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Constitutional Law of India 1 - CCSU
Constitutional Law of India 1 - CCSU
Q. What is the nature of Indian Constitution? On what grounds is its spirit of federalism
challenged? Mention its important features.
Typically, democratic constitutions are classified into two categories - Unitary and Federal. In a unitary
constitution, all the powers are concentrated in a central authority. The states or the constituents of the
country are subordinate to such central authority. In a federal constitution, powers are distributed among
the center and the states. States are not subordinates of the center. According to Prof. Wheare, the
constitutions of USA, Australia, and Switzerland are prime examples of a federal constitution.
Dr. Ambedkar has categorically said in Constituent Assembly discussions that notwithstanding certain
provisions that centralize the powers, Indian Constitution is essentially federal. Prof. Wheare and some
other academicians, however, are hesitant in calling it a federal constitution and prefer to term it as
"quasi-federal" or "federal with strong centralizing tendency".
Though, it should be noted that even prof. Wheare accepts the existence of certain provisions in the
American constitution, such as dependence of Senate on States, that are contrary to federal character.
However, he says that while the principles of federalism should be rigid, the terminology of "federal
constitution" should be wide. A constitution should be called federal if it displays federal character
predominantly.
All the above characteristics are present in the Indian Constitution. However, there are certain provisions
that affect its federal character.
4. Emergency Provisions
Center has the power to take complete control of the State in the following 3 situations :
In all the above cases, an elected state government can lose control of the state and a central rule can be
established. In the first case, it is very clear that such a provision is not only justified but necessary to
protect the existence of a state. A state cannot be left alone to defend itself from outside aggression. In the
third case also, it is justified because a financial emergency could cause severe stress among the
population, plunge the country into chaos and jeopardize the existence of the whole country. Such
provisions exist even in USA. The second provision is most controversial. It gives the center the power to
take over the control of a state. However, such an action can be taken only upon the advice of the
governor and such an advice is not beyond the purview of the Supreme Court. In a recent case, Supreme
court ruled that the imposition of Presidential rule in the state of Bihar was unconstitutional.
Thus, it can be safely said that Indian Constitution is primarily federal in nature even though it has unique
features that enable it to assume unitary features upon the time of need.
1. Longest written constitution - 447 articles, 26 parts, 12 schedules. Original US constitution had 7
articles and Australia had 128.
2. Establishment of sovereign, socialist, secular, democratic, republic.
4. Emergency Provisions
5. Single Citizenship
7. Economic Democracy
8. Other features
3. Fundamental Duties
Q. What do you understand by fundamental rights? Discuss with respect to Indian Constitution.
The history of legally enforceable fundamental rights probably starts from Magna Carta, which was a list
of rights extracted from Kind John by the people of England in 1214 AD. This was followed by the "Bill
of Rights" in 1689 in which Englishmen were given certain civil and political rights that could not be
taken away. Later on the French compiled the "Declaration of the rights of Man and of the Citizen" after
the French Revolution in 1789.
The most important advancement in history of fundamental rights occurred when the USA incorporated
certain fundamental rights in the form on "Bill of Rights" in their constitution by the way of first 10
amendments. These rights were deemed to be beyond the vagaries of politics. The protection by the
constitution meant that these rights could not be put to vote and were not dependent on the whims of
politicians or of the majority.
After this, nearly all democracies of the world have given a constitutional sanctity to certain inalienable
rights available to their citizens.
3. Quantification of Freedom
Even citizens in gulf countries or communist countries are free. Then how is our freedom different from
theirs? The list of fundamental rights is a clear measurement for how free we really are. As an example,
every Indian citizen in free to practice a religion of his choice, but that is not so in the gulf countries. Our
right to speech and expression allows us to freely criticize the govt. but this is not so in China.
ex-post facto law : A person can only be with charged with an offence of an action if the said
action was illegal as per the law of the time when the action was committed.
double jeopardy: A person cannot be charged with the same crime if he has already been
produced before the court and a verdict has been pronounced.
Art. 21, which is the most important and diverse of all the rights to freedom, is the Protection of Life and
Personal Liberty. SC in Menaka Gandhi v Union of India AIR 1978 was a landmark case that
gave wide interpretation of this right. In this case the SC held that his right is not only about having any
kind of life but a life of dignity. The freedom is not just physical but mental as well as spiritual. This
encompasses several rights such as right to travel abroad ( Satvant Singh v Ass. Passport Office AIR
1967) and right to pollution free water and air ( Subhash Kumar vs State of Bihar AIR 1991) . Further,
Constitution Amendment Act 86, 2002 makes free and compulsory education to children under 14 a
fundamental right.
Art. 22 gives protection from illegal arrest or detention. It provides that a person must be informed of the
grounds of arrest as soon as possible, be allowed to speak to a lawyer of his choice, and be produced
before a magistrate within 24 hrs of detention.
Critical Analysis
Indian Constitution was written after a through analysis of existing constitution of the world. The framers
of the constitution have incorporated the good things from all the places. As such it is more fair and
consistent than religious books. It is for the foresight of the framers of the constitution that the country is
integrated and has progressed. While the framers had thought about a lot of things, the one thing that they
probably missed was the safeguards against the degrading morality of politicians.
Q. What do you understand by freedom of speech and expression? What restrictions can be applied
on it?
Freedom of speech and expression is the most basic of all freedoms granted to the citizens of India. J
Patanjali Shastri has said in the case of Romesh Thaper vs State of Madras AIR 1950 SC that freedom
of speech and that of the press lay at the foundation of a democratic society, for without free political
discussions, no public education is possible, which is so important for the proper functioning of the govt.
It allows us to freely express our ideas and thoughts through any medium such as print, visual, and voice.
One can use any communication medium of visual representation such as signs, pictures, or movies.
