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Wednesday, August 8, 2012


 Society, State and Nation-State
1 State and Society
2 Nationalism and Nation-State
3 Civil Society
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State

Though politics is not defined entirely in terms of the state in modern times, the state continues to be the central concept in politics. It is a universal and powerful social institution. Voluntary cooperation as the means of societal control was in adequate when the complexity of life increased. Not all matters could be left to social management. The use of coercive force became necessary to enforce full obedience to at least some definite laws. Social sanctions were sufficient as long as a hierarchy was recognized and accepted in a tribe or a clan. Therefore large human communities had to be governed either by brute force or by establishing authority that is more or less accepted. Kinship bonds, religion, economic power, force, consent and other instrumentalities that came handy were used to evolve an authority that could demand and obtain obedience from the people. Thus society was politically organized and was vested with a monopoly of final coercive power and state emerged.

State fulfilled mainly a single purpose, namely the enforcement of the law. The area of state action is thus limited. State served the individual mainly in respect of providing security of person and property. The state provided the atmosphere within which all other social institutions and agencies functioned peacefully. In its narrow sphere the state was supreme though society which was pluralistic had wider sphere of activities.

Definitions:

Definitions of state varied according to the functions fulfilled by the state at various times.

For the Greeks there was no distinction between state and society. Aristotle defined state as “a union of families and villages, having for its end, a perfect and self-sufficing life, by which we mean, a happy and honourable life.”

The Roman jurist Cicero defined state as “a numerous society, united by a common sense of right and a mutual participation in advantages.”

The concept of state is comparatively modern and owes its origin to Machiavelli who expressed this idea as the power which has authority over men.

According to Bodin, “The state is an association of families and their common possessions governed by the supreme power and by reason.”

Harold Laski defined the state identifying its essential elements. According to him, “the state is a territorial society, divided into government and subjects claiming within its allotted physical area, a supremacy over all other institutions.”

Garner has defined the state as, “a community of person, more or less numerous, permanently occupying a definite portion of territory, independent or nearly so of external control and possessing an organized government to which the great body of inhabitants render habitual obedience.”

Max Weber sought to evolve a sociological definition of state. According to him state is a human community that claims the monopoly of the legitimate use of physical force within a given territory.

Essential elements of state:

In the light of the various definitions of the state, it is customary to identify the state by its constituent elements which include: Population, Territory, Government and Sovereignty.

1) Population:

The state is a human institution. The population is, therefore, an essential element of the state. However, the population can constitute a state only when it is united by the conditions of interdependence, consciousness of common interest and general regard for a set of common rules of behaviour and institutions.

The size of population of a state cannot be fixed and there is no unanimity of opinion in this regard. Plato considered that an ideal state should have a population of 5040. Aristotle believed that the population of a state should be large enough to be self-sufficing and small enough to be well-governed. For Rousseau 1000 was the ideal figure for a state. However these traditional view do not hold good in the context of modern states. As there big states like Russia and India and there are small states like Monaco and San Marino.

In addition to the size of the population the quality of the population inhabiting the state is also equally important. Aristotle maintained that a good citizen makes a good state and a bad citizen makes a bad state.

The population of a state need not belong to a single race, religion, language or culture. A homogeneous population is no longer considered as essential feature of the modern state. The modern state claims to reconcile the interests of various groups of its citizens.

2) Territory:

Territory is another important element of a state. Other associations either exist within states or they extend their sphere to several states; they do not need separate territory. But the state must possess a territory where its authority is accepted without dispute or challenge.

A state comes into existence only when its population is settled in a fixed territory. Friedrich Engels, in his Origin of the Family, Private Property and the state (1884), notes that the formation of the state is accompanied by a division of population according to territory. The territory of the state includes land, water and air-space within its boundary. It also extends to a distance of 3 miles into the sea form its coast, and is known as territorial waters.

Territory symbolizes the sphere of sovereignty of the state. Territory provides for a sense of security and immense opportunities for a fuller life for its residents. It is an object of sentimental attachment- people love and worship their motherland and ready to make ant sacrifices for tis protection.

3) Government:

Government is another essential element of the state. According to J W Garner (Political Science Government:1928), ‘government is the agency or machinery through which common policies are determined and by which common affairs are regulated and common interests promoted.’ If the state represents an abstract concept, government is its concrete form.

In other words, authority of the state is exercised by government; functions of the state are performed by the government.  Government functions through its core three braches i.e. Legislature, executive and Judiciary. Laws of the state are made, declared and enforced by government. Government is responsible for the maintenance of law and order and for the provision of common services- defence, roads, bridges, communication, health and education etc. without government, the people are a chaotic mass of disjointed particles, without common aims, common interests or a common organization. However, government and state should not be treated as co-terminous. Government may rise or fall without disturbing the identity of the state. 

