Sample Copy. Not For Distribution.

Transcription

1

2 Soul of the Nation- Constitution of India Uniting India-Uniting Indians i

3 Publishing-in-support-of, EDUCREATION PUBLISHING RZ 94, Sector - 6, Dwarka, New Delhi ShubhamVihar, Mangla, Bilaspur, Chhattisgarh Website: Copyright, Author All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form by any means, electronic, mechanical, magnetic, optical, chemical, manual, photocopying, recording or otherwise, without the prior written consent of its writer. ISBN: Price: While effort has been made to avoid any mistake or omission, this publication is being sold on the condition and understanding that neither the author nor the publishers or printers would be liable in any manner to any person by reason of any mistake or omission in this publication or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this work. For any defect in printing or binding the publishers will be liable only to replace the defective copy by another copy of this work then available. The external and internal boundaries and coastlines as depicted in the maps are not to scale. They are neither correct nor authentic. All disputes are subject to the jurisdiction of competent courts in Delhi. Printed in India ii

4 SOUL OF THE NATION CONSTITUTION OF INDIA Uniting India-Uniting Indians P. R. Gupta Civil and Responsible Citizen of Constitutional India EDUCREATION PUBLISHING (Since 2011) iii

5 iv

6 Dedicated To The Nation v

7 vi

8 About The Author Mr. P.R. Gupta a resident of NCR, graduate and Civil Services aspirant from Delhi, Nationalist and RTI Activist. Before becoming a full time writer he has worked as accountant for few years. He has read many law books and attended seminars on the Constitution and its goals. This is his first book. He has written this book as Civil and Responsible Citizen of Constitutional India. ********** vii

9 About The Book Soul of the Nation : Constitution of India Uniting India-Uniting Indians is designed for every citizen of India and for competitors of various exams like Civil ServicesExams etc. Book defines how the Constitution works to run nation and how the Constitution is attached with every citizen, class, community, caste, region etc. This book defines how the Constitution unites vast India and diverse Indians and spirit of the Constitution. This book defines relation between the Union and the State and between the States. This book also covers national identity, sovereign powers and national duties of Indians. This book covers long term goals of the State. This book also defines type of government, Constitution, executive, judiciary and legislature. This book also covers democratic structure from grass root level to national level. Finally this book covers almost all the aspects of the Constitution of India. ********** viii

10 Preface I have written this book as Civil and Responsible Citizen of Constitutional India and expect from citizens of India to follow Constitution of India on priority basis in place of any other ideology whether religious or non-religious. The Constitution of India is the holiest and unique book and has solutions of all problems of the nation and its citizens. I have tried to write this book in layman language so that Citizens of India could be aware about the Constitution of India easily. In spite of elapsing many decades of getting and coming in force of Constitution most of people try to solve the problems by using Sam-damdand-bhed and don t use Constitutional means where as the Constitution has solution of all the problems of the nation and its citizens. Further this book defines how Constitution works to run nation and how the Constitution is attached with every citizen, class, community, caste, region etc. This book defines how the Constitution unites vast India and diverse Indians and sprit of the Constitution. This book defines relation between the Union and the State and between the States. This book also covers national identity, sovereign powers and national duties of Indians. This book covers long term goal of the State. This book also defines type of government, Constitution, executive, judiciary and legislature. This book also covers democratic structure from grass root level to national level. Finally this book covers almost all the aspect of the Constitution of India. ********** P. R. Gupta ix

