Constitutional Law Notes
Constitutional Law Notes
Brief Questions
1. Discuss fully Article 21 of the Constitution.Article 21 of
the Constitution provides that no person shall be deprived of his
life or personal liberty except according to procedure established
by law. The object of Article 21 is to put a restraint on the
Executive, so that it may not proceed against the life or personal
liberty of any individual, except under the authority of law.
This is the most cherished guarantee in the world. Article 21,
read with Article 22, contains the entire provision relating to
deprivation of life or personal liberty, as distinguished from the
restriction of the right to move freely throughout the territory of
India, guaranteed under Article 19(1) (b) and (5).In the Dartmouth
College case, the due process clause has been defined as the
process of law which hears before it condemns, which proceeds upon
enquiry, and renders judgment only after trial. Its meaning is that
every citizen shall hold his life, liberty and property and
immunities under protection of the general rules which govern
society. In short due process, as regards a criminal trial, means
that no person is to be punished except for a violation of definite
and validly enacted laws of the land, and after a trial conducted
in accordance with the specific procedural safeguards contained in
the Bill of Rights to secure a fair trial.
It is interesting to note that the Draft Constitution of India
contained the expression without due process of law in place of the
words except according to procedure established by law. However,
the Constituent Assembly preferred the latter expression, as it was
considered to be more certain and definite.
In India, the duty of seeing that no member of the Executive
interferes with the liberty or property of the citizens, except on
the condition that he can support the legality of his actions,
devolves on the Court. At the same time, the Indian Constitution
does not guarantee the right to any particular procedure. Though
the Supreme Court has denied to itself the right to examine the
reasonableness of any law depriving a person of his liberty, it
has, in fact, interfered in many cases with such orders depriving
the liberty of the citizens, on the ground that the procedure laid
down by the law which authorizes such deprivation, has not been
followed. On such grounds, the Court, in a proceeding for habeas
corpus, will at once set the person at liberty. This principle has
been applied both in the case of punitive as well as preventive
detention.
In the case of Gopalan v. State of Madras, the Supreme Court
held that the word law occurring in Article 21 is to be understood
as State made law and not as natural law. The formal reversal of
this view ultimately came about in the case of Maneka Gandhi v.
Union of India, where the Supreme Court laid down that Article 21
is controlled by Article 19. The Court observed that if there is a
law which prescribes a procedure for depriving a person of his
personal liberty, there may be no infringement of Article 21, but
such law can still be challenged on the ground that it takes away
any fundamental right under Article 19 of the Constitution.It may
be noted that when a person is deprived of his life or personal
liberty by a law prescribing a procedure for the same, Article 21
is not violated. 2. Discuss fully whether the Indian Constitution
is federal as well as unitary.
The nature of the Indian Constitution, whether it is federal or
unitary can be examined in the light of certain characteristics
which can be summarized as follows:
a) Formation of the Constitution:
Federations elsewhere have been the result of a voluntary
agreement between a number of sovereign and independent States
coming under a common administration for certain specific purposes.
But, in India, federation was not a process of integration, but a
process of decentralization. The former imperialistic unitary State
was converted into a democratic union by the Constitution.
Therefore it is not surprising that the Indian Constitution differs
from other federations in many vital respects.
b) Distribution of powers:
The legislative power contained in the Constitution can be
summarized by saying that the legislative power has been
distributed between the Union and the States; with the Union having
exclusive legislative with respect to the subjects in the Union
List, while the States have exclusive legislative power with
respect to the subjects mentioned in the State List. However, both
the Union and the States have legislative power with regard to the
subjects mentioned in the Concurrent List.c) Citizenship:
There is a single citizenship for the whole Union and there is
no citizenship for the State as is observed in the United States,
where citizenship is of both the Union as well as the State.
d) Judiciary:
There is no bifurcation of the judiciary between the Federal and
the State Governments. The same system of courts, headed by the
Supreme Court, administers both the Union and the State laws as are
applicable to the cases coming up for adjudication. This is again
in contrast to the American system, where there are Federal Courts
and State Courts.
e) Election, accounts & audit:
The machinery for election, accounts and audit is similarly
integrated and unified. The Union Government may give directions to
a State Government to ensure due compliance with the legislative
and administrative action of the Union.
f) Failure of constitutional machinery:
Where there is a failure of the constitutional machinery in a
State, the President can suspend the Constitution of the State and
assume responsibility for administration of the State. In such
circumstances, the Parliament may legislate for such a State.
g) The Council of States:
The Council of States is not constituted on the principle of
equal representation of the States.
h) Formation of new States:
The Union Legislature, namely the Parliament has the power to
form new States, to increase or diminish the area of existing
States and to alter their boundaries.Thus, it can be seen that the
Indian Constitution has some federal characteristics and some
unitary feature, and the latter are more pronounced during times of
national emergency. 3. Discuss fully, The President is the nominal
head and the Prime Minister is the real executive head.
Before the Forty Second Amendment of the Constitution, there was
a controversy regarding the constitutional status of the President.
There were two views on this question. One view was that the Indian
Constitution was essentially providing for the Cabinet system of
Government responsible to the Parliament. Therefore, the President
was just a constitutional head. The other view was that though the
Indian Constitution provided essentially for a Cabinet system of
Government, yet the President was not just figure head, and in
exceptional circumstances, his offices could be an office of
effective powers.Those who held that the President was nothing more
than a constitutional head, and was always bound by the advice of
the Council of Ministers, held their views for the following
reasons:
a) According to Article 64, there is a Council of Ministers.
