Constitution of India B.A. LL.B (HONS) II SEM PDF

Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution B.A. LL.B. (HONS.) II SEMESTER CONSTITUTIONAL LAW-I UNIT-I : INTRODUCTION 1. Prea...

Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution B.A. LL.B. (HONS.) II SEMESTER CONSTITUTIONAL LAW-I UNIT-I : INTRODUCTION 1. Preamble 2. Nature of Indian Constitution 3. Characteristics of federalism 4. Unitary form of Government INTRODUCTION A Constitution is a set of fundamental principles or established precedents according to which a State or other organization is governed. These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution. Constitution was written by a committee headed by Dr. Bhimrao Ambedkar. It took 2 yrs, 11 months, 18 days for compilation. It was adopted on 26th November, 1949 (celebrated as Law Day), and enforced fully on 26th January, 1950 (celebrated as Republic Day). The Constitution of India is the longest written Constitution of any sovereign country in the world, containing 444 Articles in 22 Parts, 12 Schedules while the United States Constitution is the shortest written Constitution, at 7 Articles. At the time of commencement, the Constitution had 395 Articles in 22 parts and 8 schedules.  Constitution is said to be the supreme law of the land.  The drafting of the document called the Constitution was pursued by an assembly of elected representatives called the Drafting Committee, which was chaired by Dr. B.R. Ambedkar.  The above-said Committee prepared the draft of the Constitution. Then, several rounds of discussions took place. More than two thousand amendments were considered.  Every document presented and every word spoken in the Constituent Assembly has been recorded and preserved under the name of Constituent Assembly Debates. SOURCES OF CONSTITUTION SOURCE PROVISION Parliamentary government, Rule of Law, legislative procedure, single BRITISH CONSTITUTION citizenship, cabinet system, citizenship, prerogative writs, parliamentary privileges and bicameralism. 1 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution UNITED STATES Fundamental rights, independence of judiciary, judicial review, CONSTITUTION impeachment of the President, removal of Supreme Court and High Court judges and post of Vice-President. IRISH Directive Principles of States Policy, nomination of members to Rajya CONSTITUTION Sabha and method of election of President. CANADIAN Federation with strong centre, vesting of residuary power in the CONSTITUTION centre, appointment of state Governors by the Centre, and advisory jurisdiction of the Supreme Court. AUSTRALIAN Concurrent List, freedom of trade, commerce and intercourse, and CONSTITUTION joint sitting of the two Houses of Parliament. WEIMAR CONSTITUTION Suspension of Fundamental Rights during Emergency. Soviet OF GERMANY Constitution (USSR, now Russia) Fundamental duties and the ideal of justice (social, economic and political) in the Preamble. FRENCH CONSTITUTION Republic and the ideals of liberty, equality and fraternity in the Preamble. Constitution Procedure for amendment of the Constitution and SOUTH AFRICAN election of members of Rajya Sabha. JAPANESE CONSTITUTION Procedure established by Law. While drafting the Constitutional Draft, several provisions were borrowed from various written and unwritten Constitutions all over the world. Similarly the Constitution as a whole stands to its effect after having incorporated several unique features and provisions from several other Constitutions. PREAMBLE “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.” 2 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution Preamble means a preliminary or introductory statement, especially attached to a statute or constitution setting forth its purpose. Preamble is an expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute. The preamble to the Constitution of India is a brief introductory statement that sets out the guiding purpose and principles of the document. In re BeruBari’s case1, it was held that the preamble is not an integral part of the Indian Constitution & therefore it can neither be regarded as a source of limitations or substantive powers nor it is enforceable in a court of law. However, Supreme Court of India has, in the Keshavananda Bharti Case2, overruled earlier decisions and recognised that the preamble may be used to interpret ambiguous areas of the constitution where differing interpretations present themselves. Forty-second Amendment, 1976: As originally enacted the preamble described the state as a "sovereign democratic republic". In 1976 the Forty-second Amendment changed this to read "sovereign socialist secular democratic republic." Also through this amendment, the phrase "unity of the Nation" was changed to "unity and integrity of the Nation". PURPOSE OF PREAMBLE Preamble basically is a declaration of- 1. The source of the Constitution, 2. The statement of its objectives, 3. The date of its adoption and enactment.  Preamble begins with a short statement of its basic values and it contains the philosophy on which our Constitution is built. It is just like an introduction or preface of a book. Preamble actually embodies the spirit of the Constitution.  It is a key to the minds of the draftsmen.  It is also the soul of the Constitution. PREAMBLE AND ITS INTERPRETATION “We, The People of India…”  This phrase simply indicates that it’s we people, the people of India who are the source of authority behind the Constitution.  This also has an implication that the Constitution has been drawn up and enacted by the people through their representatives, and not just handed down to them by a king or any outside powers. “..having solemnly resolved to constitute India..”  That is to say that by declaring such a phrase we have actually abide ourselves in it’s true spirits to follow and give full effect to the policies and principles laid down in the Constitution. “sovereign” 1 AIR 1960 SC 858 2 AIR 1973 SC 1461 3 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution  This indicates that India is a sovereign, a nation free from any external control or interference i.e. no external power can dictate the government of India. India is internally and externally sovereign i.e. externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people.  Constitution may appear to be sovereign as it is the supreme law of the land. However, a document cannot be a sovereign. The people of India, according to this Constitution have given to themselves this Constitution and therefore, we can say that the political sovereignty lies in “We, the people..” and the legal sovereignty lies in the Constitution of India.  The word “Sovereign” emphasizes that India is no more dependent upon any outside authority.  It’s membership of that Commonwealth of Nations and that of the United Nations Organization do not restrict her sovereignty. “socialist”  The word “socialist” was not there in the original draft of the Constitution. This has been incorporated in the Preamble by the 42nd Constitutional Amendment, 1976.  This is also reflected in the words “..economic justice..” in the preamble. In a democracy, socialism simply refers to a system of government in which the means of productions are wholly or partly controlled by the State.  It implies social and economic equality. Social equality in this context means the absence of discrimination on the grounds only of caste, colour, creed, sex, religion, or language. Under social equality, everyone has equal status and opportunities. Economic equality in this context means that the government will endeavour to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect emphasized a commitment towards the formation of a welfare state. India has adopted a socialistic and mixed economy and the government has framed many laws to achieve the aim.  In D.S. Nakara v. Union of India (UoI), the Supreme Court has observed that the basic framework of socialism is to provide a decent standard of living to the people and specially provide basic social security from cradle to grave. Therefore, it clearly marks the economic equality and equitable distribution of income. {Art. 39(b) and (c)} “secular”  The word “secular” also was not there in the original draft of the Constitution. This has also been incorporated in the Preamble by the Constitutional (42nd Amendment) Act, 1976.  It simply indicates that the State does not recognize any religion as its own religion and thus, treats all religions equally. It’s a status of being neither pro-religion nor anti-religion. It is also not based on total neutrality towards religion. It is based on equal respect for all religions. It embodies the age old concept of ‘sarva dharma sambhava’.  Art. 25 to 28 constitutes the right to freedom of religion  Citizens have complete freedom to follow any religion, and there is no official religion. The Government treats all religious beliefs and practices with equal respect and honour.  In a secular State, the State regulates the relationship between man and man and it is actually not concerned with the relation of man with God. “democratic”  This is based on the legal status of “Damus Cratus” which means rule of people i.e. where the Government gets its authority from the will of the people. The rulers are elected by the people and are responsible to them.  There is a famous definition of democracy as given by Abrahim Lincoln that “democracy is by the people, of the people and for the people.” 4 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution  The first part of the preamble “We, the people of India” and, its last part “give to ourselves this Constitution” clearly indicate the democratic spirit involved even in the Constitution. India is a democracy.  This simply means that the government of our country is carried on by the people of the State through their representatives and the executive head of the State i.e. the President of India is an elected representative of the People (and not a hereditary monarch as like King of England). In India, President is elected by the people although he is elected indirectly. The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as "one man one vote". Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education. “republic”  The Constitution of India is republican in nature as the executive head of India is not any hereditary monarch. This indicates the form of Government in which the Head of State will be an elected person and not a monarch like the King or the Queen in England. Such elected Head will be the Chief Executive Head.  This concept of being republic is taken from France.  As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure, the President of India is elected by an electoral college for a term of five years. The post of the President of India is not hereditary. Every single citizen of India is eligible to become the President of the country. The leaders of the state and local bodies are also elected by the people in similar manner.  India became a republic on 26th January, 1950. “..and to secure to all its citizens..” - This is a declaratory statement wherein the ultimate objective of the Constitution lies. “..justice, social economic and political..” Here, these words indicate that the Indian Constitution aims at achieving three-fold justice. It’s simply about the attainment of common good and that the people cannot be discriminated on the basis of caste, religion or gender or so and that the government or the State should work for the welfare of the people as a whole irrespective of their social status.  Economic justice can be and ought to be ensured by rational policy making and it’s proper implementation. Socio-economic justice has been ensured by provision such as Art. 38 and 39.  Political justice is ensured by way of the right of adult franchise i.e. exercise of right to vote as soon as a citizen attains the age of 18 years.  Social justice actually requires the abolition of all sorts of inequities which result from inequalities of wealth, opportunity, race, caste and religion. Art. 14 to Art.18 provides for equality of status and opportunity.  The concept of social justice thus enables the legislature to enact and the Courts to uphold such legislations- (a) to protect the interests of the weaker sections; (b) to remove economic inequalities; (c) to provide a decent standard of living to the people of the country. “..liberty, of thought, expression, belief, faith and worship..” The Constitution regards liberty of thought, expression, belief, faith and worship to be essential to the development of the individual and the nation, and therefore the Preamble itself promises to ensure the same to it’s citizens. In simple words, there are no unreasonable restrictions on the citizens in what they think, how they think, how they wish to express their 5 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution thoughts and the way they wish to follow up their thoughts in action. {Art. 19(1), Art. 25, Art.26 makes provision of such liberty} “..fraternity, assuring the dignity of the individual and the unity and integrity of the Nation..” “Fraternity” means the spirit of brotherhood. Simply put it’s that all of us should behave as if we are members of the same family and no one should treat any other person as inferior owing to any factor. India being a multilingual and multi-religious State, the unity and integrity can be preserved only through a spirit of brotherhood that pervades the entire country, among all its citizens, irrespective of their differences. Indian Constitution provides for a single citizenship. All citizens have been given the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India. [Art.19(1)(d) and Art.19(1)(e)] “..In our Constituent Assembly this twenty-sixth day of November, 1949, do hereby ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.” This is a declaratory statement about the adopting, enacting the Constitution. Art. 394 and some other Articles such as Art. 5, 6, 7, 8, 9, 60, 324, 366, 379, 380, 388, 391, 392 and 393 came into force on 26th Nov.,1949 (celebrated as Lawyer’s day) The remaining provisions of this Constitution came into force later on 26th January,1950 which day is referred to as the day of commencement of this Constitution. (As also celebrated as the Republic Day) PREAMBLE WHETHER A PART OF CONSTITUTION OR NOT?? & WHETHER AMENDABLE OR NOT??  In Re Berubari Case {AIR 1960 SC 845} The Supreme Court held that preamble is not a part of the Constitution as it does not create any substantive rights or obligations or powers. It cannot be a source of powers or restrictions on such powers. Further held that preamble is just an important tool for the interpretation of the Constitution.  In Keshwanand Bharti’s case {AIR 1973 SC 1461} It was held that preamble of the Constitution cannot be compared to the preamble of any other statute. It was also held that the objectives stated in the Preamble reflect the basic structure of the Constitution. Thus, it must be considered a part of the Constitution. It was not a provision as held in the Berubari’s case.  S.R. Bommai v. UoI {AIR 1994 SC 1918} Supreme Court held that the preamble forms a part of the Constitution. 6 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution CAN PREAMBLE BE AMENDED??  As far as the power of the Parliament to amend the Preamble is concerned, it can be concluded that the Preamble is a part of the Constitution and therefore it can be amended by the Parliament under Article 368 but the ‘basic features’ in the Preamble cannot be amended.  Till date, preamble has been amended only ones i.e. by the Constitution (42nd Amendment) Act, 1976.  By this 42nd Amendment, four words were added in the preamble i.e. “socialist”, ”secular”, “and integrity”  The Constitution of India has some outstanding features which distinguish it from other Constitutions. The framers of our Constitution studied other Constitutions, selected their valuable features and put them with necessary modifications in our Constitution.  The framers of the Constitution of India did not aim at a completely new or original Constitution. They just wanted to produce "a good and workable" Constitution. And they succeeded doing this. The fact that the Constitution, for last 59 years, has been working satisfactorily is a testimony to its quality and utility. 1) Written and lengthiest Constitution  There are two types of Constitutions in the world. Most of the Constitutions are written. The first modern written Constitution was the American Constitution. On the other hand, the British Constitution is unwritten. It consists of customs and conventions which have grown over the years.  In India, we have a written Constitution. The framers of our Constitution tried to put everything in black and white. Indian Constitution can be called the largest written constitution in the world because of its contents. In its original form, it consisted of 395 Articles and 8 Schedules to which additions have been made through subsequent amendments. At present it contains 395 Articles and 12 Schedules. There are various factors responsible for the long size of the Constitution. The Constitution became lengthy mainly due to the following factors- (a) The Constitutional draftsmen wanted to put everything in black and white and that too in great detail. (b) In other federations, there are two Constitutions: one for the federation and the other for the states. In India, the states do not have separate Constitutions. The powers of states along with the powers of the federation i.e. the Union have been vested in one Constitution. (c) The Government of India Act, 1935 was in operation when India got independence. Our leaders were familiar with this Act. They borrowed heavily from this lengthy Act while framing our Constitution. (d) India is a country of great diversity. It is a country of several minorities; it has many languages, castes, races and religions. The problems and interests of these different groups have found place in one Constitution leading it to be a long document. 7 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution (e) Good features of other Constitutions have been included, with necessary modifications, in our Constitution. For example, we have brought the 'bill of rights' from the American Constitution, parliamentary system of government from the British Constitution and Directive Principles of State Policy from the Irish Constitution. While including these elements of other Constitutions in our Constitution, Dr. B.R. Ambedkar said the framers of our Constitution tried to remove their faults and suit them to our conditions. 2) Preamble  The Preamble describes the source, nature, ideology, goals and objectives of the Constitution. The Constitution declares India to be a Sovereign, Socialist, Secular, Democratic, Republic. The words, 'Socialist' and 'secular' were added in the Preamble of the Constitution by 42nd amendment which was passed in 1976.  