75 Years of the Indian Constitution
The Indian Constitution officially came into effect on January 26, 1950, date now commemorated as the Republic Day. The November 2024 issue of the monthly, Yojana carried exhaustive articles on Indian Constitution and is a collector’s copy for the aspirants preparing for various competitive examinations for government jobs. Following are few excerpts. For complete articles you can purchase a digital copy from www.publicationsdivision.nic.in, google play books & amazon kindle.
A Journey Towards Absolute Glory
Dr. Ashwini Siwal
As India celebrates 75 years of its Constitution, it is essential to reflect on the remarkable journey of this foundational document and the nation it has shaped. Adopted on November 26, 1949, the Constitution of India stands as a testament to the aspirations of a diverse and vibrant society, embodying the principles of justice, liberty, equality, and fraternity. This journey has not just been about governance but also about the evolution of a democratic ethos, resilience in the face of challenges, and the relentless pursuit of inclusive growth.
On November 26, 1949, the Constitution was adopted, marking a momentous occasion in India's history. This date is celebrated annually as 'Constitution Day', reflecting the significance of this event in establishing India as a sovereign nation. The Constitution officially came into effect on January 26, 1950, a date now commemorated as Republic Day, symbolising the transition from colonial rule to self-governance.
Key features of the Constitution included Fundamental Rights, which guaranteed individual liberties and protections against discrimination, and Directive Principles of State Policy, aimed at guiding the state toward achieving social and economic justice. These elements underscored the Constitution's commitment to not only political democracy but also social equity. As the years progressed, the Constitution proved adaptable to changing socio- political dynamics.
Evolution of the Constitutional Values
Legal scholar, Harvey Walker has maintained that "The Constitution must be developed out of the lives and aspirations of the people and not borrowed from others. The fundamental and values of the constitution shall be in tune with the particular culture and times in order to be useful and lasting."It is very important for the values and institutions that emanate from the Constitution to keep pace with the times. As the Constitution is considered to be an organic document, it shall make space for accommodating complex issues evolving with time. The Indian constitutional debates also vociferously discussed the matter of making the Constitution 'flexible'. Debaters in the assembly relied heavily on the words of Av Dicey, "The immutability of the constitution is the ground for its violent subversion".
Articles 14, 19 and 21 often referred to as the golden triangle of the Constitution, have been a shield to provide relief to major and important sections of Indian society. In Vishaka v. State of Rajasthan (1997), the Supreme Court laid down guidelines to prevent sexual harassment at the workplace, recognising that such harassment violates fundamental rights under Articles 14, 19, and 21. This judgement became a cornerstone for women's rights and workplace safety in India. Another important judgement upholding the rights of the women in Indian society is Shayara Bano v. Union of India (2017), wherein the Supreme Court declared the practice of instant triple talaq (talaq-e-biddah) unconstitutional, affirming that it violates the fundamental rights of Muslim women and is against the principles of gender justice.
In the knowledge economy and today's era of information, the law relating to privacy that has evolved from the paraphernalia of the constitutional principles has become a cogent foundation on which relevant contemporary laws are superstructured. In Justice K.S. Puttaswamy v. Union of India (2017), the Supreme Court recognised the right to privacy as a fundamental right under Article 21. This judgement has significant implications for data protection and individual freedoms in the digital age.
Further, the abrogation of Article 370 is another watershed moment having the propensity to alter the constitutional conscience. The Constitution Bench of the Supreme Court unanimously affirmed the authority of the President of India to revoke Article 370 of the Indian Constitution. The abrogation in August 2019 resulted in the division of the former state of Jammu & Kashmir into two Union Territories, J&K and Ladakh, and stripped the state of its special rights. The Supreme Court stated that Article 370 was merely a provisional measure to enable the admission of the former princely state to the Union of India during a period marked by internal turmoil and external threats. The Supreme Court stated that Jammu and Kashmir did not maintain any aspect of sovereignty upon its accession to India.
As noted above, the judiciary has played a pivotal role in interpreting the Constitution and expanding its scope in the last 75 years. Landmark judgements have upheld the rights of marginalised communities, reinforced gender equality, and ensured environmental protection over the years. The dynamic nature of constitutional interpretation has allowed it to evolve with societal needs, making it a living document that resonates with contemporary values. These judgements discussed above reflect the dynamic nature of the Indian Constitution and its ability, inter alia, to adapt to contemporary issues such as the protection and expansion of fundamental rights in a diverse society.
