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LL.B. Semester - II
108 - CONSTITUTIONAL LAW- I
OBJECTIVES :
India is a democracy and her Constitution embodies the main principles of the
democratic government how it comes into being, what are its powers,
functions, responsibilities and obligations how power is limited and
distributed. Whatever might have been the original power base of the
construction today it seems to have acquired legitimacy as a highest norm of
public law. A good understanding of the Constitution and the law, which has
developed through constitutional amendments, judicial decisions,
constitutional practice and conventions is therefore, absolutely necessary for a
student of law. He must also know the genesis, nature and special features
and be aware of the social, political and economic influence of the
Constitution.
The purpose of teaching constitutional law is highlight it never ending growth.
Constitutional interpretation is bound to be influenced by ones social,
economic of political predilections. A student must, therefore, learn how
various interpretations of the constitution are possible and why significant
interrelation was adopted in a particular situation. Such a critical approach is
necessary requirement in the study of constitutional law.
Judicial review is an important aspect of constitutional law. India is the only
country where the judiciary has the power to review even constitutional
amendments. The application of basic structure objective in the evaluation of
executive actions is an interesting development of Indian constitutional law.
The concept of secularism and federalism engraved in the constitution are,
and are to be interpreted progressively.
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CONTENTS
SYLLABUS :
Q : 2014 : Discuss the citizenship and acquisition and termination under
constitution as well as citizenship act 1955
ANS : Refer to page--- of notes on political science
Module-1 Questions :
Q : Explain purpose, objectives and importance of Preamble
Q : 2012, 5 : What is preamble ? Is preamble part of constitution? How far
is the preamble useful in interpreting the constitution?
Q : 2013 : Write short note : Use of preamble in interpretation of
constitutional provisions.
Q : 2015 : Explain : basic structure theory to the preamble / power of
parliament to amend the constitution.
Q : 2013 : Write the preamble of the constitution. What amendments have
been made by 42nd constitution amendment act 1976
Q : 2012 : Describe the main characteristics of the constitution of India.
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Go To Contents.
Module-1 ANSWERS :
Text of Preamble :
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute
India in to a sovereign socialist secular democratic republic
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FRATERNITY, assuring the dignity of the individual and, the unity and
integrity of the nation;
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SOCIALIST : This phrase was not part of the preamble when the
constitution was adopted in 1949, however it was added by 42 nd
amendment in 1976 on the recommendations of the Swaran Singh
committee to highlight the concept of socialism which had always have
been an inherent principle of governance. Socialism in the sense of
classless society and economic empowerment of the vulnerable
segments of the society is an important feature of Indian Constitution.
SECULAR : This phrase was not part of the preamble when the
constitution was adopted in 1949, however it was added by 42 nd
amendment in 1976 to emphasis the secular nature of the state. Here
the term 'secular' does not mean 'irreligious'. It means state shall be
religion neutral and that there shall not be any official religion of the
state and that all citizens are at liberty to practice and profess a religion
of their choice.
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the nation and therefore this important principle has found its place in
preamble itself.
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FRATERNITY, assuring the dignity of the individual and, the unity and
integrity of the nation;
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1967. In Golaknath v.s State of Punjab case the Supreme Court held
that- the Preamble contained in nutshell the idea and aspiration of the
constitution.
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Sankari parsad V/s Union of India AIR 1951 SC 455 : This is the case
which in route the theory of Basic Structure, in this case SC held that
The power to amend the Constitution including the fundamental
rights is contained in the Art 368,
And that the word Law in Art 13 includes only an ordinary law
and does not include constitutional amendment which is made in
exercise of constituent power.
i.e. Parliament is empowered to amend the constitution so as to
compromise fundamental rights of citizens
In Sajjan Singh v/s State of Punjab, SC held that the word amendment
of constitution means amendment of all the provisions of constitution,
include Part-III, the fundamental rights.
Kesavananda Bhartis V/s State of kerela AIR 1973 SC 1461 : This is the
case in which the theory of Basic Structure emerged for the first time.
The Golak Nath Case was overruled, and SC held that Art 368,
even before 24th Amendment contained the power as well as
procedure of amendment.
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Basic Structure Theory : According to Sikri, CJ, the basic structure was
build on the basic foundation i.e. the freedom and dignity of the
individual, the feature of Basic Structure Theory are :
a. Supremacy of Constitution.
b. Republican and Democratic form of Government and sovereign of
the country.
c. Secular and federal character of Constitution and
d. Separation of power between Legislature, executive and
Judiciary.
Indira Gandhi V/s Raj Narain AIR 1975 SC 2299 : In this case 39th
Amendment 1975 was passed by parliament for validating with
retrospective effect the election of PM Indira Gandhi which was declared
invalid by Allahabad High Court on the ground of having committed
corrupt practice. As a result, a new article 329A was added to provid that
the election of a person who holds the office of PM can be challenged
only before such a body or forum as may be established by Parliament
by law and not in court.
The SC in this case enlarged the list of Basic Structure which had
emerged in Keshavanand Bhartis Case :
a. Sovereign democratic republic status
b. Equality of status and opportunity of an individual
c. Secularism and freedom of conscience and religion
d. 'government of laws and not of men' i.e. the rule of law
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Minerva Mills V/s Union of India AIR 1980 SC 1789 : SC struck down
clauses (4) and (5) of the article 368 inserted by 42nd Amendment, on
the ground that these clauses destroyed the essential feature of the
basic structure of the constitution. It was ruled by court that a limited
amending
power itself is a basic feature of the Constitution
Conclusion :
- Now we can say, there is no hard and fast rule for basic feature of
the Constitution.
