SYNOPSIS

CONSTITUTIONAL LAW OF INDIA-I

Unit 1 MAKING OF CONSTITUTION AND FEATURES

1.1 Making of Indian Constitution

❖ The constitution of India Was adopted on 26 November, 1949

❖ Enforced on 26 January , 1950 (Commencement date)

❖ The Constituent Assembly had 299 members. It was not a sovereign body, it become
sovereign by the Indian Independence Act 1947

❖ The Assembly adopted the Constitution on 26 November, 1949 but it came into effect on
January 26, 1950.

❖ The Assembly represented members from different language groups, castes, classes, religions
and occupations.

Dr. B.R.Ambedkar & Dr. Rajendra Prasad

He was the Chairman He was elected as

of the Drafting Committee Permanent Chairman of

of Indian Constitution Constituent Assembly

First meeting of Constituent Assembly held on 9th Dec. 1946. And Dr, Rajendra Prasad elected as
permanent Chairman Assembly made substantial progress and adopted Objective Resolution
(Preamble) It appointed various committee

▪ On August 29th 1947 drafting committee of seven members set up and Chaired by Dr. B.R.
Ambedkar

▪ Draft Constitution published in Jan 1948

▪ People were given 8 months to for suggesting amendments

▪ 7635 amendments proposed 2473 were actually discussed

▪ Constituent assemble held 11 sessions

▪ The members deliberated for 114 days spread over three years. In all Constituent Assembly
sat for 2 years, 11 months and 18 days.

▪ The Constituent Assembly worked in a systematic, open and consensual manner.

Why do we need a Constitution?

❖ To live together as equals.

❖ To trust each other
❖ To maintain law and order
❖ To limit the power of government
❖ To safeguard the interests of all and give the special protection to vulnerable .
❖ To get substantial civil, political, social and economic and cultural rights.
What is Constitution?

▪ A body of fundamental principles established precedents' to which a state is acknowledged to

be governed

▪ A document having special legal sanctity which sets out framework and the principle
functions of the organs of state and declares the principles governing the operation of those
organs

What is Constitutional law?

▪ Constitutional law is the body of law which defines the roles, powers, structures of different
entities within a state namely executive, judiciary, legislature as well the basic rights of
citizens

▪ It is a source of law itself (Suprema lex)

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1.2 Nature of Constitution

▪ Two types-Unitary Constitution & Federal Constitution

Federal Features

▪ A written Constitution
▪ Supremacy of the Constitution
▪ Distribution of powers
▪ Rigidity
▪ Authority of courts
▪ (India possesses all such features)
Unitory features
▪ Appointment of Governor
▪ Parliament’s power to legislate in national interes
▪ Parliament’s power to form new states and alter the boundaries of existing states
▪ Emergency powers
▪ (Indian constitution has these features also)
Exact nature of our Constitution:- Our Constitution is federal Constitution with strong centralising
tendencies hence called Quasi Federal in true sense
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1.3 Salient Features Of Constitution Of India

Most Detailed Constitution

 The Indian Constitution is the longest and the most detailed in the world.
Why?
➢ Enlisted the F,Rts, DPSP, Relations between Center State, Powers, functions of each organs
➢ It lays down procedure for center and state both
➢ Vastness of country and peculiar problem relating to language, culture etc
Preamble
Constitution starts with preamble.
The preamble is accepted as the part of the constitution. It is the gist of the Constitution
It includes the objectives of the constitution
It also states about the nature of the state which is Sovereign, Socialist, Secular, Democratic
Republic.
Unique blend of rigidity and flexibility
Rigid because federal (requires special method of amendment)
Flexible because amendment can be made by ordinary legislative process.
Art 368 of Constitution of India
Procedure and power to amend the Constitution
Fundamental rights
Fundamental rights have been included into the chapter 3rd of the constitution from Article-
12 to 35
Justifiable through the court of law
Restricts the power of state
Prohibitions against state
Effective remedies in the nature of writ
Fundamental Rights not absolute

Directive Principles of State Policy(Part IV)

Part IV of Constitution of India.

