Indian Constitution| The Philosophy of the Constitution Download PDF
- 1 Indian Constitution| The Philosophy of the Constitution Download PDF
Every Constitution has a philosophy of its own.
The Objective Resolution
For the philosophy underlying our Constitution we must look back into the historic Objectives Resolution of Pandit Nehru which was adopted by the Constituent Assembly on January 22, 1947,1 and which inspired the shaping of the Constitution through all its subsequent stages. It reads thus—
“(1) This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution;
(2) WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and
(3) WHEREIN the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of Government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and
(4) WHEREIN all power and authority of the Sovereign Independent India, its constituent parts and organs of Governments are derived from the people; and
(5) WHEREIN shall be guaranteed and seemed to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and
(6) WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and
(7) WHEREIN shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilised nations; and
(8) The ancient land attain its rightful and honoured place in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind.”
In the words of Pandit Nehru, the aforesaid Resolution was “something more than a resolution. It is a declaration, a firm resolve, a pledge, an undertaking and for all of us a dedication”.
It will be seen that the ideal embodied in the above Resolution is faithfully reflected in the Preamble to the Constitution, ‘ which, as amended in 1976,2 summarises the aims and objects of the Constitution:
“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 integrity2 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 importance and utility of the Preamble has been pointed out in several decisions of our Supreme Court. Though, by itself, it is not enforceable in a Court of law, the Preamble to a written Constitution states the objects which the Constitution seeks to establish and promote and also aids the legal interpretation of the Constitution where the language is found to be ambiguous,4 For a proper appreciation of the aims and aspirations embodied in our Constitution, therefore, we must turn to the various expressions contained in the Preamble, as reproduced above.
The Preamble to our Constitution serves, two purposes:
(a) it indicates the source from which the Constitution derives its authority;
(b) it also states the objects which the Constitution seeks to establish and promote.
As has been already explained, the Constitution of India, unlike the Independent and preceding Government of India Acts, is not a gift of Sovereign. the British Parliament. It is ordained by the people of
India through their representatives assembled in a sovereign Constituent Assembly which was competent to determine the political future of the country in any manner it liked. The words—‘We, the people of India…. adopt, enact and give to ourselves this Constitution’, thus, declare the ultimate sovereignty of the people of India and that the Constitution rests on their authority.3
Sovereignty means the independent authority of a State. It means that it has the power to legislate on any subject; and that it is not subject to the control of any other State or external power.
The Preamble declares, therefore, in unequivocal terms that the source ,of all authority under the Constitution is the people of India and that there is no subordination to any external authority. While Pakistan remained a British Dominion until 1956, India ceased to be a Dominion and declared herself a ‘Republic’ since the making of the Constitution in 1949. It means a government by the people and for the people.
We have an elected President as the head of our State, and all office including that of the President will be open to all citizens.
Sovereignty not in-consistent with membership of the Commonwealth.
On and from the 26th January, 1950, when the Constitution came into force, the Crown of England ceased to have any legal or constitutional authority over India and no citizen of India was to have any allegiance to the British Crown. But though India declared herself a Republic, she did not sever all ties with the British Commonwealth as did Eire, by enacting the Republic of Ireland Act, 1948. In fact, the conception of the Commonwealth itself has undergone a change owing to India’s decision to adhere to the Commonwealth, without acknowledging allegiance to the Crown which was the symbol of unity of the Old British Empire and also of its successor, the ‘British Commonwealth of Nations’.5 It is this decision of India which has converted the ‘British Commonwealth’— a relic of imperialism—into a free association of independent nations under the honourable name of the ‘Commonwealth of Nations’. This historic decision took place at’the Prime Ministers’ Conference at London on April 27, 1949, where, our Prime Minister, Pandit Nehru, declared that notwithstanding her becoming a sovereign independent Republic, India will continue—“her full membership of the Commonwealth of Nations and her acceptance of the King as the symbol of the free association of the independent nations and as such the Head of the Commonwealth.”