Freedom of speech would amount to nothing if it were not possible to propagate the ideas. Th us, the
freedom of publication is also covered under freedom of speech. Freedom of speech serves 4 purposes -
This right is not only about communicating your ideas to others but also about being able to publish and
propagate other people's views as well. Thus, freedom of speech and expression is linked to the people's
right to know. Freedom of speech and expression is a broad term and encompasses several things. The
following are important cases that have determined the extent of this right from time to time.
Right to Know
Prabhu Datt vs Union of India SC AIR 1982 : SC held that right to know news and information about
the functioning of the govt. is included in the freedom of press.
Union of India vs Association for Democratic Reforms SC AIR 2002 : SC held that people have right
to know about the candidate before voting. Thus, the law preventing the Election Commission from
asking for a candidates wealth, assets, liabilities, education and other such information, is invalid.
LIC vs Manubhai D Shah SC AIR 1992 : In this case, Manubhai wrote an article in LIC's magazie
about the problems with LIC that affected policy holders. LIC published a response to that but did not
give a chance to public a rejoinder. SC held that LIC being a State as per Art 12, must publish his
response. It also held that it does not mean every body has a right to publish in a magazine and this right
should be determined on a case by case basis.
Secretary, Ministary of I & B vs Cricket Association of Bengal SC AIR 1995 : In this historic
judgment, SC has held that one has the right to publicize his expression as well. A game of cricket is an
expression and the organizers have a right to propagate it every where in the world. So Doordarshan must
provide its uplinking facilities to CAB for transmitting the signals out of country. Art 19 (2) does not
allow restrictions on 19 (1) (a) on the grounds of creating monopoly of the govt.
Tata Press Ltd. vs MTNL SCC 1995 SC: In this case, SC held that commercial advertisement is
protected under freedom of speech.
Every human desires to do many things. However, in a civil society such desires must be curbed to
certain extent in respect of similar desires of other human beings. Thus, no right is an absolute right. Art
19 (2) says that nothing in Art 19 (1) (a) shall affect the operation of any law or prevent the state from
making any law, in so far as such law imposes reasonable restrictions on exercise of the right conferred
by the said clause in the interest of -
public order
defamation
contempt of court
incitement of an offence.
In the original version of this article several grounds such as public order, friendly relations with foreign
states, incitement of an offences were not there. After the historic judgement in the case of Romesh
Thaper vs State of Madras SC AIR 1950, these grounds were added. In that case, Madras Govt.
prevented the entry an circulation of the new paper 'Cross Roads' published by Romesh Thaper, in the
state of Madras. It argued that the circulation of the paper affects public safety. However, SC held that
the public safety falls outside the scope of 19 (2) and thus the govt action was invalid. This decision
prompted the govt. to amend the constitution to include additional grounds as mentioned above.
It is important to note that the current clause mentions the words "reasonable restrictions". Thus, any law
restricting the freedom of speech and expression must satisfy the grounds mentioned in 19(2) and must
also satisfy the criteria of reasonableness. Reasonable restriction means intelligent care and discussion
that the restriction is not beyond what is required for public interest. It should not be arbitrary and
excessive. Further, the restriction can only be imposed by law and not by executive or departmental
decision.
1. It is the courts and not the legislature that will decide whether a law is reasonable or not.
2. Reasonable means that the law is not arbitrary and the restriction is not beyond what is required
in public interest. The time and duration of the restriction cannot be unlimited.
3. There is no fixed standard for reasonableness. Each case must be decided on its own merits.
4. The restriction must be reasonable from substantiative as well as procedural stand point.
6. The test of reasonability must be objective in the sense that it does not matter what a Judge or
Court thinks what is reasonable but what a normal reasonable person would think.
7. The restriction must have a relation to the object that is sought through the law and must not be
excessive.
8. It is the reasonableness of the restriction that a count has to determine and not the reasonableness
of the law itself.
CPI (M) vs Bharat Kumar AIR 1998 SC : In this case SC has held that bundhs called by various
political parties are illegal because they prevent the citizens from exercising their right to freedom. I
Ranjit Udeshi vs State of Mah. AIR 1965 SC : In this case, a bookseller was prohibited from selling
book containing obscene material.
Hamdard Dawakhana vs Union of India AIR 1960 SC : In this case, SC held that obnoxious and
fraudulent advertising is not protected under freedom of speech.
Critical Analysis
Freedom of speech and expression is indeed the most important of all freedoms. However, today, this
right is being routinely suppressed under the guise of morality and decency or public order. Even a slight
criticism of a public leader or past king causes the political parties to involve in damage of public
property. Any book that talks about problems in a religion is banned in the name of public order. It is
extremely unfortunate that the executive, instead of the upholding peoples' right to speech and expression
by preventing unscrupulous element from hurting the author, is more interested in stifling the voice by
banning their works. By doing this they are not doing their job responsibility.
Q. How is the independence of the judiciary ensured? Describe the various jurisdictions of the
Supreme Court of India. Explain the writ jurisdiction of a High Court. What is meant by Judicial
Review?
India has adopted a federal constitution with distribution of powers between center and the states. An
independent judiciary is the essence of the federal character of the constitution. It is imperative that the
judiciary be impartial and independent of the legislative and executive branches of the country to ensure
the functioning of the government in accordance with the constitution. The supreme court, being the
guardian of the constitution, ensures that the fundamental rights of the citizens are not violated. To let the
judiciary fulfill this big responsibility efficiently, the constitution has provided several measures that
ensure the independence of the judiciary. However, owing to the nature of Indian politics, there have been
several attempts by the govt. to extend its supremacy over the judiciary and to reduce its independence.
To understand the dynamics between the govt. and the judiciary, we need to look at the provisions present
in the constitution.
To be appointed as a judge of the supreme court, a person must be a citizen of India and
a) has been a Judge of a High Court for 5 yrs .
b) has been an advocate of a High Court for 10 yrs.
c) in the opinion of the president, a distinguished Jurist.