The author is an Associate Professor in the Faculty of Law in the University of Delhi.
Navigating Profiling Concerns and Criminal Investigations
Kamaljeet Kaur Muni
In the fast-paced world of technology, Artificial Intelligence (AI) is not just a tool for convenience; it's becoming a cornerstone of how businesses, governments, and societies operate. AI's ability to analyse vast amounts of data and predict outcomes has transformed everything from how we shop to how law enforcement approaches crime. With the recent introduction of India's Digital Personal Data Protection Act (DPDP Act) 2023 and the Bharatiya Nyaya Sanhita (BNS) 2023, there are critical shifts in how AI can and should interact with personal data and criminal justice.
The world is witnessing a transformation where laws must now evolve alongside rapidly changing technology. As we dive deeper into the implications of AI in profiling and criminal investigations, it becomes evident that these technologies present both great opportunities and significant challenges. The legal frameworks governing AI usage are essential in ensuring the balance between privacy, security, and innovation.
AI and Profiling
At the heart of most AI systems is the concept of profiling- the process of collecting data to predict behaviour. Whether it's e-commerce platforms suggesting products or streaming services recommending content, AI relies on user profiles that are constantly being updated based on behaviour. This data- driven approach not only enhances user experience but also brings forth concerns about privacy and the misuse of personal data.
The Digital Personal Data Protection Act (DPDP Act) 2023 directly addresses these concerns. By recognising behavioural data as personal data, the law ensures that users' rights are protected. This includes the right to correct or erase their data, forcing AI systems to rethink how they operate. For instance, if a user opts to erase their data, it disrupts the continuous stream of information that AI models rely on to provide personalised services.
This introduces a fundamental challenge for businesses that have built their platforms around data aggregation. AI- driven services like personalised ads, recommendation engines, and even financial risk assessments depend on large- scale data to function effectively. As data rights become more stringent under the DPDP Act, businesses will need to pivot towards privacy-first AI models that respect user consent while still delivering value. This delicate balance between compliance and personalisation is the new frontier for AI in india.
Globally, similar regulations are emerging. the General Data Protection Regulation (gDPr) in the European Union has had a profound impact on how companies handle data, particularly when it comes to profiling. AI systems, in particular, had to adapt to stringent requirements for obtaining explicit consent before collecting personal data. This shift towards privacy- centric AI is setting a global precedent, and India's DPDP Act is following suit.
Power of AI
AI's predictive capabilities are not new. We've already seen how platforms use predictive algorithms to drive users toward impulse purchases. By analysing user behaviour- what products you search for, how long you spend on a webpage, your browsing patterns- AI can push targeted advertisements that align with your immediate needs or desires.
But imagine if this same predictive power could be harnessed for public safety. Predictive policing aims to do just that. By analysing human behaviour, AI could predict where and when crimes are likely to occur, allowing law enforcement to intervene before incidents happen. This transition from commercial to law enforcement applications highlights AI's transformative potential. But it also requires a significant shift in how law enforcement agencies operate. Predictive models in e-commerce can tolerate some margin of error- sending you an irrelevant ad is not a big deal. But in policing, a false prediction could have serious consequences for individuals and their freedom.
AI in Action at the National Crime Agency (UK):
The National Crime Agency (NCA) in the UK offers a powerful case study in how AI can be applied ethically and effectively in law enforcement. Since 2019, the NCA has employed AI to combat child exploitation by monitoring online behaviour and identifying vulnerable children. This is not a passive system; it actively tracks how children interact with the internet and uses this data to identify potential risks before they escalate into crimes.
This application of AI demonstrates how the technology can be used for proactive policing- preventing crimes from occurring rather than simply reacting after the event. The NCA's model offers valuable insights for India, where similar approaches could be deployed to combat cyberbullying, online harassment, and even terrorist recruitment efforts in cyberspace.
However, the NCA's success also highlights the need for ethical frameworks when using AI in law enforcement. AI systems must be transparent in how they operate, and their decisions should be subject to human review to avoid wrongful targeting. Public trust in AI is crucial, and building systems that are both effective and ethically sound is the only way forward.
