Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
B Notes): CONSTITUTION
Home Blog By.... CONSTITUTION CONTRACT ... Hindu Law Indian Penal Code JURISPRUDENCE
Muslim Law.. Registration Act.. Law of Torts.. ENVIRONMENTAL LAW Civil Procedure Cide (CPC)
BLOG ARCHIVE
CONSTITUTION
▼ 2013 (1)
▼ September (1)
Question 1 :- What is Preamble? Discuss in detail of Preamble of
LL.B Notes
Indian Constitution and its objects and significance. How can you
say that according to Preamble, India is a sovereign, socialist,
secular and democratic republic. How these are applied by the ABOUT ME
courts. Refer to some decided cases? How the various ideals and
goals enshrined in the preamble have been realised in the
constitution? Refer some decided cases.
Career Muskan Magazine Hisar
PREAMBLE OF THE CONSTITUTION:- The preamble of an Act sets out the
Follow 95
purpose and object for which a statute is enacted. The Preamble of the
View my complete profile
constitution declares :-
We the people of India having solemnly resolved to constitute of India
into a sovereign, socialist, secular democratic Republic and to secure to
all its citizens. :- i) Liberty of thoughts, expression, belief, faith and
worship. Ii) Justice, social, economics and political. Iii) Equality of Status
and opportunity and to promote among them all.. iv) Fraternity assuring
dignity of the individual and the unity an integrity of the Nation.
I our constitution Assembly this twenty sixth day of November, 1949 do
hereby adopt enact and give to ourselves this constitution.
The Purpose of Preamble:- The Preamble to the constitution is a key to
open the mind of the makers for which they made several provisions in
the constitution. In constitution preamble occupies an important place &
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 1/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 2/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
Question 2 :- “Article 14 permits classification, but prohibits class
legislation.” Discuss this statement.
OR
What do you understand by reasonable classification in the
context of “ Right of Equality”? Can a single person be treated as
a class?
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 3/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 4/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
Short Notes
A. DOCTRINE OF SEVERABILITY WAIVER.
B. DOCTRINE OF ECLIPSE.
C. CITIZENSHIP
D. WAIVER
E. Protection Against Self-Incrimination
F. PROTECTION FROM EX-POST FACTO LAW
G. PROTECTION FROM DOUBLE JEOPARDY
CITIZENSHIP
At the commencement of this constitution every person who has his
domicile in the territory of India and i) who was born in the territory of
India ii) either whose parents was born in the territory of India iii) who
has been ordinarily resident in the territory of India for not less than five
years immediately preceding such commencement shall be a citizen of
India.
According to the Federal principle, the constitution of USA
provides for dual citizenship i.e. the citizenship of the USA and the
citizenship of the state. Though the Indian constitution has adopted the
federal principle of the American constitution but it had opted for a single
citizenship, that is the citizenship of India. There is no state citizenship.
The citizenship Amendment Act 2003 has paved for conferring
Indian Citizenship not only upon the persons of Indian origin but citizens
of certain other countries also. The amendment has obviously reserved
the idea of single citizenship and introduced a limited sort of double
citizenship.
DOCTRINE OF SEVERABILITY
A :- Clause (1) of Article 13 provides : All laws in force in the
territory of India immediately before the commencement of this
constitution in so far as they are inconsistent with the provisions of this
part, shall to the extent of such inconsistency be void. Clause (2) of
Article 13 says that the state shall not make any law which takes away
or abridges the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of contravention be void.
Clause 1 and 2 of article 13 thus declare that laws inconsistent with or in
contravention of the fundamental rights shall be void to the extent of
inconsistency or contravention as the case may be. It means that where
only a part of law is inconsistent with or contravenes the fundamental
rights, it is only that part which shall be void under article 13 and not the
whole of the law. The courts apply the doctrine of severability or
separability to separate the valid portion of the law from the invalid
portion.
In a case State Of West Bengal v .Committee for protection Democratic
Rights, W.Bengal 2010 SC held that, Any law that abrogates or abridges
such right would be violative of the basic structure. Doctrine.
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 5/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
THE WAIVER
?
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 6/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 7/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
the first prosecution. No one should be vexed twice for the same act.
But art.20(2) of the constitution of India has adopted this principle to a
rather narrower extent as its protection against prosecution for which the
accused has already been prosecuted and punished. Art.20(2) provides
“ No person shall be prosecuted for the same offence more than once.”