Until 1973, the senior most judge of the supreme court was appointed as the Chief Justice. However, this
convention was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior judges.
This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded that the word
"consult" does not mean that the president is bound by the advise. He is free to make his own decision.
In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the transfer of a Judge
from one high court to another under art 222, SC held that the President has the right to differ from the
advice provided by the consultants.
As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC and High
Courts are fairly free from executive control. This is an important factor that ensure the independence of
the judiciary.
The following are other provisions that work towards the same goal:
1. Fixed Tenure
A SC Judge has a fixed tenure until retirement age. He cannot be removed except by a presidential order
passed with a simple majority as well as by 2/3 majority of each house of the parliament present and
voting.
No judge has ever been removed by a presidential order in India. The proceedings to remove were started
to Justice V Ramaswamy, but the motion was not approved because lack of required majority.
In the case of C Ramachandran Iyer vs A N Bhattacharjee 1995, pressure was put the the local bar
association on the judge to resign. In this case, the SC held that only the Chief Justice of the SC can be
the prime mover of the action against erring judges. Thus, after this case, action against judges was
allowed only through in-house procedures of the judiciary.
2. Salary
The salary of the judges cannot be changed after the appointment for their disadvantage.
3. Jurisdiction of the courts
The jurisdiction of the SC can be increased but not decreased i.e. their power cannot be curtailed.
4. Art 121
No discussion about the judges in the parliament is permitted as per art 121 except for the discussion
about his removal.
Under original jurisdiction, individuals cannot bring a suit again Govt. of India. The suit must involves a
question of law or fact on which a legal right depends. Further, the suit cannot be because of any
commercial relation or political relation between the two parties.
In the case of State of Karnataka vs Union of India 1978, SC held that the suit filed by State of
Karnataka against the Govt. regarding its objection to the appointment of an inquiry commission is
maintainable.
In the case of Union of India vs State of Rajasthan 1984, it was held that a suit to recover damages
under Railway Act is not maintainable. SC's original jurisdiction is not attracted for ordinary commercial
disputes.
The following are some exceptions under which SC does not have jurisdiction:
1. Any treaty, covenant, sanad, agreement, or any such instrument that was executed before the
commencement of the constitution, and which is still in operation or provides that the jurisdiction of SC
does not extend to such a dispute.
2. The parliament by law may restriction the jurisdiction of SC in disputes related to use, distribution, or
control of the water or an interstate river or river valley.
3. Any matter referred to the Financial Commission.
4. Matters related to the adjustment of the expenses between the center and the state.
Krishnaswamy vs Governer General in Council 1947 - If there is a difference of opinion among High
Courts and if there is no direct decision by SC on that point, it is a substantial question of law that
can permit appeal in SC.
Madan Gopal vs State of Orrisa 1956 - The pecuniary value of a dispute is immaterial. There may be
matters which cannot be measured in money but the decision could have a far reaching effect and such
cases can be permitted to be appealed in SC.
2. With Certificate
If the High Court certifies that this is a fit case for appeal to SC.
Siddheshwar Ganguly vs State of WB 1958 - In this case SC issued guidelines for issuing certificated
under 134A. A mere question of fact is not enough but it must also involve a substantial question of law.
Art 135 Federal Court's (the one that existed before the commencement of the constitution) jurisdiction to
be exercised by the SC.
Art 139 A
Under this article the SC has the power to withdraw before itself any case or cases from High Courts if it
feels that these cases involves the same or similar question of law that is of general importance.
Union of India vs SGPC 1986 - SC may transfer a case from one High Court to another under art 136 if
it feels that the case cannot be dealt with fairly in one High Court due to exceptional circumstances.
In re Kerala Education Bill 1953, SC has interpreted the word "may" in clause 1 as it is not bound to
give its opinion. If it has a good reason, it may refuse to express its opinion.
In re Special Courts Bill 1979 case, SC has held that opinions given by it under this jurisdiction are
binding on all courts in the country.
In re Cauvery Disputes Tribunal 1992, SC declared that the ordinance passed by the State of Karnataka
to not follow the order of the tribunal to release water to TN, is unconstitutional.
In the landmark case of Ayodhya Dispute and Advisory opinion 1994, the SC refused to express its
opinion on whether a temple existed on the disputed location because it was superfluous, unnecessary,
and favors a particular religion.
Art 141
Judgement of the SC is binding on all courts, except itself. In the case of Bengal Immunity Co vs State
of Bihar. 1955, SC held that the principle of Stare decisis is not an inflexible rule of law and cannot be
used to perpetuate errors.
Writ Jurisdiction of High Courts
The constitution gives wide powers to all High Courts to ensure that injustice is not tolerated in any
sphere. Art 226 provides that notwithstanding anything in article 32 every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
It is important to note that the power is not only to enforce fundamental rights but for any other purpose,
which makes its powers even wider than Supreme Court. Here, any other purpose means any legal right
of legal duty.
In a landmark case of L Chandra Kumar vs Union of India AIR 1997, SC has held that the power of
judiciary over legislative action vested in a High Court is a basic feature of the constitution and cannot be
removed through constitutional amendment.
Natural Justice
Natural Justice is not exclusively the principle of administrative law. The courts are also bound by the
same principle. Every administrative action must be supported by reasons. The reasons must be recorded
to ensure that there is no arbitrariness.
Territorial extent of writ jurisdictions
Art 226 imposes two limits on HC's writ. First, it can run only in the territorial jurisdiction of the High
Court and secondly the person or authority must lie in that jurisdiction.
In the case of Election Commision of India vs Venkata Rao, AIR 1975 SC held that Madras High
Court cannot issue a writ to ECI because it is based in New Delhi and so is out of its jurisdiction. The law
commission recommended that these are serious limitations and they defeat the very purpose of this
article. So it was amended by 15th amendment in 1963. High Court can now issue a writ even to a central
authority if the cause of action in whole or part arises in its jurisdiction.