Challenges and the Road Ahead
The integration of AI into law enforcement and personalised services brings forward a set of challenges that India must address as it moves into the future. The DPDP Act 2023 provides a solid framework for safeguarding personal data, but it also raises questions about how businesses can innovate while respecting user privacy. On the other hand, the BNS 2023 opens the door to more advanced AI- based policing, but with that comes the responsibility of ensuring that these technologies do not infringe on individual rights.
Training law enforcement to use AI effectively and ethically is critical. Predictive tools, for example, must be regularly audited to ensure they do not perpetuate biases. Similarly, businesses using AI for profiling must implement safeguards that allow for data corrections and erasure upon user request.
Globally, the conversation about AI and its ethical implications is gaining momentum. The European Union's GDPR and frameworks like the UK's NCA AI-based initiatives provide valuable lessons. As India's legal landscape evolves with the DPDP Act and BNS, these global examples offer a roadmap for creating an AI ecosystem that respects privacy, ensures fairness, and leverages technology for the greater good.
The author is a practicing Advocate and an author.
Important Constitutional Amendments
SB Singh
Our Constitution, drafted by a galaxy of legal experts and seasoned statesmen, has been the backbone of Indian democracy, guaranteeing not only an elaborate administrative machinery of governance but also a charter of a socio- economic revolution. It is not merely a legal document setting out the fundamental laws for governance of India, but also a living and dynamic document. This document was designed to address the diverse aspirations of the Indian people.
Need for Constitutional amendments: A Constitution is a living document that must reflect the changing socio- economic aspirations of the people whom it is meant to serve. With changing times and circumstances, the aspirations of the people also change, and these changes must be reflected in the constitution by amending it, or else it will cease to be a relevant document and become outdated. Though the framers of our Constitution succeeded in writing a comprehensive document, they were aware of the need to change its provisions in the future and therefore provided for an amendment procedure (Art. 368) in the constitution itself. Amendment means changing one or more parts of the Constitution, and it can be done by adding a new provision, deleting an existing provision, or revising or modifying a provision.
Procedure for amending the Constitution: There are three ways in which our Constitution can be amended:
• By an ordinary law passed by Parliament by a simple majority. For example, admission of new states (Art. 2), creation of new states or altering their areas, boundaries or names (Art. 3), or changes made in the citizenship provisions (Art. 11).
• By following a special procedure given in Art. 368 which requires an amendment bill to be passed by a two- thirds majority in both Houses of Parliament. Most of the amendments are carried out following this procedure.
• By passing an Amendment Bill by Parliament by a two- thirds majority as well as its ratification by at least half of the states if the bill seeks to make changes in provisions that affect the federal provisions. For example, gst had to be ratified by half of the states also.
Landmark Constitutional amendments since 1950
Though as many as 106 amendments have been made to the Constitution so far, the following are considered major amendments that introduced significant changes in the Constitution.
The First Amendment Act, 1951: the main objects of this amendment were to place 'reasonable restrictions' on laws made on various grounds given in Art. 19 (security of the state, public order, morality, decency, etc.). It also abolished the zamindari system and inserted the 9th schedule to the Constitution which provides immunity from judicial review of certain laws, mostly dealing with land reforms.
The Forty Second Amendment Act, 1976: this is also known as the mini Constitution of India, as it carried out wide ranging and drastic changes in the Constitution during the emergency. It amended the Preamble and Directive Principles by adding Arts. 39A (free legal aid), 43A (participation of workers in management of industries), 48A (protection of environment and the wildlife), and insertion of Part IV A to the Constitution providing for fundamental duties. Art. 74 was amended to make the President 'bound by the advice of the council of ministers'. It also provided for tribunals by inserting Art. 323A and 323B in a new Part XIV A. Most importantly, it added clauses (4) and (5) to Art. 368 which gave unfettered powers to Parliament to amend any provision of the Constitution. Passed during emergency, this amendment curtailed civil freedoms, powers of the judiciary, and diluted the fundamental rights.
The Forty Fourth Amendment Act, 1978: This amendment was enacted by the Janata Party government in the background of the 42nd Amendment and the experience of emergency. First, it made changes in Art. 352 relating to proclamation of emergency. The word 'internal disturbance', which was a vague expression and was open to misuse, was replaced by 'armed rebellion'. Further, the written advice of the Cabinet to the President to proclaim an emergency was made mandatory. Also, it needed to be passed by a two- thirds majority of both houses of Parliament within a month. For its further continuance, it required renewal by Parliament every six months by a two- thirds majority only. Also, Lok Sabha was empowered to revoke it by a simple resolution if ten per cent of its members requested a special meeting to revoke it. Safeguards were also made against preventive detention that could not be continued beyond three months unless an advisory board recommended further detention.
