Preamble & Concept of State

Preamble
§ Preamble reflects the philosophy of the Indian Constitution.
§ The people of India have adopted, enacted and given to themselves the Constitution on 26 November
1949.
§ Preamble is part of the Constitution though it is non-justiciable in nature, i.e. cannot be enforced
in the Court of Law.
§ Preamble states that India is a Sovereign Socialist Secular Democratic Republic
Ø Sovereign: State can make any decision with respect to itself without interference from any
other country
Ø Socialist: State upholds the philosophy of socialism, which aims at elimination of inequality
Ø Secular: State does not practice, profess or favor any religion
Ø Democratic: Government is formed by the people through their participation in formation of the
government on the principle of universal adult franchise
Ø Republic: Head of the State is elected and is not a hereditary monarch
§ The words ‘Socialist’ and ‘Secular’ were added in the Preamble by the forty second amendment
of 1976.
§ Preamble secures and promotes the following to all its citizens:
Ø Justice social, economic and political
Ø Liberty of thought, expression belief, faith and worship
Ø Equality of status and opportunity
Ø Fraternity assuring the dignity of the individual and the unity and integrity of the Nation [Words
‘and integrity’ were added by the forty second amendment of 1976]
§ The ideologies of Liberty Equality and Fraternity are inspired from the French Revolution of 1789.

Article 12 - Key Concepts

§ Article 12 forms part of the Part III of the Constitution
§ Article 12 defines the term ‘State’, which includes the following:
(a) Government and Parliament of India
(b) Government and the Legislature of each of the States
(c) All local authorities within the territory of India
Example: Municipalities, District boards, Panchayats etc.
(d) All local authorities under the control of the Government of India
Ø Other authorities within the territory of India
Ø Other authorities under the control of the Government of India
§ The phrase ‘under the control of the Government of India’ are meant to bring into the definition
of State not only every authority situated within the territory of India, but also those functioning
outside, provided such a authorities are under the control of Government of India.

Session Preamble & Concept of State

§ Interpretation of the term ‘other authorities’
Ø The term ‘other authorities’ include a body which is an instrumentality or agency of the State
Ø Factors (not exhaustive) to determine whether a body which is an instrumentality or agency of
the State:

1. Entire share capital held by the Government

2. Financial assistance from the State, so as to cover almost entire expenditure
3. State conferred or protected monopoly status of the body
4. Deep and pervasive State control over the body
5. Functions of the body are of public importance and are closely related to Government functions
6. Department of Government transferred to the body

§ Is Judiciary a State?
Ø In exercise of non- judicial functions, the court fall within the definition of State. Example: Supreme
Court making rules under its statutory rule- making power
Ø In exercise of judicial functions, courts will not fall within the definition of State

Preamble & Concept of State Session

The questions discussed in the session are given below.

1. Principle: Only Parliament or State Legislatures have the authority to enact laws on their own. No
law made by the State can take away a person's fundamental right.

Facts: Parliament enacted a law, which according to a group of lawyers is violating the fundamental
rights of traders. A group of lawyers files a writ petition challenging the Constitutional validity of the
statute seeking relief to quash the statute and further direct Parliament to enact a new law.

(a) No writ would lie against Parliament, as the court has no authority to direct Parliament to enact
or re-enact a law.
(b) The court can quash existing law if it violates fundamental rights and can direct Parliament to
make a new law.
(c) The court can quash the existing law if it violates fundamental rights but cannot direct Parliament
to make a new law.
(d) None of these (CLAT)

2. Principle: The State shall not discriminate against any citizen only on the ground of place of birth.

Facts: The State of Maru Pradesh issues a notification as per which 50% of seats in all medical
colleges situated in the state for students who were born in any part of the state. Jasmeet had
completed his secondary and senior secondary education from a school situated in Maru Pradesh.
He was born in Delhi but his parents were born in Maru Pradesh. Authorities denied the benefit of
reservation to Jasmeet. Decide.

(a) Jasmeet is entitled to the benefit of reservation since he can claim domicile through his parents.
(b) The notification is unconstitutional since it is arbitrary in nature. Hence no one including Jasmeet
is entitled to reservation on account of this rule.
(c) The notification is liable to be set aside since it does not adhere to the rule against discrimination.
(d) The notification does not discriminate on the ground of ethnicity hence it is enforceable. Therefore,
Jasmeet is not entitled to the benefit.

Session Preamble & Concept of State

3. Principle: No person shall be deprived of his life and personal liberty except according to the
procedure established by law.

Explanation 1: Life and personal liberty are protected against violation by State. In case of such
violation, the aggrieved person has the right to claim compensation from the State.
State includes Government or Governmental Authorities or authorities and bodies that are directly or
indirectly under the control of Government.

Explanation 2: Procedure established by law means-

1. There should be a law.
2. It should establish a procedure.
3. Such procedure must be just, fair and reasonable.

Facts: Priyanka, an expectant mother, was taken by her husband D.P. Gupta, to Sri Ram Govt.
Hospital when she was experiencing heavy labor pains. Even after 2 hours of her reaching the
hospital, her child was still unborn as she was not given proper medical treatment. It turned out that
the Government doctors who were supposed to deliver the child were busy having tea while Priyanka
was in pain. Arun Mishra, a social worker filed a writ petition before the Delhi High Court, when he
got to know of this tragedy, alleging violation of life and personal liberty of Priyanka by the hospital
and sought compensation on their behalf. Can he succeed?

(a) Yes, he can as doctors are supposed to attend patients when they need them and not chat
around having tea.
(b) Yes, he can as GovernmentHospital doctors had a prima facie responsibility to attend to Priyanka
as she was in labour
(c) No, he cannot as it is the doctors who are responsible for this act and not the State run Government
Hospital and only doctors and not the State can be held liable to pay compensation
(d) Yes, he can as the GovernmentHospital is State and life and personal liberty are protected
against State action.

4. Principle: The state shall not deny to any person equality before the law or equal protection of laws
within the territory of India.

Facts: Z is thrown out of a Parsi private housing society because he is not a Parsi. He files a suit
alleging discrimination u/A 14. Will he succeed?

(a) Yes, because he has been discriminated against and the state is bound to protect him from
discrimination.
(b) No, because the state is not discriminating against him.
(c) No, because the Parsi's have a right to freedom of religion and they must be allowed to
exercise it.
(d) Such trivial issues should not be brought before a court of law.

Preamble & Concept of State Session

5. Principle: State is not allowed to violate the fundamental rights of the citizens as enshrined in the
Constitution.

Explanation: All bodies and corporations who are in direct or indirect control of the State of Central
Government as well as all the bodies that are provided for in the Constitution come within the ambit
of State except judiciary while discharging judicial functions.

Facts: Ravi Kumar was aggrieved by his dismissal from the Government Company he was working
in. He challenged his dismissal before the State High Court. For some reason he was not able to
appear before the Court on the designated date. Consequently the Court dismissed his case for
non-appearance. He challenged this dismissal before the Supreme Court that dismissal by the
State High Court resulted in violation of his fundamental right and since the State High Court is a
constitutional body it comes within the ambit of State that is not allowed to violate fundamental
rights.

(a) Ravi will succeed before the Supreme Court as the High Court should have given him another
opportunity to appear and should not have dismissed his case without listening to him.
(b) Ravi will succeed before the Supreme Court because the State High Court is a Constitutional
Body and therefore State.
(c) Ravi will fail before the Supreme Court because the State High Court even though a constitutional
body is not State while it discharges judicial functions.
(d) Ravi will fail because he was himself responsible for dismissal of his case before the State High
Court.

Session Preamble & Concept of State