1. Indian Constitution, Historic Underpinnings, Evolution, Features, Amendments, Significant Provisions And Basic Structure Flashcards
What is constitution? And what are its functions?
Constitution is a basic rule book of nation that codifies the rule of laws.
Functions
- Expression of ideology
- establishes rule of law
- Organisational framework
- level of government
Soviet Union is more ideology and less organisational set up
Usa is opposite to it
What is constitutionalism?? And features in India ??
Constitutionalism is the philosophy behind constitution which limits the power of the government and puts checks and balances on the government.
Features in India ?
- Written from of constition
- Rule of law
- Separation of power
- Federalism i.e level of government
- Basic structure
- Independence of judiciary
2 case laws
- Rameshwar Prasad vs UOI
- I.R. Coehlo vs sate of TN
GOI ACT 1935?
Simon commission was appointed to look in to the matter of constitional reforms in India which came out with a report —-> to discuss that 3 ROUND TABLE CONFERENCES were held which came out with WHITE PAPER——>then it went to British parliamentary committee ——> they came out with GOI act 1935
Features of GOI act 1935?
Features
- Established and Indian federation , having federal list, provincial list, concurrent list, residuary list with the viceroy.
- Abolished dyarchy in provinces and got PROVINCIAL AUTONOMY, where the governor was to act on the advice of ministers.
- Got dyarchy in federal level as the subjects were divided in to reserved and transferred subjects
- bicameral legislature at the provinces
- Secretary of the state was not to interfere in the Indian affairs
- Federal court was established
- Separation of Burma and Aden from India
- RBI was established
- Extended the franchise to 10% Indians of total population
Critical analysis of GOI act 1935?
- The princely states refused to join the federation
- Governor was allowed the discretionary powers
- The viceroy and crown had veto powers
- The bills to be introduced in the legislature needed prior sanctions
- Viceroy could promulgate ordinance
- Instrument of instruction issued the reserved subject.
Constituent assembly genesis ??
Constituent assembly was envisioned indirectly in Swaraj of 1906
Congress pass a resolution that the country should be governed by Indians this was directly pointing to need of constituent assembly in 1936
1946 Clement Attlee accepted the demand for constituent assembly
In 1946 dec 6 constituent assembly sat for the first time
It was an indirect elected from provinces and also had nominated members
J Nehru passed objective resolution. What was it ?
It was meant to give the ideology and philosophy on which the constitution was to be made
It stated India was to be a independent sovereign republic
Guaranteeing people of India justice, social political and economical
Freedom of thought, expression, belief, faith, worship
Equality of opportunity & status
Adequate protection for the tribals areas
India as an ancient land attains its rightful and honoured place in the world and it shall make full contribution and promotion of world peace and the welfare of mankind
Criticism of constituent assembly ?
- Was not a elected body and did not reperesent the whole India
- Not a sovereign body
- Dominion of congress
- Lawyers paradise
Salient features
- Lengenthiest written constitution
- Blend of flexibility and rigidity
- Democratic republic
- parliamentary form of government
- mixture of unitary and federal features
- Fundamental rights
- DPSP
- secular state
- single citizenship
- Universal adult franchise
- Separation of powers
- Independent bodies
- Three tier government
Amending to constitution?
Article 368 empowers the parliament to amend the constitution
It can be done by.
Simple majority. Special majority(SM). SM+ state ractification
Changes in constitution ? Basic structure doctrine ?
The changes in the constitution can be made by amendment and judicial interpretation
In shanakari Prasad case of 1951
The Supreme Court upheld the validity for he 1st CAA act of 1951 stating that the parliament has the power to amend the constitution and article 13 the law means the articles of fundamental rights
Then came the golakhnath case of 1967 where the Supreme Court stated the fundamental right to be transcendent and immutable and cannot be changed by constitutional amendment
So the government passed the 24th CAA 1971 where the parliament had the power to take away or abridge the fundamental rights under article 368
The was questioned in keshvananda Bharti case 1973 where the validity of the 24th CAA act was upheld and the supreme court stated that the parliament can amend everything but it cannot amend the basic structure of the constitution which is the integral part of the constitution.
The government brought the 42nd CAA act 1976 where it made the amendments out of the judicial review
The case of Minerva mills 1980 the Supreme Court stated that the parliament cannot take away judicial review as it is the basic structure of the constitution.
