Saturday 19 January 2019

Educational Provision in the Constitution of India

Educational Provision in the Constitution of India


Fundamental Right:

The preamble to the Constitution of India is a brief introductory statement that sets out the guiding purpose, principles and philosophy of the constitution. Preamble gives idea about the following: (1) the source of the constitution, (2) nature of Indian state (3) a statement of its objectives and (4) the date of its adoption.

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;

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

The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the states to its citizens and the duties and the rights of the citizens to the State. 

What are we having this liberty for? We are having this liberty in order to reform our social system, which is full of inequality, discrimination and other things, which conflict with our fundamental rights.

- B. R. Ambedkar

The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste, creed or sex.

Fundamental Rights may well be called the soul of our Constitution. These are the very basic rights that are universally recognized as fundamental to human existence and indispensable for human development. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India.




The Constitution guarantees six fundamental rights to Indian citizens as follows:

1. Right to Equality (Articles 14 - 18):

Equality implies provision for equal oppor­tunities persons for their self-development without any distinction of religion, caste, sex, wealth or status. The Right to Equality has been guaranteed by the Indian Constitution in Articles 14-18.

        i.            Article 14 - Art. 14 of the Indian Constitution say, “The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India”. All are equal before the law. That means, no one can claim any special privilege. Nobody is above the law of the land.
      ii.            Article 15 - Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth.

    iii.            Article 16 - Article 16 of Indian Constitution ensures equality of opportunity for all citizens in public employment. It is further provided that in case of public employment the State cannot make any discrimination on grounds only of religion, race, sex, descent, place of birth or residence

    iv.            Article 17- Article 17 of Indian Constitution declares the abolition of untouchability and prohibit its practice in any form. The enforcement men disability arising out of ‘Untouchability’ shall be an offence punishable in accordance with law.

      v.            Article 18 - Article 18 of Constitution of India prevents the State from conferring of title. Besides, no Indian citizen shall accept any title from any foreign state. This is considered to be an important step towards the establishment of social equality in India.

2. Right to Freedom(Articles 19 - 22): There are six rights under this category:-

        i.            Right to freedom of Speech and Expression.
      ii.            Right to freedom of peaceful Assembly without arms.
    iii.            Right to form associations or Unions.
    iv.            Right to Move freely throughout the territory of India.
      v.            Right to Residence and settle in any part of the Country.
    vi.            Right to practice any Profession or carry any Trade, occupations.

3. Right against Exploitation (Articles 23 - 24):

        i.            Article 23 - Article 23 of Indian Constitution declares Prohibition of traffic in human beings and forced labor.
      ii.            Article 24 - Article 24 of Indian Constitution states that the employment of children under 14 years in factories or mines, are punishable offences.

4. Rights to freedom of Religion (Articles 25 - 28):

        i.            Article 25 - Article 25 of Indian Constitution clearly enumerates Particulars of freedom of conscience and free profession, practice and propagation of religion.
      ii.            Article 26 - Article 26 of Indian Constitution specifies the freedom to manage religious affairs.
    iii.            Article 27 - Article 27 of Indian Constitution states the Freedom as to payment of taxes for promotion of any particular religion.
    iv.            Article 28 - Article 28 of Indian Constitution includes freedom as to attendance at religious instruction or religious worship in certain education institutions.
Exception - Except when it is in the interest of public order, morality, health or other conditions, everybody has the right to profess, practice and propagate his religion freely.

5. Cultural and Educational Rights (Articles 29 - 30):

The Constitution provides that every community can run its own institutions to preserve its own culture and language. The minorities are also given the right to establish and administer educational institutions of their own.

        i.            Article 29 - Protection of interests of minorities.
      ii.            Article 30 - Right of minorities to establish and administer educational institutions
    iii.            Article 31 - Omitted by the 44th Amendment Act.

6. Right to constitutional Remedies (Articles 32 - 35):

        i.            Article 32 - When a citizen finds that any of his fundamental rights has been encroached upon, he can move the Supreme Court, which has been empowered to safeguard the fundamental rights of a citizen.  This right has been called Soul and heart of the Constitution by BR Ambedkar.

Forms of Writ check -

The Supreme Court under article 32 and the High Court 226 can issue the writs of habeas corpus, mandamus, prohibition, and    quo-warranto.

        i.            Habeas Corpus- It is a Latin word means “To have a body of”. It is an order issued by the Court to a person who has detained another person to produce the body of the latter before it.

      ii.            Mandamus - It literally means “We Command.” A mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.

    iii.            Prohibition - Means “to forbid.” It is issued by the higher court to lower court to prevent the latter exceeding its jurisdiction or usurping a jurisdiction that it does not possess.

    iv.            Quo- Warranto - It means “By What Authority.” It is issued by the court to enquire into the legality of claim of a person to a public office.