It underlines the national objective of social justice economic justice and political justice as well as fraternity. It emphasises the dignity of the individual and the unity and integrity of the nation. Sovereign: Sovereign means absolutely independent; it is not under the control of any other state. Before 1947, India was not sovereign as it was under the Britishers. Now it can frame its policy without any outside interference. Socialist: Word 'Socialist' was added in the Preamble by 42nd Amendment of the Constitution which was passed in 1976. This implies a system which will endeavour to avoid concentration of wealth in a few hands and will assure its equitable distribution amongst all the people of the nation. It also implies that India is against exploitation in all forms and believes in economic justice to all its citizens. Indian Socialism is basically a combination of Marxist and Gandhian ideology. Secular: The word 'Secular', like Socialist, was also added in the Preamble by 42nd Amendment of the Constitution. India is a country of several religions but India has no official religion of the Indian State. There is no State Religion. In matters relating to religion, the state is neutral and non- interfering. It does not patronize any religion. Nor does it discriminate against any religion. Every citizen is free to follow and practise the religion of his/her own choice. The state cannot discriminate among its citizens on the basis of religion or it cannot force a citizen to accept any specific religion. Democratic: Democracy means that the power of the government is vested in the hands of the people. People exercise this power through their elected representatives who, in turn, are responsible to them. All the citizens enjoy equal political rights. Our Constitution lays a lot of emphasis on democratic values, and a number of democratic institutions have been established to give shape to these values. The centre, states and local self-governing bodies follow democratic principles, and all elections from gram panchayats to parliament are democratically held. Republic: Means that the head of the State is not a hereditary monarch but a President who is indirectly elected by the people for a definite period is actually the political head of the nation. 3) Federal government  The Constitution provides for a federal form of government. In a federation, there are two governments - at the central level and at the state level. In India, the powers of the government are divided between the central government and state governments.  Article 1 of the Constitution of India says: - "India, that is Bharat shall be a Union of States." Though the word 'Federation' is not used, the government is federal. A state is federal when (a) there are two sets of governments and there is distribution of powers between the two, (b) there is a written constitution, which is the supreme law of the land and (c) there is an independent judiciary to interpret the constitution and settle disputes between the centre and the states. All these features are present in India. There are two sets of government, one at the centre, the other at state level and the distribution of powers between them is quite detailed in our Constitution. The Constitution of India is written and the supreme law of the land. At the 8 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution apex of single integrated judicial system, stands the Supreme Court which is independent from the control of the executive and the legislature.  But in spite of all these essential features of a federation, Indian Constitution has a centralizing or a unitary tendency. While other federations like U.S.A. provide for dual citizenship, the India Constitution provides for single citizenship. There is also a single integrated judiciary for the whole country. The provision of All India Services, like the Indian Administrative Service, the India Police Service, and Indian Forest Service prove another unitary feature. Members of these services are recruited by the Union Public Service Commission on an All-India basis. Because these services are controlled by Union Government, to some extent this constitutes a constraint on the autonomy of states.  A significant unitary feature is the Emergency provisions in the Indian constitution. During the time of emergency, the Union Government becomes most powerful and the Union Parliament acquires the power of making laws for the states. The Governor placed as the constitutional head of the state, acts as the agent of the centre and is intended to safeguard the interests of the centre. These provisions reveal the centralising tendency of our federation.  Prof: K.C. Wheare has rightly remarked that Indian Constitution provides, "a system of government which is quasi-federal, a unitary state with the subsidiary unitary features". The framers of the constitution expressed clearly that there exists the harmony of federalism and the unitarism. Dr. Ambedkar said, "The political system adopted in the Constitution could be both unitary as well as federal according to the requirement of time and circumstances". We can say that India has a "Cooperative federalism" with central guidance and state compliance.  There are three different lists of subjects given under the Seventh Schedule of the Constitution - Union list, State list and Concurrent list.  The Union list contains 97 subjects of national importance like Defence, Foreign Affairs, Currency, Post and Telegraph, Railways. On these subjects, only central legislature (Parliament) can make laws.  The State list contains 66 subjects of local importance. On these subjects, state legislatures make laws. These subjects include agriculture, police, and jails.  Concurrent list contains 47 subjects which are of common concern to both the central and state governments. These include education, roads, social security etc. On these subjects, both the parliament and state legislatures can legislate. However, if there is a conflict between a central law and the state law over a subject given in the concurrent list, the central law will prevail. 4) Parliamentary government  India has adopted the Parliamentary system as found in Britain. In this system, the executive is responsible to the legislature, and remains in power only as long and it enjoys the confidence of the legislature. The president of India, who remains in office for five years is the nominal, titular or constitutional head. The Union Council of Ministers with the Prime Minister as its head is drawn from the legislature. It is collectively responsible to the House of People (Lok Sabha), and has to resign as soon as it loses the confidence of that house. The President, the nominal executive shall exercise his powers according to the advice of the Union Council of Ministers, the real executive. In the states also, the government is Parliamentary in nature.  Indian Constitution provides for a parliamentary form of government. The majority party in the Lower House (Lok Sabha) forms government. The Council of Ministers is collectively 9 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution responsible to the Parliament. The Cabinet is the real executive head. In Presidential form of government, the President is the executive head. In India, the President is only the nominal head.  In Britain, the monarchy is hereditary. But in India, the post of President is elective. 5) Three Tier Government  Indian Constitution provides for a three tier government.  Originally, it was two tier i.e. Centre and the State  But by 73rd and 74th Amendment Act, 1992 three tier government has been established. (Centre, state & local self government)  Panchayat raj system was adopted by way of these two amendments. 6) Fundamental rights and duties  These rights are fundamental because they are basic to the moral and spiritual development of the individual and these rights cannot be easily abridged by the parliament.  Now the citizen enjoys six fundamental rights, originally there were seven fundamental rights. One of them was taken away from Part III of the Constitution by the Forty-fourth Amendment Act, 1978. As a result, the Right to Property is no longer a fundamental right. Since 1978, it has become a legal right.  The idea of fundamental rights has been borrowed from the American Constitution.  Any citizen of India can seek the help of High Court or Supreme Court of India if any of his fundamental rights is undermined by the government or any institution or any other government.  Fundamental rights are justiciable in nature. (i.e. they are legally enforceable by the court of law). These are not absolute in nature & are subject to some restrictions. Parliament can amend them but not those provisions that form the “basic structure” of the Constitution.  Suspended during National Emergency (Except Art 20 & 21).  The Constitution of India guarantees six fundamental rights to every citizen. These are: i. Right to Equality.[Article 14-18] ii. Right to Freedom. [Article 19-22] iii. Right against Exploitation. [Article 23,24] iv. Right to Freedom of Religion. [Article 25-28] v. Cultural and Educational Rights. [Article 29, 30] vi. Right to Constitutional Remedies. [Article 32] (Right to property (Article-31) originally a fundamental right has been omitted by the 44th Amendment Act. 1978. It is now a legal right.) 7) Fundamental Duties  Non-justiciable in nature (i.e. they are not legally enforceable by the court of law)  Not present in the original Constitution. (Added by 42nd Amendment Act, 1976 on the recommendation by Swarn Singh committee.)  Reminds people that while enjoying rights they have some duties to do. 8) Directive principles of state policy  These principles are in the nature of directives to the government to implement them for establishing social and economic democracy in the country.  The Directive Principles of State Policy are enumerated in Part IV of the Constitution. The framers of our Constitution took the idea of having such principles from the Irish Constitution. 10 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution  These principles have been stated a; "fundamental in the governance of the country".  They are instructions or directives from the Constitution to the state and the government. It is the duty of the government to implement them.  Non-justiciable in nature (i.e. they are not legally enforceable by the court of law) but they are nevertheless fundamental in the governance of the country.  Promotes social and economic democracy  In general, the Directive Principles aim at building a Welfare State. These principles provide the criteria with which we can judge the performance of the government. Some of the important Directive Principles are: (1) There should not be concentration of wealth and means of production to the detriment of common man; (2) Workers should be paid adequate wage & there should be equal pay for equal work for both men and women; (3) Weaker sections of the people, Scheduled Caste and Scheduled Tribe people should be given special care; (4) The state should promote respect for international law and international peace.  