Therefore, the absence of ministers and the President acting
without the aid and advice of such ministers would amount to a
departure from the Constitution.
b) The very essence of the Cabinet system of Government is the
Cabinets responsibility to the Parliament. If the President were to
act independently of the advice of the Council of Ministers, such
action would not fall within the sphere of parliamentary
responsibility.
c) If the President were to act independently, it would lead to
a kind of personal despotism in view of his apparently vast powers.
Such a President might dissolve the Parliament, proclaim an
emergency and suspend the elections, and thus virtually convert the
Indian Constitution into an instrument of despotism.
As against the above arguments, those who held that, under
certain exceptional circumstances, the President might act
independently of the aid and advice of the Prime Minister or the
Council of Ministers; advanced the following arguments in favor of
their view:
a) The Constitution, as originally framed, only provided for the
Council of Ministers; nowhere did it categorically state that the
President has to act only on the aid and advice of the Council of
Ministers.
b) In view of the federal nature of the Constitution, there was
no reason to believe that all the conventions of the British
Constitution should be invariably followed in India.
c) So far as the federal and national problems are concerned,
the President who has been elected by the Parliament and the
Legislative Assemblies of the States; may be made representative of
the nation, rather than the Prime Minister, who would just be a
leader of the majority party in the Parliament.d) It was further
argued that the British practice of the requirement of the
signature of the ministers before affixing the royal seal is not
adopted in India. Therefore, there is no constitutional difficulty
even if the President were to act without the aid and advice of the
Council of Ministers.
After the 42nd Amendment, the above discussion assumes a purely
academic character, as it is now made clear that the President is
bound by the advice of the Council of Ministers. For this purpose,
Article 74 of the Constitution was amended, and it is now provided
that the President shall act in accordance with such advice. 4.
Discuss fully the procedure of passing money bills.
It is well known that one of the factors which contribute to the
well being of an individual or nation is finance. The Constitution,
therefore, contains some special and important provisions as
regards money bills.
Money bills defined (Article 110):
A money bill is one which deals with any of the following
matters only, viz.
a) The imposition, abolition, remission, alteration or
regulation of any tax.
b) The regulation of the borrowing of money or the giving of any
guarantee by the Government of India, or the amendment of any law
with respect to any financial obligations undertaken by the
Government of India.c) The custody of the Consolidated Fund or the
Contingency Fund of India, the payment of moneys into or the
withdrawals from any such fund.
d) The appropriation of moneys out of the Consolidated Fund of
India.
e) The declaring of any expenditure to be expenditure charged on
the Consolidated Fund of India or the increasing of the amount of
any such expenditure.
f) The receipt of money on account of the Consolidated Fund of
India or the public account of India or the custody or issue of
such money or the audit of the accounts of the Union or of a
State.
g) Any matter incidental to any of the matters mentioned in
clause (1) to (6) above.
A Bill is not to be deemed a Money Bill by reason only that it
provide for the imposition of fines or other pecuniary penalties,
or for the demand or payment of fees for licenses or fees for
services rendered, or by the reason that it provides for the
imposition, abolition, remission or regulation of any tax by any
local body or authority for local purposes. If any question arises
whether a Bill is a Money Bill or not, the decision of the Speaker
of the House of the People (Lok Sabha) is final.
When a Money Bill is transmitted to the Council of States under
Article 109, and when it is presented to the President for assent
under Article 111, there must be endorsed on every such Bill, a
certificate of the Speaker of the House of the People, signed by
him that it is a Money Bill.
Special procedure in respect of Money Bills (Articles 109-110(4)
&117):
A Bill or amendment making provisions for any of the matters
mentioned in clauses (1) to (6) above cannot be introduced or moved
except on the recommendation of the President and a Bill making
such provision cannot be introduced in the Council of States.
(Article 117(1)) The three important steps in this special
procedure are laid down in Articles 109 and 110 as under:
a) A Money Bill cannot be introduced in the Council of States.
(Article 101(1))
b) On being passed by the Lok Sabha, a Money Bill must be sent
to the Rajya Sabha which must return the same with its
recommendations within 14 days, which may be accepted or not by the
former. If the Money Bill is not returned within the requisite
period, it is deemed to have been passed by both the Houses in the
form in which it was sent by the Lok Sabha. (Article 109).
c) If the Lok Sabha accepts any of the recommendations made by
the Rajya Sabha, the Money Bill is deemed to have been passed by
both the houses with the recommendations incorporated into the
Bill. If the recommendations are not accepted the Bill is deemed to
have been passed in its original form.
5. Discuss fully the procedure of amending the Constitution
under Article 368.
