A constitution is a set of fundamental
principles or established precedents according to which a state or other
organization is governed. When these principles are written down into a single
collection or set of legal documents, those documents may be said to comprise a
written constitution.
A Constitution symbolizes independence of a
country. Framework and structure for the governance of a free country are
provided in the Constitution. The Constituent Assembly prepared the draft of
the Constitution by keeping the ‘Objectives Resolution’ as the backdrop which
reflected the aspirations of the people of India.
The Constitution of India has several
distinctive features. It is the lengthiest Constitution in the world and it is
a combination of rigidity and flexibility. The Constitution provides for a
quasi-federal (It means a federal set up where despite having two clear sets
of government – central and the states, more powers are given to the Central
Government.) set up with a strong centre.
There is a clear division of powers between
the Centre and the States. The Supreme Court of India, is the apex court of
India which will resolve the disputes between the centre and state or between
the states.
India has a parliamentary democracy. The
Council of Ministers headed by the Prime Minister enjoys the real powers and is
responsible to the Parliament. The Indian Constitution provides for Fundamental
Rights which are justifiable. Ten Fundamental Duties have also been added to
the Constitution. The Directive Principles of State Policy give a concrete
shape to the welfare concept
The framing of the Constitution was completed
on November 26, 1949 when the Constituent Assembly formally adopted the new
Constitution. The Constitution came into force with effect from January 26,
1950.
The Constitution begins with a Preamble which
declares India to be a ‘Sovereign, Socialist, Secular, Democratic, Republic’.
The Preamble also mentions the goals of securing justice, liberty and equality
for all its citizens and promotion of natio-nal unity and integrity on the
basis of fraternity among the people assuring dignity of the individual.
We need a constitution to govern a country
properly. The constitution defines the nature of political system of a country.
sometimes we feel strongly about an issue that might go against our larger
interests and the constitution helps us guard against this.
All the 3 organs of government (executive,
legislature and judiciary) functions within the constitution. All the 3 organs
of government, including ordinary citizens, derive their power and authority
(i.e. Fundamental Right) from the constitution. If they act against it, it is
unconstitutional and unlawful.
So constitution is
required to have authoritative allocation of power and function, and also to
restrict them within its limit.
Functions of the
Constitution: The
first function of a constitution is to provide a set of basic rules that allow
for minimal coordination amongst members of a society.
The second function of a
constitution is to specify who has the power to make decisions in a society. It
decides how the government will be constituted.
The third function of a
constitution is to set some limits on what a government can impose on its
citizens. These limits are fundamental in the sense that government may ever
trespass them.
The fourth function of a
constitution is to enable the government to fulfill the separations of a
society and create conditions for a just society.
Provisions taken from different Countries:
1.From U.K. - Nominal Head
– President, Cabinet System of Ministers, Post of PM, Parliamentary Type of
Govt., Bicameral Parliament, Lower House more powerful, Council of Ministers
responsible to Lower House, Provision of Speaker in Lok Sabha are adopted from
the U.K..
2.From U.S.A- Written
constitution, Appointment of Vice President, Fundamental Rights, Supreme court
are the ideas taken frm the U.S.A.
3.From Australia- The
provisions ofConcurrent List, Centre-State relationship, Language of the
Preamble are taken from Austrelia.
4.From USSR- The Provisions of Fundamental Duties, Five
year plan are taken from the USSR.
5.From Germany- The
Provisions of Emergency provisions are taken from Germany.
6.From Japan- The
Provisions of Law on which the Supreme Court functions are taken from Japan.
7.From Canada- The
Provisions of Federal System and Residuary powers are taken from Canada.
8.From South
Africa- The
Provisions of Procedure of constitutional amendment are taken from South
Africa.
9.From Ireland- The
Provisions of Concept of Directive Principles of state policy are taken from
Ireland.
Some Important Educational Articles at a
Glance:
Article 28:
According to our Constitution article 28
provides freedom as to attendance at religious instruction or religious worship
in educational institutions.