4) Sovereignty:

Sovereignty denotes the supreme or ultimate power of the state to make laws or to take political decisions- establishing public goals, fixing priorities and resolving conflicts- as also enforcing such laws and decisions by the use of legitimate force. In fact, sovereignty denotes the final authority of the state over its population and its territory. This authority may be exercised by the government of the day, but it essentially belongs to the state from which it is derived by the government.

It is by virtue of its sovereignty that a state declares-through the agency of the government- its laws and decisions and issues commands which are binding on all citizens, claims obedience thereto, and punishes the offenders. This aspect of sovereignty is called as internal sovereignty. It means that the state is supreme in all its internal matters. It exercises supremacy over all the institutions and people of the state.

On the other hand state is also independent in the international sphere while maintaining diplomatic and international relations with other states. It cannot be forced or controlled by any other state in its external affairs. This aspect of sovereignty is known as external sovereignty.

A state continues to exist as long as it is armed with sovereignty. If a state loses its sovereignty because of internal revolt or external aggression, the result is anarchy and disappearance of the state as such. Some writers regard international recognition as an essential element of the state. This denotes formal recognition of the sovereignty of the state over a given territory and population by other states

Nature of the state:

The state possesses the power to enforce its norms on all those who live within its boundaries. These norms are the law. Membership of the state is compulsory. While other associations are voluntary in various degrees, an individual cannot exempt himself from the membership of a state and conformity to its laws. Legally, an individual has no choice but to obey the laws of the state. The state is truly an instrument to regulate human life.

The power of the state is not exerted by sheer arbitrary force. It is used to achieve certain ends. These ends give validity to the laws or contribute to their acceptance by the large body of inhabitants. This makes it easy for the state to enforce its will. The state is not purely a legal order. It has also a philosophical basis to justify itself.

The authority of the state rests on the ability of the state to satisfy the demands made on it by its people. The people may desire security of person and property, freedom to worship in particular ways, some rights such as freedom of expression and in general the freedom to pursue happiness as they conceive it.  If a state is proved incapable of satisfying these demands it loses its credibility.

Laws of a state are the response to the effective demands on the state, the needs of those who have the means and will to take their demands to the center of political power. The state always contracts a large number of competing demands and is therefore under pressure to choose some and drop others while translating them into policy decisions.

State and Society (Comparative Analysis):

Society is defined as a “Collection of individuals held together by certain enduring relationships in pursuance of common ends.” On the other hand, the state is defined as, “a particular portion of society politically organized for the protection and promotion of its common interests.” The state is necessarily a political organization but society is not.

Society regulates all forms of social conduct but state can regulate only the external relationships of the people.

The state derives its strength mainly from law but society from traditions, customs and conventions.

The state possesses the power of coercion. If a person violates the law the state, he is punished according to law. However, society does not enjoy the power of coercion. There may be no physical punishment even if the rules of society are violated. The only basis of the authority of society is social customs, conventions and morality. The weapon use by the society is persuasion and coercion. 

The state is a territorial organization. Its territory is well defined. However society is not limited to any geographical area. The Jews, the Christians the Muslims and the Hindus are spread all over the world. There is no territorial limitation on society. Moreover even within a state, there may different societies.

The membership of a state is compulsory while the membership of a society may be voluntary.

Society has a wider scope than the state. The aim of society is to develop all aspects of human life, but the state is concerned mainly with the political relations of man.

Society came into existence prior to the state. From the very beginning man has lived in society. Society began with the birth of man on earth. Society is instinctive to man because he cannot live in isolation. Aristotle rightly says that man is a social animal by nature and necessity. However, the state is the creation of will and reason. It is man’s political consciousness which brought the state in society.

State is sovereign but the society is not. Without sovereignty, there can be no state. State has the supreme power to command and nobody can challenge its authority. Society does not necessarily possess any sovereign power and cannot punish those who disobey it rules. Society can put only moral pressure.

State controls only the external activities of man whereas society controls both internal and external activities. State has to act through law which can regulate only the external actions of man. It cannot control his thoughts. Society is concerned both with internal and external activities of man.

The rules and laws of the state are clear and definite as those are enacted by the legislature, but the rules and principles of society are based on customs, traditions and conventions of the people and hence are not clear and definite.

Thus although both the terms are different from each other they are connected and inter-dependent. Social conduct must conform to the way of life prescribed by the laws of the state, but the state must not trespass into the sphere not assigned to it. Barker concludes, “State and Society have the same moral purpose. They blend and borrow from each other.”