Article 368 prescribes a special procedure in case the
Constitution has to be amended. There are four steps in the
procedure as under:
An amendment of the Constitution may be initiated only
a) By the introduction of a bill for the purpose in either House
of Parliament. It must be remembered that the process of amending
the Constitution is a legislative process and an amendment Bill is
ordinarily to be passed as a legislative measure.b) When the Bill
is passed in each House by a majority of the total membership of
the House and by a majority of not less than two-thirds of the
members of the members of that House present and voting, it is
presented to the President for his assent.
c) Upon such assent being given to the Bill, the Constitution
stands amended in accordance with the terms of the Bill.
d) However, if such amendment seeks to make any change in any of
the following eleven matters i. Article 54: Election of the
President
ii. Article 55: Manner of the election of the President
iii. Article 73: Extent of the executive power of the Union
iv. Article 162: Extent of executive power of the State
v. Article 241: High Courts for Union territories
vi. Chapter IV of Part V: The Union Judiciary
vii. Chapter V of Part VI: The High Courts in the States
viii. Chapter I of Part XI: Legislative relations
ix. Any of the lists in the Seventh Schedule
x. The representation of States in Parliament
xi. The provisions of Article 368 itself, -
the amendment must also be ratified by the Legislature of not
less than half of the States, by resolutions to that effect passed
by those Legislatures, before the Bill making provisions for such
amendment is presented to the President.
The 42nd Amendment, 1976, had provided that no amendment of the
Constitution, including the provisions relating to the Fundamental
Rights, made or purporting to be made under Article 368, could be
called into question in any Court on any ground.
The amended Article 368 also declared that there would be no
limitation whatsoever in the power of the Parliament to amend, by
way of addition, variation or repeal, any of the provisions of the
Constitution under Article 368.
The above two provisions introduced by the 42nd Amendment, 1976,
were challenged before the Supreme Court in the case of Minerva
Mills v. Union of India. The five member Bench of the Supreme
Court, which tried this case, were unanimous in its opinion that
both the provisions void, as they were beyond the amending powers
of the Parliament.
6. Discuss fully the position of the Prime Minister as well as
his functions.
The Prime Minister is appointed by the President, and holds
office during the pleasure of the President.
His duties are to be found in Article 78 and as are under:
a) To communicate to the President, all decisions of the Council
of Ministers relating to the administration of the affairs of the
Union and proposals for legislation.
b) To furnish such information relating to the administration of
the affairs of the Union and proposals for legislation, as the
President may call for.
c) If the President so requires, to submit for the consideration
of the Council of Ministers, any matter on which a decision has
been taken by a Minister, but has not been considered by the
Council.
The Prime Minister certainly occupies a position of superiority
over the other ministers. He is often described as the keystone of
the cabinet arch. Sometimes, he is also described as primus inter
pares, the first among equals. However, this seems to be an
understatement, inasmuch as a Prime Minister, and more so, a
powerful Prime Minister, has no equals.
.The superiority of the Prime Minister is also reflected in the
fact that it is he who recommends to the President, the appointment
of the other ministers. Likewise, he can also recommend to the
President, the dismissal of a particular minister.
Normally, a minister who does not agree with the Prime Minister
has to resign. Such a minister cannot continue in the ministry, and
at the same time criticize the Prime Minister openly. Such behavior
would be incompatible with the basic principles of the cabinet
system of government.
Again, it is the Prime Minister who defends the cabinet on the
floor of the House. His resignation would mean the fall of the
entire cabinet. A person with a strong personality and comfortable
majority in the Lok Sabha can well become a very powerful Prime
Minister. It is, therefore, said that the office of the Prime
Minister is what its holder chooses to make it. And, recent history
has shown how true this statement can be.
There is yet another weapon in the hands of the Prime Minister.
He can advise the President to dissolve the Lok Sabha. It is this
potent power tha gives the Prime Minister full control over the Lok
Sabha and not vice versa. With a relatively weak President, the
Prime Minister can almost become an elected dictator.
7. Discuss fully untouchability under Article 17 & the Civil
Rights Act, 1955.
Untouchability is abolished and its practice in any form is
forbidden. The enforcement of any disability arising out of
untouchability, shall be an offence punishable in accordance with
law.
The complete abolition of untouchability was one of the foremost
visions of Mahatma Gandhi. Article 17 seeks to adopt the Gandhian
idea without any qualification. The word untouchability has not
been defined in the Constitution, but it is meant to cover
different acts in different in India. This Article abolishes
untouchability which, like slavery, amounts to a denial of human
equality. This Article also makes untouchability in any form an
offence.
It will be seen that this Article enacts two declarations. It is
firstly declared that untouchability is abolished and its practice
in any form is forbidden. Secondly, it is laid down that if a
person seeks to enforce any disability arising out of
untouchability, he will be guilty of an offence.It is interesting
to note that the word untouchability (as appearing in Article 17)
is enclosed in inverted commas. This would suggest that the subject
matter of Article 17 is not untouchability in its literal or
grammatical sense, but the practice as has developed in India
through the ages.
In 1955, Parliament passed the Untouchability (Offences) Act,
which was later renamed as the Protection of Civil Rights Act.
Although this enactment has not been strictly enforced, it is a
step in towards a socialist India, where all men are equal in the
eyes of society and law.