All the governments-Central, State and Local-are expected to frame their policies in accordance with these principles. The aim of these principles is to establish a welfare state in India. They, however, are not binding on the government-they are mere guidelines. 9) Fundamental Duties  A new part IV (A) after the Directive Principles of State Policy was incorporated in the constitution by the 42nd Amendment, 1976 for fundaments duties. Fundamental Duties did not form part of the Constitution. Ten Fundamental Duties were inserted in Part IV by the Constitution 42nd Amendment Act, 1976.  A new Article - Article 51-A enumerates ten Fundamental Duties. These duties are assigned only to citizens and not to non-citizens. These duties are not justifiable (i.e. These cannot be enforced through the courts of law)  The purpose of incorporating these duties in the Constitution is just to remind the people that while enjoying their right as citizens, should also perform their duties for rights and duties are correlative. 10) Partly rigid and partly flexible  Whether a Constitution is rigid or flexible depends on the nature of amendment.  The Constitution of India is neither wholly rigid nor wholly flexible. It is partly rigid and partly flexible. It is because of the fact that for the purpose of amendment, our Constitution has been divided into three parts: (a) Certain provisions of the Constitution can be amended by a simple majority in the Parliament. (b) Certain provisions can be amended by a two-third majority of the Parliament and its ratification by at least half of the states. (c) The remaining provisions can be amended by the Parliament by two-third majority.  These different amendment procedures make our Constitution partly flexible and rigid. In fact, there is a balance between rigidity and flexibility in our Constitution.  Some amount of flexibility was introduced into our Constitution in order to encourage its growth.  Pt. Jawaharlal Nehru feared that if a Constitution is too rigid, it will be stagnant and that the growth of the nation would be hampered. 11 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution 11) Single citizenship  In a federation, normally we have double citizenship. In the United States of America, there is double citizenship. An American is a citizen of America and at the same time he is also a citizen of one of the 50 States of America where he resides. In India, there is only single citizenship. Every Indian, irrespective of his place of birth or residence, is a citizen of India only. He is not a citizen of any Indian state. There is no citizenship of Madhya Pradesh, Delhi, Punjab, U.P. or so.  Single citizenship is meant to ensure national unity and national integration. 12) Universal Adult Franchise  Article 326 of the Constitution of India provides Universal Adult Franchise. It means that every citizen of India who has completed 18 years of age is eligible to vote in general elections irrespective of his caste, creed, sex, religion or place of birth. This is one of the most revolutionary aspects of Indian democracy. 13) Language Policy  The Constitution has also defined the language policy. India is a country where different languages are spoken in various parts of the country. Hindi and English have been made official languages of the Central Government. A state can adopt the language spoken by its people in that state also as its official language.  Although India is a multi-lingual nation, the Constitution provides that Hindi in Devnagri script will be the national language. It shall be the duty of the union to promote and spread Hindi language.  At present, we have 22 languages which have been recognised by the Indian Constitution. These are: Assamese, Gujarati, Konkani, Marathi, Sanskrit, Telugu, Bengali, Hindi, Maithili, Nepali, Santhali, Urdu, Bodo, Kannada, Malayalam, Oriya, Sindhi, Dogri, Kashmiri, Manipuri, Punjabi, Tamil. 14) Independent judiciary  The Indian Constitution provides for an independent judiciary as also envisaged as a directive principle laid down under Art. 50 i.e. “Separation of judiciary from executive”. The judiciary has been made independent of the Executive as well as the Legislature.  The judiciary in India is independent and impartial. It is an integrated and a hierarchical judiciary with the Supreme Court at the apex of the hierarchy. The High Courts stand in its middle, and the lower courts are located at its bottom.  The Judges security of tenure and it is extremely difficult to remove any Judge of the Supreme or of the High Court through impeachment.  Also, the Supreme Court and the High Courts have the power of Judicial Review. They have the power to declare acts of legislatures and actions of the Executive ultra vires and such acts or actions are found to be in conflict with the provisions of the Constitution. 15) A Constitution derived from many sources  The framers of our Constitution borrowed many things from the Constitutions of various other countries and included them in our Constitution. That is why some writers call Indian Constitution a 'bag of borrowings'. 16) Emergency provisions  The framers of our Constitution had realised that there could be certain dangerous situations when government could not be run as in ordinary time. Hence our Constitution contains certain emergency provisions.  During emergency the fundamental rights of the citizens can be suspended and our government becomes a unitary one. 12 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution 17) Federal Government with Unitary Bias  India is a federation, although word 'federation' does not find a place in the whole text of the Indian Constitution. The elements of federation are present in the Indian Constitution. It is a written and rigid Constitution.  There is dual polity and there is Constitutional division of powers between the centre and the states. There is also an independent judiciary. The Supreme Court arbitrates the disputes between the centre and the states.  All these provisions make India a federation. But in Indian Federation, the centre is strong as compared to the states. The centre has more financial powers and the states largely depend upon it for their economic development. The Governor acts as the agent of the centre.  The centre can reorganize a state, but a state cannot reorganize the centre. In other words, the centre is indestructible while the states are destructible. During emergencies, the powers of the centre considerably grow and the states become weak.  K. C. Where has described the Indian government as 'quasi-federal'. India has also been characterised as 'a federal state with unitary spirit.‘  Indian Constitution establishes India as the federal system of government. Federal system means a political system where is there division of powers between centre and State. But Indian federal system is unique in itself as it has a strong centre.  So, Indian Political structure can be rightly described as “federal system with strong centre” NATURE OF VARIOUS CONSTITUTIONS IN THE WORLD Nature of Constitution necessarily depends upon the types of Constitution Written or unwritten Constitution: Most of the countries over the world have a written Constitution. Best example of an unwritten Constitution is British Constitution (UK)  Rigid or Flexible Constitution  A Constitution is rigid if for the amendment or review of its provisions, a special provision is required to be followed. Example - Constitution of USA.  A Constitution is flexible if its provisions can be amended or revised by the ordinary legislative process. Example - Constitution of UK  A rigid Constitution possesses the quality of stability. And the drawback of being a rigid Constitution is that such a Constitution cannot be tuned in accordance with the needs of the society as and when required. It places obstacles in the required social changes.  Flexible Constitution, on the other hand, can be easily amended according to the needs of the society but the drawback is that such a Constitution lacks stability.  Federal and Unitary Constitution Typically, democratic Constitutions are classified into two categories-  UNITARY FEDERAL CONSTITUTION CONSTITUTION  Constitution which provides for a federal system of government is called a Federal Constitution, while a Constitution which provides for a unitary form of government is called a Unitary Constitution. 13 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution  In a Unitary Constitution, all the powers of the government are given to the Centre and the local govt. enjoy the powers delegated to them by the Centre.  The federal Constitution establishes a federal system of government. It establishes a system of double government – Central government, and the State government.  Merits of Unitary Constitution 1. Unitary Constitution establishes a strong Central Government which is found more useful in times of war and emergencies. 2. The Central govt. has all the powers of the govt. and the local or the State govt. just enjoys the powers delegated to them. 3. No conflict of authority and no overlapping of jurisdiction. 4. Unitary Constitution is more flexible.  Demerits of Unitary Constitution 1. Unitary Constitution develops centralized bureaucracy. 2. The laws are often made in ignorance of the local conditions and needs. 3. They are administered by the persons who do not have sufficient knowledge of the local needs. 4. Unitary Constitution is more flexible and therefore it does lack stability. CHARACTERISTICS OF FEDERALISM 1. System of double government: India has two sets of government - the Central or Union government and the State government. The Central government works for the whole country and the State governments look after the States. The areas of activity of both the governments are different. 