Stating the parliament has been granted a limited power to amend the constitution and by amending the constitution it cannot get itself absolute power.
Again in Waman Rao case 1981 the Supreme Court adhered to the doctrine of basic structure and further clarified that it would apply to constitutional amendments enacted after keshavnand Bharti case of 1973
Other cases of basic structure
Supremacy of the constitution as basic structure in Keshavananda Bharti case
Sovereignty, democracy , republican structure in kihoto hollohan case i.e the defection case
Citizenship law book on citizenship by?
Romila thapar -
1st constitution does not define who is a citizen
how a slave is made to a citizen
It is the relationship between the individual with the state that he she may belong.
This relationship is made binding through a contract between the citizens and state a document known as constitution.
N.Ram the debate in the constituent assembly over citizenship did not envisage a citizenship based on religion
Refugee vs asylum seeker ??
Refugee is a person who flee his own own country and live in the other country without any approval of the country
Aslyum seeker is a person who flees his own country seeking sanctuary in the other county Which if approved is a asylum seeker
India has not signed the UN convention on refugees of 1951 and neither its protocol of 1967.
India does not have a structured policy on refugees
India deals with refugees with two acts
Foreigners act 1946
Citizenship act 1955
Pros and challenges of having a policy for refugees?
Pro
If India has policy on refugees it would
1. Reduce time in dealing with the the issues
2. It would create a good will in UN for permenant seat
3. I would be in line with the India’s efforts of peace keeping forces
4.it will help international say while dealing with refugee efforts
5. It will support humanitarian cause like in Baluchistan and deal with Pakistan strategically
Challenges
- India’s porous borders will be a big drawback in dealing with refugees- putting strain on resources in the area
- This may crop up human trafficking and drugs issues
- Putting additional burden on the administration
The recent citizenship amendment act 2019 is in line with stream lining refugee policy of India.
Citizen amendment act 2019
The illegal migrants from Afghanistan, Pakistan, Bangladesh having Hindu, Sikh, Jain, Buddhist, Christian, Parsi as their religion entered in India before 31st December 2014 not living in the tribal areas on Meghalaya Assam Tripura will not be illegal migrants.
Illegal migrants are defined in the citizenship act 1955 section 2(1) (b) as
a. migrants who have entered India without documents
b. Foreigners who have stayed beyond the time they were granted a stay.
Citizenship act 2003 stats that the illegal migrants cannot acquire citizenship through naturalisation or registration
Pro
- Pact between nehru and liaquat that they would provide safeguards to religiously persecuted minorities
- States of Afghanistan, pak, Bangladesh, have state religions
- As earlier there were agitations related to illegal migrants , eg Assam
- this would differentiate between religious persecution and illegal migrants.
Cons
1. The classification is not scientific as it does not establish persecution and religion as it just states the religions from a few states and leaves out other minorities that are persecuted eg srilanka a Buddhist state atrocities on Tamil Eelams
2. Classification does not differentiate between religious or political persecution.
3.segregation based on date of entry as it would be the date after that persecution will stop
4. Implication of international relations as the people left out of the act would need to be deported
As we have a huge Bangladeshi migrants which would need to be deported And also states that Hindus are persecuted in Bangladesh
5. India is a secular country and classification based on religion would question it in international arena.
This is in line with the refugee policy but it needs to be based on scientific classification and on principles of equality which india should give shelter to the persecuted minority of all states which would improve India’s image in international arena.
NRC
National register of citizens
It is an registration of persons that are citizens of the nation and it is done to differentiate the illegal migrants from citizens.
Under section 14 of citizenship act 2003 it states that the government can have compulsory registration of citizens and issue national identity card.
Recently the national government has stated that it may carry a nation wide NRC.
Pros
- It will segregate citizens from illegal migrants
- It will give the government the total of illegal migrants that the census and Aadhar has not done
- It will give a chance to issue an national identity card which will help in future
- It will also help in dealing with illegal migrants in an better manner
- India will have a data to get into agreements with neighbouring countries.
Cons
1. It may leave out a large chunk of population that is with out documents.
2. The illegal migrants what is to be done with them is still not decided
Which has lead to a fear amongs the minority.