Nation

The term nation is derived from the Latin word ‘Natio’ which means birth or race. A nation is a people descended from a common stock. It means a people brought together by the ties of blood relationship.

According to Burgess, a nation is a “Population of an ethnic unity inhabiting a territory of a geographic unity.”

Lord Bryce defines a nation thus: “A nation is a nationality which has organized itself into a political body, either independent or desiring to be independent.” 

The view of Prof. Hayes is that, “a nationality by acquiring unity and sovereign independence becomes a nation.”

Dr. Garner says,” A nation is a culturally homogeneous social group which is at once conscious and tenacious of its unity of psychic life and expression.”

E H Carr says, “the term nation has been used to denote a human group with the following characteristics:

a) the idea of a common government whether as a reality in the present or past, or as inspiration of the future.

b) a certain size and closeness of contact between all its individual members.

c) A more or less defined territory.

d) Certain characteristics (of which the most frequent is language) clearly distinguishing the nation from other nations.

e) Certain interests common to the individual members.

f) A certain degree of common feeling or will, associated with a picture of the nation in the minds of the individual members.”

What makes a group of people a nation is not necessarily a community of race, language or religion, but the sentiment of consciousness or like-mindedness.    

Nationality:

Nationality is a collective name given to that complex of psychological and cultural factors which furnish cohesive principle uniting a nation. Nationality is a sentiment of ‘oneness’ that unites the people of a particular kind and thus differentiates them from others who do not share similar feelings and sentiments.

The word nationality is used in three different senses.

1) It refers to the legal status of citizenship of a particular state. That is nationality of a person refers to his status as a citizen of the country which he belongs to. E.g. Indian, American etc

2) Nationality means a group of people having their distinct identity within a particular nation. E.g. there were many nationalities as Byelorussians, Ukrainians and Uzbeks etc.in the former USSR. In India also Kashmiris are identifying themselves as a separate nationality although they still do not have a separate state of their own.

3) Nationality signifies a particular kind of feeling and sentiments that bind a people and differentiate them from the people of other nationality.

Zimmern writes,

 “Nationality, like religion is subjective, statehood is political;

Nationality is a condition of mind, statehood is a condition in law;

Nationality is a spiritual possession, statehood is an enforceable obligation;

Nationality is a way of feeling, thinking and living, statehood is a condition inseparable from all civilized ways of living.”

Thus the sentiment of nationality makes a nation and the establishment of self-rule by the people of one particular nationality makes their Nation-state

Nationalism:

Nationalism means a special spirit of oneness, or common consciousness or unity among the people founded on political, historical, racial, religious, linguistic, psychological, emotional and other factors in a state.

Nationalism is also defined as, “a force, which holds a community in defined territory together, for the maintenance of its rights against arbitrary powers within the state and preservation of its independence against aggression from without.”

Nationalism implies burning love for one’s own nation or country. People love and worship their nation in the same way as they do in the religious field. The county is always addressed as ‘motherland’. Thus nationalism is idealised and idolised.

Factors promoting and creating Nationalism:

1) Common Residence or Geographical Factors:

Geographical unity or naturally defined territory is one of the most powerful factors that create, promote and sustain national feelings among people inhabiting a common land often described as homeland or motherland. The two wings of Pakistan created in 1947 could not remain together and in 1971, the people of East Pakistan revolted and ultimately the new state of Bangladesh came into existence. The people who inhabit a common territory for a long time naturally cherish common traditions and cultures and start loving their motherland. However centuries ago the Jews ran away from their motherland, Palestine, when they were attacked by the Arabs. They dispersed themselves in various parts of Europe and continued their separate feeling of nationalism. Ultimately they succeeded in having in 1948 a new state of Israel.

2) Common Race:

Common race is also a great unifying force. Blood relationship brings people together. Blood is always thicker than water. People having common ancestors are unconsciously brought together. There is an inner force that unites their hearts. Thus a common race is helpful for the growth of the sentiment of nationalism. However modern nation-states are example of confluence of multiple races e.g. USA, Canada, and Switzerland etc. Experiences show that different nationalities have come into existence in spite of the lack of racial unity.

3) Common Language:

A common language is a great unifying force. The people speaking the same language have more chances of understanding one another and acting together. According to Joseph, a common language enables people to i) project common ideas, ideals, sentiments and feelings, ii) set up common standards of morality, manners and justice, iii) conserve historical traditions and iv) generate a common psychology.

However despite diversity of languages in USA and Canada the national feeling is high in these countries. Whereas diversity of languages ia a major obstacle in generate a unifying Indian Nationalism.

