The Constitution of India is the mother of all laws of our country. Our Constitution is the machinery by which other laws are made by the Parliament. Constitution gives us fundamental rights. It contains Directive Principle of State Policy which provides Justice, Social, Economic, Political and welfare provision to the people of India.
Constitution of India is the lengthiest subject, having 446 Articles, 12 Schedules and hundreds of precedents.
Constitution of India came into force on January 26, 1950.
Constitution of India is basically Federal but with striking Unitary features.
The Constitution is basically federal but with certain unitary features. The majority of the Supreme Court judges in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, were of the view that the federal features form the basic structure of the Indian Constitution.
Federal system has the following essential characteristics:
- Dual government – one at centre and one each for the States.
- Distribution of powers between Central and State Government.
- Supremacy of the Constitution.
- Written Constitution.
- Not easy to amend Constitution.
- Authority of Courts.
- President of India is the constitutional head. He is executive of Union. Appointments of Governors are made by him.
- Parliament has supreme rights in legislative matters.
- Parliament has power to make a law on State lists under special circumstances.
- Central Government has power to issue directives to State Government.
- States are dependent on centre for aid as their financial resources are inadequate.
Article 13 contains various doctrine.
They include Doctrine of Severability, Doctrine of Eclipse and Doctrine of Waiver of Rights.
DOCTRINE OF SEVERABILITY
As per Article 13, “Existing laws that are inconsistent with fundamental rights are void, to the extent of inconsistency,”
- The State shall not make any law which takes away the Fundamental Rights.
- Any law made in contravention of the provisions of the Constitution shall be void and invalid.
- The invalid part shall be severed and declared invalid if it is severable.
- Sometimes the valid and invalid parts of the Act are so mixed that they cannot be separated from each other. In such cases, the entire Act becomes invalid.
DOCTRINE OF ECLIPSE.
The doctrine of eclipse was originated in Bhikaji Narain v. State of M.P. AIR 1955 SC 781. An existing law which is inconsistent with a fundamental right, though becomes inoperative from the date of the commencement of the Constitution, is not dead altogether. It is overshadowed by the fundamental right and remains dormant, but is not dead.
According to this doctrine, pre-constitution laws remain eclipsed till the time it comes under the shadow of the fundamental rights, i.e. is inconsistent with it, but the eclipsed parts become operative and effective again, if the Prohibition brought about by the fundamental right is removed by an amendment to the Constitution.
DOCTRINE OF WAIVER OF RIGHTS.
The doctrine of waiver of rights is based on, that a person is his best judge and that he has the liberty to waive the enjoyment of such rights as are conferred on him by the State. However, it is important that the person must have knowledge of his rights and that the waiver should be voluntary and should not be forced.
ARTICLE 14 – RIGHT OF EQUALITY.
Article 14 declares that “the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India.”
“Equality before the law” is an expression of English Common Law. It is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favor of any individual. It means that amongst equals the law should be equal. That means like should be treated alike and among unequal same laws shall not be applicable.
On the other hand, Equal protection of laws has its origin from the American Constitution. It is more of a positive concept. It means employing equality of treatment under equal circumstances.
Interpreting the scope of the Article, the Supreme Court of India held that:
- Equal protection means equal protection under equal circumstances.
- The State can make reasonable classification for purposes of legislation.
- Presumption of reasonableness is in favor of legislation.
- The burden of proof is on those who challenge the legislation.
Article 14 prevents discriminatory practices only by the State and not by Individuals.
For instance, if the owner of a private business concern that is to say a private employer discriminates in choosing his employees or treats his employees unequally, the person discriminated against will have no judicial remedy.
ARTICLE 15 – PROHIBITION OF DISCRIMINATION ON GROUNDS OF RELIGION ETC.
Prohibition on discrimination (Article 15)
This Article prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Further, no citizen shall be subjected to any disability, restriction or condition with regard to:
- Access to shops, public restaurants, hotels and places of public entertainment; or
- The use of wells, tanks, bathing ghats, roads and places of public resort, maintained wholly or partially out of State funds or dedicated to the use of the general public.
Exception: The State can make special provision for women and children. The State can make special provision for the advancement of:
- Socially and educationally backward classes of citizens.
- Scheduled castes and
- Scheduled tribes.
Protection discrimination: In the eye of law, there is no discrimination between man and woman. Because of the weak physical position of the woman and children, the State is authorized to make any special provisions for their benefit. It is called ‘Protective Discrimination‘. Similarly for the advancement of the educationally and socially backward classes of people, the SC’s and ST’s, the State is empowered to make provisions protecting them. It is a ‘protective discrimination’.
ARTICLE 19 – RIGHTS RELATING TO FREEDOM.
As per Article 19(1), all citizens shall have right:
- To freedom of speech & expression.