11 x

12 Content List S.NO. TOPIC PAG E NO. 1. SOUL OF THE NATION:CONSTITUTION OF INDIA 1 2. SALIENT FEATURES OF THE CONSTITUTION OF INDIA 3 3. HISTORICAL BACKGROUND CONSTITUENT ASSEMBLY OF INDIA SPIRIT OF THE CONSTITUTION : PREAMBLE STATE: THE UNION AND ITS TERRITORY NATIONAL IDENTITY: CITIZENSHIP SOURCE OF POWER FOR CITIZENS FUNDAMENTAL RIGHTS LONG TERM GOALS FOR STATE DIRECTIVE PRINCIPLES OF STATE POLICY 66 NATIONAL DUTIES OF CITIZENS 10. FUNDAMENTAL DUTIES GOVERNMENT UNION STATE RELATION EMERGENCY EXECUTIVE 107 HEAD OF THE STATE (UNION) AND PROTECTOR 15. OF THE CONSTITUTION: PRESIDENT VICE PRESIDENT 125 HEAD OF THE GOVERNMENT (UNION) : PRIME 17. MINISTER 129 EXECUTIVE AUTHORITY (UNION) 18. COUNCIL OF MINISTERS HEAD OF THE STATE (STATE) : GOVERNOR 139 HEAD OF THE GOVERNMENT (STATE): CHIEF 20. MINISTER 148 EXECUTIVE AUTHORITY (STATE) 21. COUNCIL OF MINISTERS LEGISLATURE (UNION) : PARLIAMENT STATE LEGISLATURE 198 RURAL LOCALSELF-GOVERNMENT: 24. PANCHAYATS 224 xi

13 URBAN LOCAL SELF-GOVERNMENT : 25. MUNICIPALITIES JUDICIARY HIGHEST JUDICIAL FORUM: SUPREME COURT HIGH COURT SUBORDINATE COURTS SPECIAL STATUS OF JAMMU AND KASHMIR SPECIAL PROVISIONS FOR SOME STATES UNION TERRITORIES SCHEDULED AND TRIBAL AREAS COMPTROLLER AND AUDITOR GENERAL FINANCE COMMISSION ELECTION COMMISSION PUBLIC SERVICE COMMISSIONS 313 NATIONAL COMMISSION FOR SCHEDULED 38. CASTES 319 NATIONAL COMMISSION FOR SCHEDULED 39. TRIBES SPECIAL OFFICER FOR LINGUISTIC MINORITIES ATTORNEY GENERAL ADVOCATE GENERAL CO-OPERATIVE SOCIETIES TRIBUNALS OFFICIAL LANGUAGE PUBLIC SERVICES FINANCE, PROPERTY, CONTRACTS, RIGHTS, LIABILITIES, OBLIGATIONS AND SUITS 349 SHORT TITLE, COMMENCEMENT 48. AUTHORITATIVE TEXT IN HINDI 353 SPECIAL PROVISIONS RELATING TO CERTAIN 49. CLASSES AMENDMENT OF THE CONSTITUTION OF INDIA BASIC STRUCTURE DOCTRINE SCHEDULES 380 xii

14 xiii

15 Soul of the Nation: Constitution of India Uniting India-Uniting Indians 01 SOUL OF THE NATION CONSTITUTION OF INDIA The Constitution of India is not only the supreme law of land it is also Soul of the Nation(India). As living being can t live without soul thus the State can t run without the Constitution. It works like soul of living being, which gives power to citizens to do anything within the ambit of the Constitutional Framework. It is connected with every class, caste, society, tribe, State, citizen, region and religion. It is source of power for Indians. Our Constitution gives us sovereign power to take decision through various rights like personal liberty, freedom of speech and religion etc. Our Constitution gives us right to participate in political process of the country through universal adult franchise and avail the opportunity in Nation Building. It deals with every aspect of the State. It deals with all types of situations of the State whether it is expected or unexpected. It helps the citizens in every matter whether it is matter of religious freedom, marriage, promotion of fraternity, trade, business, form association or matter of anything else. It gives the equal opportunity to women and children in the patriarchal society of India through various provisions. It works like a body of living being which works through its various organs. The Indian Constitution works through the Constitutional Machinery (Government) which contains three major organs (Judiciary, Legislature and Executive) with some Constitutional Offices like the Election Commission etc. and other provisions. It guides the government to achieve imposed targets through Directive Principles of State Policy. The Constitution of India does not have any particular ideologies, philosophies, theories and thoughts but it is above all. It aims only to protect national and public interest. It works on the principles of equality, secularism, fraternity, socio-economic-politico justice, personal liberty, peace, democracy and humanity. It imposes ethical duties in the form of Fundamental Duties. 1