4) Common historical Traditions:

The most significant and indispensible factor that vitalizes national feeling among people is the common historical traditions. In the words of Ramsay Muir it includes, Memory of sufferings endured, Victories won in common, Expressed in songs and legends, National memory enshrined in heroic achievements, agonies historically endured and sentiments attached with sacred places. These all nourish the spirit of nationalism and are the soul of it.

5) Common Political Aspirations:

It also plays a prominent role in promoting the feeling of nationalism. In such a case a common nationality grows in spite of differences of language, caste, creed and culture. The people living under foreign yoke develop a sentiment of nationalism. They come together and organize themselves to fight for their freedom. It was this factor which fostered feeling of nationalism in India, Africa and Asia. National feelings also grew in Germany, Austria-Hungary and Italy against Napoleon.

6) Common Religion:

Religion has played a very important role in creating, promoting and sustaining national spirit. During, middle ages crusade have been fought between Christians and Muslims. Among the Jews, the Japanese, The Poles and the Irish religion has been the mainspring of their national life. The demand for Pakistan was based on the two nation theory rooted in two different religions. However, most modern states today tolerate all religions because faith has today become a personal affair.

Nation-State:

The theory of “One Nation, One State” became popular after the World War I and many new states were created on the principle of self-determination. The term nation and state began to be used as synonymous. It is desirable that we should not identify nation with the state as the two terms are distinct.

The essential elements of the state are population, territory, government and sovereignty. Wherever these are present, there is a state. It is not necessary that the people living within the state must have a feeling of oneness. On the contrary the term nation refers to a feeling of unity among the people. It is necessary for a state to be independent. There can be no state without sovereignty. In case of a nation, it is not essential that the people concerned must be independent. It is enough if they are determined to have an independent state of their own in future.

The modern state usually takes the form of a nation-state. The frontiers of the state are called national frontiers; the interest of the state is described as national interest. Relations between different states are known as international relations. A nation-state grows on a  much wider base. It refers to people living in a defined territory, inspired by a sense of unity, common political aspirations, common interests, common history and common destiny. People of different races, with different religions, languages and cultures, etc. may live together and feel united as citizens of the same state, owing their undivided allegiance to the state.  Thus, nationhood transcends the conditions of birth and extends to the permanent residents of a state. Members of a nation of course distinguish themselves from other nations. They may sometimes be prejudiced against other peoples. Yet a logical outcome of the idea of a nation postulates equality among nations, their co-existence and cooperation.

Principle of National Self-determination:

Since 1920, the principle of national self-determination has been almost universally accepted which has led to the establishment of nation-states and rapid development of international law to regulate relations between nation-states. National self-determination is the principle that each nation has the right to be independent and to choose a suitable form of government for itself. The congress of Vienna (1815) after the battle of waterloo gave recognition to this principle for the first time.

At the end of the First World War (1914-18), Woodrow Wilson conceived of it primarily as a criterion for the break-up of the empires defeated in the war, i.e. Austro-Hungarian, German and Ottoman empires which redrew the map of Europe. In Wilson’s view, “Self-determination is not a mere phrase; it is an imperative principle of action, which statesmen will, henceforth, ignore at their peril.” Lord Bryce and J S Mill are also some other exponents of the same principle. Around this time, V I Lenin conceived of this principle essentially as the ground for granting independence to the dependent nations from colonial and imperial domination. After the Second World War (1939-45), the United Nations upheld this principle through various international documents. Thus many nations emerged in Asia, Africa and Latin America. However they are faced today with the gigantic task of nation-building. Most of them evolved a national sentiment during their struggle for independence, but disruptive tendencies started to emerge after they achieved their independence.

Civil Society:

In contemporary discourse, the term ‘civil society’ is used in two senses. In one sense, civil society comprises the social institutions like school, church and peer groups of citizens which serve as structures of legitimation of the state. These institutions largely lend support to the state. This view of civil society corresponds to Gramsci’s view of its role in sustaining the capitalist system.

In the second sense, civil society stands for a set of public interest organisations set up by some conscious citizens which make various demands on the state or launch social movements to mobilise ordinary citizens on the way to social reform. The state must respond promptly to their demands in order to ensure smooth functioning of society. The role of civil society in this sense has assumed special significance in recent years.

Present day concept of civil society closely corresponds to Tocqueville’s view on the role of ‘intermediate voluntary associations’. With the emergence of democracy, old centers of power were destroyed. Power was now concentrated in the hands of majority. This led to the danger of tyranny of majority. In order to protect the freedom of citizens, Tocqueville suggested a vigorous system of voluntary associations could act as counterweights to the state power. They could crystalise and publicise opinions and interests which would otherwise go unheard. Moreover, these associations could stimulate collective self-help rather than reliance on state initiative. They could draw people into cooperative ventures, breaking down their social isolation and making them aware of their wider social responsibility. They could function as ‘schools of democracy’, instilling habits of civic virtue and public spirit into their members. In short, these associations would serve as an effective instrument of defence of individual liberty and close cooperation between the citizens to solve their common problems. Tocqueville was an ardent champion of freedom of association.