The constitutional protection against double jeopardy is available
to the citizens and non citizens of India. Thus the Indian provision
enumerates only the principle of autrefois convict but not that of
autrefois acquit. In England and the USA both these rules operate and
a second trial is barred even when the accused was acquitted at the first
trial for that offence.
In order to bring the case of a person within the prohibition of
art.20(2) it must be shown that he had been (i) Prosecuted before a
court. (ii)Punished by it (iii) The punishment was for ,” the same offence
“ for which he is being prosecuted again.
Accordingly there can be no constitutional bar to a second
prosecution and punishment for the same offence unless the accused
had already been punished in the first instance, in a case Kalawati v.
State of M.P.-1953. The word prosecution has no fixed meaning and is
susceptible of both wider and narrower meanings as laid down in
Venkataraman v. Union of India 1954, but as used in art.20(2) it
embodies four essentials :
1. There must be a person accused of an offence.
2. The proceedings of the prosecution should have taken place before a
court or judicial tribunal and not the executive or administrative action.
Case : Maqbool Hussain v. State of Bombay 1953 & H.H.Advani v.
State of Maharashtra 1971.
3. The proceeding should have been taken before the judicial tribunal or
court in reference to the law which creates offences. Case:Venkatraman
v. Union of India.-1954 & Leo Roy v. Supdt. Of District Jail- 1958.
4. The person must have been not only prosecuted but also punished in
the previous proceeding.
Likewise, clause (2) of article 20 does not apply when the person
prosecuted and punished for the second time and subsequent
proceeding is a mere continuation of the previous proceedings, e.g. in
the case of an appeal against acquittal. Case: State of M.P. vs.
Veereshwar-1957.
Similarly the conviction of the accused under section 304 IPC for the
death of deceased does not deprive the wife of the deceased to claim
compensation. A decree of damages is not a punishment and the rule
of double jeopardy has no application, Case : Suba Singh v. Devender
kaur,2011.
Question :- Discuss the importance of the speech and expression.
Does the constitution permits its curtailment? If so on what
ground and o what extent?
OR
Examine the scope of freedom of speech and expression under the
constitution of India. Is right to information implies in Article 19(1)
(a)?
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 8/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
OR
What is the scope of the right to freedom of speech and
expression? On what grounds can this right be restricted?
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 9/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 10/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 11/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
Question: What is right to life and personal liberty ? How the new
dimension Has been given to it by Judiciary?
OR
Explain the concept of personal liberty and upto what extent it has been
moulded in modern times?
OR
No person shall be deprived of the right of life and personal liberty
except according to procedure established by law under Aar.21?
Comment.
Ans. Introduction:- Personal liberty means freedom of person or body.
The right of life means to live in the world. These two things the right of
life and personal liberty are the most important rights of a person. No
one has the right to take away the personal liberty of a person. The
rights are protected by the constitution itself under article 21. The
concept of personal liberty borrowed from the American constitution.
Even at international level, there wee declarations which granted
personal liberty and right of life to human beings. Article 21, has been
explained now a days very liberally by the SC.
In a case P.N. Bhagwati on behalf of S. Court gave decision for the
people of certain local of Himachal Pradesh, for enforcing the right of
personal liberty. In this trial village people were prohibited during raing
days bringing essential commodities, such as, food, clothes, shelter due
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 12/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
to water-course on the way. The court held govt., was liable for
constructing a bridge on the water-course.
Right of life and personal liberty:- Art.21 “ No person shall be deprived
of the right of life a personal liberty except according to the procedure
established by law"
No Person: means that any person whether citizen or non-citizen
Deprived : means to take away or to finish or to arrogate a thing.
Right of Life : Life means to live in the world. For living in the world
mainly three things Roti- Kapra and Makan are necessary. These things
are under the right of life.
Personal Liberty: It consisted two things i) Personal ii) Liberty. Personal
means relating to person or body. Liberty means freedom. So personal
liberty means the freedom of the body or bodily freedom in art. 19 there
are certain freedoms, but art 21 contains certain other types of freedoms
which are particularly related with body. For exp. To eat, sleep and sit
etc., according to one’s own choice.
In A.K. Gopalan v/s State of Madras:- This freedom was restricted to
bodily freedom only but later on in Kharak Singh case, Menka Gandhi
case and in certain other cases, this concept of personal liberty was
applied very widely by the Supreme Court.
Case : A.K.Gopalan v/s State of Madras: 1950 : The meaning of term
personal liberty was taken very narrowly. The court held the term liberty
is lin ked with the term personal so personal freedom is only bodily
freedom. In this case certain persons including the petitioner,
A.K.Gopalan was aarrested under the Preventive Detention Act 1950. It
was held by s. Court that the arrest and the imprisonment of the
accused under this act is not against Art.21.