It is to be noted that this declaration is extra-legal and there is no mention of it in the Constitution of India. It is a voluntary declaration and indicates a free association and no obligation. It only expresses the desire of India not to sever her friendly relations with the English people even though the tie of political subjugation was severed. The new association was an honourable association between independent States. It accepts the Crown of England only as a symbolic head of the Commonwealth (having no functions to discharge in relation to India as belonged to him prior to the Constitution), and having no claim to the allegiance of the citizens of India. Even if the King or Queen of England visits India, he or she will not be entitled to any precedence over the President of India. Again though as a member of the Commonwealth, India has a right to be represented on Commonwealth conferences, decisions at Commonwealth conferences will not be binding on her and no treaty with a foreign power or declaration of war by any member of the Commonwealth will be binding on her, without her express consent. Hence, this voluntary association of India with the Commonwealth does not affect her sovereignty to any extent and it would be open to India to cut off that association at any time she finds it not to be honourable or useful. As Pandit Nehru explained—
“It is an agreement by free will, to be terminated by free will.”
Promotional of International Peace
The great magnanimity with which India took this decision in the face of a powerful opposition at home which was the natural Promotion of Inter- reaction of the manifold grievances under the natio eace. imperialistic rule, and the great fortitude with which the association has still been maintained, under the pressure of repeated disappointments, the strain of baffling international alignments and the 1976 upsurge of racialism in England, speak volumes about the sincerity of India’s pledge to contribute ‘to the promotion of world peace’ which is reiterated in Art. 51 of the Constitution:
“The State shall endeavour to—
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organised people with one another ; and
(d) encourage settlement of international disputes by arbitration.”
The fraternity which is professed in the Preamble is thus not confined within the bounds of the national territory; it is ready to overflow them to reach the loftier ideal of universal brotherhood; which can hardly be better expressed than in the memorable words of Pandit Nehru:
“The only possible, real object that we, in common with other nations, can have is the object of co-operating in building up some kind of a world structure, call it one world, call it what you like.”
Thus, though India declares her sovereignty to manage her own affairs, in no unmistakable terms, the Constitution does not support isolationism or Jingoism’. Indian sovereignty is consistent with the concept of ‘one world’, international peace and amity. The International Convention and norms can be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them.7A The rules of Customary International Law which are not contrary to municipal law shall be deemed to have been incorporated in the domestic law shall be followed by the courts of law.
The picture of a ‘democratic republic’ which the Preamble envisages is democratic not only from the political but also from y‘ the social standpoint; in other words, it envisages not
only a democratic form of government but also a democratic society, infused with the spirit of ‘justice, liberty, equality and fraternity’.
(a) As a form of government, the democracy which is envisaged is, of course, a representative democracy. and there are in our Constitution no agencies of direct control by the people, such as
referendum, or initiative . I he people of India are to exercise their sovereignty through a Parliament at the Centre and a Legislature in each State, which is to be elected on adult franchise8 and to which the real Executive, namely, the Council of Ministers, shall be responsible. Though there shall be an elected President at the head of the Union and a Governor nominated by the President at the head of each State, neither of them can exercise any political function without the advice of the Council of Ministers9 which is collectively responsible to the people’s representatives in the respective Legislatures (excepting functions which the Governor is authorised by the Constitution itself to discharge in his discretion or on his individual responsibility). The Constitution holds out equality to all the citizens in the matters of choice of their representatives, who are to run the governmental machinery.
Also known as parliamentary democracy, it envisages (i) representation of the people, (ii) responsible government, and (iii) accountability of the Council of Ministers to the legislature. The essence of this is to draw a direct line of authority from the people through the legislature. The character and content of parliamentary democracy in the ultimate analysis depends upon the quality of persons who man the legislature as representatives of the people. The members of the legislature, thus, must owe their power directly or indirectly to the people.