- Different judge keep different views regarding to theory of basis
structure.
However, it is a settled position that "No law can be enacted or amended
in a manner that violates the spirit of the preamble"
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Objective
- The amendment removed election disputes from the purview of the
courts.
- The amendment transferred more power from the state governments
to the central government, eroding India's federal structure.
- The third purpose of the amendment was to give Parliament
unrestrained power to amend any parts of the Constitution, without
judicial review.
- The fourth purpose was to make any law passed in pursuance of a
Directive Principle immune from scrutiny by the Supreme Court.
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The Act was passed in accordance with the provisions of Article 368 of
the Constitution, and was ratified by more than half of the State
Legislatures, as required under Clause (2) of the said article.
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(6) The constitution makes provision for Directive principles which are
fundamental in governance of the nation.
(8) The constitution also provides for independent judiciary, having the
power of judicial review. And the constitution also attempts to reconcile
the principles of judicial review and parliamentary supremacy. Indian
constitution wonderfully adopts the via media between (i) the American
system of Judicial supremecy over legislatures, and (ii) English principle
of parliamentary supremacy wherein judiciary is denied any power to sit
as a court of appeal against parliament.
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courts and supreme court, the CJ should have the primacy and the
appointment of the CJ should be based on seniority. It further held
that the CJ must consult his two senior most judges and the
recommendation must be made only if there is a consensus among
them.
1999 Judges Transfer Case 3 : A controversy arose again when the
CJ recommended the names for appointment without consulting
with other judges in 1999. The president sought advice from the SC
(re Presidential Reference 1999) and a 9 member bench held that
an advice given by the CJ without proper consultation with other
judges is not binding on the govt.
Fixed Tenure :
A SC Judge has a fixed tenure until retirement age. He cannot be
removed except by a presidential order passed with a simple
majority as well as by 2/3 majority of each house of the parliament
present and voting. No judge has ever been removed by a
presidential order in India. The proceedings to remove were started
to Justice V Ramaswamy, but the motion was not approved because
lack of required majority.
1995 In the case of C Ramachandran Iyer vs A N Bhattacharjee
1995, pressure was put the the local bar association on the judge to
resign. In this case, the SC held that only the Chief Justice of the
SC can be the prime mover of the action against erring judges.
Thus, after this case, action against judges was allowed only
through in-house procedures of the judiciary.
Salary :
The salary of the judges cannot be changed, after the appointment,
to their disadvantage.
Art 121 :
No discussion about the judges in the parliament is permitted,
except for the discussion about his removal.
Art 129 and 215 : Power to punish for its contempt :
The SC and the High Courts have the power to punish anybody for
civil and criminal contempt of itself under art 129 and 215.
Art 50 Separation of judiciary from executive :
Art 50 urges the state to take steps to separate the judiciary from
the executive in the public service of the state
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Federalism Defined :
Federalism constitutes a complex governmental mechanism for the
governance of a country. It seeks to draw a balance between the
forces working in favour of concentration of power in the Centre
and those urging a dispersal of it in a number of units.
A federal Constitution envisages a demarcation of governmental
functions and powers between the Centre and the regions by the
sanction of the Constitution, which is a written document. From this
follows two necessary consequences-
(i) That the invasion by one level of government on the area
assigned to the other level of the government is a breach of the
Constitution.
(ii) That any breach of the Constitution is a justifiable issue to be
determined by the Courts as each level of government functions
within the area assigned to it by the Constitution.
Federation is an association of states, which has been formed for
certain common purposes, but in which the member states retain a
large measure of their original independence. A federal government
exists when the powers of the government for a community are
divided substantially according to a principle that there is a single
independent authority for the whole area in respect of some
matters and there are independent regional authorities for other
matters, each set of authorities being co-ordinate to and
subordinate to the others within its own sphere.
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4. Emergency Provisions :
Center has the power to take complete control of the State in the
following 3 situations : In all the following cases, an elected state
government can lose control of the state and a central rule can
be established.
An act of foreign aggression or internal armed rebellion (Art
352)
Failure of constitutional machinery in a state (art 356)
Financial Emergency (art 360)
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,
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plunge the country into chaos and jeopardize the existence of the
whole country. Such provisions exist even in USA.
It is the second provision which is most controversial. It gives the
center the power to take over the control of a state. However,
such an action can be taken only upon the advice of the governor
and such an advice is not beyond the purview of the Supreme
Court. In a recent case, Supreme court ruled that the imposition
of Presidential rule in the state of Bihar was unconstitutional.
Conclusion :
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.
The framers of the Indian Constitution attempted to avoid the
difficulties faced by the federal Constitutions of U.S.A, Canada and
Australia and incorporate certain unique features in the working of
the Indian Constitution.
Thus, our Constitution contains certain novel provisions suited to
the Indian conditions. The Indian constitution is neither purely
federal nor purely unitary but is a combination of both.
According to Wheare, in practice the Constitution of India is quasi-
federal in nature and not strictly federal.