2. Distribution of Powers: The Constitution of India has divided powers between the Central government and the state governments. The Seventh Schedule of the Constitution contains three lists of subjects which show how division of power is made between the two sets of government. Both the governments have their separate powers and responsibilities. 3. Written and rigid Constitution: The Constitution of India is written. Every provision of the Constitution is clearly written down and has been discussed in detail. It is regarded as one of the longest constitutions of the world which has 395 Articles 22 Parts and 12 Schedules. 4. Supremacy of the Constitution: The Constitution is regarded as the supreme law of the land. No law can be made which will go against the authority of the Constitution. The Constitution is above all and all citizens and organizations within the territory of India must be loyal to the Constitution. 5. Independent judiciary and Supremacy of judiciary: The Supreme Court of India is the highest court of justice in India. It has been given the responsibility of interpreting the provisions of the Constitution. It is regarded as the guardian of the Constitution. 6. Bi-cameral legislation: In India, the legislature is bi-cameral. The Indian Parliament, i.e., the legislature has two houses - the Lok Sabha and the Rajya Sabha. The Rajya is the upper house of the Parliament representing the States while the Lok Sabha is the lower house representing the people in general. All the above characteristics are present in the Indian Constitution. However, there are certain provisions that affect its federal character. 1. Appointment of the Governor of a State – Art.155 and Art.156 provide that the Governor, who is the Constitutional head of a State, is to be appointed by the President and stays only until the pleasure 14 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution of the President. Further, that the Governor can send the laws made by the state for assent from the President, who can veto the law. It should be noted that Governor is only a ceremonial held and he works on the advice of council of ministers. In past 50 yrs, there has been only one case (Re Kerala Education Bill), where amendments to a state law were asked by the centre and that too after the opinion of the Supreme Court. Thus, it does not tarnish the federal character and states are quite free from outside control. 2. Power of the Parliament to make laws on subjects in the State list - Under Art. 249, centre is empowered to make laws on subjects in the State list. On the face of it, it looks a direct assault on the power of the states. However, this power is not unlimited. It is exercised only on the matters of national importance and that too if the Rajya Sabha agrees with 2/3rd majority. It should be noted that Rajya Sabha is nothing but the representative of the States. So an approval by Rajya Sabha means that States themselves are giving the power to the centre to make law on that subject. 3. Power to form new states and to change existing boundaries - Under Art. 3, centre can change the boundaries of existing states and can carve out new states. This should be seen in the perspective of the historical situation at the time of independence. At that time there were no independent states. There were only provinces that were formed by the British based on administrative convenience. At that time States were artificially created and a provision to alter the boundaries and to create new states was kept so that appropriate changes could be made as per requirement. It should be noted that British India did not have states similar to the States in the USA. 4. Emergency Provisions - Centre has the power to take complete control of the State in the following 3 situations: (a) An act of foreign aggression or internal armed rebellion (Art. 352) (b) Failure of constitutional machinery in a state (Art. 356) (c) Financial Emergency (Art. 360) 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 Centre 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. 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.  Merits of Federal Constitution 1. Federal Constitution better protects the Regional and Local interest. 2. Subjects of local interest are entrusted to the regional govt. and that of the national importance are entrusted to the Central govt. Therefore, the local Legislatures gets an opportunity to make laws according to the local needs. 3. A federal Constitution tends to develop decentralization. 4. A federal Constitution is therefore more democratic in nature.  Demerits of Federal Constitution 1. A Federal Constitution leads to the establishment of a weak government. The Central govt. has no direct control over the matters allotted to the regional governments. 15 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution 2. Such weaknesses are evident on the times of emergencies. 3. Possibility of development of regionalism. 4. Citizens may show a greater loyalty towards their region rather than the Union. This may be a serious threat to the national unity. 5. A Federal Constitution, a conflict of authority and overlapping of jurisdiction may always arise and in such a govt., there is a possibility of confusion regarding the responsibility for work to be done and duplication of work. 6. Duplication of work may always lead to more administrative expenses. 7. A Federal Constitution is rigid in nature and therefore it cannot be amended according to the needs. 8. Such double system of govt. is also a cause of the delayed execution and implementation of plans and projects. INDIAN CONSTITUTION WHETHER FEDERAL OR UNITARY??  No doubt, Indian Constitution is a blend of features of both Federal as well as Unitary Constitution. But, after observing all the features of Indian Constitution, it is conclusive that it is federal with a unitary bias.  Austin rightly says about Indian Constitution, it is a co-operative federalism. Nature of Indian Constitution A controversy has always been there as to the actual nature of the Indian Constitution that, whether the Indian Constitution is federal or unitary in nature. It is mandatory here to examine the basic features of Indian Constitution and critically analyze the same in order to conclude upon its nature. 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. 16 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution Comparative analysis of essential features of federal Constitution and Indian Constitution A federal Constitution possesses the following characteristics - 1. System of double governments In a federal Constitution, there exists a double government i.e. the Central government and the State or the regional Governments. This feature is also found under the Indian Constitution. 2. Distribution of powers A Federal Constitution essentially provides for distribution of powers between the Central and the State Governments. Both the governments are coordinate and independent in their sphere and not subordinate to one another. Indian Constitution also provides for such distribution of powers. LEGISLATIVE As far as the legislative powers are concerned, the subjects have been divided into three lists as given under the Seventh Schedule of the Indian Constitution, namely – UNION LIST STATE LIST CONCURRENT LIST  Subjects of national importance such as defense of India, Naval, Military and Air Forces, Foreign Affairs, Railways, National Highways, Foreign Exchange, Banking etc have been placed under the Union List i.e. List I. The union list in all contains 97 items.  The subjects of local interest such as public order, police, local government, public health and sanitation, hospitals, agriculture, etc. have been placed under the State list i.e. List II which contains 66 items.  The subjects which are of local interest but require uniform treatment all over the country such as education, factories, newspapers, civil or criminal laws, contract have been placed under the Concurrent list i.e. List III which contains 47 items. Parliament i.e. the Central legislature has exclusive power to make laws with respect to any of the matters as mentioned under List I. The State legislature has the exclusive power to make laws upon the matters that are mentioned in the State list. Parliament as well as the State legislatures has a concurrent (co-existing) power to make laws on the matters listed in the concurrent list. If there is a conflict between same laws as passed by the Parliament and a State legislature on a particular subject, then the law passed by the Parliament shall have an over-riding effect or it will prevail and the State law to the extent of repugnancy will be void. Distribution of powers is an essential feature of Federal Constitution but Indian Constitution also has following characteristics of a Unitary Constitution. (Unitary features) 17 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution  Although law making power is vested in both, the Parliament and the State Legislature as to the matters enlisted in List 3, but the very factor that if both the above said legislative bodies enact their own legislations on a particular matter and such laws tends to conflict, then the law passed by the Parliament would prevail and the State law shall, to the extent of repugnancy, be void.  An exception to this is given under Article 254(2) wherein such repugnant law made by State legislature was reserved for President’s consideration and it has received President’s assent, then such law may prevail in that State.  Also, the residuary power to legislate upon any matter that has not been listed in any of the three lists has been vested in the Parliament. Whereas in American Constitution, such residuary power is vested in the State legislatures. Parliament can also make laws with matters listed in the State list in the following cases – 1) Under Art.248 – A general power of the Parliament to legislate upon matters mentioned in State List. 2) If Council of States i.e. Rajya Sabha declares by a resolution supported by not less than 2/3 rd of the members present and voting that it is in the national interest that Parliament should make law regarding a subject-matter of the State list, it shall be lawful for the Parliament to pass such law. {valid for 1 year/ceases after 6 months} 3) While proclamation of emergency is there. 