Civil Society is now regarded as an important organ of democratic society. It includes a wide range of associations and social movements which provide ample opportunities to the citizens to develop their capacities and express their varying interest and diverse identities. It creates an atmosphere where the citizens are able to enjoy some level of autonomy or independence from government control or influence. It promotes a moral sense of obligation among the citizens and motivates them to participate in civic causes. It discourages their dependence on the government for the solution of their common problems. Thus t serves as the true sense of democratization.

In recent political discourse, the concept of civil society has been further refines. Jean L Cohen and Andrew Arato, in their essay civil society and political theory(1992), have defined civil society as an area of public activity distinct from both the state and the market. Paul Hirst, a British academic, has visualized civil society as a set of voluntary associations which would be the primary base of democracy. He has evolved a model of democracy in which self-governing associations would perform public functions. Robert Putnam, an American Social scientist, has suggested that the associations of civil society can create ‘social capital’ i.e. a set of social practices which involve civic engagement and ideas of reciprocity.

It is now increasingly realized that the civil society can prove to be an effective instrument to counter the citizens’ indifference toward their civic duties. Today the people seldom participate in political discussion; they are hardly interested in criticism of the government. Under the circumstances, civil society movement can motivate them to take active interest in public affairs and freely articulate their opinions. This will strengthen democracy. It would prove to be an effective instrument of removing economic inequalities and securing social justice.

Constitutional Amendments


Constitutional Amendments

A Constitution is a dynamic document. It should grow with a growing nation and should suit the changing needs and circumstances of a growing and changing people. Sometimes under the impact of new powerful social and economic forces, the pattern of government will require major changes. If the Constitution stands as a stumbling block to such desirable changes, it may under extreme pressure, be destroyed.

Jawaharlal Nehru has rightly said “………The Constitution cannot and should not be changed frequently. Obviously also, it can and must be changed when the situation requires it to be changed.”

Mulford has rightly said, “An unamendable constitution is the worst tyranny of time or rather the very tyranny of time”

A Constitution to be living must be growing; must be adaptable; must be flexible, must be changeable. Indeed, any amendment of the constitution should be justified by compelling reasons and circumstances.

Amendment Process In The Indian Constitution:

Federal Constitutions as a rule are rigid as most of them have extremely difficult and even complicated procedures of amendment. Amending a federal constitution like that of the U.S.A. and Australia is perhaps the most difficult. In Contrast, the Constitution of India presents a much simpler process.

The procedure for amendment is detailed under Article 368 of the Constitution. Article 368 (1), inserted by the Constitution (Twenty- fourth Amendment) Act, 1971, empowers the Parliament to amend by way of addition, variation or repeal, any provision of the Constitution, in accordance with the procedure, laid down in this Article.

Article 368 (2) prescribes the following procedure for amendment of the Constitution, according to this, there are three ways of amending the Constitution:

1.      Amendment by Simple Majority:

There are a good number of Articles in the Constitution which are of transitory nature. Though they can be changed by Parliament by passing a law by simple majority, technically speaking changes made therein, are not to be considered as amendment of the constitution. By simple majority is meant, simple majority of the members present and voting.

For example, changes in the names and boundaries of the states, creation or abolition of the Legislative Councils in the States, salaries and allowances of the President, Governors and Judges of the Supreme Court and High Courts, etc., can be amended by passing a law by simple majority.

2.      Amendment by Special Majority:

An amendment of the Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament. When the Bill is passed in each House by a majority of the total membership of that House and by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent. When the President gives his assent, the Constitution stands amended in accordance with the terms of the Bill.

3.      Ratification By The State Legislatures:

For the amendment of certain other provisions of Constitution, a Bill has to be passed by each House of Parliament by a majority of total membership of that House and by a majority of not less than two-thirds of the members present and voting, then the amendment must be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect is required before the amendment Bill is presented to the President for assent.

The Following provisions fall under this category:

           ·          Election of President (Art. 57)

           ·          Extent of Executive power of the Union (Art. 73)

           ·          Extent of Executive power of States (Art. 162)

           ·          Union Judiciary (Chapter IV of Part V)

           ·          High Courts in the States (Chapter V of Part VI)

           ·          Any of the Lists in the Seventh Schedule

           ·          The Representation of States in Parliament; and

           ·          Provisions dealing with amendment of the Constitution.
Substantive Amendments and Relevant Case Laws

v The Constitution (Fourth amendment) Act, 1955:

The Constitution (Fourth amendment) Act, 1955, effected momentous changes in the Constitution with effect from April 27, 1955.