Sir Ivor Jennings was of the view that India has a federation with a
strong centralizing policy.
In the words of D.D.Basu The Constitution of India is neither purely
federal nor unitary, but is a combination of both. It is a union or a
composite of a novel type.
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The following are the defining features of federalism, and which ALL
are present in the Indian Constitution.
1. Distribution of Powers between center and states.
2. Supremacy of the Constitution.
3. Written Constitution.
4. Rigidity of the Constitution.
5. Independent Judiciary.
However, there are certain provisions that affect its federal character.
1. Appointment of the Governor of a State : Art 155 and 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
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 center and that too
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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, center 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 2/3 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 center to make law on that subject.
3. Power to form new states and to change existing boundaries
Under Art 3, center 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 : Center has the power to take complete
control of the State in the following 3 situations :
An act of foreign aggression or internal armed rebellion (Art 352)
Failure of constitutional machinery in a state (art 356)
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 center the power to take
over the control of a state. However, such an action can be taken only
upon the advice of the governor and such an advice is not beyond the
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Module-2 QUESTIONS :
Q. What do you understand by fundamental rights? Discuss with respect to
Indian Constitution.
Q : 2015 : Explain meaning of law under Art-13.
Q : What is meant by Judicial Review (Art-13)?
Q : 2014 : Equality before law and Equal protection of law discuss under
the right to equality.
Q : 2015 : Explain in detail about right to equality with special reference
to equality of opportunity in the matter of public employment.
Q : 2013 : Explain the constitutional provisions providing protective
discrimination for backward classes.
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Go To Contents.
Module-2 ANSWERS :
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http://www.legalservicesindia.com/article/article/position-of-
fundamental-rights-during-emergency-589-1.html
These rights can be grouped into 6 categories -
1. Articles 14-18 Right to Equality : Articles 14 to 18 of the
Indian Constitution have been devoted to the Right to
Equality. This right ensures social and political equality to the
citizens of India. The Right to Equality means the following
things :
Article 14 guarantees to all persons equality before the
law and equal protection of laws within the territory of
India.
Article 15 : The state shall not discriminate against any
citizen on grounds only of religion, race, caste, sex or
place of birth.
Article-14 asserts the supremacy of law or Rule of law.
Every citizen irrespective of his status is subject to the
same law and the same courts. Any law which is
discriminatory in its character will be held
unconstitutional.
The citizens will not be subjected to any disability on
any of the above mentioned grounds in regard to
access to shops, hotels, places of public entertainment
or the use of wells, tanks, ghats, roads and other
public places wholly or maintained out of state funds.
However, this brings us to an important question.
Should people living in unequal circumstance be
treated equally? In Indian Constitution, the answer is a
resounding no.
We have adopted the mantra of "equal treatment
under equal circumstances".
This is reflected in Art 15, which, while prohibits the
state from discriminating between the citizens only
on the grounds of Caste, Race, Religion, Sex, and
Place of Birth or all of them
Art 15(1, 3, 4) also allows the state to make special
provisions for Women and Children and for
Backward classes.
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Art-16 of the Constitution of India clearly mentions that the State shall
treat everyone equally in the matters of employment. No citizen shall
be discriminated on the basis of race, caste, religion, creed, descent or
place of birth in respect of any employment or office under the State.
Every citizen of India can apply for government jobs.
However, there are some exceptions to this right. The Parliament may
pass a law mentioning that specific jobs can only be filled by
candidates who are residing in a particular area. This requirement is
mainly for those posts that necessitate the knowledge of the locality
and language of the area. Apart from this, the State may also set
aside some posts for members of backward classes, scheduled castes
or scheduled tribes which are not properly represented in the services
under the State to uplift the weaker sections of the society. Also, a law
may be passed which may entail that the holder of an office of any
religious institution shall also be a person professing that specific
religion. Though, this right shall not be granted to the overseas
citizens of India as directed by the Citizenship (Amendment) Bill,
2003.
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Conclusion :
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The Right to Equality should not only remain on papers. This right
should be properly exercised; otherwise it will lose its essence if all
the citizens of India, especially the weaker and backward classes do
not have equal rights and equality before law.
Go To Module-2 Questions.
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Q : 2015 : (Syllabus-2.4 & 3.4) Explain the provisions of the right against
exploitation with special reference to trafficking in human beings.
Q : 2014 : Explain : Right against exploitation.
Ans :
Click here to read the answer
Go To Module-2 Questions.
Q : 2014 : What safeguards does Art-20 of the constitution provide for the
person accused of offence?
Q : 2013 : Write short note : Principle of double jeopardy.
Ans :
The Article 20 is one of the pillars of fundamental rights guaranteed by
the Constitution of India. It mainly deals with protection of certain rights
in case of conviction for offences. When an individual as well as
corporations are accused of crimes, the provisions of Article 20 safeguard
their rights.
The striking feature of the Article 20 is that it cant be suspended during
an emergency period.
Art-20 : Protection in respect of conviction for offences :
(1) No person shall be convicted of any offence except for violation of
a law in force at the time of the commission of the Act charged as an
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1. Ex-post facto law : A new law can not punish an old act.
Article 20 (1) says that no person shall be convicted of any offence
except for violation of a law in force at the time of the commission of
the Act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the
time of the commission of the offence.