3.we do not have any policy which is for migrants
4. We do not have any agreements with neighbouring countries to accept their citizens.
5. This may highten the communal conflict, putting strain on the fabric of country
6. This may lead to security issues lone wolf cells involvement of migrants into terrorist activities
7. Exploitation of minorities which may push them in human trafficking, drugs and prostitution.
Way forward
India need to have a comprehensive approach which will focus on border management, surveillance on borders, diplomatic agreements with neighbouring countries.
Synchronising census with NRC and NRP which would reduce the burden on admistration
Setting of cutoff date of 2 generations for NRC registration.
Maximising the use of digital lockers.
NPR
National population registration
Means the government would register a person living in an area for more that 6 months or intending to stay in an area for more that. Months .
This was recommended by group of ministers after the Kargil war, to carry out nation wide npr and to issue the citizens a multipurpose identity card
Pros
- India can get a streamlined data about its population
- It will help in targeting subsidies and better utilisations of resources
- It will also help in implementing one nation one ration card and pds distribution
- It will be easy to understand the flow of migration in the country and focus on development of the areas which are having heavy migration to cities
Cons
- It will infringe privacy
- Put extra burden on administration as duplication of efforts Aadhar, nrc, census
- Can be misused, by hacking, to implement vote based politics
- similar issues to NRC.
Way forward
It is very much necessary to combine all the efforts into one and issue only a single identity card for target oriented subsidies.
Preamble ??
We the people of india having solemnly resolved to constitute india into a sovereign, socialist, secular, democratic, republic and to secure all its citizens:
Justice - social, economical, political
Liberty - of thought, expression, belief, faith,worship;
Equality of status and opportunity and to promote among them all
Fraternity - assuring the dignity of individual and unity and integrity of the nation
In our constituent assembly this 26th day of November 1949, do here by adopt , enact and give ourselves this constitution.
Preamble serves 3 objectives?
- It states that the constitution derives its power from the people of india
- It sets out the objectives and philosophy and the type of government the people want to achieve
- It declares india to be sovereign socialist and secular democratic republic.
Sovereign
India is a sovereign that means it is ruled by the people of the country and not by an exterior entity, meaning it is independent and a non dependent state, it can create relations with other country or severe relations with anyone meaning it is free to conduct it own affairs
Socialist
Indian brand of socialism is a democratic brand of socialism and not communist brand of socialism meaning an indivisual can hold private property/ land as india is an Agrarian country its citizens are dependent on the land and it becomes important for them to achieve the goals and prosper in life.
It is blend of Marxism and Gandhism.
Secular
India is a country with positive secularism that it recognises all the religions that exist in India and keeps them at equal distance,
The word secularism was added in 42nd CAA 1976
It guarantees all its citizen the freedom of religion and also promises that it wont interfere in there religions beliefs. From article 25 to 28
It is in line with the Indian philosophy of SARVA DHARMA SAMABHAV
Meaning the destiny of all the religions is the same even if the paths are different.
Case S R Bommai 1994 stating that secularism is part of basic structure
Aruna Roy case the word secularism in Indian context is to develop understanding and respecting all the religions.
Democracy
India is an parliamentary democracy meaning that the head of the government is an elected person and the power he derives is from the people of india. There are 4 types of direct democracies referendum, initiative, recall, plebiscite
India follows indirect representation where the representatives of the people make decisions for the people
India has representative parliamentary democracy where the executive is responsible to the legislature.
Republic
There are 2 types of countries one which has an elected representative of the state and other has a monarch
India has a elected representative of state
It also means that that the power of the republic emanates from the people of the country
It also means that the citizen of the nation is eligible to hold a public office without any discrimination.
Justice
Justice social economical and political
Social means that every person will be equal and will not be discriminated based on his caste, religion, colour, race, religion, etc
Meaning absence of privileged class
Economical meaning no one will be discriminated based on his economical standing in the wealth, property etc
Political meaning that every person has the right to vote, he will have the right to part take in political voices of the country , equal access to political offices
Liberty
Means absence of restraints on the activities of indivisual
Liberty of thought expression belief faith and religion
Equality
Equality of status and opportunity
Meaning that every person will have the right to access the basic means to reach and achieve his aspirations in life
Article 14 15 16 17 18
Fraternity
Fraternity means brotherhood which is important of the self development of an indivisual which is recognised by the word dignity
Unity and integrity of the country meaning that psychological and territorial dimensions are included in the constitution article 1 to 4