Aims and objectives to be taken up by states in the governance of the country
Not justiciable
The idea of ‘welfare state’ envisaged cannot be achieved unless DPSP is implemented in real
spirit.
Federation with strong centralising tendency
Being federal acquires unitary character during emergency
Regarding legislative relations
Regarding administrative relations
Regarding financial relation
Single citizenship
Federal- dual polity- provides for single citizenship
No state citizenship
Enjoys civil and political rights
Fundamental rights given to citizens only.
Adult sufferage
Old system of communal electorates abolished
Uniform adult suffrage system adopted
Man and woman above 18 has right to vote
No disqualification on the basis of sex, property, taxation etc
Independent Judiciary
only independent judiciary can safeguard the rights and liberties of the people, can protect the
supremacy of the constitution-
An impartial method for the appointment of the judges
High qualifications have been fixed for the judges
 The judges of the Supreme Court stay in office till 65 years of age and of High courts till 62
years of age
Secularism
No state religion of its own
Treats all religions equally
Added by 42nd Amendment Act 1942
Liberty of... thought, expression belief, faith and worship
Fundamental right to religion- Art 25 to 28
Fundamental duties
42nd Amendment Act 1976 added FD
Constant reminder to every citizen
Citizens to observe basis norms of democratic conduct and democratic behaviour.
Justiciable through statute
Power of judicial review
The judiciary in India has the power of judicial review which means that all the laws passed
by the parliament and State Legislatures, constitutional amendments, ordinances and
executive orders issued by the executive are reviewed by the judiciary

In case judiciary finds that any one of these is against the constitution, the judiciary has the
power to declare it unconstitutional.

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1.4 Citizenship –under the Constitution and Citizenship Act ,1955

• Population of state is divided in to two classes

➢ Citizens
➢ Aliens
Citizen is a person who enjoys all civil and political rights
• Advantage is many fundamental rights are conferred on citizens only and certain offices can
be occupied only if a citizen
• Art 14 and 21 available to aliens also
Rights available to citizens only
• Right not to be discriminated against citizen on grounds of religion, race, caste, sex, place of
birth(Art 15)
• Right to equality of opportunity in matters of public employment (Art16)
• Rights enumerated in Art 19
• Cultural and educational rights under 29,30
• Certain offices which can be occupied by citizens only- President, Vice-President, Judges of
Supreme Court or a High Court, Attorney General, Governor of a State, Advocate General of
state
Constitutional provisions for citizenship
• Part II of Constitution provides for who would be deemed to be the citizens at the
commencement of the Constitution.

• Rest provisions are made in Law made by Parliament i. e Indian Citizenship Act, 1955

Citizenship at the commencement of Constitution

Art 5 to 8
 • Citizenship by Domicile Art 5
• Citizenship of emigrants from Pakistan Art 6
• Citizenship of migrants to Pakistan Art 7
• Citizenship of Indians abroad Art 8
Citizenship under Citizenship Act1955
Modes of Acquisition-
• By Birth Sec. 3
• By Decent Sec.4
• By Registration Sec. 5
• By Naturalisation Sec.6
• By incorporation of Territory Sec.7
• Amendments of 2003-Overseas Citizenship 7-A, 7-B, 7-C, 7-D
Modes of Termination
• Renunciation
• Termination
• Deprivation
• Commonwealth Citizenship Sec.11
Company or corporation whether a citizen?

State Trading Corp Of India v Commercial Tax Officer

Company or a Corporation is not a citizen of India and cannot claim such fundamental rights as have
been conferred upon the citizens.(natural person x juristic person)

Tata Eng and locomotive C. V v State of Bihar

Company in the name of shareholders as citizens cannot achieve indirectly which is not available
directly(lifting corporate veil)

Bank Nationalisation case

If the state action impairs the right of the company thereby affecting the rights of an individual
shareholder the protection of Art 19 will not be available to him

Bennet Coleman and Co v Union of India , Godhra Electric Co Ltd v State of Gujrat and D.C. &
G.M v Union of India (followed Bank Nationalisation case )

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1.5 Preamble

▪ 42nd amendment inserted three new words:- Secularism, Socialism, Secularism

▪ The preamble to Act sets out the main objectives which the legislation is intended to achieve
▪ It is a sort of introduction to the statute and many a times is helpful to understand the policy
and legislative intent
▪ It expresses “ what we had thought or dreamt for so long..”
• It embodies the solemn form, all ideals and aspirations for which the country had struggled
during the British regime
• In re Berubari case court said that the preamble is the key to open the mind of makers and
shows the general purpose for which they made the several provisions in the Constitution
Purpose of Preamble
• It indicates the source from which the Constitution comes
 • It contains enacting clause which brings its commencement date/ when it came in to force
• It declares the great rights and freedoms which the people of India intended to secure to all its
citizens and the basic type of Government etc
Objectives

• Preamble secures to all its citizens:

✓ Justice- Social, economic and political
✓ Liberty- of thought, expression, belief, faith and worship
✓ Equalilty- Of status and opportunity
✓ Fraternity assuring the dignity of the individual and the unity and integrity of the Nation.
Can Preamble be amended?

➢ Re Berubari case-Preamble is not a part of the Constitution and therefore it could never be
regarded as a source of any substantive powers.