Government of the People , by the People and for the People
The ideal of a democratic republic enshrined in the Preamble of the Constitution can be best explained with reference to the adoption of universal suffrage (which has already been explained) and the complete equality between the sexes not only before the law but also in the political sphere. Political Justice means the absence of any arbitrary distinction between man and man in the political sphere. In order to ensure the ‘political’ justice held out by the Preamble, it was essential that every person in the territory of India, irrespective of his proprietary or educational qualifi¬cations, should be allowed to participate in the political system like any other person. Universal adult suffrage was adopted with this object in view. This means that every’ five years, the members of the Legislatures of the Union and of each State shall be elected by the vote of the entire adult population, according to the principle—‘one man, one vote’. Various reformative steps have been taken bv the Election Commission on the direction of the Supreme Court, viz. the voters have tire fundamental right to know about their candidates; and leaving columns blank in the nomination paper amounts to violation of rights.11′ If any sitting member of the Parliament or a state legislature is convicted of any of tire offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Representation of tire People Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of die Act after the pronouncement of die judgment in Lily Thomas,™ his membership of Parliament or the State Legislature, as die case may be, will not be saved by subsection (4) of Section 8 of die Act which has been held ultra vires die Constitution notwithstanding diat he files die appeal or revision against die conviction and/or sentence. Further, a person who has no right to vote by virtue of die provisions of subsection (5) of Section 62 of the 1951 Act is not an elector and is therefore, not qualified to contest die election to the House of the People or the Legislative Assembly of a State.11″ With a view to bring about purity in elections, the Election Commission, upon die direction of the Supreme Court, recognised negative voting on Political Justice. 27.09.2013 and held that a voter could exercise the option of negative voting and reject all candidates as unworthy of being elected. The voter could press the ‘None of the Above’ (NOTA) button in the electronic voting machine and for this the court also issued necessary direction to die Election Commission for its compliance.1011.
(b) The offering of equal opportunity to men and women, irrespective of their caste and creed, in the matter of public employment also implements this democratic ideal. The treatment of the minority, even apart from the constitutional safeguards, clearly brings out that the philosophy underlying the Constitution has not been overlooked by those in power. The fact that members of the Muslim and Christian communities are as a rule being included in the Council of Ministers of the Union as well as the States, in the Supreme Court, and even in Diplomatic Missions, without any constitutional reservation in that behalf, amply demonstrates that those who are working the Constitution have not missed its true spirit, namely, that every citizen must feel that this country is his own.
A Democratic Society
That this democratic Republic stands for the good of all the people is A Democratic embodied in the concept of a ‘Welfare State’ which Society. inspires the Directive Principles of State Policy. The ‘economic justice’ assured by the Preamble can hardly be achieved if the democracy envisaged by the Constitution were confined to a ‘political democracy’. In the words of Pandit Nehru:11
“Democracy has been spoken of chiefly in the past, as political democracy, roughly represented by every person having a vote. But a vote by itself does not represent very much to a person who is down and out, to a person, let us say, who is starving or hungry. Political democracy, by itself, is not enough except that it may be used to obtain a gradually increasing measure of economic democracy, equality and the spread of good things of life to others and removal of gross inequalities.”
Or, as Dr. Radhakrishnan has put it—
“Poor people who wander about, find no work, no wages and starve, whose lives are a continual round of sore affliction and pinching poverty, cannot be proud of the Constitution or its law.”
In short, the Indian Constitution promises not only political but also social democracy, as explained by Dr. Ambedkar in his concluding speech in the Constituent Assembly:
“Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognises liberty, equality and fraternity which are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity.'”
The State in a democratic society derives its strength from the cooperative and dispassionate will of all its free and equal citizens.13 Social and economic democracy is the foundation on which political democracy would be a way of life in the Indian polity.
(c) The banishment of poverty, not by expropriation of those who have, but by the multiplication of the national wealth and resources and an equitable distribution there of amongst all who contribute towards its production, is the aim of the State envisaged by the Directive Principles. Economic democracy will be installed in our sub-continent to the extent that this goal is reached. In short, economic justice aims at establishing economic democracy and a ‘Welfare State’.
The ideal of economic justice is to make equality of status meaningful and life worth living at its best removing inequality of opportunity and of status—social, economic and political.’
Social justice is a fundamental right.16 Social justice is the comprehensive form to remove social imbalance by law harmonising the rival claims or the interests of different groups and/or sections in the social structure or individuals by means of which alone it would be possible to build up a welfare State. The promise for social, economic and political justice to citizens made by Constitution of India cannot condone policies that turn a blind eye to deliberate infliction of misery on large segments of our population.
The three have to be secured and protected with Liberty, equality social justice and economic empowerment and and ratermty. political justice to all the citizens under the rule of law.
Democracy, in any sense, cannot be established unless certain minimal rights, which are essential for a free and civilised existence, are assured to every member of the community.
The Preamble mentions these essential individual rights as ‘freedom of thought, expression, belief, faith and worship’ and these are guaranteed against all the authorities of the State by Part III of the Constitution , subject, of course, to the implementation of the Directive Principles, for the common good [Art. 31C] and the ‘fundamental duties’, introduced [Art. 51A], by the 42nd Amendment, 1976.