As it is not possible to give a precise definition of
untouchability, the Protection of Civil Rights Act makes provisions
with respect to the commonest forms of untouchability practiced in
India. Fine and imprisonment are prescribed under the Act for
several such acts, as for example:
a) Preventing a person, on the ground of untouchability, from
entering any place of worship, which is open to other members of
the same religion.b) Preventing any person, on the ground of
untouchability, from worshipping or performing any religious
services in any place of religious worship, or bathing in any
sacred tank, well, spring, etc.
c) Denying to any person, on the ground of untouchability,
access to any shop, public restaurant, hotel or place of public
entertainment;
d) Enforcing against any person, on the ground of
untouchability, any disability with regard to the practice of any
profession, or the carrying on of any occupation, trade or
business;
e) Denying any person, on the ground of untouchability, the use
of any public musafir-khana or dharamshala which is open to the
general public;
f) Refusing admission to any person, on the ground of
untouchability, in any hospital, dispensary, educational
institution, etc., established or maintained for the benefit of the
general public.8. Discuss fully the preamble to the
Constitution.
The Preamble serves as an introduction to the Constitution. It
is a statement of the purposes for which the Constitution was
enacted.
The Preamble serves two purposes. Firstly, it indicates the
source from which the Constitution springs into existence, namely
the people of India. The political power in the Republic of India,
therefore, vests ultimately with the people of India. Our
Constitution is broadly based on the consent and acquiescence of
the people. It is not imposed by some external authority, as was
the case with the Government of India Act, 1935. it is true that
the Constituent Assembly, which framed the Constitution, was not
directly elected by the people, nor was the draft of the
Constitution subjected to the vote of the people. Yet the
Constituent Assembly was fairly representative of all sections of
the people.
Secondly, the Preamble throws light on the aims and objectives
of the Constitution. The declared object is to secure justice,
liberty, equality and fraternity to all the citizens. Thus, the
Preamble expresses the political, moral and civil values which the
Constitution is intended to promote.
As observed by the Supreme Court, the Constitution is a living
and organic thing, which, of all instruments, has the greatest
claim to be construed broadly and liberally. As the Supreme Court
observed, the Constitution is not merely law, but the machinery by
which all laws are made. (Goodyear India Ltd. V. State of
Haryana)
It is well established rule of interpretation that it is only
when an Act is ambiguous, a Preamble can be used to throw further
light on the express provisions of the enactment. Thus, the
Preamble cannot be used to control an enactment, when the enactment
itself is expressed in clear and unambiguous terms. In other words,
an ambiguity cannot be created or imagined, just to draw a
clarification form the Preamble as that would mean frustration of
the main enactment. (Gopalan v. State of Madras)
In Gopalans case, it was contended that since the Preamble seeks
to give India a democratic Constitution, Article 21 should be read
in such a way as would invalidate any law opposed to the principles
of natural justice. The Supreme Court, however, rejected this
argument, observing that the word law in Article 21 refers to
positive or State made law and not to natural law or justice.
In the case of Keshavananda Bharti v. State of Kerala, a
majority of the Full Bench of the Supreme Court held that the
objectives stated in the Preamble reflect the basic structure of
the Constitution, which cannot be amended by exercising the power
of amendment under Article 368 of the Constitution.
The Supreme Court has also observed that the Preamble to the
Constitution is, in the words of the emionent jurist, Story, a key
to open the minds of its makers in In Re Berubari Union and
Exchange of Enclaves. 9. How is the independence of the Supreme
Court protected?
The framers of our Constitution have tried to secure the
independence of the Supreme Court by various measures. While
providing for such safeguards, the framers drew inspiration form
the American, Swiss and British examples. The various safeguards in
the Constitution too ensure the independence of the Supreme Court
can be summed up as follows: a) Appointment:
A Judge of the Supreme Court is appointed by the President, by a
warrant under his hand and seal, after consultation with such
judges of the Supreme Court and of the High Courts, as the
President may deem necessary for the purpose, and holds office till
he attains the age of 65 years. Thus, the appointment of judges has
rightly been lifted from the realm of pure politics.
b) Removal:
A Judge of the Supreme Court cannot be removed from office,
except by an order of the President passed after an address by each
House of Parliament, supported by a majority of the total
membership of that House and by a majority of not less than two
thirds of the members of that House present and voting, presented
to the President in the same session for such removal, on the
ground of proved misbehaviour or incapacity.
c) Salaries and allowances:
The salaries of the Judges have been fixed by the Second
Schedule and cannot be altered or varied to their disadvantage
after their appointment. Thus, independence is ensured by this
assurance that a Judges salary and allowances will not be adversely
affected even if Parliament makes a new law after his
appointment.
d) Charge on the Consolidated Fund of India:
The administrative expenses of the Supreme Court, including all
salaries, allowances and pensions payable to the Judges and other
officers and servants of the Supreme Court are charged upon the
Consolidated Fund of India. The sums which are charged upon the
Consolidated Fund of India are not put to the vote of
Parliament.
e) Appointment of officers:
The appointments of the officers and servants of the Supreme
Court are made by the Chief Justice of India or such other Judge or
officer of the Supreme Court as he may direct, provided that the
President may, by rule, require that in such cases as may be
specified in the rule, no person not already attached to the Court
can be appointed to any office connected with the Court, save after
consultation with the Union Public Service Commission.
f) Conduct not open to discussion in Parliament:
The Constitution also forbids any discussion of the conduct of a
Judge in Parliament except upon a motion for his removal.
g) No right to practice:
Under Article 124(7), a person who has been a Judge of the
Supreme Court cannot plead or act in any Court or before any
authority in India.
10. Discuss fully the writs available under articles 32 and
226.