➢ Keshwanand Bharati v State of Kerala-Preamble is a part of constitution it can be amended

subject to the condition that of the basic structure

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 UNIT-2 FUNDAMENTAL RIGHTS –JUSTICIABILITY-STATE OBLIGATION ART 12,13

2.1 Fundamental rights meaning and scope

Fundamental Rights are essential human rights that are offered to every citizen irrespective of caste,
race, creed, place of birth, religion or gender. These are equal to freedoms and these rights are
essential for personal good and the society at large.

Origin and Development of Fundamental Rights

• Part III of the Constitution

• Magna Carta of India
• 1214 English people’s rights recognised by ‘Magna Carta’ (first written document)
• France –’Declaration of Rights of Man and the Citizen in 1789
• America ‘Bill of Rights’ in Constitution
• Indians took inspiration from this Bill of Rights
Nature of Fundamental Rights
• Certain Elementary rights, which are inviolable under all conditions (though majority can’t
interfere with it)
• Deemed to be essential to protect rights and liberties of people against state
• Rights are most fundamental because essential for attainment by the individual or his full
intellectual, moral and spiritual status
• Object behind them in Constitution is we want to establish ‘rule of law and not rule of man’
New Judicial trends
• Widest interpretations to provisions of Part III
• Natural Justice and Due Process
• Prisoners rights and prison reforms
• Expanding role of writ of Habeas Corpus
• Human Rights Jurisprudence
• Fundamental rights are available against state and not against private individuals
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2.2 Definition of State for enforcement of Fundamental rights
Art 12 State and 13 Law
• The Government and parliament of India i.e executive and Legislature of the
Union
• The Government and the Legislature of each State i.e. Executive and Legislature
• All local and other authorities within the territory of India.
• All local and other authorities under the control of the Government of India.
• Authorities-power to make laws, orders, regulations, bye-laws, Notification etc.
Local authorities- Municipalities , District boards ,Panchayats, improvement trust and

mining settlement Boards.

 University of Madras v Santa bai

 Electricity Board of Rajstan v Mohan lal
  Sukhdev singh v. Bhagatram
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2.3 Justifiability of Fundamental Rights.

Laws and Laws in force

• According to article 13(1)(a) the term law includes ‘any ordinance, order, bye-law, rule,
regulation, notification, custom or usage having the force of Law.
• However, it was held that personal law such as Hindu Law or Muslim law are not covered by
the term ‘law’ under Article 13 (State of Bombay v. Narayan, AIR 1952 Bom.84)
• The expression ‘laws in force’ under article 13(3)(b) includes ‘laws passed or made by a
legislature or other competent authority in the territory of India before the commencement of
the constitution not previously repealed. It includes customs and usages and also the laws
passed by the British Parliament and applicable to India like the Fugitive Offenders’ Act 1881
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2.4 Definition of Law for Constitutional law purpose

Pre-constitution laws

Post constitution laws

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2.5 Doctrine of Eclipse, severability, waiver

Doctrine of Severability
▪ Article 13 of the Constitution of India provides for Doctrine of severability
which states that-
▪ All laws in force in India before the commencement of Constitution shall be
void in so far they are inconsistent with the provisions of the Constitution.
▪ The State shall not make any law which takes away/ shortens the rights
conferred in Part III of the Constitution. (i.e. Fundamental Rights)
▪ Any law made in contravention of the provisions of the Constitution shall be
void and invalid.
▪ The invalid part shall be severed and declared invalid if it is really severable.
(That is, if the part which is not severed can meaningfully exist without the
severed part.)
▪ Sometimes the valid and invalid parts of the Act are so mixed up that they
cannot be separated from each other. In such cases, the entire Act will be
invalid.
Doctrine of Eclipse

• All laws in force in India before the commencement of the Constitution shall
be void in so far they are inconsistent with the provisions of the Constitution.
• Any law existing before the commencement of the Constitution and
inconsistent with the provision of Constitution becomes inoperative on
commencement of Constitution.
• But the law does not become dead. It is overshadowed by Fundamental Rights
• The law remains a valid law in order to determine any question of law
incurred before commencement of the Constitution.
 • An existing law only becomes eclipsed to the extend it comes under the
shadow of the FR.
Doctrine of waiver

➢ Waiver means a document that records the waiving of a legal right.

➢ Article 14 provides that the FR cannot be waived by any person.
➢ The Supreme Court shall see that the FR are enforced evenif one might have waived
it.
➢ In the case of Basheshar Nath Vs CIT, it was held that the FR cannot be waived.
Article 13(1) of the Constitution states that, “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”. While sub-
clause (2) of the Article 13 states that “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”. Article 13(1) deals with the pre-
constitutional laws and Article 13(2) deals with Post-Constitutional Laws.

 Both the definitions highlight the importance of the Fundamental Rights and their
overshadowing nature in pursuant to Pre-Constitutional Law and their consideration to be
taken while creating Post-Constitutional Laws.

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