In the case of ONGC vs Utpal Kumar Basu SCC 1994, it was held that the averment in the petition did
not disclose that a part of the cause of action arose in the jurisdiction of Calcutta and so High Court does
not have any jurisdiction to entertain the writ petition.
Judicial Review
The concept of Judicial Review started from the case of Marbury vs Madison in 1800 in the USA. In
this case, justice John Marshall held that judiciary has inherent power to review actions by legislature
even if no explicit provision is given in the constitution.
Indian Situation
By adopting a written constitution and an independent judiciary, India has provided the rule of law
instead of rule on men to the citizens. However, the rule of law will be rendered useless if the legislature
is able to make laws that violate the fundamental rights of the citizen. Thus, the constitution in Art 13 has
provided the judiciary with the power to review laws made by the legislature. This is called Judicial
Review.
Art 13 says:
1. All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent
of such inconsistency, be void.
2. The State shall not make any law which takes away or abridges the rights conferred by this Part
and any law made in contravention of this clause shall, to the extent of the contravention, be void.
o (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or
usage having in the territory of India the force of law;
o “laws in force” includes laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas.
4. Nothing in this article shall apply to any amendment of this Constitution made under article 368.
In the case of L Chandra Kumar vs Union of India SC AIR 1997 held that the power vested in SC by
art 32 and High Court by art 226 over legislative action is a basic feature.
Doctrine of Severability
AK Gopalan vs State of Madras SC AIR 1950 : Only section 14 of Preventive detention act is void and
not the whole act.
Doctrine of Eclipse
Bhikaji vs State of MP SC AIR 1955: Applies to pre-constitutional law
Deep Chand vs State of UP SC AIR 1959: Does not apply to post - constitutional law.
State of Gujrat vs Ambika Mills SC AIR 1974 : Applies to post constitutional law for non-citizens.
Dulare Lodh vs 3rd additional district judge SC AIR 1984: Applies to post constitutional law as well.
Doctrine of Waiver
Basheshar Nath vs Income tax commissioner SC AIR 1959 : Citizen cannot waive right.
Meaning of Law
Keshavanand Bharati vs State of Kerala SC AIR 1973: Rules and regulations made under legislative
power and not amendments.
Q. What is the procedure for amending the constitution? On what grounds an amendment may be
held ultra vires by the Supreme Court?
A rigid constitution is a must in a federal system of governance. In case of Indian constitution, it has been
argued that it is not rigid enough. That there have been 93 amendments in last 50 years proves this fact.
As a comparison, there have been only 27 amendments in the constitution of USA in the past 200 years.
This has been done deliberately to ensure that the constitution can be changed as per the needs of the
times. However, to prevent excessive changes on the whims of the ruling party, sufficient safeguards have
been put.
The procedure of amending the constitution is given in Article 368. It says that the parliament can amend
the constitution under its constituent power. A bill must be presented in either house of the parliament and
must be approved by a majority of each houses and not less than 2/3 majority of each house present and
voting. After such approval the bill is presented to the president for his assent, upon whose assent the
constitution shall stand amended as per the provisions of this article. However, if the amendment seeks to
make a change in
the bill must also be ratified by not less than half of the states before it is presented to the president for his
assent.
For amending articles 5, 169, or 239-A, only a simple majority of both the houses of the parliament is
required.
This logic was first tested by the Supreme Court in the case of Shankari Prasad vs Union of India AIR
1951. In this case, an amendment to add art 31 A and 31 B to the constitution was challenged on the
ground that they take away fundamental right of the citizens and therefore not allowed by article 13. It
was argued that "State" includes parliament and "Law" includes Constitutional Amendments. However,
SC rejected the arguments and held that power to amend the constitution including fundamental rights is
given to the parliament by art 368 and that "Law" is art 13 refers only to ordinary law made under the
legislative powers.
In the case of Sajjan Singh vs State of Raj. AIR 1965, SC followed the judgement given in the case of
Shankari Prasad and held that the words "amendment of the constitution" means amendment of all
provisions of the constitution.
However, in the case of Golak Nath vs State of Punjab, AIR 1971, SC reversed its previous judgement
and held that parliament has no power from the date of this judgement to amend part III of the
constitution so as to take away any fundamental right. It held that "amendment" is a law as meant under
art 13 and so is limited by art 13(2).
To overcome the judgement in the case of Golak Nath, the parliament added another clause in art 13by
the 24th amendment in 1971 It says that this article does not apply to the amendment of the constitution
done under art 368. A similar clause was added in art 368 for clarity in the same amendment, which says
that amendment done under art 368 shall not come under the purview of art 13.
This amendment itself was challenged in the case of Keshavanand Bharati vs State of Kerala AIR
1973. In this case, SC reversed its judgement again and held that "Law" in art 13 only means ordinary law
made under legislative power, The 24th amendment is only clarifying that position and so it is valid.
However, it further held that "amendment" means that the original spirit of the constitution must remain
intact after the amendment. Thus, the basic structure or features of the constitution cannot be changed.
According to C J Sikri, the basic structure of the constitution includes - Supremacy of the Judiciary,
democratic republic, secularism, separation of powers among judiciary, legislative, and the executive, and
the federal character of the constitution.
This judgement was delivered by 7:6 majority and is one of the most important judgements in the history
of independent India. The effect of this judgement can be seen in the case of Indra Sawhney vs Union of
India 1993, where SC prevented the politicians from running amok in the matter of reservation. It this
case it held that inclusion of creamy layer violates the fundamental right of equality, which is a basic
feature of the constitution and so its inclusion cannot be permitted even by constitutional amendment.
Conclusion
During Constituent Assembly Discussions, it was noted that rigid constitutions such as that of USA cause
a lot of problems and is undesirable. Dr. Ambedkar said that flexible federation is a distinguished feature
of the constitution. In the hindsight, it can be said that the safeguards to prevent the spirit of the
constitution were not enough. Politicians have time and again shown that they can modify it easily to
serve their vote based politics.