Objectives: Restrictions on property rights and inclusion of related bills in Schedule 9[1] of the Constitution.

It amended Article 31 and substituted Articles 31-A[2] and 305 with a view to overcoming the decisions and observations of the Supreme Court in cases like the State of West Bengal v. Bella Banerjee.

In the above cases, the Supreme Court enunciated the doctrine

1.      That an owner must be paid full market value, as a compensation, in every case of compulsory deprivation of property, and

2.      That the Court of Law is competent to determine whether or not the quantum of compensation was adequate.

In that case, it would have been impossible for the Government to carry out great schemes of socio-economic reforms, which the state had planned to undertake. This necessitated the amendment of the relevant provisions of the Constitution.

The Constitution Fourth amendment) Act, 1955 provided that-

§  Article 13(2), which poses an adequacy of the compensation, was made no longer justiciable in any court of law.

§  Moreover, the obligation to pay compensation, under article 31(2), was restricted only to two classes of cases, namely, “acquisition and requisition” of property.

§  Finally, Article 31-A was broadened in its scope, in order to enable the Government to attain the socialistic pattern of society, which has been declared to be the goal of our constitution.

In short,

1.      Made the scale of compensation given in lieu of compulsory acquisition of private property beyond the scrutiny of courts.

2.      Authorized the state to nationalize any trade.

3.      Included some more acts in the Ninth Schedule.

4.      Extended the scope of Article 31-A.

  
v The Constitution (Sixteenth Amendment)Act, 1963:

The Constitution (Sixteenth Amendment) Act, 1963, effected changes in the Constitution with effect from October 5, 1963.

v Objectives: Make it obligatory for seekers of public office to swear their allegiance to the Indian Republic and prescribe the various obligatory templates.


It amends Articles 19, 84 and 173. Amends schedule 3.

§  The Act seeks to enable Parliament to make laws providing penalty for any person questioning the sovereignty and integrity of India.

§  Under the provisions of this amendment, a person shall not be qualified to be chosen to fill a seat in Parliament or in the Legislature of a State unless, inter-alia, he makes or subscribes before a person authorized by the Election Commission an oath or affirmation that he will bear true faith and allegiance to the Constitution and will uphold the sovereignty and integrity of India.

In short,

1.      Empowered the state to improve further restriction on the rights to freedom of speech and expression, to assemble peaceably and to form associations in the interests of sovereignty and integrity of India.

2.      Included sovereignty and integrity in the forms of oaths or affirmations to be subscribed by contestants to the legislatures, members of the legislatures, ministerts, judge and CAG of India.


v  The Constitution (Twenty Fifth Amendment)Act, 1971:

The Constitution (Twenty-Fifth Amendment) Act, 1971, effected changes in the Constitution with effect from April 20, 1972.

v  Objectives: Restrict property rights and compensation in case the state takes over private property.
It amends Article 31 and inserts 31-C

It amended article 31(2) and provided that anybody’s property may be acquired on payment of “amount” instead of “compensation”. The intention was that the citizen’s right to property should be transformed into the State’s right to confiscation and the state should be able to deprive anyone of any property, in return for any amount, payable at any time, on any terms, and the executive action, however arbitrary, or, irrational, should not be subjected to the Court’s scrutiny.”

The Constitution (Twenty-Fifth Amendment) Act, 1971 bars the jurisdiction of courts over acquisition laws in regard to the adequacy of the amount paid in lieu of take over. The word “compensation” in the case of takeover is deleted and the word “amount” is substituted.

Finally, it inserted Article 31-C, which provides that “no law giving effect to the policy of the State towards securing the principles, specified in clause (b), or, clause (c) of Article 39, shall be deemed to be void on the ground that it is inconsistent with, or, takes away, or abridges any of the rights, conferred by Article 14, Article 19, or, Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question, in any court, on the ground that it does not give effect to such policy.

Upto 1971, the position was that fundamental rights prevailed over the directive principles of State Policy and that a law enacted to implement a directive principle could not be valid if it conflicted with a fundamental right. Article 31-c sought to change this relationship to some extent by conferring primacy on Articles 39(b) and 39(c) over articles 14, 19, and 31.

In Short,

1.      Curtailed the fundamental right to property.

2.      Provide that any law made to give effect to the Directive Principles contained in Article 39 (b) or (c) cannot be challenged on the ground of violation of the right guaranteed by Articles 14, 19, and 31.



v The Constitution (Forty-second Amendment)Act, 1976:

The most comprehensive amendment made so far to the Constitution; it is known as ‘Mini- Constitution’; it gave effect to the recommendations of Swaran Singh Committee.