‘Liberty’ should be coupled with social restraint and subordinated to the liberty of the greatest number for common happiness.19
Guaranteeing of certain rights to each individual would be meaningless unless all inequality is banished from the social structure and each individual is assured of equality of status and opportunity for the development of the best in him and the means for the enforcement of the rights guaranteed to him. This object is secured in the body of the Constitution, by making illegal all discriminations by the State between citizen and citizen, simply on the ground of religion, race, caste, sex or place of birth Equality. [Art. 15]; by throwing open ‘public places’ to all citizens [Art. 15(2)]; by abolishing untouchability [Art. 17]; by abolishing titles of honour [Art. 18]; by offering equality of opportunity in matters relating to employment under the State [Art. 16]; by guaranteeing equality before the law and equal protection of the laws, as justiciable rights [Art. 14].
In addition to the above provisions to ensure civic equality the Constitution seeks to achieve political equality by providing for universal adult franchise [Art. 326[ and by reiterating that no person shall be either excluded from the general electoral roll or allowed to be included in any general or special electoral roll, only on the ground of his religion, race, caste or sex [Art. 325].
Apart from these general provisions, there are special provisions in the Directive Principles [Part IV] which enjoin the State to place the two sexes on an equal footing in the economic sphere, by securing to men and women equal right to work and equal pay for equal work [Art. 39, Cls. (a), (d)].
The realisation of so many objectives would certainly mean an expansion of the functions of the State. The goal envisaged by the Constitution, therefore, is that of a ‘Welfare State’20 and the establishment of a ‘socialist state’2. At the Avadi session in 1955, Congress explained this objective as establishing a ‘socialistic pattern of society’ by a resolution—
“In order to realise the object of Congress. . . . and to further the objectives stated in the Preamble and Directive Principles of State Policy of the Constitution of India, planning should take place with a view to the establishment of a socialistic pattern of society, where the principal means of production are under social ownership or control, production is progressively speeded up and there is equitable distribution of the national wealth.”
How far this end has been already achieved will be explained in Chapter 9, where it will also be pointed out how, till 1992, the trend had been from a ‘socialistic pattern’ towards a ‘socialistic state’, bringing industries and private enterprises under State ownership and management and carrying on trade and business as a State function.
That the goal of the Indian polity is socialism was ensured by inserting the word ‘socialist’ in the Preamble, by the Consti- 42nd Amendment, tution (42nd Amendment) Act, 1976. It has been 1976, inserted “to spell out expressly the high ideals of socialism”. It is to be noted, however, that the ‘socialism’ envisaged by the Indian Constitution is not the usual scheme of State socialism which involves ‘nationalisation’ of all means of production, and the abolition of private property. As the then Prime Minister Indira Gandhi explained 21—
“We have always said that we have our own brand of socialism. We will nationalise the sectors where we feel the necessity. Just nationalisation is not our type of socialism.”
Though the word ‘Socialism’ is vague, our Supreme Court has observed that its principal aim is to eliminate inequality of income and status and standards of life, and to provide a decent standard of life to the working people. The Indian Constitution, therefore, does not seek to abolish private property altogether but seeks to put it under restraints so that it may be used in die interests of the nation, which includes the upliftment of the poor. Instead of a total nationalisation of all property and industry, it envisages a ‘mixed economy’, but aims at offering ‘equal opportunity’ to all, and the abolition of ‘vested interests’.22″23 From 1992 onwards the trend is now away from socialism to privatisation. Investment in many public enterprises has been divested in favour of’ private persons and many industries and services which were reserved for the government sector have been thrown open for private enterprise. This is in keeping with the worldwide trend after the collapse of socialism in the U.S.S.R., and East European countries. But the constitutional obligation to pay compensation to the private owner for State acquisition has been taken away by repealing Art. 31, by the Constitution (44th Amendment) Act, 1978, as will be further explained under Chapter 8, post.
Unity amongst the inhabitants of this vast sub-continent, tom asunder by a multitude of problems and flssiparous forces, was the first requisite for _ maintaining die independence of the country as well or Unity as to make the experiment of democracy successful, the National. The ideal of unity has been buttressed by adding the words ‘and integrity’ of the Nation, in the Preamble, by the Constitution (42nd Amendment) Act, 1976. But neither the integration of the people nor a democratic political system could be ensured without infusing a spirit of brotherhood amongst the heterogeneous population, belonging to different races, religions and cultures.
