTIVE PRINCIPLES OF STATE POLICY, do not give any direct rights and powers to the individuals.  People can not, in the normal circumstances go to Courts to demand any of the DIRECTIVE PRINCIPLES OF STATE POLICY, as their Rights or Dues, or ask the Courts to enforce them.

 

Apart from these there are specific Fundamental Rights.  They are large, specific, significant, essential and important to any Citizen in any part of the Country.  In fact, most of these are needed by any Citizen of any Nation living in any part of the World. 

 

The Fundamental Rights are contained in exclusive Part III of the Constitution.  They are the –

 

1.     Right to Equality – Articles 14, 15, 16, 17 and 18

2.     Right to Freedom – Articles 19 to 22

3.     Right against Exploitation – Articles 23 and 24

4.     Right to Freedom of Religion – Articles 25 to 28

5.     Cultural and Educational Rights – Articles 29 and 30

6.     Right to Constitutional Remedies – Articles 32 to 35

 

Right to Property, and the concerned Article 31 relating to Compulsory acquisition of property was omitted and repealed by the Constitution (Forty-fourth Amendment) Act 1978.

 

Saving of Certain Laws, with related Articles 31A to 31 D were added by various Constitutional Amendments.  However, Article 31 D wrt Saving of Laws in respect of Anti-National Activities was subsequently repealed by the Constitutional (Forty-third Amendment) Act of 1977.

 

Rights have no meaning at all, unless one can force those others, or authorities or the Govts to give the Rights being denied, withheld or delayed, deliberately or otherwise, to yield and give the rights.  Or one should be able ask or force the Govt and other authorities to intervene, and ensure or force those who are denying, withholding or standing in the way of the Rights, discipline them, and get the Rights.  Hence, the Constitution provides, vide Article 32, remedies for enforcement of Rights conferred by this Part.  This Article 32, in fact is the most important provision of the Constitution, forming part of Part III on Fundamental Rights.  It provides every Citizen and every individual, the Right to move the Supreme Court by appropriate proceedings for the enforcement of the Rights.

 

Others are –

 

1.     Under the Right to Equality,

 

a)    Article 14 provides the Right of EQUALITY BEFORE LAW

b)    Article 15 provides Rights for PROHIBITION OF DISCRIMINATION ON GROUNDS OF RELIGION, RACE, CASTE, SEX OR PLACE OF BIRTH

c)     Article 16 gives the Right to EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC EMPLOYMENT

d)    Article  17 deals with Rights associated with the ABOLITION OF UNTOUCHABILITY, and

e)    Article 18 deals with Rights associated with the ABOLITION OF TITLES

 

2.     Under the Right to Freedom,

 

a)    Article 19 on PROTECTION OF CERTAIN RIGHTS REGARDING FREEDOM OF SPEECH etc, it is said that,

(1)  all citizens shall have the right –

(a)  to freedom of speech and expression

(b)  to assemble peaceably and without arms

(c)  to form association or unions

(d)  to move freely throughout the territory of India

(e)  to reside and settle in any part of the territory of

and,

(f)    *  *    *    *    *    *    *    *    *    *    *    *    *    *

(g)  to practice any profession, or to carry on any occupation, trade or business

 

At the same-time vide part (2) of the same Article 19, the Constitution allows the Operation of any existing law, permits the States to make any law to impose restrictions on the above rights, that can be considered as reasonable.

 

b)    Article 20 gives the Rights of PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES, in some unfair or unjust manner

c)     Article 21 gives the Rights of PROTECTION OF LIFE AND PERSONAL LIBERTY

d)    Article 22 gives the Rights for PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES, in some unfair and unjust manner

 

3.     Under the Rights against Exploitation,

a)    Article 23 deals with PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR

b)    Article 24 deals with PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES, etc

4.     Right to Freedom of Religion – Articles 25 to 28

5.     Cultural and Educational Rights – Articles 29 and 30

6.     Right to Constitutional Remedies – Articles 32 to 35

 

DUTIES OF INDIVIDUALS

 

The Duties of individual Citizens of India, have been laid out in Article 51A, Part IVA of the Constitution, as Fundamental Duties.  These were not there in the Original version of the Constitution framed and adopted by the Constituent Assembly.  These were inserted by the Constitution (Forty-second Amendment) Act passed by the Parliament in 1976.  Those read as –

 

PART  IVA

 

FUNDAMENTAL DUTIES

 

 

51A.   Fundamental duties.

 

It shall be the duty of every citizen of India –

 

a)    to abide by the Constitution and respect its ideals and institutions, the National Flag and National Anthem;

b)    to cherish and follow the noble ideals which inspired our National Struggle for Freedom;

c)     to uphold and protect the sovereignty, unity and integrity of India;

d)    to defend the Country and render National Service when called upon to do so;

e)    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;

f)      to value and preserve the rich heritage of our composite culture;

g)    to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

h)     to develop the scientific temper, humanism and the spirit of inquiry and reform;

i)       to safeguard public property and to abjure violence;

j)       to strive towards excellence in all spheres of individual and collective activity so that the Nation constantly rises to higher levels of endeavour and achievement.

 

All Rights and Duties always remain as silent Provisions interned in the Constitution.  It is unto the People to realise them.  They have to make the Govts to work, and ensure that they do their Duties and they get their Rights.  Where necessary they have to fight for them, go to the Courts to agitate for them, and struggle in the Society to retain them.  As Baba Saheb said, in his last speech in the Constituent assembly on 25th November 1949, while moving the Draft Constitution for adoption, the success or effectiveness of any Law and Constitution depends upon those who work them.

 

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