1.a) Briefly discuss the importance and utility of the Preamble of the Indian Constitution. Q.
Q.3 What does the constitution say about citizenship?
Preamble is an introductory statement to the Constitution which contains the ideals on which the
Constitution is based and the basic underlying principles of the Constitution.
Importance & utility of the Preamble can be stated as follows:
(i) The Preamble contains the philosophy on which the entire Constitution has been built. It
provides a standard to examine and evaluates any law and action of government to find out
whether it is good or bad. Hence, it is the soul of the Constitution.
(ii) The Preamble shows the way the government ought to run. It declares India to be a
sovereign, socialist, secular and democratic republic.
(iii) It envisages justice-social, economic and political-for all its citizens. It seeks to give the
citizens all types of freedoms-freedom of thought and expression, freedom of belief and worship
etc.
(iv) The Preamble mentions people as the source of the Constitution. It seeks to provide
equality of status and opportunity to all individuals and thus promotes a sense of brotherhood
among all citizens
(v) It also serves as a challenge to the people to adhere to the ideals enshrined in it (Justice,
Liberty, Equality, Fraternity, etc.).
Whether preamble is a part of the Constitution?
It has been the matter of argument and discussion that whether the preamble is a part of the
constitution or not. There are two cases that provide the idea about the status of the preamble:
1.Re-Beruberi Case:
Under this case, the eight judges bench observed that even though the preamble
(a).serves as an introduction to the constitution and no doubt it is a concept which opens the
mind of the makers and helps them in making a constitution,
(b). the preamble is the part of the constitution.
(C ).It is not a source of several power conferred on government.
2.Kesavananda Bharati case
This case creates a new history of the constitution the thirteen judges bench held that preamble
is a part of the constitution as:
A.The preamble is an introduction of the constitution.
B.The preamble is not a source of power but played an important role in the interpretation of the
statutes and also in the interpretation of provision of the constitution.
is preamble amendable under Art 368
On the question whether the Preamble can be amended the majority held that since the
Preamble is the part of the Constitution it can be amended but subject to this condition that the
“basic feature” in the Preamble cannot be amended.If any of these elements are removed the
structure will not survive and it will not be same Constitution or it cannot maintain its identity.
An amending power cannot be interpreted so as to confer power on the Parliament to take
away any of these fundamental and basic characteristics of policy.” It is hence contended that
this view of the court is correct. The amending power cannot change the Constitution in such a
way that it ceases to be a ‘Sovereign Democratic Republic.
(5.a) What is State under Art. 12 of Indian Constitution?
Ans:-Article 12 defines the term ‘State’ as used in different Articles of Part III of the Constitution.
It says that unless the context otherwise requires the term ‘State’ includes the following ;-
1. The Government and Parliament of India, i.e., Executive and Legislature of the Union.
The Government/Union of India for the purpose of Art.12 includes the Executive organs and
Department including the President of India. Further, Parliament comprises of the President of
India, the lower house of the parliament that is the Lok Sabha as well as the upper house of the
Parliament, that is the Rajya Sabha.
2. The Government and Legislature of each State, i.e., Executive and Legislature of State.
The State Government includes the Executive organs and other Departments i.e., the
Governments, the Chief Ministers, the District Collectors and other Government Departments.
The State Legislative, which is a law-making body, includes the Governor and both houses like
State Legislative Assembly and the State Legislative Council.
3. All local and other authorities within the territory of India.
Local Authority shall mean a municipal committee, district board, body of commissioner or other
authority legally entitled to or entrusted by the Government within the control or management of
a municipal or local fund.
4. All local and other authorities under the control of the Government of India.
According to Schedule ‘local government’ includes a municipal corporation, improvement trust,
district boards, mining settlement authorities and other local authorities for the purpose of local
self-government or village administration.
Q. 5.c. Is Judiciary a State?
Article 12 of the Constitution does not specifically define ‘judiciary’. This gives the judicial
authorities the power to pronounce decisions which may be contravening to the Fundamental
Rights of an individual. If it was taken into the head of ‘State’, then, it would be by the obligation
that the fundamental rights of the citizens should not be violated. Accordingly, the judgements
pronounced by the courts cannot be challenged on the ground that they violate fundamental
rights of a person.
It lies in the distinction between the judicial and non-judicial functions of the courts. When
the courts perform their non-judicial functions, they fall within the definition of the ‘State’. When
the courts perform their judicial functions, they would not fall within the scope of the ‘State’.
So,the judicial decision of a court cannot be challenged as being violative of fundamental rights.
But, an administrative decision or a rule made by the judiciary can be challenged as being
violative of fundamental rights, if that be supported by facts.
