Constitution of India & Professional Ethics

Right to Equality 14-18

Right to Freedom 19-22

Right against Exploitation 23-24

Right to Freedom of Religion 25-28

Cultural and Educational Rights 29-30

Right to Constitutional Remedies 32

Meaning of Constitution

• A Constitution of a state is a fundamental set of principles or

established precedents according to which the state is governed. It
outlines the organization, powers, and limits of government
institutions, as well as the rights and duties of citizens. It serves as
the supreme law of the land, providing a framework for the functioning
of the government, the protection of individual liberties, and the
maintenance of social order. So constitution meaning pertains an
pivotal role in order to understand the political, social, economic
sphere of a country.
The Constitution of India was framed by an elected Constituent Assembly, and was
formally adopted on 26th November, 1949. It came into force on 26th January,
1950 as desired by the Father of the Nation, Mahatma Gandhi. The Constituent
Assembly was set-up under the framework of the Cabinet Mission (1946) for
drafting the Constitution for Independent India. It was a large representative body
having 385 Members, of which 292 were elected by the elected members of the
Provincial Legislative Assemblies while 93 members were nominated by the
Princely States. But when the Muslim League decided to withdraw its Members
from the Constituent Assembly of India and with the creation of separate
Constituent Assembly for Pakistan on July 16, 1947, the Membership of the
Constituent Assembly of India was reduced to 299 out of which 229 represented
the provinces and 70 were nominated by the Princely States.
Supremacy of Constitution
The constitutional format in respect of human rights is remarkable as a
significant and unique attempt at conflict resolution for the delicate
balance it sought to achieve between political and civil rights on the
one hand and social and economic rights on the other or between the
individual rights and the social needs. The philosophy behind this is the
dialogue between individualism and social control and the belief that
civil, political, economic and social rights are equally important and not
contradictory.
Salient Features of Indian Constitution

• Lengthiest Written Constitution – The Constitution of India is the lengthiest of

all the written Constitutions.
• Drawn from Various Sources – The Constitution of India has borrowed most of its
provisions from the Government of India Act of 1935 as well as from the
constitutions of various other countries.
• Blend of Rigidity and Flexibility – Constitutions are classified into – rigid (requires
a special procedure for its amendment) and flexible (can be amended in the
same manner as ordinary laws are made).
• Federal System with Unitary Bias- The Constitution of India establishes a federal
system of government and contains all the usual features of a federation.
However, it also contains a large number of unitary or non-federal features.
• Parliamentary Form of Government – The Constitution of India has adopted the British
Parliamentary System of Government. The parliamentary system is based on the principle of
cooperation and coordination between the legislative and executive organs.
• Synthesis of Parliamentary Sovereignty and Judicial Supremacy – The synthesis of parliamentary
sovereignty and judicial supremacy in India represents a delicate balance between the authority
of the legislature to enact laws and the power of the judiciary to review and interpret these laws
in light of constitutional principles.
• While Parliament retains the ultimate authority to make laws, the judiciary serves as
the guardian of the Constitution, ensuring that parliamentary actions adhere to
constitutional norms and protect fundamental rights.
• Universal Adult Franchise – The Indian Constitution adopts universal adult franchise as the basis
of elections to the Lok Sabha and the State Legislative Assemblies.
• Every citizen who is not less than 18 years of age has a right to vote without any
discrimination based on caste, race, religion, sex, literacy, wealth, and so on.
• Single Citizenship – Single citizenship is a constitutional principle in India whereby all citizens
irrespective of the state in which they are born or reside enjoy the same political and civil rights
of citizenship all over the country, and no discrimination is made between them.
Emergency Provisions.- The Constitution envisages three types of
emergencies—
(a) Emergency caused by the war or external aggression or
armed rebellion (Article 352);
(b) Emergency caused by the failure of Constitutional
machinery in States (Article 356);
(c) Financial emergency (Article 360).
• When the proclamation of emergency is in operation the
Parliament is empowered to make directions to any State and
Parliament is empowered to make laws with respect to any
matter enumerated in the State List.
• Directive Principles of State policy- The Directive Principles of State Policy contained in
Part of the Constitution set out the aims and objectives to be taken by the state in the
governance of the country. According to B.R. Ambedkar “the Directive Principle of
State policy is a novel feature of the Indian Constitution. They can be classified into
three broad categories, Socialistic, Gandhian and Liberal-intellectual.
• Fundamental Duties- By Forty-second Amendment Act, Part IVA has been added to the
Constitution which enumerates certain fundamental duties of the citizens. Originally,
ten duties were enlisted in clause (a) to (j) of article 51A. Clause (k), which imposes
duty on parents/wards has been added by the Constitution (86th Amendment) Act,
2002.
• Separation of Powers - This doctrine was for the first time properly formulated by the
famous Jurist Montesquieu in his Escript Des Lois and exercised great influence on the
French legal system. Doctrine of separation of powers implies that powers of the three
organs of the government viz., Legislative, Executive and Judiciary should be kept
separate from each other.
 The Preamble to the Indian Constitution is based on the ‘Objective Resolution’, drafted
and moved by Pandit Nehru, and adopted by the Constituent Assembly. It has been
amended by the 42nd Amendment Act, 1976 which added three new words – Socialist,
Secular, and Integrity.

