CONSTITUTIONAL LAW_ I

INDEX
{.INIT PARTICULARS PAGE NO.s

Meaning & Definition of Constirution: kinds of Constitution,

Constitutionalism, Salient features of Indian Constitution
I Ito29
Preamble: Meaning, Scgpe, Importance; Objectives and Values
enskined in the Preamble.

Citizenship: rnodes of acquisitiori & termination

State: Definition under Article 12, New judicial trends on concept of

State Action-need for widening the definition
30 to 45
Delurition and meaning of law: Pre-Constitutional and post-
II Constittitional laws, Doctrine of Severability and Doctrine of
Eclipse, Judicial Review and Article l3

Equality and Social Justice: General Equality Clause under Article

14, New Concept of Equaliry, Judicial lnterpretation on Fquality

Protective Discrimination and Social Justice under Articles i5 and

16, New Judicial trends on Social justice, Constitritional provisions
on Untouchability under Article 1 7'

III fught to Frbedom: Freedom of Speech and Expression, Different 46 to 60

dimensions-Freedom of Assembly, Association, Movement and

Residence, Profession, Occupation, Trade or business, Reasonable
restrictions

Rights of the Accused: Ex-post facto Law-Double jeopardy-Right

against self-incrimination (Article 20). Rights of the arrested person,
Preventive Detention Laws(Article 22), Right to Life and Personal

ry Liberty, various facets of Life and Liberty(Article.2l), Right against 6l to 72

Exploitation, Secularism-Freedom of Religion, Judicial
interpretation, Restrictions on freedom of religion.

Cultural and Educational Rights of Minorities- Recent trends-Right

to constitutional Remedies: Article 32 and 226-kinds of Writs- Right
v to Properly (prior to 1978 and the present position), Directive 73 to 118

Principles of State Policy and Fundamental Duties- inter relation

between fundamental rights and directive principles.

Previous year question papers 119 onwards

 CONSTITUTION OF INDIr\
.
LTNIT-I

\'Ieaning, T1'pcs and Intportance of Constitution

Constiturion is rlrc supreme larv of each State. Ii lays dotvn rules regarding the organisatiort. powers
and fuuctions of goverirment. It also det-rucs thc basic leatures of the State and the relation betrveen
dre citizens and the Statc.

Constitution: N'Iea nin g and Dclinition:

.,Insirrrplcrvords.wecan!a-vaC9nS!tuqo@!j3l..:Con'titutional1arv
- cljo-vs the position of being thc supreme and fundameirtal _!g--*o,t !:g-_1!r1e: It lays down the
organisarion and functions of of srate. The Govemment can use oniy lhose porvers
f;it.gover]lrnent '
rvhich the Consiitulion grants lo / .

What is constitutional larv?

There is no definition of constitutional larv in the generally accepted ttse of ternl it means the ntle
rvhich regulates the struciure of the principal organs of the lovernlllent and their rclationship to one
anothcr rnd dctcnnincs thcir priitciplc luttctiQns.

l. "Constitutiou is rhc collcction of principles accorcling to *ltich thc fos'crs ollhc goi'emurent, the

riehts ol the goyerncd and the relations betr.vcetr thc two are aduste d. -Woolsey

2. 'ponstitution is a body of judicial rules u,hich determine the suprcme organs ol state. prescribes
their'ilodes ol creatiott. their mutttal relations. tlteir spireres of action ancl tlrc frurdlrr-rcntal place of '
. cach of thent in relation to stale." --lellinck

3. " thr bocly ol ruies or larvs, w'riti.en or ttnwritten rvhich deicrmine the
Constitution of a state is that
organisation ol govemrnent. the distribution of porvers to the various organs of govenlment and the
general principles on which thesc porvcrs are to be cxercised." -Gilchrist

On rhe basis of these dcfiniticns it can be said that the Constitution is the sttm total of the

constitutiollal larvs of the state.