The writs available under Article 32 & 226 are as
follows:
a) Habeas Corpus:
This writ may be regarded as one of the most important
safeguards of personal liberty. This writ is available in all cases
of deprivation of personal liberty or wrongful detention. On an
application, the Court is empowered to direct that the detained
person be produced before it, and is entitled to inquire into the
grounds of his detention. If the Court is satisfied that such
detention is illegal, it can order immediate release of the
person.b) Mandamus:
The writ of mandamus (literally meaning We command) is a high
prerogative writ of a most extensive remedial nature. Today, it is
used principally for public purposes and to compel the performance
of public duties. It is, however, also sued to enforce private
rights when they are withheld by pubic officers. it is to be noted
that mandamus lies, not only against executive authorities, but
also against judicial and quasi judicial authorities. The four
conditions to be satisfied before a writ of mandamus can be issued
are:
i. The petitioner must show that he has a legal right to obtain
performance of a legal duty.ii. Such duty must imposed by the
Constitution or any other law, but not under a contract.
iii. Such a duty must be a ministerial duty and not
discretionary in nature.
iv. The right which is claimed should be judicially enforceable
right.
c) Prohibition:
The writ of prohibition has been described as a judicial writ,
issuing out of a Court of superior jurisdiction, and directed to an
inferior Court, for the purpose of preventing the inferior Court
from usurping a jurisdiction with which it is not legally vested,
or in other words, to compel Courts entrusted with judicial duties,
to keep within the limits of their jurisdiction. Thus, Courts have
issued a writ of Prohibition to prevent a Tribunal from proceeding
further in a matter, when the Tribunal i. Is acting without
jurisdiction;
ii. Is acting beyond its jurisdiction;
iii. Is acting in violation of the rules of natural justice;
iv. Is proceeding under a law which is unconstitutional or ultra
vires;
v. Is acting in contravention of a fundamental right.
d) Certiorari:
Certiorari means To be more fully informed of . Such a writ
issued by a Superior Court and is directed to the judge or officer
of an inferior Court of record. It require that the record of the
proceedings in some cause or matter pending before such inferior
Court be transmitted to the superior Court to be dealt with, in
order to ensure that the applicant will have sure and speedy
justice.
e) Quo Warranto:
The writ of quo warranto is issued to prevent the illegal
assumption of any public office or usurpation of any public office
by anybody.11. Discuss fully the features of the Constitution.
The Constitution of India, which came into effect on 26th
January, 1950, has certain distinguishing features. Though the
Constitution has gained from the constitutional experiments of
other countries, it has its own salient features. The following may
be said to be the salient features of the Indian Constitution:
a) The Constitution has the distinction of being the most
lengthy and detailed constitutional document the world has ever
produced. When originally enacted, the Constitution had 395
Articles 8 Schedules.b) The Constitution is federal in character,
and provides for a division of powers between the Union and the
States. The peculiarity of our federalism is that it has created a
substantially strong centre.
c) Though the Indian Constitution is federal in form, it is the
most flexible of all federal written constitutions. Most of the
provisions of the Constitution can be amended by the Parliament,
only in a few cases, ratification by the States is necessary. In
fact, one unique feature of the Indian Constitution is that it has
been amended more than ninety times so far.
d) The Constitution makes provisions for directive principles
which are fundamental in the governance of the country.
e) The Constitution also provides for an independent judiciary,
having the power of judicial review. But, at the same time, it
attempts at a reconciliation of the principle of judicial review
and parliamentary supremacy.
f) Though the Constitution is federal in nature, yet it provides
for a single citizenship of the Union. There is nothing like State
citizenship (as for example, in the United States of America).
Thus, all citizens are citizens of India, and not of Karnataka or
Madhya Pradesh.
g) Another important feature is the concept of a secular state.
There is complete freedom of religion. There is no State religion,
and each person is free to pursue the religious beliefs of his
choice. This aspect of the State was highlighted by the 42nd
Amendment 1976, which emphasized the secular nature of the country,
by introducing the word secular in the Preamble. Moreover, freedom
of religion is one of the fundamental rights under the
Constitution.
h) Another important feature of the Constitution is the
abolition of communal electorates. The framers of the Constitution
seem to have learnt form their past experience. In the interest of
national solidarity, it has been found that there should be no
voting on communal lines. Only a few seats have been reserved, and
that too, only for some time, for the Anglo-Indians and the
Scheduled Castes.
i) Another important feature is the provision for adult
franchise. Every citizen who is 18 years of age (under the
Constitution as enacted, it was 21) has been given the right to
vote. Unfortunately, there is no duty to vote, as in some European
countries.
j) Another interesting feature of the Constitution is that it
superimposes an elected President upon the cabinet system of
government, which is responsible to the Parliament.
12. Discuss fully Article 14 & Article 19.
Article 14:
Article 14 provides that the State shall not deny to any person
equality before the law or the equal protection of the laws within
the territory of India. The right to equality guaranteed under
Article 14 consists of two parts:
a) Equality before the law.
b) Equal protection of the laws.
The first phrase equality before the law owes its origin to the
English common law. Equality before the law means the absence of
any special privilege in favour of any individual, and the equal
subjection of all classes to the ordinary law. It means that the
law should be equal and should be equally administered, that like
should be treated alike. The meaning of this phrase is that there
shall not be any discrimination before the law on extraneous
grounds like rank, office, etc.