Article 29:
This article provides equality of opportunity
in educational institutions.
Article 30:
It accepts the right of the minorities to
establish and administrate educational institutions.
Article 45:
According to this article "The state
shall endeavour to provide within a period of ten years from the commencement
of this Constitution for free and compulsory education for all children until
they complete the age of 14 years."
We notice that the responsibility for
universal elementary education lies with the Central Government, the State
Governments, the Local Bodies and voluntary organisations.
Article 46:
It provides for special care to the promotion
of education and economic interests of the scheduled caste, scheduled tribes
and the weaker sections of society.
Article 337:
This provides for special provision with
respect to educational grants for the benefit of Anglo-Indian community.
Article 350A:
This article relates to facilities for
instruction in mother tongue at primary stage.
Article 350B:
It provides for a special offer for
linguistic minorities.
Article 351:
This article relates to the development and
promotion of the Hindi language.
The seventh schedule of the Indian
Constitution contains legislative powers under three lists viz. The Union List,
the State List and the Concurrent List
The Union List:
This list contains 97 subjects where the
following entries are related to education:
Entry 13:
To provide Educational and Cultural relations
with foreign countries.
Entry 62:
The institutions known at the commencement of
the Constitution as National Library, The Indian Museum, the Imperial War
Museum, the Victoria Memorial, and Indian War Memorial. Any other such
institutions financed by the Government of India wholly or in part and declared
by the Parliament by law to be an institution of national importance.
Entry 63:
Institutions of national importance. The
institution known at the commencement of this Constitution as the BHU, AMU and
Delhi University etc. declared by Parliament by law to be an institution of
national importance.
Entry 64:
The institution of scientific and technical
education financed by the Government of India wholly or in part and declared by
law to be institutions of national importance like IITs and lIMs.
Entry 65:
Union agencies and institutions for:
(i) Professional, vocational or technical
training, including the training of police officers.
(ii) The promotion of special studies or
research.
(iii) Scientific or technical assistance in
the investigation of detection of crime.
Entry 66:
Coordination and determination of standards
in the institution of higher education or research and scientific and technical
institutions.
State List:
State list consists of 66 entries, out of
which the following is the entry related to education:
Entry 12: According to this entry all libraries, museums and other similar
institutions controlled or financed by the state, ancient and historical
monuments and records other than those declared by or under law made by the
Parliament to be of the national importance.
Concurrent List:
It comprises 47 entries, among them the
following are related to education:
Entry 20:
Economic and social planning.
Entry 25:
Education, including technical education,
medical education and universities subject to provision of entries 63,64,65,66
of list (Union List).
Entry 34:
Newspapers, books and printing presses.
Reservation in Education and the
Important Areas in Detail:
Article 28 of the Constitution has made
certain provisions for the education of the minorities including
(i) No religious instruction shall be
provided in educational institutions wholly maintained out of state funds.
(ii) If any institution has been established
under any endowment trust even if administrated by state, can impart religious
education.
(iii) None person attending an educational
institution recognized by the state or receiving funds from state government
shall be required to take part in any religious worship or instruction that may
be conducted in such institutions or in any premises attached there to unless
such person or if such person in a minor and his guardian has given his consent
thereto.
(B) Cultural and Educational Rights:
Under article 29 and 30 for the protection of
educational interest of minorities viz.
(i) Article 29 (i):
Any section of citizen residing in the
territory of India on any part thereof having a distinct language, script or
culture of its own shall have the right to conserve the same.
(ii) Article 30 (i):
All minorities whether based on religion or
language shall have the right to establish and administer educational
institutions of their choice.
(iii) Article 30 (ii):
The state shall not in granting and to
educational institution discriminate against any educational institution on the
ground that it is under the management of a minority whether based on religion
or language.
(iv) To make any law providing for the
compulsory acquisition of any property of any educational institutions
established and administrated by minorities, the state shall ensure that the
amount fixed by or determined under such law for acquisition of such property
is such as would not restrict on abrogate the right guaranteed to them.