• The Preamble runs as follows:

• “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN 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 of opportunity;

• and to promote among them all

• FRATERNITY assuring the dignity of the individual and the unity and integrity of
the Nation;
The Preamble gives 4 components:
1.Source of authority of the Constitution: it mentions that the constitution derives
its power from the people of India.
2.Nature of the Indian State: it says India is a sovereign, socialist, secular,
democratic and republican State.
3.Objectives of the Constitution: it gives the objectives as – justice, liberty, equality
and fraternity.
4.Constitution date of adoption: 26th November 1949
Case laws
1. A.K. Gopalan v. State of Madras it is the Constitution that is supreme and that a statute law to be
valid, must be in all conformity with the constitutional requirements and it is for the judiciary to
decide whether any enactment is constitutional or not.
2. Kesavananda Bharti v. State of Kerala held that the Preamble is a part of the Constitution and in
subject to the amending power of Parliament and is the basic structure of the Constitution.
3. Maneka Gandhi v. Union of India The expression personal liberty in article 21 is of widest
amplitude and it covers a variety of rights which go to constitute the fundamental liberty of man
and some of them have raised to the status of distinct fundamental rights and given additional
protection under article 19
4. Minerva Mills Ltd. v. Union of India he Supreme Court held that harmony and balance between
Fundamental Right and Directive Principles of State Policy, is an essential feature of the basic
structure of the Constitution. It has been observed that the Indian Constitution is founded on the
bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to
disturb the harmony of the Constitution.
• Citizenship of Migrants to India from Pakistan (Article 6)
• Citizenship of Migrants to Pakistan (Article 7)
• Citizenship of Persons of Indian origin residing outside India (Article 8)
• Person voluntarily acquiring citizenship of a foreign State not to be
citizens (Article 9)
• Continuance of the rights of citizenship (Article 10)
• Parliament to regulate the right of citizenship by Law (Article 10)
• No Retrospective Effect Fundamental Rights in Part III are meant to
have only prospective operation and as such any existing law, which is
inconsistent with the fundamental rights, will be void from the date of
the commencement of the Constitution. For pre-Constitution acts or
omissions such inconsistent law will remain a valid law.
• The Rule of Severability Article 13 does not make the whole Act
inoperative but only such provisions of it as are inconsistent with or
violative of the fundamental rights. Where the valid parts are clearly
dependent upon and so inseparably connected with the invalid parts
that they cannot be separated without defeating the object of the
statute they too must fall with invalid parts.
• The Doctrine of Eclipse The doctrine of eclipse is based on the
principle that a law which violates fundamental rights is not nullity or
void ab initio but becomes only unforceable, i.e., remains in a
moribund condition. It is over-shadowed by the fundamental rights
and remains dormant, but it is not dead. An existing law inconsistent
with a fundamental right, though becomes inoperative from the date
of the commencement of the Constitution, it is not dead altogether.
• EX POST FACTO LAW - An ex post facto law is a law which imposes penalties
retrospectively that is, upon acts already done or which increases the penalty
for the past acts. The right as secured by clause (1) corresponds to the
provisions against ex post facto law of the American Constitution which
declared that no ex post facto laws shall be passed. The ex post facto law are
laws which nullified and punished what had been lawful when done. Article
20(1) has two parts. Under the first part, no person is to be convicted of an
offence except for violating a 'law in force' at the time of the commission of
the act charged as an offence. A person is to be convicted for violating a law
in force when the act charged is committed.
• Double Jeopardy When a person has been convicted for an offence by a
competent court, the conviction serves as a bar to any further criminal
proceedings against him for the same offence. The idea is that as one ought
to be punished twice for one and the same offence. If a person is indicted for
the same offence in a court he can plead as a complete defence. He can take
the plea of autrefois acquit or autrefois convict.
Article 20
• Article 20 declares that "person accused of an offence shall be compelled to be a witness
against himself." This provision embodies the principle of protection against compulsion of self-
incrimination which is one of the fundamental canons of the British system of criminal
jurisprudence and which has been adopted by the American system and incorporated in the
federal Constitution. The characteristic features of this principle are-
• (1) That the accused is presumed to be innocent;
• (2) That it is for the prosecution to establish his guilt;
• (3) That the accused need not make any statement against his Will.
• On analysis, the provision will be found to contain the following components-
• (i) It is a right available to a person "accused of an offence";
• (ii) It is a protection against 'compulsion' to be a witness;
• (iii) It is protection against such 'compulsion' resulting in his giving evidence 'against
himself'.
Right to Die Not included in Article 21