It lic.s rtorln:
11) Organisation and polvers of thc government;

(2) Principles and rules goventing the political process:

(3) Rclations bt'tu,cctt tlrc pcoplc and their c,ovcnlrltcnt, and

1{,1 Rights and dutics oIthc pcoplc.

 r
:

Tlte gor'ernment of statc gets oreaniscd and rvor_ks in accordance

rvirh rhe provisions of the
Constiturion- People gct their rights protccted frour lhc constiturion.
No one, no1 even dre goyenlu.lerlt.
crn violate the Constiturion.

fyltes of Constitution:

1. lVrittcn Consfitution:
(A rvritten constitution means A constituliou
rlritterr in the form of a book or a scries of docurncnts
combined in rhe fomr of a book. Ir is a consciously framecl
ancl enacred constitution. It is formulated
and adopted by a constituent assembly or a council or a legislature.\

"A rvritien conslitution is a.consciousll, planned

'Carner rvrites. constitution, fomrulated and adoptecl
b1'- deliberate actions of a constituent assembly
or a convenrion.'jitprovides r"., o"trril dcsig, of
t]overnmenl institttlions. their organisations, po\\.crs. [urrctions
and inter-relationships.

c:n$llEttlonal. lau' of the srate. Ir enioys rhe place of suprcnracy.

:-To'tt.
i1.' 1le Tlie go'ern,rcnr is
iulll' bound by ils provisions and rvorks slrictl-y in accordance *ith is frouisio,ls. A
ri.rirtcn
constittttion can be amendecl only in accordatrcc u.ith a
settled process of amendmeni rvritten i, rlre
constitution itself It is a duly passcd aud cnactcd Constitution.
The Constitutions of lndia. thc USA-
Gcrmanv' Japan. Canada, Fiance, Stvitzcrland arld se veral other
states. are n ritten constitutions. \.,

2. Uirr., r'ittcn Constitufion:

iAn unr.vrirtcn constitutibn is one rvliich is ncithcr drafted nor enacted by
a Consrituent Assembl,v and
llor eYell ivritten in tre form of a booli- It is found in several historical
chaners, larvs ancl con'entions.
It is a product of.:lorv and gradual cvolution. The goverrunent is organised
and it functio,s in
accordalce rvith several *'ell settled. but not u,holly r.vritteu
mles and conventions. The people know
their' Constitution. They accept and obey' it. bur do not possess
it in a u..ritte, fonn. ;\. un*.ritten
constitution cannot bc produccd irt rllc form ol-a book.

Ho*'ever, an unnritten consritution is not total lv unu'ritten.

Some of its parts are available in ri,r.itten
forms but these do not stand codified in thc tbrm of a legal
document oru code rr""i.-^ccorcling
to Gamer' "an urttvritlcn constitutio, is onc i, r'hich ,r;;,
;;; *'0,,, *,.. arc",u,rvrirrcn
"
arrd lhcsc
are not found in any one charter or docunrcnt.,,

The constitution of the united Kingdom is an unr.r.ritten constitur.ion

Dil rcnce bctrveen \yritlen antl Unrvrittcn Constitutions:

(l) A written constitution is rvrirtcn in trre rorur of a book or doculncnt. rvhcreas an trnrvrittcn
constitution is not r.lritten in such a form-

12) A *'ritten const'iiution is a made ancl cnacied by a constituent assernbly of thc peoplc.
ttnrvritlcn cotlstitution is thc restrlt
A,
ola grlciual procL-ss olconstitutional cvolution. It is ncrcr urittc,
by any assembly,

13) A rvritten consrirutiou is usrnll-v lcss l'le,rible than an mq.'ritten constitutionl.An

unr.vrittcn
constitution depends mostlv on unrvritten nrlcs or conventions
rvhich do not require an1.. lormal
amendment.
 /-r-f'
(4),A rvrittcl constitution is definite. Iis provisions can be quoted in support or against any power,
exe;aiscd by the govenmrenl-Air iiuivritten constitution cannot b9 l_ro$uced in eyidgnce It has to be
proved b.v cluoting !1s s-gurccs q?d P1:Ji::t.