The other phrase equal protection of the law, owes its origin to
the American Constitution. While both the expressions, equality
before the law and equal protection of the laws aim at establishing
equality of legal status for all, there is some difference between
these expressions. The former expression is somewhat a negative
concept, implying absence of any special privilege in favour of
individuals, while the latter is a more positive concept, implying
equality of treatment in equal circumstances. Examining the scope
of Article 14, the Supreme Court has, in several cases, observed
that this Article guarantees equal treatment to persons who are
equally situated. Unequals are not only permitted to be treated
unequally, but also must be so treated. Equal treatment, when given
to unequals, amount to inequality.
Article 19:
Article 19 enshrines several important liberties of citizens.
The list is quite comprehensive, and these rights, which are
enjoyed by all citizens, are not absolute, as they are qualified
and limited; as for instance, the right of a person to move
anywhere does not enable him to enter any place he likes. The
restrictions imposed by the legislature are for the public
good.
Rights are declared in unqualified terms, but later on they are
properly qualified, thereby suggesting sometimes that rights have
been given by one hand and taken by the other. The Constitution
makers, after studying all the different Constitutions, have tried
to include the essence of other Constitutions in Article 19 of the
Constitution, but unlike the American Constitution, they have been
properly codified. The right to freedom guaranteed under Article 19
can be classified under the following seven important heads:
a) Freedom of speech and expression.b) Freedom of assembly.
c) Freedom to form associations or unions.
d) Freedom to move freely throughout India.
e) Freedom to reside and settle in any part of India.
f) Freedom to acquire, hold and dispose of property. (no longer
a fundamental right)
g) Freedom to practice any profession.
Short Notes1. Election Commission.The Election Commission
consists of the Chief Election Commissioner and other election
commissioners, all of whom are appointed by the President. The
Chief Election Commissioner acts as the Chairman of the Election
Commission.
The superintendence, direction and control of the preparation of
the electoral rolls for, and the conduct of all elections to
Parliament and to the Legislature of every State and of elections
to the office of President and Vice-President (including the
appointment of election tribunals for the decision of doubts and
disputes arising out of or in connection with the elections to
parliament and to the Legislature of States) are vested in the
Election Commission.
Article 324 thus provides for the creation of an independent
body, with exclusive powers to decide certain matters. When read
with Articles 103 and 192, it becomes clear that, in case of doubts
and disputes as to the qualification of members of the
Legislatures, the President or the Governor takes a decision in
consultation with the Election Commission; but in cases of doubts
relating to elections, the same is to be decided by the Election
Tribunals appointed by the Election Commission. 2. Directive
Principles of State Policy.
The framers of our Constitution have chosen the middle path
between the ideal and the practicable. They realized that some
salutary principles, though necessary and highly desirable, could
not be placed on the same level as the fundamental rights. Hence,
these directive principles, as they are called, have been put on a
separate footing in Part IV of the Constitution.
This part embodies a series of general injunctions, a number of
pious wishes styled Directive Principles of State Policy, which are
intended to give an indication of the policy which the Union and
the States ought to follow. They are directions to the State to
meet those social, economic and cultural reforms which the framers
of the Constitution looked upon as the ideals of the new order, but
to which they did not give legal effect in the framework of the
organic law itself.
The Directive Principles are like the instrument of instructions
which were issued to the governors of the colonies by the British
government. The only difference is that they are instructions tot
eh legislative and executive. Such a concept is welcome. Whenever
there is a grant of power in general terms of peace, order and good
government, it is necessary that it should be accompanied by
instructions regulating its exercise.The Directive Principles of
State Policy can be used for the purpose of political and private
criticism, but they confer no legal right nor create any legal
remedies. They are good guides, but they cannot be enforced. Thus,
the Directive Principles cannot be enforced by any Court.
3. Pith and substance doctrine.
When the legislative powers of the Union and the States are
divided in mutually exclusive lists, it is possible that a question
may arise in practice as to whether a law purporting to be made
under an entry in one list, falls in fact within an entry in
another list, over which such legislature has no power to make
laws.
O answer such questions, the Privy Council evolved the doctrine
of pith and substance, which is an important feature of the
Canadian Constitution. Under this doctrine, one must see the pith
and substance, or the true nature and character of the legislation.
As the Supreme Court explained, if an Act falls substantially
within the powers expressly conferred upon a Legislature, such Act
is not invalid merely because it incidentally encroaches on matters
which have been assigned to another Legislature.
Therefore, when the vires of a law is challenged, the
encroachment must be looked at as an organic whole, and not as a
mere collection of Sections from different pats of such an Act. If
the impugned Act is substantially within the legislative competence
of the legislature, it cannot be set aside.
This doctrine was first applied by the Privy Council in the
Central Provinces Case, and has been followed by the Supreme Court
in several subsequent cases.
4. Doctrine of severability.
Whenever two interpretations of a statute are possible, one of
which would make the law valid and the other void, the former is
always to be preferred. However, if this is not possible, the Court
will have to decide whether the law is bad as a whole, or whether
the part which is bad can be severed (i.e. separated) from the rest
and declared void, leaving the other parts of the statute
intact.