Case law-In the case of Naresh Shridhar Mirajkar v. State of Maharashtra, a 9-judge bench of the
Supreme Court held that a judicial decision pronounced by a judge of competent jurisdiction in or in
relation to a matter brought before him for adjudication cannot affect the fundamental rights of the citizens
since what the judicial decision purports to do is to decide the controversy between the parties brought
before the court and nothing more. Therefore, such a judicial decision cannot be challenged under Article
13.
The Constitution does not lay down a permanent or comprehensive provision relating to citizenship in
India. Part II of the Constitution simply describes classes of person who would be deemed to be the
citizen of India at the commencement of the Constitution, the 26th January 1950. The Parliament, under
Art. 11, has enacted the Indian Citizenship Act, 1955, which provides for the acquisition and termination of
citizenship subsequent to the commencement of the Constitution.
The Citizenship Act, 1955, as amended by the Citizenship (Amendment) Act, 1986 provides for the
acquisition of citizenship in the following ways:
1.Every person born in India on or after 26 January 1950, shall be a citizen of India by birth. Citizenship
by birth can be acquired by such persons only if either of his parents is a citizen of India at the time of
birth.
2.A person who was born outside India on or after January 26, 1950 shall be a citizen of India by descent,
if his father is a citizen of India at the time of the person's birth.
3.A person can get Indian citizenship by registering himself to that effect, if he belongs to any of the
following categories: (a) Persons of Indian origin who are ordinarily resident in India for five years
immediately before making an application for registration. (b) Persons who are married to Indian citizens.
Such persons must have been resident for five years before making such an application.
4.Citizenship can also be acquired by naturalization. The qualifications for naturalization are: (a) The
person must not belong to a country where Indian citizens are prevented from becoming citizens by
naturalization. (b) The person must either be resided in India or should have been in Government service
for 12 months before making an application.
5.If any new territory becomes a part of India, the persons of the territory become citizens of India.
Article 31C of the Constitution of India
Article 31 was primarily concerned with enabling the government to acquire property if there lies a legal
authority behind it. Several amendments have been made since then to the article. Article 31 C is
concerned with the Directive Principles of State Policy. This was done to avoid personal interests that are
disguised under the facade of Fundamental Rights and eventually avoid any blockers for progressive
legislation.
Article 31C, which was added as part of the 25th Constitutional Amendment in 1971, was added to the
already existing Article 31. Article 31 and its three clauses, A, B, and C, outline a citizen of India’s
property rights.
According to Article 31C, a law that seeks to implement any or all of the directive principles of Part IV
shall not be deemed invalid just because it violates a citizen’s fundamental rights under Article 14
(equality before the law) or Article 19.
Abolition of Untouchability.
Article 17 abolishes untouchability and forbids its practice in any form. Untouchability is neither defined in
the Constitution nor in the Act. It refers to a social practice which looks down upon certain depressed
classes solely on account of their birth and makes any discrimination against them on this ground.
The Protection of Civil Rights Act, 1955. [previously Untouchability (Offences) Act, 1955] defines 'Civil
Right' as 'any right accruing to a person by reason of the abolition of untouchability by Art. 17 of the
Constitution. The Act prescribes punishment (1-2 years imprisonment) for preventing any person from
entering any place of public worship or from worshipping or denying access to any shop, public
restaurants, hotels or places of public entertainment or refusing to admit persons to hospitals and refusing
to sell goods or render services to any person. Also, insulting a member of Scheduled Caste on the
ground of untouchability or preaching untouchability or justifying it is a crime.
(X)Article 15(2) of the Constitution also helps in the eradication of untouchability. In PUDR v UOI (Asiad
Project Workers' Case, AIR 1982 SC 1473) the Supreme Court held that the fundamental right under Art.
17 are available against "private individuals" and it is the constitutional duty of the State to take necessary
steps to see that these rights are not violated
b) Discuss whether Bankura University is a state.
In Case Law Janet Jeyapaul ( Dr.) v. SRM University,Private University given by Courts and, It can be
said that University comes under Art.12 definition of “State “ under Section 3 of the UGC Act, the
Management of which was in the private trust was held to be an authority provided under article 12 of the
Constitution and amenable to the writ jurisdiction because :
1. It imparted education in higher studies to the students at large.
2. It discharged public functions by way of imparting education.
3. It was notified as a deemed university under Section 3 of the UGC Act.
4. being a deemed University by the Central Government under section 3 of the UGC Act, all the
provisions of the UGC Act were made applicable to it which, inter-alia, provided for effective discharge of
public function, namely, education for benefit of public.
5. Once it was declared as “deemed university” whose all functions and activities were governed by the
UGC Act, like other universities, it was “other authority” within the meaning of article 12 of the
Constitution.
6. Once it was held to be an authority as provided in article 12 then as a necessary consequence it was
unable to reach the jurisdiction of high court under article 226 of the constitution.