16 Puneet Rajan Gupta It brings all diverse citizens and different political, religious, linguistic, caste, ethnic groups, minorities under one roof (one single book) and provides collective single identity of Indian national. Our Constitution unites all the territories of India whether it is land or sea. Our Constitution unites all people of India whether they are tribal, rural, urban, religious, poor, rich, literate, illiterate, male, female and children also. Without Constitution the State cannot survive for a longer period. It will divide into smaller parts. Anarchy will be spread everywhere and foreign powers can attack on the country. Thus the existence of the State will be in danger. Therefore the Constitution of India is backbone of the national and public life. In other words the Constitution of India is the supreme law of India. It is a living document, the permanent instrument which makes the government system work. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers and duties of government institutions and sets out fundamental rights, directive principles and the duties of citizens. It is a longest written Constitution of any sovereign country in the world. The Nation is governed on the basis of the Constitution. Finally the Constitution, a living, national socio-politico-legal and scientific document, declares India a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavors to promote fraternity among them. EXERCISE 1. The Constitution of India is supreme law of land but practically there is supremacy of religion in society. Discuss possible factors to establish supremacy of the Constitution in society..********** 2

17 Soul of the Nation: Constitution of India Uniting India-Uniting Indians 02 SALIENT FEATURES OF THE CONSTITUTION OF INDIA The Constitution of India is unique in nature. It has various salient features. Some of them are given below: Self made and Self enacted:-the enacting words, "We, the people of India...in our constituent assembly...do here by adopt, enact and give to ourselves this Constitution", signify the democratic principle that power is ultimately rested in the hands of the people. It also emphasises that the Constitution is made by and for the Indian people and not given to them by any outside power (such as the British Parliament). The phrase "we the people" emphasises the concept of popular sovereignty. All the power emanates from the people and the political system will be accountable and responsible to the people. Living Document:- "The Indian Constitution is first and foremost a social document, and is aided by its Parts III & IV (Fundamental Rights & Directive Principles of State Policy, respectively) acting together, as its chief instruments and its conscience, in realising the goals set by it for all its people." The Constitution's provisions have consciously been worded in generalities, though not in vague terms, instead of making them rigid and static with a fixed meaning or content as in an ordinary statute, so that they may be interpreted by coming generations of citizens with the onward march of time, to apply to new and ever-changing and demanding situations, making the Constitution a living and an organic document. Justice Marshall asserts: It is the nature of (a) Constitution that only its great outlines be marked. It is a document intended to endure for ages and therefore, it has to be interpreted not merely on the basis of the intention and understanding of the its framers but on the experience of its working effectively, in the existing social and political context. 3

18 Puneet Rajan Gupta For instance, "right to life" as guaranteed under Article 21, has by interpretation been expanded to progressively mean a whole lot of human rights. In the conclusion of his Making of India's Constitution, Justice Khanna writes: "If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people." Individual-friendly:- It is individual friendly Constitution. Our Constitution protects various interests of individuals through the chapter of Fundamental Rights. Fundamental Rights provides various.. Right to equality gives equal protection before law or equal protection of law to every individual under Article 14. Article 15 prohibits discrimination on the ground of religion, sex, caste, race or place of birth among individuals. Article 16 provides equal opportunity in matters of public employment for Indian citizens. Article 17 and Article 18 abolish untouchability and titles respectively to bring equality in society. Right to freedom protects right to freedom of speech and expression, right to assemble peaceably and without arms, right to form associations or unions or co-operative societies, right to move freely throughout the territory of India, right to reside and settle in any part of the territory of India and right to practice any profession, or to carry on any occupation, trade or business under Article 19. Article 20 provides protection against Ex-post-facto Laws, Double Jeopardy and forceful Self-incrimination in respect of conviction. Article 21 and Article 22 guarantee protection of life and personal liberty and protection against arrest and detention. Article 21A provides right to education. 4