However, the most striking change was made in the Right to Property. So long as it remained a fundamental right, it became problematic for the government to acquire property for public purposes. This was solved once for all by deleting Art. 19(1)(f) and shifting Art. 300 to a new Art. 300 A. thus, today, the right to property is only a legal right and not a fundamental right which means the state can acquire property for a public purpose and one cannot seek remedy under Art. 32 by Supreme Court if one's property is acquired. He can, however, approach ordinary courts, as no one can be deprived of his property except by authority of law.
The Hundred First Amendment Act, 2016: This act brought the GST regime in existence under the 'One Nation One Tax' slogan. It simplified the tax regime in one stroke and is hailed as a great step towards cooperative federalism. Both the union and the states pooled their sovereignty to agree to a common tax regime, i.e., GST.
The Hundred Sixth Amendment Act, 2023: This has finally paved the way for 33 per cent reservation for women in both Lok Sabha and State Assemblies. This became possible after many hurdles faced in passing the bill for nearly two decades. This act, in a single stroke, has empowered Indian women and made our legislatures more representative in gender terms. However, it will come into force only after the next delimitation exercise so that the Delimitation Commission can decide which seats shall be reserved for women.
The author is an academician, author, and a columnist
Role of Indian Constitution in Promoting Social Justice
Prof. Rekha Saxena
The Indian Constitution has been characterised as a social revolution instrument by scholars like Granville Austin. To set Indian constitutionalism apart from the limited concerns of liberal constitutionalism, Kalpana Kannbiran (2012)and Upendra Baxi (2008) have developed the frameworks of 'insurgent constitutionalism' and 'transformative constitutionalism.' the members of the Constituent Assembly have highlighted how the Constitution of India has the power to reshape society.
The Fundamental Rights aimed to promote social revolution by establishing a society in which all citizens would have equal freedom from compulsion or constraint, whether imposed by the state or by society at large. Baxi asserts that the Indian constitution broadens the concept of rights beyond the state to encompass civil society. this is seen in the prohibition of behaviours related to untouchability (Article 17) and the banning of bonded labour and human trafficking (Article 23). He asserts that the Indian constitution exemplifies a modern instance of enabling state intervention against manifestations of cruelty inside civil society. Furthermore, the Indian constitution serves as a mechanism for the empowerment of Scheduled Castes and Scheduled Tribes by granting them legislative reservations and mandating quotas in education and state employment for these groups, as well as for socially and educationally disadvantaged classes. Some of the important provisions of the Constitution of India prompting the goal of social justice are as follows:
a. 'We the People': This line from the Indian Constitution's Preamble captures the transformative goal. 'We the People' creates a new identity that equalises opportunities and status for those whose identities were previously shaped by caste, religious, and ethnic systems. An 'individual' detached from the principles generated from the framework formed the basis of this identity. It has legal significance in addition to being a significant declaration of independence from colonial control. By decree of the Cabinet Mission Plan, the Constituent Assembly of India was established, responsible for drafting the Constitution for Independent India. 'We the People' is a significant departure from the 1947 Independence Act and the Cabinet Mission Plan's legal restrictions.
b. Universal Adult Franchise: In a hierarchical society, the establishment of the Universal Adult Franchise, which was founded on the tenets of 'one person, one vote, one value,' was revolutionary. According to some books full citizenship in India is awarded based solely on the requirement of being an adult member, a concept known as the categorical principle of inclusion.
c. Abolition of Untouchability: Untouchability is outlawed in all forms under Article 17 of the Indian Constitution. it aimed to break with the past by putting an end to the long-standing humiliation that some castes had to endure.
d. Right to Equality: According to academics like Martha Nussbaum, the Constitution of India explicitly recognises the idea of substantive equality by going beyond the idea of formal equality and stating that special protective laws that advance the interests of marginalised groups are not to be interpreted as unlawful discrimination.
e. Directive Principles of State Policy: The Directive Principles of State Policy provide a more concise definition of social revolution. According to Austin (1972), the intention behind these concepts was to liberate the Indian masses-that is, to free them from social and natural constraint.
The author is HOD and Professor of Political Science in Delhi University