The ‘Fraternity’ cherished by the framers of the Constitution will be achieved not only by abolishing untouchability amongst the different sects of the same community, but by abolishing all communal or sectional or even local or provincial anti-social feelings which stand in the way of the unity of India.
Democracy would indeed be hollow if it fails to generate this spirit of brotherhood amongst all sections of the people—a feeling that they are all children of the same soil, the same Motherland. It becomes all the more essential in a country like India, composed of so many races, religions, languages and cultures.
Article 1 of the Declaration of, Human Rights (1948), adopted by the United Nations, says:
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brother-hood.”
It is this spirit of brotherhood that the Preamble of our Constitution reflects.25 –
The unity and fraternity of the people of India, professing numerous A Secular State Faiths, has been sought to be achieved by enshrining guaranteeing Free- the ideal of a ‘secular State’, which means that the dom of Religion to State protects all religions equally and does not itself aU” uphold any religion as the State religion. The question
of Secularism is not one of sentiments, but one of law. The secular objective 42nd Amendment, of the State has been specifically expressed by 1976. inserting the word ‘secular’ in the Preamble by the
Constitution (42nd Amendment) Act, 1976. The original framers of the constitution adopted Articles 25, 26 and 27 so as to further secularism. Secularism was very much embedded in their constitutional philosophy. The Forty-Second Amendment, which formally inserted secularism into the Preamble, merely made explicit what was already implicit.25A The Secula¬rism is a part of the basic structure of the Constitution.25 There is no provision in the Constitution making any religion the ‘established Church’ as some other Constitutions do. On the other hand, the liberty of ‘belief, faith and worship’ promised in the Preamble is implemented by incorporating the fundamental rights of all citizens relating to ‘freedom of religion’ in Arts. 25¬28, which guarantee to each individual freedom to profess, practise and propagate religion, assure strict impartiality on the part of the State and its institutions towards all religions (see Chapter 8, post).
This itself is one of the glowing achievements of Indian democracy when her neighbours, such as Pakistan,26 Bangladesh, Sri Lanka (Ceylon) and Burma, uphold particular religions as State religions.
[For further discussion on ‘Secularism’, see under Chapter 8, Art. 25, post.]
A fraternity cannot, however, be installed unless the dignity of each of Di it of the members is maintained. The Preamble, therefore, Individual and says that the State, in India, will assure the dignity of Directive the Individual. The Constitution seeks to achieve this Principles. object by guaranteeing equal fundamental rights to each individual, so that he can enforce his minimal rights, if invaded by anybody, in a court of law. Seeing that these justiciable rights may not be enough to maintain the dignity of an individual if he is not free from wants and misery, a number of Directives have been included in Part IV of the Constitution, exhorting the State so to shape its social and economic policies that, inter alia, “all citizens, men and women equally, have the right to an adequate means of livelihood” [Art. 39(a)], “just and humane conditions of work” [Art. 42], and “a decent standard of life and full enjoyment of leisure and social and cultural opportunities”[Art. 43]. Our Supreme Court has come to hold that the right to dignity is a fundamental right.