Q. Explain the emergency provisions of the constitution. What do you understand by proclamation
of Emergency? Describe various types. What are the effects of emergency on fundamental rights?
What are the effects of emergency arisen out of the failure of the constitutional machinery in a
state? What changes have been made by the 44th amendment regarding emergency provisions?
Emergency is a unique feature of Indian Constitution that allows the center to assume wide powers so as
to handle special situations. In emergency, the center can take full legislative and executive control of any
state. It also allows the center to curtail or suspend freedom of the citizens. Existence of emergency is a
big reason why academicians are hesitant to call Indian constitution as fully federal. Emergency can be of
three types - Due to war, external aggression or armed rebellion, failure of constitutional machinery in a
state, or financial emergency. However, technically, Proclamation of Emergency is only done upon
external aggression or armed rebellion. In the second case, it is called Presidential Rule, and in the third
case it is called "Proclamation of Financial Emergency:
Proclamation of Emergency
Art 352 says that if the President is satisfied that a grave emergency exists whereby the security of India
or any part of India is threatened due to outside aggression or armed rebellion, he may make a
proclamation to that effect regarding whole of India or a part thereof.
However, sub clause 3 says that President can make such a proclamation only upon the written advise of
the Union Cabinet. Such a proclamation must be placed before each house of the parliament and must be
approved by each house with in one month otherwise the proclamation will expire.
An explanation to art 352 says that it is not necessary that external aggression or armed rebellion has
actually happened to proclaim emergency. It can be proclaimed even if there is a possibility of such thing
happening.
In the case of Minerva Mills vs Union of India AIR 1980, SC held that there is no bar to
judicial review of the validity of the proclamation of emergency issued by the president under
352(1). However, court's power is limited only to examining whether the limitations conferred by
the constitution have been observed or not. It can check if the satisfaction of the president is valid
or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction
at all.
Prior to 44th amendment, duration of emergency was two months initially and then after approval
by the houses, it would continue indefinitely until ended by another proclamation. However after
44th amendment, the period is reduced to 1 month and then 6 months after approval.
1. executive power of the Union shall extend to giving directions to any state.
2. parliament will get power to make laws on subjects that are not in Union list.
3. if the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to any
other part if that is also threatened.
Art 354
Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as deem fit by
the president. Every law such made shall be laid before each house of the parliament.
Art 355 says that it is the duty of the Union to protect States against external aggression.
Art 358
While proclamation of emergency declaring that security of India or any part of the territory of India is
threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In
other words, govt may make laws that transgress upon the freedoms given under art 19 during such
emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every such
law or very executive action that transgresses upon freedoms granted by art 19 must recite that it is in
relation to the emergency otherwise, it cannot be immune from art 19.
It also says that any acts done or omitted to be done under this provision cannot be challenged in the
courts after the end of emergency.
In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted by 14 to
19 are not suspended during emergency but only their operation is suspended. This means that as soon as
emergency is over, rights transgressed by a law will revive and can be enforced. In this case, a settlement
that was reached before emergency between LIC and its employees was rendered ineffective by a law
during emergency. After emergency was over, SC held that the previous settlement will revive. This is
because the emergency law only suspended the operation of the existing laws. It cannot completely wash
away the liabilities that preexisted the emergency.
Art 359
This article provides additional power to the president while proclamation of emergency is in operation,
using which the president can, by an order, declare that the right to move any court for the enforcement of
rights conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is in
operation of a shorter period as mentioned in the order. Further, every such law or every executive action
recite that it is in relation to the emergency.
In the case of Makhan Singh vs State of Punjab AIR 1964, SC distinguished between art 358 and 359
as shown below:
Art 83(2) While the proclamation is in operation, the president may extend the normal life of the Lok
Sabha by one year each time up to a period not exceeding beyond 6 months after proclamation ceases to
expire.
Art 356 says that if, upon the report of the Governor of a state, the president is satisfied that the govt. of
the state is cannot function according to the provisions of the constitution, he may, by proclamation,
assume to himself all or any of the functions of the govt, or all or any of the powers vested in the
governor, or anybody or any authority in the state except the legislature of the state. The power of the
legislature of the state shall be exercised by the authority of the parliament.
Under this article, president can also make such incidental and consequential provisions which are
necessary to give effect to the objectives of the proclamation. This includes suspension of any provision
of this constitution relating to any body or authority in the state.
However, this article does not authorize the president to assume the powers vested in the High Courts.
parliament can confer upon the president the power of legislature of the state to make laws or the
power to delegate the power to make laws to anybody else.
the parliament or the president can confer power or impose duties on the Union or Union officers
or Union authorities.
president can authorize the expenditure from the consolidated fund of the stat pending sanction of
such expenditure by the parliament.
This was challenged in the case of State of Rajasthan vs Union of India AIR 1977. In this case, SC held
that the the decision of the president is not only dependent on the report of the governor but also on other
information. The decision is entirely political and rests with the executive. So it is not unconstitutional per
se. However, courts can validate the satisfaction of the president that it is no mala fide.
Financial Emergency
Art 360 provides that if the president is satisfied that a situation has arisen whereby the financial security
of India or the credit of India or of any part of India is threatened, he may make a declaration to that
effect. Under such situation, the executive and legislative powers will go to the center.
This article has never been invoked.
Changes made by 44th Amendment
44th amendment substantially altered the emergency provisions of the constitution to ensure that it is not
abused by the executive as done by Indira Gandhi in 1975. It also restored certain changes that were done
by 42nd amendment. The following are important points of this amendments-
Emergency can be revoked by passing resolution to that effect by a simple majority of the houses
present and voting. 1/10 of the members of a house can move such a resolution.