Directive Principles of State Policy:

Directive Principles of State Policy are in the form of instructions/guidelines to the governments at the center as well as states. Though these principles are non-justifiable, they are fundamental in the governance of the country. The idea of Directive Principles of State Policy has been taken from the Irish Republic.

 Article 36 to 51 of the Constitution of India embodies the Directive Principles of State policy and for these we are indebted to the Constitution of Ireland. The objective is to establish a social and economic democracy in India.

Article 37 reveals that:
1. The Directive Principles are not justiciable
2. They are Fundamental to the governance of the country
3. It shall be the duty of the State to apply these Directive Principles while formulating policies or making laws for the governance of the State

 Classification of Directive Principles:

1. Socialist Principles

        i.            Article 38 – the state shall endeavour to formulate such social system which will secure social, economic and political justice to all in all the spheres of life.

      ii.            Article 39(a) - the state shall try to formulate its policy in such a manner so as to secure adequate means of livelihood for all its citizens.

    iii.            Article 39(b) - the ownership of material resources would be controlled in such a manner so as to sub-serve the common good.

    iv.            Article 39(c) - the economy of the state will be administered in such a manner so that wealth may not yet be concentrated in a few hands and the means of production may not be used against the public interest.

      v.            Article 41 - the State will work within the limits of its economic viability and progress, provide to the citizens the right to work, the right to education and general assistance in the event of unemployment, old age, disease and other disabilities.

    vi.            Article 42 - the state will make provisions for the creation of just and humane conditions of work. It will also ensure maternity relief.

  vii.            Article 43 - the state will ensure adequate wages, good life and rest to the labourers. The state will also endeavour to make available to the labourers various socio-cultural facilities.
2. Liberal Principles

        i.            Article 44 - The State shall endeavour to formulate and implement a Uniform Civil Code for all the people living throughout the territory of India.

      ii.            Article 45 - the State shall endeavour to provide early childhood care and education for all the children until they complete the age of six years.

    iii.            Article 47 - the State shall strive to raise the level of nutrition and the standard of living. Thus, it will endeavour to improve upon the health of the people.

    iv.            Article 48 - the State shall strive to organise agriculture and husbandry on modern and scientific lines. It will also try to maintain and improve upon the breed of the animals.

      v.            Article 50 - the state will try to separate the judiciary from the executive in the case of public service.

3. Gandhian Principles

        i.            Article 4 - the State will strive to organise Panchayats in villages and will endow them with such powers which enable them to act as units of self government.

      ii.            Article 43 - the state shall strive to develop the cottage industry in the rural areas both, on individual or cooperative basis.

    iii.            Article 47 - the state will strive to ban the consumption of wine, other intoxicating drinks and all such commodities which are considered injurious to health.

    iv.            Article 48 suggests that the State will ban slaughtering of cows, calves and other milch cattle.

4. International principles

        i.            Article 51(a)- The State will strive to promote international peace and security.

      ii.            Article 51(b)- The State will strive to maintain just and honourable relations among various states in the world.

    iii.            Article 51(c)- The State will endeavour to promote respect for International treaties, agreements, and law.

    iv.            Article 51(f)- The State will strive to settle international disputes by arbitration.

‘Fundamentalization’ of Directive Principles

        i.            The Supreme Court has, in a number of judgments, referred to the importance of the Directive Principles.

      ii.            It has called these principles the “conscience” and the “core” of the Constitution.

    iii.            These principles are the “goals” to be achieved by Part III of the Constitution.

    iv.            They are intended to ensure “distributive justice” for removal of inequalities and disabilities and to achieve a fair division of wealth amongst the members of the society.

      v.            The Supreme Court held that the courts can look at the Directive Principles for the purpose of interpretation of the fundamental rights.

Besides the directives contained in Part IV, there are certain other directives addressed to the state in other part of the Constitution. These directives are also non-judicial. There are:

1. Article 350 A enjoins every state and every local authority within the state to provide adequate facilities for instruction in the mother tongue at the belonging to linguistic minority groups.

2. Article 351 enjoins the union to promote the spread of Hindi and to develop it so that it may serve as a medium of expression of all the elements of the composite culture of India.

3. Article 335 enjoins that the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the union or a state.

Though the Directives contained in Article 335, 305A and 351 are not included in Part IV, courts have given similar attention to them on the application of the principle that all part of the Constitution should be read together.

Fundamental Duties:

The Fundamental Duties enshrined in Part IVA of the Indian Constitution (Article 51A) were inserted by the 42nd Constitutional Amendment Act in 1976. In this article we will go through the list of Fundamental Duties, their background or need, legal position and suggestions of committees.

What is the Need of Fundamental Duties in the Constitution?

In fact, there can be no rights in a society where there are no duties. Rights and duties are two sides of the same coin and inseparable. For every right, there is a corresponding duty. The fundamental duties are intended to regulate behaviour and to inspire citizens to strive towards excellence.