19 Soul of the Nation: Constitution of India Uniting India-Uniting Indians Right against exploitation prohibits human trafficking and forced labour and employment in factory, mines or engagement in hazardous place below 14 years old child. Right to freedom of religion provides right to freedom of conscience and free profession, practice and propagation of religion and right to freedom to manage religious affairs under Article 25 and Article 26. Cultural and educational rights provide protection of interest of minorities and rights of minorities to establish and administer to educational institutions. Finally Right to Constitutional Remedies provides right to remedies for the enforcement of Fundamental Rights under Article 32 (direct appeal to the Supreme Court). Balanced: - The Constitution framers inserted everything in our Constitution. But they knew very well that excess of everything makes absolute. They did not give absolute power to anybody. In the Constitution everything has been inserted with balanced approach. Anything given to anybody is neither less nor more. On one hand the Constitution gives power to various offices and individuals in public interest. On other hand the Constitution imposes restrictions and gives checking powers to various authorities to prevent abuse of power, maintain balance in system and society and maintain public faith in the Constitution and the Constitutional Machinery in public interest. The Constitution keeps balance between Fundamental Rights and DPSP, balance between Fundamental Rights and Emergency, balance between Fundamental Rights and restrictions (National and Public Interest). On one hand the Constitution has given permanent goals in the form of non-justiciable Directive Principle of State Policy to the State for the well being of the society and on the other hand the Constitution has given certain justiciable Fundamental Rights to individuals. Here the State can t perform any such function or make any such policy or law in the name of DPSP or social well being which crush the Fundamental Rights. In case of violation of Fundamental Rights by the action or omission of act from the government side, appeal can be made to the Supreme Court directly. During the Proclamation of National Emergency on the grounds of threat of war and external aggression under Article 352, more powers are transferred to the State by the Constitution automatically by suspending right to freedom of speech and 5

20 Puneet Rajan Gupta expression, right to assemble peaceably, right to form association or unions or co-operative societies, right to move freely, right to reside and settle, right to practice any profession, or to carry on any occupation, trade or any business under Article 358 in the favour of national interest. More powers are transferred to the State in case of failure of the Constitutional Machinery under Article 356 by suspending the right to move Court of law for the enforcement of Fundamental rights except right to protection against Ex-post-facto laws, right to protection against Double Jeopardy, right to protection against forceful Self-incrimination and right to protection of life and personal liberty under Article 359. On one side the Constitution gives power to executive to perform various functions in accordance with budget. He spends money for enforcement of various policies. When the executive spends money on large scale, chances of corruption and abuse of money also increase. On other side to prevent the chances of corruption and abuse of money the Constitution gives power of auditing the accounts, balance-sheet and expenses of the Union, the State and any office prescribed by law or under any law made by Parliament to the independent Constitution protected body Comptroller Auditor General under Article 149. The President on the advice of the Comptroller Auditor General prescribes the form to maintain accounts of the Union and the State under Article 150. Article 324 during the election of the President and Vice- President, Parliament and the State Legislature the executive performs it s functions under superintendence and direction of the independent Constitution protected body Election Commission under Article 324. For free and fair election, the Election Commission controls the preparation of electoral rolls and conducts all elections of the President and the Vice-President, Parliament and the State Legislature under Article 324. Fundamental Rights under Article 19 which are the source of power for citizens have been balanced by reasonable restrictions on the grounds of national interest and public interest. The reasonable restriction imposed on right to freedom of speech and expression on the ground of sovereignty and integrity of India, security of the State, friendly relation with Foreign States, public order, decency or morality or in relation with contempt of 6

21 Soul of the Nation: Constitution of India Uniting India-Uniting Indians court and defamation or incitement to an offence under Article 19. Article 19 imposes reasonable restrictions on right to assemble peaceably and without arms on the grounds of sovereignty and integrity of India or public order. Right to form associations or unions or co-operative societies is restricted reasonably on the grounds of sovereignty and integrity of India or public order or morality under Article 19. Article 19 imposes reasonable restrictions on right to move freely throughout the territory of India on the grounds of either in the interest of general public or for the protection of the interest of Scheduled Tribes. Article 19 imposes reasonable restrictions on right to reside and settle in any part of the territory of India on the grounds of either in the interest of general public or for the protection of the interests of Scheduled Tribes. Article 19 imposes reasonable restrictions on right to practice any profession, or to carry on any occupation, trade or business on the grounds of the interest of general public. Parliament is sovereign in law making but it cannot make any unconstitutional law and retrospective law. To check the Constitutionality of law, the Constitution has given base for power of Judicial Review to the Supreme Court and to prevent from making retrospective law the Constitution provides protection against Ex-post-facto laws under Article 20. On one hand executive has power to arrest and detention but on other hand the Constitution gives protection against arrest and detention to prevent the misuse of power under Article 22 by giving right to consult and to be defended by legal practitioner. Article 22 says to produce the arrested person before the nearest magistrate within 24 hours exclusive to time to reach. The Service Commissions are to maintain balance between merit and elected one in the government. The SC and ST Commissions are to provide safeguards against the exploitation of Scheduled Castes and Schedule Tribes to promote and protect their social, educational, economic and cultural interests, special provisions are made in the Constitution. The President is bound to performs his duties in accordance with the Constitution. In case of violation, he would be removed by impeachment process. 7