A person can only be with charged with an offence of an action if the
said action was illegal as per the law of the time when the action was
committed. Thus Art-20 has set certain limitations on the legislative
powers of the Union and State legislatures.
In other words, when a legislature declares an act to be an offence or
provides a penalty for an offence, it cant make the law retroactive so
as to prejudicially affect the individuals who have committed such acts
prior to the enactment of that law.
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The second section deals, in more specific terms, with the power of
the Supreme Court to issue writs including writs in the nature of
habeas-corpus, mandamus, prohibition, quo warranto and certiorari
for the enforcement of any of the rights.
The third section empowers Parliament to confer the power of
issuing writs or orders on any other court without prejudice to the
power of the Supreme Court in this respect. So far, Parliament has
not passed any law conferring the power of issuing writs on any
courts. The last section deals with the conditions under which this
right can be suspended.
The fourth section provides that fundamental rights can be
suspended during the period of emergency, as laid down in Article
359 of the Constitution.
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grant the appropriate Writ and may even modify it to suit the
exigencies of the case.
Normally, only the aggrieved person is allowed to move the Court.
But it has been held by the Supreme Court that in social or public
interest matters, any one may move the Court.
A Public Interest Litigation can be filed before the Supreme Court
under Article 32 of the Constitution or before the High Court of a
State under Article 226 of the Constitution under their respective
Writ Jurisdictions.
There are mainly five types of Writs
(i) Writ of Habeaus Corpus,
(ii) Writ of Mandamus,
(iii) Writ of Quo-Warranto,
(iv) Writ of Prohibition, and
(v) Writ of Certiorari.
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disposed of, the interim order shall, on the expiry of that period,
or, as the case may be, the expiry of the said next day, stand
vacated.]
(4) The power conferred on a High Court by this article shall not be
in derogation of the power conferred on the Supreme Court by
clause (2) of article 32.
Art-226A : [Constitutional validity of Central laws not to be considered
in proceedings under article 226 ----- Rep. by the Constitution (Forty-
third Amendment) Act, 1977, s. 8 (w.e.f. 13-4-1978)]
Differences :
While Supreme Court has power to issue writs via article 32, High
Courts have this power via article 226.
While Supreme Court has power to issue writs for enforcement of
ONLY Fundamental rights, High Courts can issue writs for
enforcement of fundamental rights as well as any other matter also.
Thus, High Court has a wider jurisdiction from Supreme Court in
matter of issuing writs.
During emergency, SC can not grant relief on suspension of FR.
However, HCs will continue to grant relief.
Supreme Court cannot refuse to exercise its writ jurisdiction mainly
because article 32 itself is a fundamental right and supreme court is
guarantor or defender of fundamental rights. However, for high
courts, exercising the power to issue writs is discretionary.
Supreme Court can issue a writ against any person or authority
within the territory of India while high court can issue such writ
under its own territorial jurisdiction. Thus, High courts writ
jurisdiction is narrower in terms of territorial extent.
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The direction can be given by the Supreme Court or the High Court of
a state.
The court can direct to do or not to do a specific act.
Writ cannot be issued against a private individual
It cannot be issued in matters where the authority is using his
discretionary powers of the public authority.
Writ cannot be issued to the Government for the enhancement of
dearness allowance as it is a discretionary power of the Government.
Writ should not lie in a civil liability, which should be solved in civil
courts by way of civil suits.
Writ cannot be issued to a private medical college
Writ cannot be issued to any legislative body to enact a particular Act.
Writ cannot be issued against the President or Governor or a state
Writ cannot be issued when alternative remedies are available.
The sine qua non for mandamus is the existence of a statutory public
duty incumbent upon the person or body against whom the
mandamus is sought. There must equally co-exist a corresponding
right in the petitioner entitling him to claim the enforcement of such
public duty. These two preconditions form the foundation for the issue
of mandamus.
Grounds for Writ of Mandamus : The Writ can granted against a public
authority if :
Acted against the law
Exceeded his limits of power
Acted with mala fides
Did not apply his mind
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Limitations :
The primary scope and function of mandamus is to "command" and
"execute" rather than to "enquire" and "adjudicate". It cannot be
issued to change the decision of a body so as to suit the petitioner.
Obligations which are not of statutory nature cannot be enforced by
mandamus.
The writ petition is not maintainable when a remedy provided for
under the Code of Civil Procedure is available. For example, the
High Court cannot entertain writ petitions for mandamus to the
Government who fails to deposit and pay in the requisite time an
enhanced compensation account as ordered by a lower Court. The
petitioners in this case would be directed to approach the executing
Court for appropriate relief.
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The writ can be issued only when the proceedings are pending in a
court. If the proceeding has matured into decision, writ will not lie.
It is well established that the writ of prohibition lies only against ANY
body exercising public functions of a judicial or quasi- judicial
character and cannot in the nature of things be utilized to restrain
legislative powers.
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Module-3 QUESTIONS :
Q : 2014 : Discuss the provision relating to fundamental right to protection
of life and personal liberty under Art-21.
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Module-3 ANSWERS :
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Discussion :
Though the phraseology of Article 21 starts with a negative word, the
word 'No' has been used in relation to the word deprived. The object
of the fundamental right under Article 21 is to prevent encroachment
upon personal liberty and deprivation of life except according to
procedure established by law. It clearly means that this fundamental
right has been provided against state only.