Horvel'er, the difference betrvccn u.ritien and urrwit{en constitutions is Itot organic. A rvritten
constitution has *.riri.en parls in majority. Along with these. it also has some unrvritten parts in the
form of conventions. ln ah unu.ritten consdiution. most of the parts are unu, itten atrd are not twittcn
in the form of a book. Horvevcr some of its pafis are also fourid tvritten in some cltarters and othcr
documqnts.

3. Flerible Cnnstitution:
.A Flexible Constitution is one rvhich can be easily amended. Several political scietttists advocate the
vierv that a flexible constitution is one in which the constitutional law cau be amended in the same
\yay as an ordinary lau,. Constilutional amendrnents are passcd in the same manner by which an
ordinary larv is passed.

British Cbnstitution preseuts a classic example of u ,rrort flexibli constitution. Thc Briiish Parliamcnt
is a sovereign parliament rvhich can make or amend any larv.or constitutional lar.r' by a. simple-
majority. Larvs aiming to aI'fcct changes in a constilutional lau, or iir any or<liuarf iau' are passed
through the sanre legis.lative procedure i.c., by a simple rnajority of vo-tes in the legislature. Sintilarly,
a Constitution is fleriblc u,hcn [hc procednre of amending it is sin:ple and the cltar:gcs can bs made
casi lv.

(A) illcrits of a Flcrihlt Consti(utiort:

(i) First. a major mcrit of the i'lexible constilution is its ability to change casily in accorclancc rvith the
' changcs irt rlrc social and political cttr.ironntcttt olthc societl'artd statc.

(iit Secondly, it is vcr), hclpful in mecting emcrgencies.becausc it can be casily amertcled-

(iii).fhlrdly. because of its <iy,namic nature, lhere are less opportunitics for revoll. Thc cottslitution has
the ability to keep pace rvith the changing rimes, The people clo not fccl thu' nced lor revolutionary
changcs.

(iv) Filally, since rhe llexible constitution keeps on developing with tinres. it ahvays continues to be
popular ard rcttrains ttp-to-date.

(B) Drrrrrrits of a Flc"riblc Constittrtion:

(i) Firsr. a flcxiblc constituriou is oltcn. a sourcc olinstabilit-y, Flcribility cttablcs thc golcrumcnt in
.: polver tci give it a desired dress aud content.

(ii) Secondly. it is not suitablc lbr a fccleratig.l.In a federation. a flexiblc constittrtioll can lead to
undesirable changcs in the constitution b-y the fcdertl govenlment or by the govcrnlnellts of ftderating
units.

4. Rigid Cunstittrtion:
The Rigid Consrirution is one rvhich cannot be easily alnended. Its lncthod ol autendutent is dificult.
For amending it. thc lcgrslarurc has to pass an amcnclnrcnt bill b1' n spcciiic. usttallY big, maiority of
 7

2t3rd or 3;'1th. For passiug or arnending a, ordinal' larv- rhc legislature usually passes the lari, bv
a
simple ma.ioriry of its nrernbers.

A rigid constitution is considered to be dre most q{gggq!,lqu_Aflb.lgg Ir

is resarded as the
basic will ol the sovereisr people. That is ,"h-v it'Cfr-6e amended orif[v
.p".irl procedure
" is often lollowed
reqtriring the passing of the anrendrnerlt Droposal b-va big majoriry of vote-s rvliich
by ratification by the pcoplc iu a refcrenduur.

The constitution of United sq1g5 of ,{alqr-ica is a very rigid co,srirnfion.

(A) i\{e rits of a Rigid Constitution:

(i) First, a rigid constitution is a sou'rce of stabilit-v in administration.

(ii) Secondly. it mairrlrins continuity in adnrinislration.

liii) Thirdly, ir cannor become a tool in rhe hands of the party exercising the power of the srate ar a
. parlicular timc.
'

(ir) Fourthly it prevents autocraric exercise olthc'powers by the governmerlt.

1r;; Finally a r igid constiturion is idcri lor a fcdcrarion.