Art 358 - Under this article art 19 will be suspended only upon war or external aggression and not
upon armed rebellion. Further, every such law that transgresses art 19 must recite that it is
connected to art 358. All other laws can still be challenged if they violate art 19.
Art 359, under this article, suspension of the right to move courts for violation of part III will not
include art 20 and 21.
Q1) who is a citizen? How citizenship maybe acquired through domicile? 15 marks
Ans : citizenship is a process by which the state under the constitution confers certain rights ,
civil and political on a person. In other words a person who enjoys full civil and political rights.
There are two types of citizenship:
1) Dual: Citizenship of the federation and another citizenship of the state. : eg America.
2) Single citizenship : one citizenship for the whole country. Eg: India.
Articles 5 to 8 deal with citizenship at the commencement of the constitution.
Art 9 to 11 deal with modes of acquisition and loss of citizenship.
How citizenship can be acquired through domicile:
Citizenship by domicile ( art 5)
Domicile means s a permanent home or a place where a person resides with the intention of
permanently remaining there.
The following conditions have to be satisfied to acquire citizenship through domicile:
1) At the time of the commencement of the constitution he must have his domicile in
theterritory of India.
2) He must fulfill any of the following conditions: a) he was born in India or b) either of his
parents was born in India or c) he must have been ordinarily resident in the territory of Indiafor
not less than five years immediately before the commencement of the constitution.
Domicile in India is considered an essential requirement for acquiring the status of Indian
citizenship.
Two elements are necessary for the existence of domicile
1) domicile of a particular kind
2) An intention of a particular kind.
The residence need not be continuous but it must be indefinite, not purely fleeing. The intention
must be permanent intention to reside for ever in the country where the residence has been taken
up. Domicile is not the same thing as residence. Mere residence in a place is not sufficient; it
must be accompanied by the intention to make it his permanent home.
Case laws: Mohammad raza vs state of Bombay, The appellant came to India in 1938. He went
on a pilgrimage to Iraq in 1945. He was registered a foreigner and several times his stay
in India was extended. In 1957 his request to extend the stay period was refused. He appealed
saying he must be regarded as a citizen under article 5. But it was dismissed. The court held that
though he was original resident he did not acquire Indian citizenship because he did not have a
domicile in India. His application for extending his stay in India made from time to time forfeited
this conclusion. The domicile of choice continues until the former domicile has been resumed or
another has been acquired
Q2) Define state. Explain the tests to determine which other authorities can be included in
the definition.
Ans: State is defined under article 12 of the Indian constitution for the purpose of protection
promotion and enforcement of fundamental rights as provided in the part III of the constitution.
Under art 36 the same definition is used for DPSP unless otherwise provided under part IV. It
does not apply to part XIV or other parts.
The word state includes the following:
1) Union government and union legislature.
2) State government and state legislature.
3) Local authorities and other authorities within the territory of India and under the control of
the government of India.
Local authority refers to local self government.
It can mean municipal committee, mining settlement boards, panchayats or other authorities
legally entrusted by the government to manage or control local funds.
Other authorities: what all it includes.
1) Interpreted first time in shantha bai Vs University of madras. Here the question was whether
the university comes under the definition of state. It was held that though Madras University was
state aided it was a body corporate and does not come within the ambit of state. It was also held
that only bodies exercising government or sovereign function are the test for state. But this was
rejected in ujjambai vs state of UP and held that sales tax officer comes under the definition of
state.
2) Statutory bodies: statutory bodies are those created by a statute and some of them are LIC
ONGC IFC. In Rajasthan vs mohanlal it was held that all authorities created by statute on which
power is conferred upon by law comes within meaning of state under art 12.
3) Agency/ instrumentality of the state: If a body that is an agency or instrumentality of the state
and it is a body corporate registered under the companies act 1956 but it is not a statutory body it
still comes within meaning of state under art 12.
Case law for this is Ramanadayaram shetty vs International airport authority.
The following are the tests to determine if a body is an agency or instrumentality of the state:
1) Financial resources of the state are the chief funding source.
2) Deep and pervasive state control.
3) Functional character is governmental in nature.
4) If a department is transferred from government to corporations.
5) Monopoly status is enjoyed and is conferred upon by the state or state protected.
Above test are only illustrative and not exhaustive.
Q3) what is double jeopardy? Explain. – 5 marks
Ans: Double jeopardy means double punishment. Here it refers to being punished twice for the
same offence. No person can be punished twice for the same offence.
Case laws: maqbool hussain vs state of Mumbai. Here the accused was caught by the customs for
bringing in gold without declaration from a foreign country. The authorities seized the gold under
the sea customs act and he was also charged under the foreign exchange management act .Here
the prosecution under FEMA did not amount to double jeopardy as the act done under sea
customs act was not a judicial order of a court.
Q4) Indian constitution in neither unitary nor federal but is a mix of both, discuss. 15
marks.
Following are the essentials of a federal constitution:
1) Distribution of powers.
2) Supremacy of the constitution.
3) A written constitution.
4) Rigidity.
5) Authority of courts.
Indian constitution possesses all of the above but it modifies the federal principle in the
following:
1) Appointment of governors.
2) Parliament’s power to legislate in national interest.
3) Parliament’s power to form new states and alter boundaries of existing states.
4) Emergency provisions.
Thus we can say that the above modification provide for unitary state features also, we can
conclude saying Indian constitution is a mix of both.
Q5) No person shall be deprived of his life or personal liberty except according to procedure
established by law. Discuss with a leading case. 15 marks.
Ans: The right to life and liberty is a fundamental right and includes the following:
1) Right to privacy.
2) Right to education.
3) Right to clean water and air.
4) Right to livelihood.
5) Right to die is not a fundamental right.
All of the above are rights which cannot be taken away except under a procedure established by
law.
Maneka Gandhi case gives us a new dimension on this aspect.
Maneka Gandhi vs union of India.