Thus, it is only if the valid and the invalid provisions are
separate and distinct that this doctrine can be applied, provided
further that after striking out the invalid portions what remains
is itself a complete code independent of the rest (which has been
struck down). It follows that if the valid and invalid provisions
are so inextricably mixed up that they cannot be separated, the
whole statute will be declared void.
It has been held that where the valid and invalid provisions are
joined together by using words and or or, and the enforcement of
the valid provision is not dependent on the enforcement of the
invalid provision, i.e. if the valid provision can be enforced even
if the invalid one cannot be enforced, the two provisions can be
said to be severable. In such a case, only the valid provision will
be upheld and given effect to.
5. Doctrine of colorable legislation.
When a legislature lacks legislative competence in a particular
field, it may frame its statute so as to make it appear that the
statute falls within one of the entries it has the power to
legislate upon. This is called colorable legislation, which means
that, while the statute pretends to be on a subject falling within
the competence of the legislature, it is in reality a law on a
prohibited field. Such a law will be examined by the Courts, and if
found to be an instance of colorable legislation, it will be struck
down as void.
In a federal constitution, the transgression of its limits by a
legislature, central or State, may in some cases be open, direct or
overt. In other cases, it may be disguised, indirect and covert, in
the shape of colorable legislation.
Before applying the test of colorable legislation, the pith and
substance test should be applied. If the legislature is competent
to pass a law, and it incidentally encroaches on the sphere of
another legislature, the law will not be invalid. But if a
legislature which lacks competence purports to act under a relevant
entry, with a view to assuming legislative competence, it would be
a case of colorable legislation, and the law would be declared to
be invalid. Thus, the doctrine of colorable legislation looks to
the competence of a legislature, and not to its motives.
6. Comptroller and Auditor General.
The Comptroller and Auditor General of India is appointed by the
President by warrant under his hand and his seal. Before he enters
upon his office, he has to make and subscribe before the President
(or some person appointed in that behalf), an oath or affirmation
in the prescribed form.
It is also provided that neither his salary nor his rights in
respect of leave, pension or retirement age, can be varied to his
disadvantage after his appointment.
After he has ceased to hold his office, he is not eligible for
further office either under the Government of India or under the
Government of any State.
The Comptroller and Auditor General can be removed from office
only in the manner and on like grounds as a Judge of the Supreme
Court. In other words, he cannot be removed from his office, except
by an order of the President passed after an address by each House
of Parliament, supported by a majority of the total membership of
that House and by a majority of not less than two thirds of the
members of that House present and voting, presented to the
President in the same session for such removal, on the ground of
proved misbehaviour or incapacity.
The Comptroller and Auditor General performs such duties and
exercises such powers in relation to the accounts of the Union and
the States as may be prescribed by Parliament.
7. Special provisions for scheduled castes and scheduled
tribes.
Nothing in this Article or in Clause (2) of Article 29 shall
prevent the State from making any special provision for the
advancement of any socially or economically backward class of
citizens or for the Scheduled Castes and Tribes. (Article
15(4))
Article 15(4) was added in 1951 as a result of the judgment of
the Madras High Court in the case of Champakam Dorairajan v. State
of Madras, which decision was upheld by the Supreme Court.
The question of the validity of reservation for the Scheduled
Castes and Tribes came up before the Supreme Court in the case of
M. R. Balaji v. State of Mysore, where an order of the Mysore
Government reserving 68 per cent of the seats for the Scheduled
Castes and Tribes and for the Backward Classes was challenged. In
this case, it was held that the impugned order made a
classification based only on caste, without regard to other
relevant factors, and that such classification was not permissible
under Article 15(4).
The Supreme Court also observed that, generally speaking, such a
reservation should be less than 50 per cent, and that as the
impugned order reserved 68 per cent of the seats, it was void on
that ground also. Interestingly enough, the Supreme Court did not
specify as to how much below 50 per cent such reservation should
be.
8. Doctrine of eclipse.
An existing law inconsistent with a fundamental right, though
becomes inoperative from the date of the commencement of the
Constitution, is not dead altogether. It is a good law if a
question arises for determination of rights and obligations
incurred before the commencement of the Constitution, and also for
the determination of the rights of persons who have not been given
fundamental rights by the Constitution.
This has led the Supreme Court to apply to the existing laws,
i.e. pre-Constitution laws, what may be described as the doctrine
of eclipse. According to the doctrine of eclipse, an exiting law,
i.e., a law made before the commencement of the Constitution,
remains eclipsed or dormant to the extent it comes under the shadow
of the fundamental rights, i.e., it is inconsistent with any
fundamental right, but the eclipsed or dormant parts become
operative and effective again if the prohibition brought about by
the fundamental right is removed by an amendment of the
Constitution. The Supreme Court decision in the case of Bhikaji
Narain Dhakras v. State of M.P. is a good illustration of the
application of this doctrine.
9. Union Public Service Commission.
Article 315(1) of the Constitution provides that there shall be
a Public Service Commission for the Union and a Public Service
Commission for each State.
The Chairman and other members of a Public Service Commission
are appointed by the President. A member of the Union Public
Service Commission holds office for six years from the date on
which he enters upon his office or until he attains the age of
sixty five years.One half of the members of the Union Public
Service Commission should be persons who have held office for at
least ten years under the Government, before being so appointed. A
member of the Union Public Service Commission may, by writing under
his hand and addressed to the President resign from his office. The
Chairman of the Union Public Service Commission can be removed from
his office by an order of the President only on the ground of
misbehaviour, after the Supreme Court (on reference being made to
it by the President) has, on inquiry reported that he should be
removed. The President may, in the meanwhile, suspend such
member.