(B) Denrerits of a Rigid Constitution:

(i) Firsr, the chief dcnrer:it of a rigitj coustitution is that ir fails to keep pace
r.r,ith {ast cla,ging sociai
cnvironmcnl.

1ii,) Sccondly. bccausc of its inabilirv to changc casill, at timcs, it hirid,-.rs rlc ,roccss of social
devcloprnent

(iii) Thirdly, it can be a soulce of hindrance cluring ernergencies.

(iv) Fotrrthly, is inability to easily change can lead to reyolts against the goyclu1c,nt.

(v) Fifthly. a rigid constirution can be a sourcc of couscrvativcness. It cal gro*. becomes old vcrv
soon bccausc il cannor Kcep olcc *,ith tirncs.

Thus, rhere are both merits and dem.lrits of Flcxiblc and Rigid Constiturions. 'fhe
clecision wherhera
state should have a flcxible or a rigid conslitution, should be taken
on the basis ol lhe nceds and
wishes of society. No hard and fast ntle can be laid dorvn as ro rvhether a statc
should have a flerible
or a rigid constitul.ion.

hr fact. a constitution lnust havc both a ccfiain degree of rigidity as rvell as

an ability to change for
keeping pace with the changing titnes. An e;<cessive rigidity or ercessive flcxibilirv
should be
aroided. The Constitution of India is partly rigid and partly l]cxiblc. In several ,.r,r".rr.
ir is a rigid
constitution but in practicc it has nrosrll riorkcd as a flc.rible consriiurion.

4
 2t3rd or 3,4r-lr. For passing or atnending art ordinay' larv. lhe legislature usually passes the la*,
by a
simple ma-iority of its merubers.

A rigid conslitution is considercd to be the most fundamengr!_$y_sfthg&lg. It is reearded as

the
basic rvill ol ttre sovereirrr people. That is rutr-, lt-*n-6"-ril",rO"a onl:- b_y a special procedure
reqtriring the passine of the anrendrnent ilroposal b1'a big majority of votes wliich is often followed
by ratification by the people in a referendunr.

The Constitution of Unircd Sq_te5 ol,A.14er-iqa is a very rigid constitntion.

(A) i\Ierits of a Rigirl Constitufion:

(i) First, a ri-eid constitution is a souice of stability in administration.

(ii) Sccondly. it mairrmirrs continrrity in ldnrinistrariorr.

(iii) Thirdly, it cannot bccomc a tool in thc hauds olthc parrv excrcisipg lhc po*,cr ol lhe strtc ar a
parlicular timc.

(iv) Fourthly if prevents autocratic exercise ol'the-porvers bv thc government-

(i) Finally a rigid constiturion is iderl lor a fcdrr-arion.

(B) Dcnrcrits of a Rigitl Constitution:

(i) First, the chief derrterit of a rigid constitution is that it fails to kcep pacr- ,, ith fasr cla,ging
social
environment

1ii; Sccondly. bccausc ol its irrabilirv to change easilv, at times, it hiriclers the process ci{. social
dcvcloplnent ..

liii) Thirdly. it can be a source of hindrance cluring ernergencies.

(iv) FoLrrthly, is inability 1o easily change can lead [o revol$ against rhe goyernmeni.

(v) Fifthly. a rigid constitution can be a source of conservativeness- It can r:rou, becourcs old very
soon bccause it cannot Kccp nace u ith tirncs.

Thus, rhere are both merits and dem.lrits of Flcriblc and Rigid Constiturions. T5e ciecision rvherher a
state should havc a flexibls or a rigid constilution, should be taken on the basis ol the needs and
wishes of society. No hard and l'ast ntle can be Iaid dorvn as ro rvhether a state should lravc a ftexible
or a rigid constitution.