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the personal liberty or life of another person, the act will certainly
come under the ambit of Article 21.
The scope of Article 21 was a bit narrow till 1950s, as it was held by
the Apex Court in A K Gopalan vs State of Madras that the contents
and subject matter of Article 21 and 19(1)(d) are not identical and
they proceed on total principles. In this case the word deprivation was
construed in a narrow sense and it was held that the deprivation does
not restrict upon the right to move freely which came under Article
19(1)(d). At that time Gopalans case was the leading case in respect
of Art-21 along with some other Articles of the Constitution, but, post
Gopalan, the scenario in respect of scope of Art-21 has been
expanded or modified gradually through different decisions of the
Apex Court and it was held that interference with the freedom of a
person at home or restriction imposed on a person while in jail would
require authority of law.
Caselaws :
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The Apex Court in the case of S.S. Ahuwalia v. Union of India and
others it was held that in the expanded meaning attributed to Article
21 of the Constitution, it is the duty of the State to create a climate
where members of the society belonging to different faiths, caste and
creed live together and, therefore, the State has a duty to protect
their life, liberty, dignity and worth of an individual which should not
be jeopardized or endangered. If in any circumstance the state is not
able to do so, then it cannot escape the liability to pay compensation
to the family of the person killed during riots as his or her life has
been extinguished in clear violation of Article 21 of the Constitution.
Conclusion : The Apex Court has time and again upheld importance on
reasonableness and rationality of the provision, and rules that, "in the
name of undue stress on Fundamental Rights and Individual Liberty, the
ideals of social and economic justice cannot be given a go-by".
Thus it is clear that the provision Article 21 was constructed narrowly
at the initial stage but the law in respect of life and personal liberty of
a person was developed gradually and a liberal interpretation was
given to these words. New dimensions have been added to the scope
of Article 21 from time to time. It imposed a limitation upon a
procedure which prescribed for depriving a person of life and personal
liberty by saying that the procedure which prescribed for depriving a
person of life and personal liberty by saying that the procedure must
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Discussion :
Rights of an Arrested Person : Art-22(1) and 22(2) :
A person cannot be arrested and detained without being informed why
he is being arrested.
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Exception :
However, Article 22(3) says that the above safeguards are not
available to the following :
If the person is at the time being an enemy alien.
If the person is arrested under certain law made for the purpose
of Preventive Detention
The first condition above is justified, because when India is in war, the
citizen of the enemy country may be arrested. But the second clause
was not easy to justify by the constituent assembly. This was one of
the few provisions which resulted in stormy and acrimonious
discussions.
Preventive Detention Laws : A person can be put in jail / custody for two
reasons. One is that he has committed a crime. Another is that he is
potential to commit a crime in future. The custody arising out of the later
is preventive detention and in this, a person is deemed likely to commit a
crime. Thus Preventive Detention is done before the crime has been
committed.
Issues :
The definition of Preventive detention itself is so confusing. For
example:
How one can say that a person will do a crime in future?
What are the implications of arresting a person without having
committed a crime?
Why Preventive Detention in peacetime. Isnt it against the
safeguards of our own citizens as provided by Article 22?
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Preamble :
The preamble to the Constitution, (which contains the ideals and
aspirations or the objects which the Constitution makers intended to
be realized), clearly proclaims that India is a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC. The expression "Socialist Secular"
was inserted in the preamble by the Constitution (42nd Amendment)
Act, 1976. The object of inserting this expression was to spell out
expressly the high ideas of socialism and secularism and the integrity
of the Nation. In short, the object of the Government, in making this
amendment was to make explicit what was already provided in the
Constitution.
Even before the word 'secular' was inserted in the preamble in 1976,
in 1973 the Supreme Court observed that secularism was a basic
feature of the Constitution. So far as secularism is concerned, Articles
25 to 30 provide for the same. In Kesavanada V State of Kerala (AIR
1973 S.C. 1461) and in Indira V Rajnarain (AIR 1975 S.C. 2299) the
Supreme Court has observed that by secularism it is meant that the
State shall not discriminate against any citizen on the ground of
religion only and that the State shall have no religion of its own and all
persons shall be equally entitled to the freedom of conscience and the
right freely to profess, practise and propagate religion. To spell out the
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above ideas which in fact existed prior to 1976, the preamble to the
Constitution was amended in 1976.
Fundamental Right :
The right to freedom of religion is a fundamental right guaranteed
under Article 25 of the Constitution of India. Article 25 reads as
follows :-
Art-25 : Right to Freedom of Religion :
(1) Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom
of conscience and the right freely to profess, practice and
propagate religion.
(2) Nothing in this article shall affect the operation of any
existing law or prevent the State from making any law-
(a) regulating or restricting any economic financial political or
other secular activity which may be associated with religious
practice;
(b) Providing for social welfare and reform or the throwing
open of Hindu religious institutions of a public character to all
classes and sections of Hindus.
Explanation I. The wearing and carrying of Kirpans shall be deemed
to be included in the profession of the Sikh religion.
Explanation II. In sub-clause (b) of clause (2), the reference to
Hindus shall be construed as including a reference to persons
professing the Sikh, Jaina or Buddhist religion, and the reference to
Hindu religious institutions shall be construed accordingly.