10. Powers of the governor.
The powers of governor of a State are analogous to those of the
President, except that the Governor has no diplomatic, military or
emergency powers. The following powers are conferred on him by the
Constitution:
a) He is the head of the executive power of a State. The
executive power of the State being vested in the governor, is to be
executed by him directly by him or through officers subordinate to
him in accordance with the Constitution. (Article 154(1))
b) All executive action of the Government of a State is o be
expressed to be taken in the name of the governor.
c) The governor appoints ministers, and they hold office during
his pleasure.
d) The governor has a right of opening addresses, of addressing
and sending messages to and summoning of, proroguing and dissolving
the Legislature, just as the President has.e) He has the power to
cause the Annual Financial Statement to be laid before the State
Legislature, and making demands for grants and recommending Money
Bills.
f) He has the power of promulgating ordinances during any recess
of the Legislature, and power of vetoing State Bills, with power to
reserve them for the consideration of the President.
g) Lastly, he has the power to grant pardons.
11. Attorney General.
Articles 76, 88, 124 contain important provisions regarding the
Attorney General of India.
The President appoints a person who is qualified to be appointed
a Judge of the Supreme Court to be Attorney General for India.
The qualifications of the Attorney General of India are the same
as those of the Supreme Court, laid down in Article 124, namely
a) He must be a citizen of India.
b) He must have been
i. At least for five years, a judge of a High Court or of two or
more such Courts in succession; orii. He must have been, for at
least ten years, an advocate of a High Court, or of two or more
such Courts in succession; or
iii. He is, in the opinion of the President, a distinguished
jurist.
The Attorney General holds office during the pleasure of the
President, and receives such remuneration as the President may
determine.
His duties are to give advice to the Government of India upon
such legal matters, and to perform such other duties of a legal
character, as may be referred or assigned to him by the President,
and to discharge the functions conferred on him by the
Constitution.
12. Secularism.
This word was also added by the 42nd Amendment, 1976 to
emphasize the secular nature of the nation. The provisions
contained in Articles 25 to 30 aim at making India a truly secular
nation.
A secular State is one where the State has no official religion.
The State provides full opportunity to every person to profess and
practice a religion of his choice. On the other hand, the
Constitution guarantees a persons freedom of religion, and on the
other hand, also ensures equal freedom even for him who has no
religion.Dr. Radhakrishnan, a former President of India has, in his
book, Recovery of Faith, stated as under:
When India is said to be a secular state, it does not mean that
we reject the reality of an unseen spirit or the relevance of
religion to life or that we exalt religion. It does not mean
secularism itself becomes a positive religion or that the State
assumes divine prerogative We hold that not one religion should be
given preferential status. This view of religious impartiality, or
comprehension and forbearance, has a prophetic role to play with
the national and international life.
13. Citizenship.
The following are the four classes of persons mentioned in
Articles 5 to 8, who can be citizens of India:
a) Citizenship is conferred by the Constitution on every person
who had his domicile in India at the commencement of the
Constitution, and
i. Who was born in India; or
ii. Either of whose parents was born in India; or
iii. Who has been ordinarily resident in India not less than 5
years immediately preceding 26th January , 1950.
b) A person who has migrated to India from Pakistan can be a
citizen of India provided the following two conditions are
fulfilled i. He or either of his parents or any of his grand
parents was born in India.
ii. In case where such person has migrated before 19th July,
1948, he should have resided in India since the date of his
migration. If however, he has migrated on or after 19th July, 1948,
he should have been registered as a citizen of India by an officer
duly appointed by the Government. But such a person cannot be so
registered unless he has resided in India for six months prior to
his registration.
c) Anyone who has, after 1st March, 1947 migrated from India to
Pakistan cannot be a citizen of India. But such a person can be an
Indian citizen if he has returned to India under a permit for
resettlement or permanent return, and such a person would be deemed
to have migrated to India after 18th July, 1948. (Article 6)d)
Article 8 then confers citizenship on any person who or either of
whose parents or of whose grand parents was born in India and who
is residing outside India, provided he has been registered as a
citizen of India by the diplomatic or consular representative of
India in the country where he resides.
14. Official language.
In a country with more than 1600 spoken languages,
constitutional provisions about languages are bound to be a
difficult task. The founding fathers of the Constitution,
therefore, had to recognize some of these languages for official
communication, to save the country from utter confusion prompted by
a multiplicity of languages.
It is provided that the official language of the Union is Hindi
in Devnagri script, and the form of numerals to be used for the
official purpose of the Union are the international form of Indian
numerals, but the English language is to be continued to be used
for all the official purposes of the Union for fifteen years from
the commencement of this Constitution. The President may, however,
during the said period, authorize the use of Hindi language in
addition to the English language and of the Devnagri form of
numerals.
It is also laid down that, after the said period of fifteen
years, Parliament may provide for the use of the English language,
or the Devnagri form of numerals. Pursuant to this power, the
Official Languages Act, 1963, has been enacted, under which English
is still being used, in addition to Hindi, for official purposes of
the Union.