(C) Admissions:
(i) Article 29 (II) states that no citizen of
India can be denied admission into any educational institution, which is either
maintained by the state or receiving aid out of state funds oil ground only of
religion, race, caste, language or any of them.
(ii)Article 15 (III) states that to make
special provisions for women. Hence, separate educational institutions for
women can be established.
(D) Mother Tongue:
For promotion of teaching of mother tongue
the Constitution of India has made some provisions for Hindi language.
Article 350 (A):
It shall be endeavour of every state and
local authorities with the state to provide adequate faculties for instruction
in the mother tongue at the primary stage of education to children belonging to
linguistic minority groups : the President may issue directions to any state as
he considers necessary for recurring the facilities.
Article 351:
It is to promote the development of Hindi
language and slates that it shall be the duty of the Central Government to
promote the spread of Hindi language in the entire country.
(E) Right to Education:
Article 41 of the Constitution provides that
"All the citizens have equal right to education ''. It states. "The
state shall, within the limits of its economic capacity and development, make
effective provisions for the right to work, to education and to public
assistance in cases of employment, old age, sickness and disablement''.
(F) Education for Weaker
Section: 2Our Constitution has made some special provisions for the weaker
sections of our society viz.
Article 45:
The state shall endeavour to provide within a
period often years from the commencement of the Constitution for the free and
compulsory education for all children until they complete the age of 14 years.
Article 46:
The state shall promote with special care the
educational and economic interests of weaker sections of the people and, in
particular, of the scheduled caste and scheduled tribes, and shall protect them
social injustice and all forms of exploitations''.
The Supreme Court of India has given the
following guidelines to promote education of the people:
(i) The state can make regulatory measures to
promote efficiency of education.
(ii) Educational institutions of minority
groups cannot claim immunity from general laws such as contract law, labour law
and industrial law etc.
(iii) The state can take over the management
of the institutions of minority groups in case of irregularity and
inefficiency.
(iv)Teachers have the right to approach to
the Arbitration Tribunal in case of any injustice to them by the institution.
2.
Free and Compulsory Education:
The Constitution makes the
following provisions under Article 45 of the Directive Principles of State
Policy that, “The state shall endeavour to provide within a period of ten years
from the commencement of this Constitution, for free and compulsory Education
for all children until they complete the age of fourteen years.”
The expression ‘State’ which
occurs in this Article is defined in Article 12 to include “The Government and
Parliament of India and the Government and the Legislature of each of the
States and all local or other authorities within the territory of India or
under the control of the Government of India.” It is clearly directed in
Article 45 of the Constitution that the provision of Universal, Free and
Compulsory Education becomes the joint responsibility of the Centre and the
States.
In the Constitution it was laid
down that within 10 years, i.e., by 1960 universal compulsory education must be
provided for all children up to the age of 14, But unfortunately, this
directive could not be fulfilled. Vigorous efforts are needed to achieve the
target of 100 percent primary education. The Central Government needs to make
adequate financial provisions for the purpose. At the present rate of progress
it may, however, be expected that this directive may be fulfilled by the end of
this century.
Education
of Minorities: Article 30 of the Indian Constitution relates to certain
cultural and educational rights to establish and administer educational
institutions.
It lays down:
(i) All minorities whether
based on religion or language, shall have the right to establish and administer
educational institutions of their choice.
(ii) The state shall not, in
granting aid to educational institutions, discriminate against any educational
institution on the ground that it is under the management of a minority,
whether based on religion or language.
3.
Language Safeguards:
Article 29(1) states “Any
section of the citizen, residing in the territory of India or any part there of
having a distinct language, script or culture of its own, hall have the right
to conserve the same.” Article 350 B provides for the appointment of special
officer for linguistic minorities to investigate into all matters relating to
safeguards provided for linguistic minorities under the Constitution.
4.