Discussion : Art-25 guarantees that every person in India shall have the
freedom of conscience and shall have the right to profess, practice and
propagate religion.
Restrictions : Rights under Art-25 are subject to the restrictions that
may be imposed by the State on the following grounds, namely :-
(1) public order, morality and health;
(2) other provisions of the Constitution;
(3) regulation of non-religious activity associated with religious
practice;
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Q : 2015 : (Syllabus-2.4 & 3.4) Explain the provisions of the right against
exploitation with special reference to trafficking in human beings.
Ans :
http://www.legalservicesindia.com/article/article/extent-to-which-
immoral-trafficking-is-addressed-595-1.html
What is exploitation?
Ever since the dawn of civilization in every society, the stronger
exploited the weak. Slavery was the most prevalent and perhaps the
cruelest form of human exploitation. Our constitution does not
explicitly forbid slavery. The scope of Article 23 is far wide. Any form
of exploitation is forbidden. Thus forcing the landless labour to render
free service by the land-owner is unconstitutional. Equally, forcing
helpless women into prostitution is a crime. The intention of the
constitution is that whatever a person does must be voluntary. There
must not be any element of coercion involved behind a mans action.
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The state however may call upon citizens to render national service in
defence of the country. Thus conscription is not unconstitutional. But
in compelling people to render national service, the state must not
discriminate on grounds of race, sex, caste or religion.
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(1) Traffic in human beings and begar and other similar forms of
forced labour are prohibited and any contravention of this
provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing
compulsory service for public purposes, and in imposing such
service the State shall not make any discrimination on grounds
only of religion, race, caste or class or any of them.
Art-24 : Prohibition of employment of children in factories, etc.
No child below the age of fourteen years shall be employed to
work in any factory or mine or engaged in any other hazardous
employment.
Discussion :
The right against exploitation, given in Art-23 and 24, provides for two
provisions, namely the abolition of trafficking in human beings and
Begar (forced labour), and abolition of employment of children below
the age of 14 years in dangerous jobs like factories, mines, etc.
Forced labour : Child labour is considered a gross violation of the spirit
and provisions of the constitution. In an environment of all pervading
poverty, children are often forced to seek employment to earn a living.
Employers often find it less costly to engage child labour at a cheap
price. But children so employed do not get opportunities for
development. Thus, employment of child labor is a form of traffic in
human beings. Hence it is justifiably forbidden. But employment of
child labor cannot be effectively checked unless there is overall
improvement of economic conditions of the poorer sections of the
society. This provision of the constitution remains a pious wish even
today.
Trafficking in humans for the purpose of slave trade or prostitution is
also prohibited by law.
Exceptions : An exception is made in employment without payment
for compulsory services for public purposes. Compulsory military
conscription is also covered by this provision.
The income generated by trafficking is comparable to the money
generated through trafficking in arms and drugs. Trafficking in human
beings take place for the purpose of exploitation which in general
could be categorized as (a) Sexual and (b) Non-Sexual.
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and education for all children until they complete the age of six
years.
In 1992, India became signatory to the UN Convention on Rights of
the Child. Article 28 of this Convention asks the states to recognize
right of education for every child and make primary education
compulsory.
In 1993, Supreme Court Gave its landmark judgment in the
Unnikrishnan JP vs State of Andhra Pradesh & Others. In this case, SC
held that Education is a Fundamental right flowing from Article 21.
There are five articles in the constitution of India which have Children as
their special focus. These articles are Article 21A, 24, 39 & 45 and 51A
(k). Thus special provisions for children find place in our constitution in
Fundamental Rights, Directive Principles as well as Fundamental Duties.
Article 21A: The Right to Education inserted in constitution via 86th
amendment act. Article 24: No child below the age of 14 years shall be
employed to work in any factory or mine or engaged in hazardous
employment. Article 39 (f): The State shall, in particular, direct its policy
towards securing (f) that children are given opportunities and facilities
to develop in a healthy manner and in conditions of freedom and dignity
and that childhood and youth are protected against exploitation and
against moral and material abandonment. Article 45 : The State shall
endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education
for all children until they complete the age of fourteen years. Article
51A(k): who is a parent or guardian to provide opportunities for
education to his child or, as the case may be, ward between the age of
six and fourteen years.
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The Right of Children to Free and Compulsory Education (RTE) Act, 2009,
represents the consequential legislation as envisaged under Article 21-A.
Accordingly every child has a right to full time elementary education of
satisfactory and equitable quality in a formal school which satisfies
certain essential norms and standards. RTE Act describes the modalities
of the importance of free and compulsory education for children between
6 and 14 in India under Article 21A of the Indian Constitution. When the
act came into force in 2010, India became one of 135 countries to make
education a fundamental right of every child. With this, India has moved
forward to a rights based framework that casts a legal obligation on the
Central and State Governments to implement this fundamental child
right as enshrined in the Article 21A of the Constitution, in accordance
with the provisions of the RTE Act.
It is noteworthy that the title of the RTE Act incorporates the words free
and compulsory.
Free education means that no child, other than a child who has been
admitted by his or her parents to a school which is not supported by
the appropriate Government, shall be liable to pay any kind of fee or
charges or expenses which may prevent him or her from pursuing and
completing elementary education.
Compulsory education casts an obligation on the appropriate
Government and local authorities to provide and ensure admission,
attendance and completion of elementary education by all children in
the 6-14 age group.