Right of Privacy:-Case : Kharak Singh v/s State of U.P.-1963.: In this
case the police of UP state suspected that the petitioner has links with
certain Dacoits. For the purpose of investigation, the police interfered in
the personal life of Kharak singh. Police even searched his house at
night and police used to ask from the petitioner at midnight about his
whereabouts. The petitioner challenged these actions of the police
under art.21. He argued that these actions of the police infringe his
personal liberty.
The Supreme Court held that the police could not interfere in the
private life of the petitioner without the procedure established by law. A
human being want to live with privacy. Thus in this case, the right of
privacy was included in the right of liberty.
A case Govind v/s State of M.P. 1975 in this case the same activities of
M.P. state police were held valid because they had force of law. The
state govt., formed certain regulations after taking power from police act.
A case Raj gopal v/s State of Tamil Nadu 1994 :- The S. Court held that
the right of privacy is a fundamental right under art.21 of the constitution
and a citizen has the right to safe guard the privacy of his own family,
marriage, procreation, motherhood, child bearing and education among
another matters" No one can punish anything mentioned above without
his consent.
RIGHT TO TRAVEL TO ABROAD:- A case Satwant Singh v/s Delhii
Pass Port Officer 1967 in this case the passport of the petitioner was
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 13/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 14/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
view of some writers is that this death should be included under the right
of personal liberty.
Gian Kaur v/s State of Punjab 1996:- The S. Court held that ‘right to life’
under article 21 of the constitution does not include, ‘right to die’, right to
life is natural right embodied in art. 21 which means to die a natural
death and does not include the right to commit suicide which is a
unnatural extinction of life and inconsistent with the concept of right to
life.
RIGHT OF EDUCATION: A CASE MISS MOHINI JAIN V/S STATE OF
KARNATKA-1992 In this case the petitioner could not get admission in
the professional course due to high capitation fees. There are some
orders of the Govt., of Karnataka for taking capitation fees. This fee was
Rs.60,000/-for the out state candidates. The petitioner could not arrange
this amount of money. She challenged it on the ground that the right of
education also come under the right of personal liberty. The S.C. held
its decision according to the petitioner’s argument. In Unikrishanan v/s
State of Andhra Pradesh 1993 the court modified the scheme laid down
in Mohini Jain case in relation to NRI students and held that out of entire
the seats only 5% seats can be filled up by NRI students, on the basis of
merit, to be judged by the management of the college concerned and
not on the basis of entrance examination.
Case : All India Imam Organization and others v/s Union of India The
Imams of various mosques in India challenged their wages etc., under
the right of personal liberty. Their wages were very low on which they
could no exist in the world. They had no other source of income. They
were engaged in this service for the whole life time. The S. Court held
that the right to live in world is the first most important right of personal
living. Here also their rights of life had been infringed. The court ordered
the Waqif Board of India for giving sufficient wages to these Imams for
their living in this world. On source basis now a day a system of Rain
Basera ( Lodging system for poor) has been started by the Rajasthan
Govt., on the orders of the Rajasthan High Court.
PROFESSIONAL DOCTOR LIABILITY:- In PARMANAND KARTARA
V/S UNION OF INDIA 1989 it has been made a rule now there is no
need to file FIR, according to the rules of Cr.PC for the purpose of curing
the wounded person in an accident. In this case, the SC held that it is a
duty of professional doctor whether private or govt., to cure(care) the
wounded person firt and to report to police afterwards.
SUSPENSION OF ARRTICLE 21 DURING EMERGENCY:- During
National emergency( under article 352) article 21 can be suspended. It
means no one can claim personal liberty under article 21 during national
emergency. There was done in 1962(Chiana attack) in 1971 (Pakistan)
and 1975 emergency in India. This has also been confined in the Case
of : ABM JABALPUR V/S STATE OF U.P.-1976: This case is known as
‘ Habeas Corpus’ case. In this case the SC held that during emergency
Art.21 can be suspended. But in 44th amendment 1978 it has been
added that Art.21 cannot be suspended during emergency of Indian
government. There were many authorities to the person. This
amendment adopted the dissented views of justice Khanna given in the
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 15/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 17/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 18/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
9 comments:
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 19/20
27/04/2018 Law Notes (LL.B Notes): CONSTITUTION
Home
http://kuklawnotes.blogspot.in/p/constitution-law-question-1-what-is.html 20/20