4) If two or more State Legislatures feels that Parliament should legislate upon a matter of common concern to such states, but the Parliament directly does not have a power to legislate upon such matter, then on such request being made by such States, the Parliament can legislate upon the same. 5) In case of State emergency (under Art. 356)  The provisions under Art. 2 and 3 also indicates the unitary features of the Indian Constitution. Art. 2 – Admission or establishment of new States. Art. 3 – Formation of new States and alteration of areas, boundaries or names of existing States. Both the above functions and powers to do the same have been vested in the Parliament by the Indian Constitution. ADMINISTRATIVE As such, Indian Constitution provides for distribution of the administrative powers as well. But, there are certain features of being unitary system with this regard as well. 1) Art.256 – The State must so exercise their executive powers as to ensure compliance with the laws made by Parliament and the Union govt. can also give directions to a State in this regard. If the State fails to comply, the President may impose State emergency on this very ground. FINANCIAL Under a Federal Constitution, the union and the States are financially independent. But, under Indian system, the States are dependent upon the Centre for the grants-in-aid and the financial assistance. This indicates the unitary feature of Indian Constitution. 3. Rigid and Written Constitution It is not necessary that a federal Constitution should always be a written Constitution but it has been observed that in most of the countries having a Federal Constitution are generally written Constitutions. India too has a written Constitution and under Art.368, three 18 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution modes of amendment have been provided, which renders it neither absolutely rigid nor absolutely flexible. 4. Independent judiciary - Independence of judiciary is necessary to maintain the federal structure intact. Various provisions to ensure the independence of judiciary are-  Appointment of judges by the Head of the executive or through independent Commission.  Difficult procedure for their removal(impeachment)  No variation in conditions of their services to their disadvantage after their appointment.  Prohibition of any discussion as to the conduct of any judge.  Security of tenure. 5. Supremacy of Constitution -  In India, Constitution is the supreme of the land.  All three organs of the Indian democracy i.e. the executive, legislature and the judiciary, all have to abide by and follow the Constitutional principles.  Here, judiciary is regarded as the guardian of Indian Constitution and therefore the power of judicial review holds a very significant place as far as the power of judiciary as the guardian of Constitution is concerned.  In USA’s Constitution also, since it establishes a federalism, the Constitution is supreme like India.  In England, there is supremacy of the Parliament. In England, the Parliament is sovereign.  Supremacy of Constitution is also one of the basic structures in the Indian Constitution which cannot be disturbed in the name of a Constitutional amendment.  Power of judicial review as provided under Article 13 is a reflection of the independence of the judiciary. Here, it simply means that if the Parliament passes any law which actually contravenes the basic principles laid down in the Constitution, then the judiciary is empowered to review the Constitutionality of a particular enactment and the judiciary may struck down the said law as null and void.  Art. 32 and Art. 226 are also a different aspect of the independence of judiciary. Comparative analysis of essential features of Unitary Constitution and Indian Constitution  Single citizenship  Unified system of Courts.  Election Commission  Comptroller and Auditor General of India  All India Services. (Like IAS, IPS, IFS, IRS)  Governor of the States.  Emergency provisions.  Legislative functions.  19 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution CASES ON NATURE OF INDIAN CONSTITUTION  State of West Bengal v. UoI {AIR 1963 SC 1241} - Supreme Court held that Indian Constitution is not truly federal because the States are not coordinate with the Union.  Kuldeep Nayyar v. UoI {AIR 2006 SC 3127} - Supreme Court held that federal principle is the basic feature of the Constitution however federation leans in favour of strong Centre. OPINIONS REGARDING NATURE OF INDIAN CONSTITUTION  K.C. Wheare has characterized Indian Constitution as quasi-federal.  Jennings opined that Indian Constitution should be described as federation with a strong centralizing tendency.  Austin suggested that Indian Constitution can be called federal, “ a Co-operative federalism” 20 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution UNIT-II (A) CITIZENSHIP, FUNDAMENTAL RIGHTS 1. STATE 2. CITIZENSHIP STATE Article 1 (1) of the Indian Constitution provides that- “India, that is Bharat, shall be a Union of States.” Thus, Article 1 describes the name by which our Country shall be called or known. The expression “Union of States” has been taken from the Preamble to the North America (Canada) Act, 1867. The expression indicates that India is a federation. The Preamble to the Constitution of India declares that the Republic of India is creation of the people of India and not of the States. But, the States are also a creation of the people of India and they cannot break away from the Republic. Although, the Republic of India is described as a union and it cannot be said to be a federation in the strict sense of the term. The Constitution makers had a purpose in choosing the word “Union” in preference to “Federation”. They were of the view that the word “Union” better expresses the fact that the Union of India is not the outcome of an agreement among the old provinces with the result that it is not open to any State or a group of states to secede or withdraw from the Union or to vary the boundary of the states on their free will. Article 1 : Name and territory of the Union (1) India, that is Bharat, shall be a Union of States. (2) The States and the territories thereof shall be as specified in the First Schedule. (3) The territory of India shall comprise— (a) the territories of the States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired. According to Article 1 of the Indian Constitution, India is declared a Union of States, and the States and territories are specified in the First Schedule. The territory of India which is described in clause(3) falls under three categories— the State territories, the Union territories, the territories which may be acquired by Government of India. Before the Constitution (Seventh Amendment) Act, 1953, the Union consisted of States which were classified into three main Categories—Parts A, B and C of the First Schedule. In addition to these there were territories specified in Past D of The First Schedule. Thus there were four categories in all. Thus at the time of the commencement of the Constitution (Seventh amendment) Act, 1956, the Union of India consisted of 10 Part A States, 8 Part B States, 9 Part C States and 1 Part D State. The Constitution (Seventh Amendment) Act, 1956, has abolished the three categories and placed all the States of the Union on the same footing as a result of the reorganization made by the State Reorganization Act, 1956. At present, the territory of India consists of 29 states and 7 Union Territories namely the following— 21 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution STATES Andhra Pradesh Assam Bihar Gujarat Kerala Madhya Pradesh Tamil Nadu Maharashtra Karnataka Orissa Punjab Rajasthan Uttar Pradesh West Bengal Jammu & Kashmir Nagaland Haryana Himachal Pradesh Manipur Tripura Meghalaya Sikkim Mizoram Arunachal Pradesh Goa Chhattisgarh Uttaranchal Jharkhand Telangana UNION TERRITORIES Delhi Andaman & Nikobar Island Dadara & Nagar Haveli Daman & Diu Pondicherry Chandigarh Laccadive The Union territories mentioned above are centrally administered areas, to be governed by the President, acting, through an administrator appointed by him. By 69th Amendment Act, Union Territory of Delhi was converted into National Capital Territory of Delhi, and the 70th Amendment Act, provides that 'State' includes National Capital of Delhi, and Union Territory of Pondicherry. Now both these union territories enjoy the status of a state with legislative assemblies and are governed by the Council of Ministers with a Chief-Minister as its head. Any territory which may at any time, be acquired by India will be included in the definition of union territories. A territory can be said to have been acquired when the Indian Union acquires sovereignty over such territory. The usual modes of acquisition of territory by a State are cession following a treaty, occupation, subjugation, acquisition and prescription. Thus, foreign territories acquired by India may be admitted into the union or Constitution into new states under Article 2 or may be merged into an existing State under Article 3(a) or 3(b). Article 2 : Admission or establishment of new States - Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit. The admission or establishment of a new State will be on such terms and conditions as Parliament may think fit. Such terms and conditions must, however, be consistent with the foundational principles of the basic structure of the Constitution. Article 3 : Formation of new States and alteration of areas, boundaries or names of existing States - Parliament may by law— (a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; (b) increase the area of any State; 22 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State: Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired. Explanation I : In this article, in clauses (a) to (e), “State’’ includes a Union territory, but in the proviso, “State’’ does not include a Union territory. Explanation II : The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory. The scope of Article 3 is different from that of the preceding provisions as Article 2 relates to admission or establishment of new States which are not part of the Union whereas Article 3 provides for the formation of or changes in the existing States including Union Territories. Article 4: Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters - 1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. 