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All over the world it has been found that there is a huge gap between the
minority and majority communities. For the sake of equality and a
healthy relationship between the communities there need some special
right of the minority. The world human right documents also recognized
the cultural and educational rights of the minorities.
Definitions :
'Minority' : The word minority has not been defined by the
constitution. According to English Language Dictionary, minority
means: The Minority of people or things, is a number of them that
form less than half of the large group, used especially when the
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number is much less than half of the large group. Backward classes
are not minorities (Kerala Education Bill, 1958). They are treated as
part of Hindu community
'Culture' means : The custom and belief, art, way of life and social
organization of a particular country or group.
International position :
Right to Culture under Universal Declaration of Human Rights : Article
27 of the Universal Declaration of Human Rights says that "Everyone
has the right freely to participate in the cultural life of the community,
to enjoy the arts and to share in scientific advancement and its
benefits."
Here, the expression everyone has the right freely to participate in
the cultural life of the community implies that it is duty of
governments not merely to respect the right of everyone to
participate in the cultural life of the community but also to provide
everyone with the effective means of participating in the cultural
life6.
Educational Right under Universal Declaration of Human Rights :
Article 26(1) of the UDHR says that everyone has the right to
education. Education shall be free, at least is the elementary and
fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available
and higher education shall be equally accessible to all on the basic of
merit.
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The founding father tried to satisfy the hope, aspiration and desire of
the minority by safeguarding the cultural and educational rights of the
minority. At the Fifth Session of the Constituent Assembly of India, the
Chairman (The Honorable Dr. Rajendra Prasad) assured the
minorities :
To all the minorities in India we give the assurance that they will
receive fair and just treatment and there will be no discrimination in
any form against them. The religion, their culture and their language
are safe and they will enjoy all the right and privileges of citizenship,
and it will be expected in their turn to render loyalty to the country in
which they live and its constitution."
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Module-4 QUESTIONS :
Q : 2012 : Discuss the importance of Directive Principles of the state policy
and distinguish between the fundamental rights and Directive Principles of
state policy.
Q : 2013, 5 : Explain the directive principles and its nature. State the
distinction from fundamental rights & interrelationship with fundamental
rights.
Q : 2014 : Discuss the nature and importance of directive principles of
the state policy.
Q : 2013 : Write short note : Classification of directive principles.
Q : Distinction between Fundamental Rights and Directive Principles
Q : 2013, 5 : Write short note : Uniform civil code.
Q : 2012 : What are the fundamental duties of a citizen of India under part-
IVA of the Indian constitution? Discuss.
Q : 2013 : What are those fundamental duties abiding of which is binding
on every citizen of India?
Q : 2014, 5 : Explain in detail : Fundamental duties of citizen.
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Module-4 ANSWERS :
Q : 2012 : Discuss the importance of Directive Principles of the state policy
and distinguish between the fundamental rights and Directive Principles of
state policy.
Q : 2013, 5 : Explain the directive principles and its nature. State the
distinction from fundamental rights & interrelationship with fundamental
rights.
Q : 2014 : Discuss the nature and importance of directive principles of
the state policy.
Q : 2013 : Write short note : Classification of directive principles.
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Ans :
http://www.importantindia.com/2032/directive-principles-of-state-policy-
in-the-indian-constitution/
http://byjus.com/content/sitesimages/images/pdf/Polity-Lecture-2-
notes.pdf
The Constitution of India aims to establish not only political democracy
but also socio-economic justice to the people to establish a welfare state.
With this purpose in mind, our Constitution lays down desirable principle
and guidelines in Part IV. These provisions are known as the Directive
Principle of State Policy.
The Directive Principles of State Policy contained in Part IV, Articles 36-
51 of the Indian constitution constitute the most interesting and
enchanting part of the constitution.
The Directive Principles may be said to contain the philosophy of the
constitution. The idea of directives being included in the constitution was
borrowed from the constitution of Ireland. As the very term Directives
indicate, the Directive principles are broad directives given to the state in
accordance with which the legislative and executive powers of the state
are to be exercised.
As Nehru observed, the governments will ignore the directives Only at
their own peril. Directive principles seek to combine political justice with
economic and social justice.
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Discussion :
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Conclusion :
The non-justiciability of part IV has exposed the directives to
trenchant criticism. Jennings calls them pious aspirations, and
Fabian socialism without socialism. Where characterizes them as
paragraphs of generalities.
Yet many scholars appreciate the value of the directives. Sir B. N. Rau
regards them as moral precepts with an educative value. Ambedkar
considered them as powerful instruments for the transformation of
India from a political democracy into an economic democracy. The
directive principles according to Granville Austin, are positive
obligations to find a middle way between individual liberty and
Public good. The directives constitute a sort of instrument of
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What is Uniform Civil Code : Uniform civil code would mean that all
citizens, irrespective of their religion, caste, community, gender etc.
would be governed by the same law in the matters of marriage, divorce,
adoption, guardianship, maintenance, inheritance, succession etc. This
will encourage and enhance national social integration and eliminate
contradictions and separation of ideologies based on religion. It would
also be effective in administration of justice, provide a common platform,
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will protect those who are oppressed in society and promote national
unity, especially unity in thought when it comes to opinion on such
issues. These matters, as the SC opined, are of a secular nature and
should not be governed by religious thought. Some even debate over the
idea of an option uniform civil law on these matters, giving free choice to
citizens and being the first step in the direction of achieving Article 44. It
will also aid in changing social conditions of society.