- To assemble peacefully and without arms.
- To form association or unions.
- To move freely throughout the territory of India.
- To reside and settle in any part of the territory of India.
- To practice any profession, or to carry on any occupation, trade or business.
The above mentioned freedoms are basic rights which are recognized as the natural rights inherent in the status of a citizen. At the same time, none of these freedoms are absolute but subject to reasonable restrictions. The Constitution under Articles 19(2) to 19(6) permits the imposition of restrictions on these freedoms subject to the following conditions:
- The restriction can be imposed by law and not by a executive order.
- The restriction must be reasonable.
- The restriction must be imposed for achieving objects specified in Article 19(a) to 19(g).
ARTICLE 25 – RIGHT TO FREEDOM OF RELIGION
All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. But this freedom is subject to restrictions imposed by the State on the following grounds:
- Public order, morality and health.
- Other provisions in Part 3 of the Constitution.
- Law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, and
- Law 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.
RIGHT TO CONSTITUTIONAL REMEDIES.
Under the Constitution by virtue of Article 226, every High Court has the power to issue directions or orders or writs including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo-Warranto for the enforcement of fundamental rights or for any other purpose. The purpose is exercisable by each High Court throughout the territory in relation to which it exercises jurisdiction.
The Supreme Court could be moved by appropriate proceedings for the issue of directions or orders or writs for the enforcement of fundamental rights guaranteed.
Article 32 itself being a fundamental right, the Constitutional remedy of writ is available to anyone whose fundamental rights are infringed by state action.
- Writ of Habeas Corpus.
Habeas Corpus = to have a body
A writ of Habeas Corpus is in the nature of an order by Court calling upon the person who has detained another to produce the latter before the Court in order to let the Court know on what ground he has been confined and set him free if there is no legal justification for the imprisonment.
The disobedience of this writ is met with by punishment for contempt of Court under the Contempt of Courts Act.
- Writ of Mandamus.
Mandamus = the order or command.
The Writ of Mandamus is a command issued by Supreme Court or High Court, to any person, corporation, inferior court, requiring him or those to do some particular thing therein specified which pertains to his or their office and is in the nature of public duty. Its purpose is to removes the defects in justice.
Following are some important points relating to writ of mandamus:
- Writ of Mandamus can be issued against the public authority only. That public authority must be bound to do public duty.
- The petitioner must have a legal right to compel the performance of that legal duty.
- The writ of mandamus cannot be issued against a private person.
- The writ of mandamus cannot be issued in the matter of discretionary powers of public authority.
- Writ of Prohibition.
The Writ of Prohibition is based on the principle: “Prevention is better than cure”.
Writ of Prohibition can be issued by the Supreme Court to an inferior Court forbidding it from continuing with proceeding or a suit on the ground that the proceeding or case is without or excess of jurisdiction of contrary to the laws in force.
In other words, a writ of prohibition is issued to an Inferior Court preventing the latter from usurping jurisdiction which is not legally vested in it. When a tribunal acts without or in excess of jurisdiction, or in violation of rules or law, a writ of jurisdiction can be asked for. It is issued generally before the trial of the case.
- Writ of Certiorari.
Certiorari = to be certified.
A Writ of Certiorari can be issued by Supreme Court or High Court, to the inferior court or any authority, whenever Court or authority does any acts, viz. excess or abuse of jurisdiction, violation of principle of natural justice, violation of fundamental rights conferred to the citizens under Part 3.
When can Writ of Certiorari be issued?
- Where the quasi judicial authority acted under an invalid law.
- Where the Court or Authority acted without jurisdiction.
- Where there is an error of law and the same is showing on the face of the record.
- Where the inferior Court or quasi authority acted against the principle of natural justice.
- The Supreme Court can issue a writ of certiorari to any High Court correcting an erroneous decision.
Writ of Certiorari & Writ of Prohibition have common features. However, there is one fundamental distinction between. Writ of Prohibition can be issued before completion of proceedings, whereas Writ of Certiorari can be issued after the completion of proceedings.
- Writ of Quo-Warranto.
Quo-warranto = what is your authority?
The writ of Quo-warranto is issued to call upon the holder of a public office to show to the court under what authority is to be holding the office in question. If it is found on investigation that he is not entitled to the office, the court may restrain him from acting in the office and also declare the office to be vacant. All Supreme Court and High Court can issue this writ.
Constitution of India is a perfect blend of all the provisions, and thus the provisions and articles in itself make it the apex law of the state.
The framers of the constitution have tried to incorporate all the significant provisions in the constitution so that there is no major scope for ambiguity pertaining as to how governance would take place in a country and therefore it is the feature of Indian Constitution which in itself makes it a complete and a comprehensive document of the entire country and the ultimate law of the land.