The meaning and content of words personal liberty came up for consideration to the Supreme
Court. In this case the SC gave the widest possible interpretation to personal liberty.
Facts of the case: The petitioners passport was impounded by central government the act
authorized the central government to do so if it was in the general public interest. The
government of India declined to give reasons for the action in the name of public interest. The
petitioner challenged this on the basis that there was no hearing given to seize the passport nor
was there any reason given by the government. However the government disclosed in affidavit
that the petitioner’s presence may be needed in connection with proceedings of a commission of
inquiry.
The attorney general filed a statement that the petitioner could make a representation in respect of
impounding the passport that the rep would be dealt with expeditiously in accordance with law.
The sc also held that the govt was not justified in withholding the reasons for impounding the
passport from the petitioner.
It was held that the procedure thus est. by the act for impounding a passport is in conformity with
the requirement of art 21 and is not violative of that article.
Following conditions have to be fulfilled before a person is deprived of his property.
1) There must be a valid law.
2) There law must provide a procedure.
3) The procedure must be just, fair and reasonable.
4) The law must satisfy the requirement of art 14 and 17 that is it must be reasonable.
Q6) can preamble be amended under article 368? Answer with the aid of a decided case.
The preamble can be amended or not under article 368 can be understood with the following
landmark case.
Keshavananda bharati vs state of kerala :
Facts of the case : In that case attorney general argued that by virtue of amending power in article
368 even preamble can be amended. It was said that since preamble was a part of the constitution
it could be amended like any other provision of the constitution. The petitioners how ever
contended that the amending power in article 368 is limited. The preamble creates implied
limitation on the power of amendment. The preamble contains basic elements of our constitution.
Amending power cannot be used to destroy these basic features. It was argued on the basis that
preamble is not part of constitution. The Supreme Court held that preamble is a part of our
constitution . On the question whether preamble can be amended or not it was held that preamble
is part of our constitution it can be amended subject to this condition that basic features present in
preamble cannot be changed. It was held that these basic features are our edifice of our
constitution and that if these features are amended the whole system will collapse. No one can
suggest these words are ambiguous in any manner. The amending power cannot result in the
constitution being changed in such a way that it ceases to be a sovereign democratic republic. It
would only wreck the constitution.
Q7) A magistrate issues an order authorizing investigating officer to take specimen
handwriting and fingerprints of Mr. x an accused against his willingness. X challenges the
order stating that it violates his Fundamental right under article 20(3) . Decide.
In state vs m Krishna Mohan the SC has held that taking of specimen handwriting and fingerprint
from accused is not prohibited under article 20(3) as being witness against himself.
Q.1 – When was Indian Independence Act passed, by whom and on the basis of what plan?
Ans. – Thee Indian Independence Act was passed by the British Parliament on 5th July in 1947. This act
was passed to give effect to the Mountbatten plan creating the two independent states of India and
Pakistan.
Q.2- What were the options before the Indian native states in the Indian Independence Act?
Ans. – The Indian Independence Act gave three options to the Indian native states—(1) to join India—(2)
to join Pakistan—(3) to remain Independent.
Q.3 -Who drafted the Indian Constitution?
Ans. – The Indian constitution was drafted by the Drafting Committee of the ‘Constituent Assembly.
Q.4 -Who was the chairman of the Constituent Assembly? Who was the Chairman of the Drafting Committee?
Ans. – Dr. Rajendra Prasad was the Chairman of Constituent Assembly. Dr. B.R. Ambedkar was the
Chairman of Drafting Committee.
Q.5 -When was the Constitution adopted?
Ans. – The constitution was adopted on 26th November 1949.
Q.6 -When did the Constitution come into force?
Ans. – The constitution came into force on 26th January 1950.
Q.7 -According to the Preamble India is what kind of state?
Ans. – According to the original preamble India is a Sovereign, Democratic Republic. By 42nd
amendment of the constitution India is made also a Socialist and Secular state.
Q.8 -What are the political ideals, according to the Preamble India seeks to secure?
Ans. – India seeks to secure to her people:
Justice: Social Economic and Political.
Liberty: of thought, expression, belief, faith and worship
Equality: of status and opportunity, and Fraternity, assuring the dignity of the individual and unity of the
nation.
Q.9 -How many Arts, are there in the Indian Constitution?
Ans. – The original constitution had 395 Arts and 7 schedules. Now after the 80th amendment of the
constitution there are 405 Arts and 10 schedules in the constitution.
Q.10 -What is meant by “Secular and Socialist” as described in the Preamble?
Ans. – The preamble describes India to be a secular state. It means that there is no established religion in
India and that state does not give any preference to any religion in India.
The 42nd amendment of the Indian constitution makes India a socialist state. It means that the state shall
abolish private ownership of the means of production and distribution. This however has not yet been
achieved. On the other hand the state now encourages private ownership.
Q.11 – Bring out the significance of the terms “Sovereign, Democratic Republic” as mentioned in the Preamble.
Ans. – India is a sovereign state. It means the state in India is the supreme authority over all men and all
associations within the country and is absolutely free from any outside control.
India is democratic. It means that in India all governments are formed on the basis of popular support.
India is republic. It means all offices of the state from the highest to the lowest are held on the basis of
merit and no office of the state is held on the basis of hereditary right.
Q.1 2- How many states and union territories are there in the Indian Union?
Ans. – There are 25 states and 7 union territories in the Indian Union.
Q.13 – Which State of the Indian Union has a separate Constitution?
Ans. – The state of Jammu and Kashmir has a separate constitution.
Q.14 – What is the importance of Arts 370 of the Constitution?
Ans. – This Art gives the state of Jammu & Kashmir a separate constitutional status. Laws passed by the
Indian Parliament apply to Jammu & Kashmir if they are accepted by the J. K. legislature.
Q.15 – Is the preamble to the Constitution justiciable in character?
Ans. – No. The preamble is not justiciable.