2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368. This article directs the Parliament, in case it makes a law under Article 2 or Article 3, to include therein necessary provisions for amendment of the First and Fourth Schedules of the Constitution. The First Schedule specifies the States which are the members of the Union and their respective territories. The Fourth Schedule specifies the number of seats to which each State is entitled to in the Council of States (i.e. the upper house of the Parliament, Rajya Sabha) CITIZENSHIP Part II of the Indian Constitution defines several categories of Indian citizens at the commencement of the Constitution. A citizen of a given State is a person who enjoys full membership of the political community or the State. Citizens are different from aliens or mere residents who do not have all the rights which go to make full membership of a State. A citizen actually enjoys full civil and political rights. Citizenship carries with it certain advantages conferred by the Constitution. Citizenship inheres only in natural persons and not in juristic persons like corporations or societies etc. There is single citizenship for the whole of India i.e. Indian citizenship. In many federal constitutions, there are dual citizenship—a state citizenship and a federal citizenship. Under dual citizenship the citizen of one federating state is virtually an alien in another such state. There being only single citizenship, the rights, privileges and obligations are the same for all citizens throughout India. 23 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution Indian Constitution ensures certain fundamental rights which are available to Indian citizens only. Aliens cannot enjoy these rights. Such fundamental rights as exclusively enjoyable by the Indian citizens are enumerated under Articles 15, 16, 18(2), 19 and 29. Also, citizens alone have the right to hold certain high offices such as those of President of India [Article 58 (1)(a)], Vice-President [Article. 66(3)(a)], Governor of the State [Article 157], Judge of the Supreme Court [Article 124(3)], High Court Judge [Article 217(2)], Attorney General of India [Article 76(1)] and Advocate General [Article 165]. The Constitution lays down sets of provisions relating to citizenship—one set which tells us who are, or who may be deemed to be, Indian citizens at the commencement of the Constitution, the other set tells us that Parliament may make any provision with respect to acquisition and termination of citizenship and all other matters relating to citizenship. The Constitution thus, as it stands, does not contain the exhaustive law on the subject and that is why a separate enactment (i.e. The Indian Citizenship Act, 1955) has been passed. Citizenship is to be determined as per the Citizenship Act, 1955 and the Constitutional provisions. Citizenship at the commencement of the Constitution Article 5 to 8 describes 4 classes of people who were deemed to be citizens of India at the time of the commencement of the constitution- 1. Persons domiciled in India 2. Persons who migrated from Pakistan 3. Persons who migrated to Pakistan 4. Persons living abroad i.e., in foreign countries other than Pakistan Citizenship by domicile (Article 5) - A person is entitled to citizenship by domicile if he fulfils two conditions laid down by Article 5. First, he must, at the commencement of the Constitution, have his domicile in the territory of India. Secondly, such person must fulfil any one of the three conditions laid down in the Article, namely, (a) he was born in India, (b) either of his parents was born in India, (c) he must have been ordinarily resident in the territory of India for not less than 5 years immediately before the commencement of the Constitution. Domicile is of two kinds- domicile of origin and domicile of choice. Every person is born with a domicile of origin. It is domicile received by him at his birth. The domicile of origin of every person is the country in which at the time of his birth his father was domiciled. Thus the domicile of origin is a concept of law. It clings to a man till he abandons it and acquires a new domicile. Every independent person can acquire a domicile of choice by a combination of- (a) actual residence in a particular place, and (b) intention to remain there permanently or for an indefinite period. Citizenship of persons who migrated to India from Pakistan before the commencement of the Constitution (Art. 6) Persons who have migrated from Pakistan to India have been classified into two categories for the purposes of citizenship— (a) those who migrated to India before July 19, 1948, and (b) those who migrated on or after July 19, 1948. {NOTE – 19/07/1948 is the date when permit system was introduced for going from India to Pakistan and for coming from Pakistan to India.} 24 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution According to Article 6- (i) The persons of the first category i.e. persons who migrated from Pakistan to India before July 19, 1948 shall be deemed to be a citizen of India at the commencement of the Constitution, that is on 26th January, 1950, if- (a) he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 and (b) he should have resided in India since the date of his migration. (ii) As regarding the persons of second category i.e. persons who migrated from Pakistan to India on or after July 19, 1948, following conditions must be fulfilled to enable him to acquire Indian citizenship and to be deemed as a citizen of India at the commencement of the Constitution i.e. on 26th January, 1950- (a) he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 and (b) he should have resided in India, after migration for at least six months. (c) he must have submitted an application for registration as a citizen wherein he must prove that he resided in India for at least six months preceding submission of such application. (d) he has been registered as citizen of India by an officer appointed by the Government of India for that purpose. Citizenship of migrants of Pakistan (Article 7) Article 7 provides that anyone who has, after 1st March, 1947 migrated from India to Pakistan, cannot be a citizen of India. But, Article 7 also makes a special provision regarding the citizenship rights of persons who migrated to Pakistan after March 1, 1947 but returned to India subsequently. Such a person becomes entitled to Citizenship of India, provided they fulfil the conditions stated for Migrants from Pakistan stated in Article 6. An immigrant to Pakistan after 1st March, 1947, who has returned to India under a proper legal permit for resettlement or permanent return to India— such a person should fulfil all other conditions necessary for immigrants from Pakistan after July 19, 1948. Citizenship of persons of Indian origin residing outside India (Article 8) Article 8 provides that any person who or either of whose parents or grandparents was born in India as defined in Government of India Act 1955 but who is ordinarily residing in any country outside India, shall be deemed to be a citizen of India if he has been registered as an Indian Citizen by the diplomatic or consular representative of India in that country on an application made by him/her in the prescribed form to such diplomatic or consular representative, whether before or after the commencement of the Constitution. A person residing outside India if he satisfies the following two conditions— (i) he or either of his parents or any of his grand-parents must have been born in undivided India and (ii) he must have been registered as a citizen of India by the Diplomatic or Consular representative of India in the country where he is for the time being residing on an application made to such representative in prescribed form and manner. Article 9 provides that if a person voluntarily acquires the citizenship of any foreign State, he shall not remain a citizen of India under Article 5, 6 and 8. Article 9 does not disable Parliament from conferring Indian citizenship on a person who has voluntarily acquired the citizenship of any foreign state. The Citizenship Act was amended in 2003 and again in 2005 to introduce the concept of overseas citizenship for citizens of other countries. 25 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution Continuance of the rights of citizenship (Article 10) Article 10 reads every person who is or is deemed to be a citizen of India under any of the foregoing provisions of Article 5-10 shall continue to be a citizen of India, subject to the provisions of any law that may be made by Parliament. In the other words, the right of citizenship cannot be taken away from a person except through express parliamentary legislation. Parliament is empowered under Article 11 to make any provision with respect to acquisition and termination of citizenship. In exercise of that power it may take away the right of citizenship which has accrued to a person under the foregoing provisions. But until that is done, a person who is or is deemed to be a citizen of India shall continue to be a citizen of India. In connection with provisions relating to citizenship in the Constitution of India, the framers of Indian Constitution did not actually intended to frame comprehensive rules regarding citizenship. Constitution has simply described the persons who would be deemed to be citizens of India at the date of the commencement of the Constitution. Parliament has been empowered to make laws relating to citizenship. In exercise of this power the Parliament has enacted the Citizenship Act, 1955. This Act contains elaborate provisions relating to Citizenship. The Citizenship Act, 1955 that came into force with effect from 30th December, 1955 deals with matters relating to the acquisition, determination and termination of Indian citizenship. The act has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act, 2005. The Act provides for five ways for acquiring Indian citizenship as follows- 1. By birth. 