The Constitution (Forty-Second Amendment) Act, 1976, effected changes in the Constitution with effect from December 18, 1976.


Briefly the Amendment brings about changes in the following provisions of the Constitution: Preamble; Fundamental Rights (Article 31 and Article 32); Directive Principles of State Policy (Articles 32,43 and 48); a new part IV-A entitled “Fundamental Duties”, Union Executive (Articles 55,74 and 77); Parliament (Articles 81,82,83,100,102,103,105, and 118); Union Judiciary (Articles 131,139,144 and 145); CAG of India(Article 150); State Executive (166); State Legislature (Articles 170, 172,189,191,192,194 and 208); High Courts (Articles 217,226,227, and 228); relations between the Union and the States (Article 257); Civil Services (Articles 311 and 312); a new part entitled “Tribunals” (Article 323); Emergency Provisions (Article 352,353, 356,357,358 and 366); Amendment of the Constitution (Article 368);  Seventh Schedule (Union List, State List and the Concurrent List).


The Act inter-alia gave preponderance to the DPSP over the Fundamental Rights, established the supremacy of parliament and curtailed the powers of Judiciary. The Act was first of its kind. The Amendment was meant to enhance enormously the strength of the Government.


The major amendments made in the Constitution by 42nd Amendment Act are:

§  Preamble:

The characterization of India as ‘Sovereign Democratic Republic’ has been changed to ‘Sovereign Socialist Secular Democratic Republic’. The words ‘Unity of the nation’ have been changed to ‘‘Unity and Integrity of the nation’.


§  Parliament and State Legislatures:

The life of the Lok Sabha and State Legislative assemblies was extended from 5 to 6 years.


§  Executive:

It amended Article 74 to state explicitly that the President shall act in accordance with the advice of the Council of Ministers in discharge of his functions.


§  Judiciary:

                                   ·          The 42nd Amendment Act inserted Article 32A in order to deny the Supreme Court the power to consider the Constitutional validity of a State law.


                                   ·          Another new provision, Article 131A, gave the Supreme Court and exclusive jurisdiction to determine question relating to the constitutional validity of a Central Law.

                                   ·          Article 144A and Article 128A, the creatures of Constitutional Amendment Act made further innovation in the area of judicial review of the constitutionality of legislation. Under Article 144A the minimum number of judges of the Supreme Court to decide a question of a Constitutional validity of a Central or State law was fixed as at least seven and further, this required two-thirds majority of the judges sitting to declare a law as unconstitutional. While the power of the High Court to enforce fundamental rights remained untouched, several restrictions were imposed on its power to issue writs ‘for any other purpose.’


§  Federalism:

The Act added Article 257A in the Constitution to enable the Centre to deploy any armed force of the Union, or any other force under its control, for dealing with grave situation of law and order in any state.

§  Fundamental Rights and Directive Principles:

A major change that was made by 42nd Constitutional Amendment was to give primacy to all directive principles over the fundamental rights contained in articles 14, 19 or 31. The 42nd Constitutional Amendment added a few more directive principles free legal aid, participation of workers in management of industries, protection of environment and protection of forests and wildlife of the country.


§  Fundamental Duties:

The 42nd Amendment Act inserted Article 51-A to create a new part called IV-A in the Constitution which prescribed the Fundamental Duties to the citizens.


§  Emergency:

Prior to 42nd Amendment Act, the President could declare emergency under Article 352 throughout the country and not in a part of the country alone. The Act authorized the President to proclaim emergency in any part of the country.


The domain thrust of the Amendment was to reduce the role of courts, particularly that of the High Courts. It also sought to strengthen Parliament in various ways which in effect, added to the power of the Central Government. It drew enormous criticism particularly for it was pushed through during Emergency.


v The Constitution (Forty-Fourth Amendment)Act, 1979:

The Constitution (Forty-Fourth Amendment) Act, 1979, effected changes in the Constitution with effect from 30th April, 1979. It was enacted by the Janata Government mainly to nullify some of the other distortions introduced by the 42nd Amendment Act, 1976.


§  It reduced the life of the Lok Sabha and State Legislative assemblies again to five years and thus restored the status quo ante.

§  It cancelled the 39th amendment which had deprived the Supreme Court of its jurisdiction to decide disputes concerning election of the President and the Vice-President.

§  A new provision was added to Article 74(1) saying that the President could require the Council of Ministers to reconsider its advice to him, either generally or otherwise and the President should act in accordance with the advice tendered after such reconsideration.

§  Article 257A[3] was omitted.