Education for Weaker Sections:
Article 15, 17, 46 safeguard
the educational interests of the weaker sections of the Indian Community, that
is, socially and educationally backward classes of citizens and scheduled
castes and scheduled tribes. Article 15 states, “Nothing in this article or in
clause (2) of Article 29 shall prevent the state from making any special
provision for the advancement of any socially and educationally backward
classes of citizens or for the scheduled castes and the scheduled tribes.”
Under Article 46 of the
Constitution, the federal government is responsible for the economic and
educational development of the Scheduled Castes and Scheduled Tribes
It states. “The state shall
promote with special care the educational and economic interests of the weaker
sections of the people and in particular, of the Scheduled castes and Scheduled
Tribes and shall protect them from social injustice and all forms of
exploitation.” It is one of the Directive Principles of State Policy.
5.
Secular Education:
India is a secular country. It
is a nation where spirituality based on religion, had always been given a high
esteem. Under the Constitution, minorities, whether based on religion or
language, are given full rights to establish educational institutions of their
choice. Referring to the constitutional provisions that religious instructions
given in institutions under any endowment or Trust, should not be interfered
with even if such institutions are helped the State.
Article 25 (1) of the
Constitution guarantees all the citizens the right to have freedom of
conscience and the right to profess, practice and propagate religion.
Article 28 (1) states, “No
religious instruction shall be provided in any educational institution if
wholly maintained out of state fund.”
Article 28 (2) states, “Nothing
in clause (1) shall apply to an educational institution which is administered
by the State but has been established under any endowment or Trust which
requires that religious instruction shall be imparted to such institution.”
Article 28 (3) states, “No
person attending any educational institution by the state or receiving aid out
of state funds, shall be required to take part in any religious instruction
that may be imported in such institutions or to attend any religious worship
that may be conducted in such institution or in any premises attached thereto
unless such person or, if such person a minor, his guardian has given his
consent thereto.”
Article 30 states, “The state
shall not, in granting aid to educational institution maintained by the State
or receiving aid out of State funds, on grounds only of religion, race, caste,
language or any of them.”
6.
Equality of Opportunity in Educational Institutions:
Article 29(1) states “No
citizen shall be denied admission into any educational institution maintained
by the State or receiving aid out of State funds, on grounds only of religion,
race, caste, language or any of them.”
The Fundamental Rights of the
Indian Constitution has also adopted the fourfold ideal of justice, Liberty,
Equality and Fraternity. Our Constitution laid down that in the eyes of law,
everyone should have an equal status, to no one the justice be denied, everyone
should have liberty of thought, expression.
The fundamental right of
equality clearly signifies that in the eyes of law no distinction can be made
on the basis of any position, caste, class or creed. Side by side the right of
equality of opportunities to all is also provided. The equality of opportunity
is meaningless, unless there are equal opportunities for one’s education.
The well-known Kothari
Commission, 1964-66 recommended that Central Government should undertake the
responsibility in education for the equalization of educational opportunities
with special reference to the reduction of inter-state differences and the
advancement of the weaker section of the community.
7.
Instruction in Mother -Tongue:
There is diversity of languages
in our country. After the dawn of Independence, Mother- Tongues have received
special emphasis as medium of instruction and subjects of study. In the
Constitution of India, it has been laid down that the study of one’s own
language is a fundamental right of the citizens.
Article 26 (1) states, “Any
section of the citizens, residing in the territory of India or any part there
of, having a distinct language, script or culture of its own, shall have the
right to converse the same.”
Article 350 A directs, “It
shall he endeavour of every state and every local authority to provide adequate
facilities for instruction in the mother-tongue at the primary stage of
education to children belonging to linguistic minority groups.”
Secondary Education Commission,
1952-53 recommended that the mother tongue or the regional language should
generally be the medium of instruction throughout secondary school stage
subject to the provision that for linguistic minorities, special facilities
should be made available. Kothori Commission, 1964-66 has also said that at
college and university stage, mother-tongue should be the medium. The medium of
instruction at school level is already mother-tongue. This is not a new
proposal.
8.