Q.16 – What is the necessity of the Preamble?
Ans. – The preamble is like an introduction to the constitution. The courts use the preamble to clarify: the
meaning of the Law whenever there is an ambiguity.
Q.17 – Does the Indian Constitution recognize the principle of dual citizenship?
Ans. – Though India is a federation, the principle of dual citizenship has not been accepted in the
constitution. All Indian’s are accepted as the citizens of India. There is no citizenship of the states.
Q.18 – When was the Indian Citizenship Act passed?
Ans. – Indian Citizenship Act was passed in 1955.
Q.19 – Into how many categories are the Indian citizens divided?
Ans. – Indian citizens are divided into two categories—citizens by birth and citizens by adoption.
Q.20 – What are the provisions of the Indian Constitution regarding integration or creation of new states?
Ans. – The Indian Parliament by Acts passed that it can integrate new states into India or can create new
states out of the territory of an existing state or states.
Q.21 – How many categories of fundamental rights of citizens has been recognized by the Indian Constitution?
Ans. – Originally the constitution conferred on the Indian citizens seven fundamental rights. They are (a)
right to equality (b) right to freedom (c) right against exploitation (d) right to religious freedom. (e) right
to education and culture (f) right to property and (g) right to constitutional remedies:. At present there are
six fundamental rights. Right to private property has been removed from the list of fundamental rights by
the 44th amendment of the constitution.
Q.22 – What is meant by equality in the eye of law?
Ans. – Equality in the eye of law as provided by Art. 14 of the constitution mean that nobody is above the
law. Law applies to all persons equally.
Q.23 – What are the freedoms granted to citizens by Art 19 of the Constitution?
Ans. – Art 19 of the constitution grants six freedoms to the citizens They are right to freedom of –
(I) expression, (2) to assemble peaceably and without arms (3) to form association, (4) to move freely in
India, (5) to five anywhere in India and (6) to adopt any profession or business.
Q.24 – What Art of the Constitution forbids use of titles or honor conferred by foreign states?
Ans. – Art 18.
Q.25 – Is the right to work and employment recognized by Constitution?
Ans. – No. The directive principle of the constitution declares right to work and employment as desirable.
But the directives are non- justiciable in character.
Q.26 – Are the conferment of honour like Bharat Ratna or Padma Bibhusun violative of right to equality under Art.
114?
Ans. – No, because Bharat Ratna, Padma Bibhusun etc. are not considered as titles. They cannot be used
before or after the names of the persons on whom they are conferred.
Q.27 – How the Indian Constitution seeks to protect children against exploitation?
Ans. – Arts 24 of the constitution forbids employment of children in factories, mines, or in hazardous
works.
Q.28 – What categories of people can be imprisoned without trial?
Ans. – Under Arts 22 (3) of the constitution enemy aliens and persons arrested under preventive detention
Acts can be imprisoned without trial.
Q.29 – “India is a Secular State”. What does it mean?
Ans. – Indian secularism means that the state does not have any established religion, that people are free
to practice and profess any religion and that the state does not show any preference to any religion.
Q.30 -What Arts of the Constitutions confer right to freedom of religion?
Ans. – Arts 25 to 28 confer right to freedom of religion on the citizens.
Q.31 – Is possession of private property a Fundamental Right?
Ans. – Private property was a fundamental right before the passing of 44th amendment of the
constitution. Now the possession of private property is an ordinary legal right and not a fundamental
right.
Q.32 -What Art of the Constitution confers right to constitutional remedies?
Ans. – Art 32 of the constitution confer the right to constitutional remedies on the citizens.
Q.33 – How many kinds of writs the Supreme Court or the High Court may issue in case of transgression of
Fundamental Rights?
Ans. – The Supreme Court or the High Courts may issue five kinds of writs.
These are writs of (1) Habeas Corpus (2) Mandamus (3) Prohibition (4) Certiorari and (5) Quowarranto.
Q.34 – What is Habeas Corpus? What Art of the Constitution provides for it?
Ans. – Habeas Corpus: literally means that human person is sacred. Hence no man can be detained
illegally. Whenever a man is detained he must be produced before a court. This writ is a powerful
safeguard against arbitrary arrest and detention Art. 32 of the constitution provides for Habeas Corpus.
Q.35 -Do the members of the armed forces enjoy the Fundamental Rights given by the Constitution?
Ans. – The parliament may restrict the fundamental rights by passing laws. Beyond such restrictions the
members of the Armed Forces enjoy their fundamental rights.
Q.36 -What are principal duties of the Indian Citizens?
Ans. – Obeying the constitution, showing respect to the national flag and the national anthem, defending
India’s sovereignty, integrity, and unity protecting national properties and upholding Indias glorious
mixed culture and also showing respect to woman are the principal duties of the Indian citizens.
Q.37 -When were the duties of the citizens added to the Constitution?
Ans. – Ten duties of the Indian citizens have been added to the constitution by the 42nd amendment to
the constitution.
Q.38 – In what chapter of the Constitution and in what Arts are the Directive principles of the Constitution given?
Ans. – In chapter IV Arts 35-51 the directive principle of the constitution are given.
Q.39 -What is the principal difference between the directive principles and the fundamental rights?
Ans. – The fundamental rights are justiciable while the directive principals are non-justiciable i.e. the
fundamental rights are enforced by the courts while the directives are not enforced by the courts.
Q.40 -Name four important directives given in the Indian Constitution?
Ans. – (1) The states should provide help in cases of old age, unemployment and disability. (2) State
should strive to reduce inequality between individuals, groups and professions (3) State should promote
and foster rural cottage industries. (4) The state should provide compulsory free primary education to
children below 14 years if age.
Q.41 – Name two directives based on the ideal of socialism?
Ans. – (A) The state should prevent concentration of the ownership of the means of production in the
hands of the few (Art. 39c).
(B) The state should provide help and assistance in case of unemployment and disability.