“The source of right is duty. If we all discharge our duties, rights will not be far to seek.”

---Mahatma Gandhi
Significance:

  1. They serve as a reminder to the citizens that while enjoying rights they also have some fundamental duties to follow. 
  2. They serve as a warning against the anti-national and antisocial activities like burning the national flag, destroying public property and so on.
  3. They serve as a source of inspiration for the citizens and promote a sense of discipline and  commitment among them. They create a feeling that the citizens are no mere spectators but active participants in the realisation of national goals.
  4. The duty as such is not legally enforceable in the Courts; but if the State makes a law to prohibit any act or conduct in violation of any of the duties, the courts would uphold that as a reasonable restriction on the relevant fundamental right..
  5. Though non-justiciable in nature, it still helps the court in examining the constitutional validity of the law. If the court finds that a law in question seeks to give effect to a fundamental duty, it may consider such law to be reasonable in relation to Article 14(equality before law) or Article 19 (six freedoms) and thus save such law from unconstitutionality.
  6. These duties are in the nature of a code of conduct. Since they are unjusticiable, there is no legal sanction behind them. 

Article 51A: Fundamental duties

Originally the following 10 Fundamental Duties were given vide the 42nd Amendment to the Constitution of India, under Article 51 A, in the year 1976:-

It shall be the duty of every citizen of India to:

1.      Abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

2.      Cherish and follow the noble ideals which inspired our national struggle for freedom;

3.      Uphold and protect the sovereignty, unity and integrity of India;

4.      Defend the country and render national service when called upon to do so;

5.      Promote harmony and the spirit of common brotherhood among all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

6.      Value and preserve the rich heritage of our composite culture;

7.      Protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

8.      Develop the scientific temper, humanism and the spirit of inquiry and reform;

9.      Safeguard public property and to abjure violence;

10.  Strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement;
In the year 2002 vide the 86th Amendment the following was added as the 11th Duty of the Indian Citizen:

11.  Every Indian Parent or Guardian must ensure that their child or ward was provided opportunities for education between the ages of 6 and 14 years
Centre – State Relation:
The Indian constitution declares India as federal. That means it is a union of states where power is divided between centre and states as per the procedure mentioned in the constitution. In this two tier system, the central government have the final say in all the matters and in this way India is federal but unitary. The different relations between centre and state are as follows:
  1. Legislative Relations
  2. Administrative Relations
  3. Financial Relations

1.      Legislative Centre-State Relations:

Articles 245 to 255 in the Indian constitution deal with the legislative aspect of centre states relation. Legislation means the power of making a law which is enforceable. Both the central and state governments in India have the power to make laws. But, the matters on which they can make laws differ. While the centre can make laws applicable to the nation as a whole, the states have the power to make laws applicable in their own territory that too in some matters only. Some matters need both the centre and state legislations. They are as given:

                                i.            UNION LIST:

Union list Include the matters on which only central government can make legislations. The state governments are bounded by these legislations. Union list has 100 subjects on which it has exclusive authority to make laws. These include Foreign affairs, Defence, Armed forces, Communications, Posts and telegraphs, inter-state trade and commerce and so on.

                              ii.            STATE LIST:
State list includes the matters on which the respective state governments can make laws. The state list consists of 61 subjects which include Public order in the state, police, administration of justice, prisons, Local Governments, agriculture and so on. However, under some situations such as emergency, The Centre will take over the State list as well.

                            iii.            CONCURRENT LIST:
The Concurrent list includes the subjects on which both central and state governments have the power to make laws. The Concurrent list has 52 subjects which include Criminal and Civil procedure, marriage and divorce, economic and special planning, trade unions, labour welfare electricity, newspapers, books and printing presses,population control and so on. However, the centre has the sole powers to take over the concurrent list if needed.



2.      Administrative Centre-State Relations:

Articles 256 to 263 The Indian Constitution deal with the administrative aspect of centre-state relations in India. Regarding Administration, State governments are like sub-ordinates to the Centre. Central government gives directions to the State governments in the course of administrative action.

Even some matters like railways, central excise, income tax, post and telegraph and so on are directly administered by the central government. Hence, in administrative matters also Centre has the final say.


3.      Financial Centre-State Relations:

*      Taxes levied by the centre but collected and used by the states: The stamp duties, Excise duties, medicinal and toilet preparations come under this.
*      Taxes levied and collected by the centre but given to the states: The property tax, taxes on goods carried by railways, Sea, airways and so on come under this.
*      Taxes levied and collected by the centre but distributed between centre and states: Income tax other than corporate tax and such other residual taxes come under this.
In addition to this, Centre also gives many grants and loans to the states from time to time.





Conclusion:

When we observe the centre-state relations in India, the power position given to the central government is clearly known. Hence, Indian political system is federal but unitary.
Language Issues:


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