Promotion of Hindi:
The Indian Constitution makes
provision for the development and promotion of Hindi as national language.
Article 351 enjoins the Union, the duty to promote the spread of the Hindi
language.
Hindi
accepted as the Official Language of India as laid down by the Constitution in
following words:
“It shall be the duty of the
Union to promote the spread of the Hindi language, to develop it so that it may
serve as a medium of expression of all the elements of the composite culture of
India.” In practice, Hindi is already largely in use as a link language for the
country. The educational system should contribute to the acceleration of this
process in order to facilitate the movement of student and teacher and to
strengthen national Unity.
9.
Higher Education and Research:
Parliament has the exclusive
rights to enact legislation in respect of institutions and Union Agencies
mentioned in entries 63, 64, 65, and 66 of List. The entries which give
authority to the Government of India in education are mentioned below:
Entry
63 of the Union List:
The institutions known at the
commencement of this Constitution as the Banaras Hindu University, the Aligarh
Muslim and the Delhi University, and any other institution declared by
Parliament by law to be an Institution of National importance.
Entry
66 of the Union List:
Co-ordination and determination
of standards in institution for higher education or research and scientific and
technical institutions.
10.
Women’s Education:
One of the unique features of
Modem Indian Education is the tremendous advancement of Women’s Education.
Education of the girls is considered to be more important than that of the
boys.
The
Constitution makes the following provisions under different articles:
Article 15(1) provides that the
State shall not discriminate any citizen on groups only of sex.
Article 15 (3) reads: ”Nothing
in this article shall prevent the State from making any special provision for
women and children.”
The well-known National Policy
on Education was concerned about the status and education of women in the
country. It envisages that education would be used as a strategy for achieving
a basic change in the status of women. It opined that the national system of
education must play a positive role in this direction.
The Policy states, “Education
will be used as an agent of basic change in the status of women. In order to
neutralize the accumulated distortions of the past, there will be a well
conceived edge in favour of women.”
11.
Education in the Union Territories:
Article 239 of the Constitution
states, “Save as otherwise provided by Parliament by Law, every Union Territory
shall be administrator by the president acting to such extent as he thinks fit
through an administrator to be appointed by him with such designation as he may
specify.”
12.
Educational and cultural relations with foreign countries:
Entry 13 of the Union List
deals with the Participation in international conferences, associations and
other bodies .
Conclusion:
All the provisions regading education are
enshrined in the Constitution of our country and the Constitution guarantees
all the provisions. But only such provisions related to the fundamental rights
are enforceable by the court of Law and the provisions based on the directive
Principles of State Policy are not enforceable by the court. Hence the success
of all these provisions lies on the good will of the government. So artcle 21
which guaratees Free and compulsory education to the children of age group of 6
to 14 years being the fundamental Right is important as violation of which is
punishable in the court of law. Article 51 clarifying the duties of the parents
of the children of age group between 6 to 14 years to provide education being
declared as the national duty is considered an important provision of the
Constitution of India. What is more important is public consciousness to pursue
all these provisions lawfully.
Reference:
[1] C.A.D. Vol. 9, page 177
[2]Sarkariya report
[3]Samsher Singh v. State of Punjab,
AIR 1974 SC 2192(paras 55,138)
[4] Durga Das Basu, Shorter
Constitution of India, 14th edition, Vol. 2, 2009, Pg. 2166
[5] ibid
[6] AIR 1977 SC 1361 (paras
169, 188A, 201)
[7] H.M. Seervai,
constitutional law of india, 4th edtn. Vol. 3, 2006 Pg. 3092
[8] AIR 1968 P&H 441 (paras
11,12)
[9]AIR 1974 Or. 52
[10] Sarkaria Commission
Report, http://interstatecouncil.nic.in/Sarkaria/CHAPTERVI.pdf; visited on 02.01.2016s
[11] ibid
[12]Soli Sorabjee; Constitutional
Morality Violated in Gujarat, Indian Express, Pune, India, Sept. 21, 1996
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