In order to remove poverty and to bring about a socio-economic revolution, the list of Directives was widened by the Constitution (42nd Amendment) Act, 1976, and it was provided that—in order that such welfare measures for the benefit of the masses may not be defeated—any measure for the implementation of any of the Directives shall be immune from any attack in the Courts on the ground that such measure contravenes any person’s fundamental rights under Art. 14 or 19.28
Swamy Vivekananda had said, “Just as a bird cannot fly with its one wing only, a nation will not march forward if the women are left behind.” Article 39A in Part IV of the Constitution that deals with Directive Principles of State Policy, provides that the State shall direct its policies towards securing that the citizens, men and women equally, have the and Transgenders right to adequate means of livelihood. Clause (d) of as Third Gender the said Article provides for equal pay for equal work for both men and women and Clause (e) stipulates that health and strength of workers, men and women alike, and the tender age of children, are not abused and that citizens are not forced by economic necessity to enter into avocations unsuited to their age or strength.288 The Fundamental Rights and the Directive Principles are the two quilts of the chariot in establishing the egalitarian social order and therefore, it is required to interpret the Fundamental Rights in light of the Directive Principles of State Policy,28C Clause (e) of Article 51-A makes it is clear that all practices derogatory to the dignity of women are to be renounced. A female candidate is not required to furnish information about her menstrual period, last date of menstruation, pregnancy and miscarriage, as calling of such information are indeed embarrassing if not humiliating.280 The requirement that a married woman should obtain her husband’s consent before applying for public employment was held invalid and unconstitutional.288 A female is entitled for ‘equal pay for equal work’ in context to her male counterpart.288 Thus, there cannot be any discrimination solely on the ground of gender. Reservation of seats for women in Panchayats and Municipalities have been provided for under Articles 243(d) and 243(t) of the Constitution of India with a view that the women in India are required to participate more in a democratic set-up especially at the grass-roots level. The sustenance of gender justice is the cultivated achievement of intrinsic human rights. Equality cannot be achieved unless there are equal opportunities for both men and women and if a woman is debarred at the threshold to enter into the sphere of profession for which she is eligible and qualified, it is well-nigh impossible to conceive of equality. It also clips her capacity to earn her livelihood which affects her individual dignity. In the case of ‘Vishaka and Others vs. State of Rajasthan and Others’, the Supreme Court referred to the Convention for Elimination of all forms of Discrimination Against Women, 1979 (for short, “CEDAW”) which was ratified by the Government of India in 1993 and framed certain guidelines regard being had to the sexual harassment at work places. The Supreme Court while declaring the ‘Hijra/Transgender’ as ‘third gender’ has held that:
“(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature, (2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender, (3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments, (4) Centre and State Governments are directed to operate separate HIV Sero-survellance Centres since Hijras/Transgenders face several sexual health issues, (5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal, (6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities, (7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment, (8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables, (9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.”
The Supreme Court interpreted the law in consonance with the new social needs. This is the recognition of their right of equality as enshrined in Art. 14, as well as their human right to life with dignity, which is the mandate of the Art. 21 of the Constitution.
The philosophy contained in the Preamble, as explained in the foregoing pages, has been further highlighted by Fundamental emphasising that each individual shall not only have utles’ the fundamental rights in Part HI of the Constitution to
ensure his liberty of expression, faith and worship, equality of opportunity and the like, but also a corresponding fundamental duty, such as to uphold the sovereignty, unity and integrity of the nation, to maintain secularism and the common brotherhood amongst all the people of India. This has been done by inserting Art. 51A, laying down ten [now eleven]2 ‘Fundamental Duties’, by the Constitution (42nd Amendment) Act, 1976 (see, further, under Chapter 8, post).
A fitting commentary on the foregoing contents of the Preamble to our Constitution can be best offered by quoting a few lines from Prof. Ernest Barker, one of the modem thinkers on democratic government.
“. . . there must be a capacity and a passion for the enjoyment of liberty—there must be a sense of personality in each, and of respect for personality in all, generally spread through the whole community—before the democratic State can be truly achieved . . . Perhaps it can be fairly demanded only in a community which has achieved a sufficient standard of material existence, and a sufficient degree of national homogeneity to devote itself to an ideal of liberty which has to be worked out in each by the common effort of all. If the problems of material existence are still absorbing… the ideal of living a common life of freedom—in other words, of attaining a particular quality of life—will seem an ideal dream. If, again, die problems of national homogeneity are still insistent, and there is no common feeling of fellowship— if some sections of the community are regarded by others, whether on the ground of their inferior education, or on the ground of their inferior stock or any other ground, as essentially alien and heterogeneous—the ideal of the common life of freedom will seem equally illusory….”
Combining the ideals of political, social and economic democracy with that of equality and fraternity, the Preamble seeks to establish what Mahatma Gandhi described as “the India of My Dreams”, namely—
“. . . an India, in which the poorest shall feel that it is their country in whose making they have an effective voice; . . .an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of intoxicating drinks and drugs. Women will enjoy the same rights as men.”
No wonder such a successful combination in the text of our Preamble would receive unstinted approbation from Ernest Barker, who has reproduced this Preamble at the opening of his book on Social and Political Theory, observing that the Preamble to the Constitution of India states,
“in a brief and pithy form the argument of much of the book, and it may accordingly serve as a key-note.”