2. By descent. 3. By registration. 4. By naturalisation, and 5. By incorporation of territory into India. 1. By Birth— A person born in India on or after the 26th January, 1950, is a citizen of India by birth, when— (1) His father possesses diplomatic immunity and is not an Indian citizen; or (2) His father is an enemy alien and he is born at a place under enemy occupation. 2. By Descent— A person born outside India on or after January 26th, 1950, is a citizen of India by descent if at the time of his birth his father was an Indian citizen. But if the father of such a person was a citizen of India by descent only, the person becomes an Indian citizen only when his birth has been registered at an Indian consulate within one year of his birth or the commencement of Citizenship Act, whichever is later, or unless his father is, at the time of his birth, in service under the Government of India. 3. By Registration— Subject to certain restrictions and conditions, the appropriate authority may register the following person, who is already a citizen of India by virtue of any other provision of the Citizenship Act, as a citizen of India on an application made by such person and after taking an oath of allegiance: a) a person of Indian origin ordinarily resident in India and must have been ordinarily resident in India for at least 6 months immediately preceding the application for registration; b) persons of Indian origin who are ordinarily resident outside undivided India; c) women married to Indian citizens; d) minor children of Indian citizens; 26 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution e) persons of full age and capacity who are citizens of a Commonwealth country. 4. By Naturalization— A person of full age and capacity who is a citizen of a non-Commonwealth country may become a citizen by naturalization, after taking an oath of allegiance, if the Central Government is satisfied that he fulfils the conditions laid down in the Act. As per Section 6 of the Citizenship Act, 1955 the qualifications for naturalization are as follows- a) He is not a subject or citizen of a country where Indian citizens are prevented from becoming citizens by naturalization. b) He renounces his citizenship of the other country. c) He has resided and/or has been in service of the Government for 12 months immediately preceding the date of application. d) During 7 years prior to the aforesaid 12 months, he has resided and/or has been in Government service for not less than four years; e) He is of good character ; f) He has an adequate knowledge of language recognized by the Constitution of India ; g) After naturalization he intends to reside in India or enter into service with Government of India, international organization, or a society or company established in India. 5. By incorporation of territory in India— If a territory becomes a part of India, the Central Government may notify the persons who shall be citizens of India by reason of their connection with that territory. Termination or deprivation of Citizenship Citizenship Act, 1955 provides for three ways for terminating Indian Citizenship as following— 1) Renunciation of Citizenship—If a person renounces Indian citizenship by words or conduct, he ceases to be a citizen of India. 2) Termination of Citizenship—Termination is an act of law. It takes place as soon as a citizen of India voluntarily acquires the citizenship of another country whereby he shall cease to be a citizen of India. 3) Deprivation of Citizenship—Deprivation is a compulsory termination of the citizenship of India by an order of the Government of India. A citizenship of India by a naturalization, registration, domicile and residence may be deprived of his citizenship by an order of the Central Government after making due inquiry in matter of any one of the following grounds- a) Obtaining citizenship by fraud or misrepresentation. b) Showing and on proving of disloyalty towards the Indian Constitution. c) Communication with India’s enemy during war. d) Imprisonment for longer than 2 years within 5 years of registration on naturalization. e) Residing outside India for longer than 7 years at a time. The citizenship of India cannot be claimed as a matter of fundamental right. There is no such fundamental right. 27 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution UNIT-II (B) : FUNDAMENTAL RIGHTS 3. FUNDAMENTAL RIGHTS – EQUALITY, FREEDOM AND SOCIAL CONTROL, PERSONAL LIBERTY, CHANGING DIMENSIONS OF PERSONAL LIBERTY, CULTURAL AND EDUCATIONAL RIGHTS. 4. RIGHT TO CONSTITUTIONAL REMEDIES FUNDAMENTAL RIGHTS Rights are claims that are essential for the existence and development of individuals. In that sense there will be a long list of rights. Whereas all these are recognized by the society, some of the most important rights are recognized by the State and enshrined in the Constitution. Such rights are called fundamental rights. These rights are fundamental because of two reasons. 1. These are mentioned in the Constitution which guarantees them; and 2. These are justifiable, i.e. enforceable through courts. Being justifiable means that in case of a violation of any of the fundamental rights the individual can approach courts for their protection. The fundamental rights were included under Part III of the Indian Constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. These Fundamental Rights guarantee to each citizen basic substantive and procedural protections from any arbitrary state actions, but some rights are enforceable against individuals. For instance, the Constitution abolishes untouchability and also prohibits begar. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. ORIGIN OF FUNDAMENTAL RIGHTS This Chapter of the Constitution of India is well described as the Magna Carta of India. If a government enacts a law that restricts any of these rights, it will be declared invalid by courts. As early as in 1214, the English people exacted an assurance from King John for respect of the then ancient liberties. The Magna Carta is the evidence of their success which is a written document. This is the first written document relating to fundamental rights. Thereafter from time to time, the King had to accede to many rights to his subjects. In 1689, the Bill of rights was written consolidating all important rights and liberties of the English people. In France Declaration of Rights of Man and the Citizen (1789) declared the natural, inalienable and sacred rights of man. Following the spirit of the Magna Carta of the British and the Declaration of the Rights of Man and the Citizen of France, the Americans incorporated the Bill of Rights in their Constitution. The Americans were the first to give 28 Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution Bill of Rights a Constitutional status. While drafting the Constitution of India, our Constitutional draftsmen took an inspiration and therefore incorporated under Part III what is called “fundamental rights” Part III of the Indian Constitution guarantees six fundamental rights to Indian citizens which are as follows: FUNDAMENTAL RIGHTS RIGHT TO EQUALITY (Article 14 – 18) RIGHT TO FREEDOM (Article 19 – 22) RIGHT AGAINST EXPLOITATION (Article 23 – 24) RIGHT TO FREEDOM OF RELIGION (Article 25 – 28) CULTURAL AND EDUCATIONAL RIGHT (Article 29 – 30) RIGHT TO CONSTITUTION REMEDIES (Article 32) The 44th Amendment has abolished the right to property as a fundamental right as guaranteed by Art. 19(1)(f) and Art.31 of the Constitution. Since this Right created a lot of problems in the way of attaining the goal of socialism and equitable distribution of wealth, Part it was III starts removed with from Article 12 the list which of Fundamental defines Rights “State” as used in 1978.Articles in different However, its deletion in Part III for the does not purpose mean that of enforcing we do not fundamental haveUnlike rights. the right otherto acquire, legal rights, hold whichand dispose are the of of creation property. the State, the fundamental rights are claimed against the State. Citizens are still free to enjoy this right. But now it is just a legal or a Constitutional right as incorporated under Art. 300A. It is not a Fundamental Right anymore. P.D. Shamdasani v. Central Bank of India [AIR 1952 SC 59] Bank confiscated property on loan default. Supreme Court held that fundamental rights are available against the state and not against private individuals because there already are enough safeguards under ordinary laws for such disputes. ARTICLE 12 : DEFINITION OF STATE 29  Class –B.A.LL.B (HONS.) II SEM. Subject – Constitution In this Part, unless the context otherwise requires, “the State’’ includes 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. The definition of the term “State” specifies the authorities and the instrumentalities functioning within or without the territory of India which shall be deemed to be ‘the State’ for the purpose of Part III of the Constitution. By the express terms of Article 12, the expression "the State" includes : o the Government of India; o Parliament of India; o the Government of each of the States o the Legislature of each of the States o all local authorities within the territory of India; o all local authorities under the control of the Government of India; o all other authorities within the territory of India; and o all other authorities under the control of the Government of I