• Right to life is a natural right embodies in article 21 but suicide is an

unnatural termination or extinction of life and incompatible and
inconsistent with the concept of right to life.
CONSTITUTIONAL REMEDIES

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by

clauses (1) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as
otherwise provided by this Constitution.
Article 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 the 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 leaving 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;
• (k) who is a parent or guardian to provide opportunities for education to his child
or, as the case may be, ward between the age of six and fourteen years.
Relation between fundamental rights and DPSP

• The directive principles differs from fundamental rights in this respect

that while Fundamental Rights are justiciable but Directive Principles
of State Policy are non-justiciable. Fundamental rights are mostly
rights of the individuals against the State, whereas Directive Principles
are guidelines for the State to be followed for general welfare of the
society as a whole. According to article 37, Directive Principles,
though they are fundamental in the governance of the country and it
shall be duty of the State to apply these principles in making law, but
they are non-justiciable.
Separation of Powers

• In India, a separation of functions rather than of powers is followed. Unlike in the US, in India, the
concept of separation of powers is not adhered to strictly. However, a system of checks and
balances have been put in place in such a manner that the judiciary has the power to strike down
any unconstitutional laws passed by the legislature.

• Today, most constitutional systems do not have a strict separation of powers between the various
organs in the classical sense because it is impractical. In the following sections, we will see the
prevailing system in India, what the relationship between each organ is, and the constitutional
provisions thereof.

• Before proceeding with the relationships, let us examine in brief what the functions of each organ
of the government are.
What is the Legislature?
• The chief function of the legislature is to enact laws.
• It is the basis for the functioning of the other two organs, the executive and the judiciary.

• It is also sometimes accorded the first place among the three organs because until and unless
laws are enacted, there can be no implementation and application of laws.
What is the Executive?
• The executive is the organ that implements the laws enacted by the legislature and enforces the
will of the state.

• It is the administrative head of the government.

• Ministers including the Prime/Chief Ministers and President/Governors form part of the
executive.
What is the Judiciary?
• The judiciary is that branch of the government that interprets the law,
settles disputes and administers justice to all citizens.
• The judiciary is considered the watchdog of democracy, and also the
guardian of the Constitution.
• It comprises of the Supreme Court, the High Courts, District and other
subordinate courts.
 Fundamental Rights
Fundamental rights are the basic human rights enshrined
in the Constitution of India which are guaranteed to all
citizens. They are applied without discrimination on the
basis of race, religion, gender, etc.
Significantly, fundamental rights are enforceable by the
courts, subject to certain conditions.
Features of Fundamental Rights
• Fundamental rights are different from ordinary legal rights in the manner in which they are
enforced. If a legal right is violated, the aggrieved person cannot directly approach the SC
bypassing the lower courts. He or she should first approach the lower courts.
• Some of the fundamental rights are available to all citizens while the rest are for all persons
(citizens and foreigners).
• Fundamental rights are not absolute rights. They have reasonable restrictions, which means they
are subject to the conditions of state security, public morality and decency and friendly relations
with foreign countries.
• They are justiciable, implying they are enforceable by courts. People can approach the SC directly
in case of violation of fundamental rights.
• Fundamental rights can be amended by the Parliament by a constitutional amendment but only if
the amendment does not alter the basic structure of the constitution.
• The Fundamental Rights of the Indian Constitution can be suspended during a national
emergency. But, the rights guaranteed under Articles 20 and 21 cannot be suspended.
• The application of fundamental rights can be restricted in an area that has been placed under
martial law or military rule.