§  It has been provided that an Emergency can be proclaimed only on the basis of a written advice tendered to the President by the Cabinet.

§  Right to Property has been taken out from the list of Fundamental Rights and has been declared a legal right.

§  Gave constitutional protection to publication in news paper of true reports of the proceedings of the Parliament and the state legislatures.

§  Replaced the term ‘internal disturbance’ by ‘armed rebellion’ in respect of national emergency.


v  The Constitution (Fifty-Second Amendment)Act, 1985:

The Constitution (Fifty-Second Amendment) Act, 1985 was passed to curb defection of a Member of Parliament, or, State Legislature by disqualification. It is popularly known as ‘Anti-Defection Law’.

It provided for disqualification of members of Parliament and State legislature on the ground of defection and added a new Tenth Schedule containing the details in this regard.


v  The Constitution (Sixty-Second Amendment)Act, 1990:

The Constitution (Sixty-Second Amendment) Act, 1990 extended the reservation of seats for the SC’s and ST’s and special representation for the Anglo-Indians in the Lok Sabha and the State Legislative Assemblies for the further period of ten years (i.e. up to 2000)


v  The Constitution (Seventy-Third Amendment)Act, 1992:

The Seventy-Third Constitutional Amendment Act, 1992 was passed by the Parliament on December 22, 1992 which was notified by the Central Government through Official Gazette on April 20, 1993 as it got ratification by the State legislatures and was assented to by the President of India. After notification the Panchayats Raj Institutions have now got constitutional legitimacy.

After part VIII of the Constitution a separate part IX- ‘the panchayats’ has been added to the Constitution with the addition in Article 243A and a fresh schedule called Eleventh schedule enumerating the powers and the functions of panchayats Raj Institutions has been incorporated (29 functional items).

The Act provides for Gram Sabha, a three-tier model of Panchayat Raj, Reservation of seats for SC’ and ST’s in proportion to their population and one-third reservation of seats for women.

This is a landmark Amendment of the Constitution, which provides for an elaborate system of establishing Panchayats, as units of Self-government, for the first time in the constitutional history of Independent India.


v  The Constitution (Seventy-Fourth  Amendment)Act, 1993:

The Constitution (Seventy-Fourth Amendment) Act, 1993 provides constitutional status to urban local bodies. After part VIII of the Constitution a separate part IXA- ‘the municipalities’ has been added to the Constitution with the addition in Article 243A and a fresh Schedule called Twelfth schedule enumerating the powers and functions of urban local bodies has been incorporated (18 functional items).

The Act provides Municipal Panchayat, Municipal Council, Municipal Corporation, reservation of seats for SC’s and ST’s in proportion to their population and one-third reservation of seats for women.

v  The Constitution (Eighty-Sixth Amendment)Act, 2002:

The Constitution (Eighty-Sixth Amendment) Act, 2002 came into effect on 12th December, 2002. It amends Articles 45, 51A and inserts Article 21A.

§  It made elementary education a fundamental right. The newly- added Article 21-A declares that “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may determine.”

§  Changed the subject matter of Article 45 in Directive Principles. It now reads-“The State endeavour to provide early childhood care and education for all children until they complete the age of six years.”

§  Added a new fundamental duty under Article 51-A which reads- “It shall be the duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child or ward between the age six and fourteen years.”


v  The Constitution (Ninety-Second Amendment)Act, 2003:

The Constitution (Ninety-Second Amendment) Act, 2003 came into effect on 7th January, 2004.

It amends Article 270, inserts Article 268A. It also amends Schedule 7 and 8.

The Act makes provision for amendment of the Eighth Schedule of the Constitution and includes Bodo, Dogri, Maithili and Santhali in the Eighth Schedule. Now there are 22 languages in the Eighth schedule.


Reference:

1.       Pylee, M. V., Constitutional Government in India, S. Chand, New Delhi, 2011.

2.       Kashyap, Subhash, Our Constitution, National Book Trust, New Delhi, 2009.

3.      Fadia, B. L., Indian Government and Politics, sahitya Bhavan, Agra, 2010

4.      Laxmikanth, M., Indian Polity, TATA McGRAW HILL’S, New Delhi, 2009

5.      Bakshi, P.M., The Constitution of India, Universal Law Publication Co. New Delhi, 2007

6.      Wadhwani, M.R., Indian Political System, Sheth Publications, Mumbai, 2006



[1] A new constitutional device introduced by First Constitutional Amendment Act, 1951 to protect laws that are contrary to the constitutionally guaranteed fundamental rights.
[2] Saving of laws providing for acquisition of estates, etc.
[3] Assistance to States by deployment of armed forces or other forces of the Union.