Need for Uniform Civil Code and Situation (Except Goa) : Today, India
has a uniform system of criminal and commercial law that applies to all
persons regardless of their religious identity. However, citizens are
governed by separate personal laws often based on their religion, caste
and community. For example, Hindu law governs Hindus and prohibits
monogamy, while Islamic Law in India allows for monogamous
marriages. Hindu Marriage Act, Muslim Law Board, Parsi Marriage Act
etc.
Religion based marriage laws :
Hindu : The Hindu Marriage Act, 1955 is the marriage law
legislation applicable to the majority population, constituted of
Hindus, which is an Act to amend and codify the law relating to
marriage among Hindus.
Muslim : The Muslim Personal Law (Shariat) Application Act, 1937,
The Dissolution of Muslim Marriages Act,1939, The Muslim Women
(Protection of Rights on Divorce) Act, 1986 and The Muslim Women
( Protection of Rights on Divorce) Rules, 1986, apply to Muslims
living in India.
Christian : The Christian Marriage Act, 1872, was enacted as an Act
to consolidate and amend the law relating to the solemnization of
the marriages of Christians in India and the Divorce Act, 1869 as
amended in 2001, is an Act to amend the law relating to divorce
and matrimonial causes relating to Christians in India.
Parsi : The Parsi Marriage and Divorce Act, 1936 as amended in
1988, is an Act to amend the law relating to marriage and divorce
among the Parsis in India.
Special Marriage Act, 1954, as an Act to provide a special form of
marriage in certain cases, for the registration of such and certain
other marriages and for divorces under this Act. This enactment of
solemnizing marriage by registration is resorted to by Hindus, non-
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Important Cases
Shah Banos Case (Mohd. Ahmad Khan v. Shah Bano Begum) in 1985 :
Shah Bano, a 62 year old Muslim woman and mother of five, was
driven out of her "matrimonial home" by her husband in 1975. In April
1978 she filed a case against her husband, Mohammed Ahmad Khan,
asking him for a maintenance amount of INR500. On November 1978
her husband gave an irrevocable talaq (divorce) to her which is his
privilege under Islamic Law. Mr. Khan then filed a case against Shah
Bano in the Supreme Court claiming that Shah Bano is not his
responsibility anymore because Mr Khan had a second marriage which
is also permitted under Islamic Law. Shah Bano, because she had no
means to support herself and her children, approached the courts for
securing maintenance from her husband. When the case reached the
Supreme Court of India, seven years had elapsed. The Supreme Court
invoked Section 125 of Code of Criminal Procedure, which applies to
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Q : 2012 : What are the fundamental duties of a citizen of India under part-
IVA of the Indian constitution? Discuss.
Q : 2013 : What are those fundamental duties abiding of which is binding
on every citizen of India?
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Discussion :
The legal utility of fundamental duties is similar to that of the
directives; while the Directives are addressed to the state, so are the
duties addressed to the citizens, without any legal sanction for their
violation. The citizen, it is expected, should be his own monitor while
exercising and enforcing his Fundamental rights. He should keep in
mind that he owes the duties specified in Article 51-A to the State and
if he does not care for the duties, he does not deserve the rights.
Of course, the duties as such are not legally enforceable in the Courts
of law, but if a law has been made to prohibit any act or conduct in
violation of the duties, it would be reasonable restriction on the
relevant Fundamental Rights.
However, the fundamental Duties are not enforceable by mandamus or
any other legal remedy
Directions to State/Central Government.Since the Fundamental
Duties are not addressed to the State, a citizen cannot claim that he
must be properly equipped by the state so that he may perform his
duties under Article 51-A.
Courts have also used fundamental duty To safeguard public property
and to abjure violence while dealing with damage caused to public
property during various agitations and riots.
Supreme Court in Bijoe Emmanuel v. State of Kerala (AIR 1987
SC478) held that duties imposed on the citizens may be enforced
through the enactment of legislations.
For example 'The Prevention of Insult to National Honours Act,
1971'punishes a person who insults the national honours.
Also as stated by the Supreme Court in Mohan Kumar v. Union of India
AIR 1992 SC 1, the courts may enforce the duties while balancing and
harmonizing them with the Fundamental Rights.
Fundamental duties can be used for interpreting ambiguous statutes;
See Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455; Surya v.
Union of India, AIR 1982 Raj 1.
Conclusion
The Directive Principles of State Policy and Fundamental Duties are
sections of the Constitution of India that prescribe the fundamental
obligations of the State to its citizens and the duties of the citizens to
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Go To Contents.
SUGGESTED READING :
Constitutional Law of India : D. D. Basu
Introduction to the Constitution of India D.D. Basu
Shorter Constitution of India : Durga Das Basu
Constitutional Law of India : V. N. Shukla
Constitutional Law of India : M. P. Jain
Constitution of India : J. N. Pandey
Constitutional Law of India (Vol. 1-3): H. M. Seervai
Constitutional law of India : P. M. Baxi
Introduction to the Constitutional Law of India : Narendra Kumar, Alahabad
Law Agency
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