22 Puneet Rajan Gupta Mixed: - It is a mixed Constitution. There are many Constitutional provisions which are borrowed from various Constitutions of the world. Fundamental Rights Directive Principle of State Policy Bicameral legislature Election Commission Panchayat Procedure Established by Law Procedure for Amendment of Constitution Election of members of the Rajya Sabha Republic Ideals of liberty, equality and fraternity in the Preamble Fundamental Duties The ideal of justice (social, economic and political) in the Preamble Suspension of Fundamental Rights during Emergency Freedom of trade, commerce and intercourse Joint sitting of the two houses of Parliament Concurrent List Federation with a strong Centre Vesting of residuary powers in the Centre Appointment of the State Governors by the Centre Bill of Rights from US Constitution Irish Constitution British Constitution US Constitution Indian Concept Japanese Constitution South African Constitution South African Constitution French Constitution French Constitution Soviet Constitution Soviet Constitution Weimar Constitution of Germany Australian Constitution Australian Constitution Australian Constitution Canadian Constitution Canadian Constitution Canadian Constitution 8

23 Soul of the Nation: Constitution of India Uniting India-Uniting Indians Advisory jurisdiction of the Supreme Court Nomination of members to the Rajya Sabha Method of election of the President Independence of judiciary Judicial Review Impeachment of the President Removal of the Supreme Court and the High Court Judges Removal of post of Vice-President Parliamentary form of government Rule of Law Legislative procedure Single citizenship Cabinet system Prerogative writs Parliamentary privileges Bicameralism 9 Canadian Constitution Irish Constitution Irish Constitution US Constitution US Constitution US Constitution US Constitution US Constitution British Constitution British Constitution British Constitution British Constitution British Constitution British Constitution British Constitution British Constitution Federal structure Government of India Act, 1935 Judiciary Government of India Act, 1935 Public Service Commissions Government of India Act, 1935 Emergency provisions Government of India Act, 1935 Administrative details Government of India Act, 1935 Secular: - The Constitution is neither religious nor anti religion. It is neutral in religious matters. According to the Constitution there is no religion of the State. The Indian Constitution does not discriminate among the individuals and religious groups on the grounds of religion. It neither discourages nor encourages any religion. But it supports religious activities externally. There are many provisions mentioned in the Constitution to maintain secularism which neither discourage nor encourage or discriminate among the people of India. But there are

24 10 Puneet Rajan Gupta certain provisions which make positive discrimination for the welfare of citizens. Originally the word Secular was not in the Preamble. It was inserted in to the Preamble of the Constitution by the 42 nd Constitutional Amendment Act Belief, faith and worship of all citizens of India are ensured by the word secular in the Preamble of the Constitution. Article 14 is parent Article which prevents any type of discrimination by the concept of equality before law or equal protection of the laws within the territory of India. Article 15 strictly prohibits the discrimination against any citizen on grounds of religion. According to Article 15 the State shall not discriminate against any citizen on grounds only of religion. Article 15 removes the barriers on grounds of religion in respect of a. access to shops, public restaurants, hotels and places of public entertainment; or b. the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of the State funds or dedicated to the use of the general public. Article 15 emphasises on positive discrimination by providing the State the power of making special provision for the advancement for children, women, socially and educationally backward classes. Article 15 on the ground of positive discrimination focuses special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions. Article 16 focuses on the equality of opportunities in matters of public employment and prohibits discrimination on the basis of religion in any employment or office under the State. Article 16 gives power to Parliament for making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. Article 25 gives freedom of conscience and free profession, practice and propagation of religion.

25