hr fact. a constitution rnust havc both a ccflain degrec of rigidity as rvell as an ability ro change for
keeping pace with the changing titnes. An e;rcessive rigidity or ercessive Ilexibilir-v should be
aroidcd. Thc Constitution of India is partly r:igid and partly {lerible. In sevcral resi]ccrs. ir is a rigid
constiLution bur in practicc it has nrosrl.r irorkcd as a {lc.rible consrirutiou.
 5. Evohrtl Constitution:
i An evolved constitution is one il'hich is not made at any time by any assenrbly of persons or an
institution. It is the resuit of slorv and g.i,4Ulp,f-o-.-.!s of evolu1io-n-Jits rules and principles drarv
binding force from the fact 6eirg-i..opir.a.s ancient. rristorht. tirnc-lcsted andrespecred
customs and conventions.
'') "rilUr

Sonie of thcse conveutions get r:ecognised by law and hence beconre enllorccable rvhile others are
lollorved because these are supported by public opinion- iheir practical utilit-v and rnoral commimtent
in their favour. Evolvcd Constitutions is lhc product of historical evolutiou and of polirical needs and
practical u,isdori-of the people. The Constitution of Great Britain prcsents a kcy example of an
evolved constitution. \r

6. Enactetl Constitu(ion:
.ilil
An Enlctcd Constitution is a man-made constitution. It is rnadc, enactccl lncl acl:ptcd by' an assernbly
il
or council called a Corrrtit,r"ulIiilUt,r'o, Cooiilrrtionot Council. It is duly po.."d .ft.. o tho.orgl, fi
ii
discussion ovcr lts. objeclives, prilciples aqd provisions- It is u,rittcn in thc forrn of a book'or as a
il
serics ol docrrrncrtts artd irt'a systcmetic and formal manller. Thc-Constitutions of lnclia rhe USA, II
j;
Jlprn. Chinl anri mos[ ol'othcr StatcS rru'enactcd constitutions.
li
,t

il
tl
i!
Continuing the cornparison betrveen the British.and American constitutions, a further constitutional ,*
:{
classification is possible: monarchical and republican. In the former,. the rno;rarch is th9 he.4!glg4e, rB
'3
.;
althougli in Britain"s case. the j:orvers of the monarch are lirnited, and the Queeii reigniin accordance
i*
sith thc constitution. Thc political pou'cr lics with thc Prirnc lt'lirristcr. Accordingly, a constitutional i{
il
tnonarchy is a limited rnonarchy. A republican constitution on the other hand. provides for the it
'd
election of a President r.vho is the hcad of state and the head of thc governmeut rg
;E
rE
,G
'g
Arguably, the nrodcln concept of.a constitution has been attributed to thc Arrrcrican Constitution of LE

i787. which includcs a Bill ot'Riglits, and also to the French Dcclaration of Rights of 1789. Both iS
f,
constitutions were creflted ls a consequence of liberation, from colonialisrn and the monarchy i$
1d
rcspeclively. in order to promotc The Republic. and they had behind them violent revolutions. No ta
lc
ig
longer rvas a constitution a body of larv, institutions and customs forming the State, but it contained
jE
the concept of repubiicanisrl: the people constituting a State.
,f,

S.PresiclcntiaI ancl Parlilrnentary Consritutions

ifi

By the fact that a republican corrstitution places the powcr in thc hands of thc President, rvhile the ifi
British constitution places the power on Parliament, it rvould be, possible to make a further
H
classification of a constitution as "presidential". or "parliamentary". This alfects the way the IE
government operates. In the case of the formeq the President rvill be the hcad of state and the head of iE
JE
the executive branch ol thc governn-rellt but not the head of thc legislature and not accountable to it.
ffi
Furthennore, the President is not a member of the House of Representatives or the Senate. By
,g
contrast, in a Parliamentary constitution, the head of the erecutive branch of the gol'emment is the ]E

Prirlc Iv{inistcr..rvho rvill also bc thc hcad of thc cxcculivc, and also a nrcnrbcr of thc Icgislativc JH
IH
iEE
branch olrhc govcmnrcnl and accorrntablc to it. iB
ig
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 In a lederal system such as the one in the US, it can also be said that the constilution is ..federal,'
a
constittttion' instcad of a "unitary" onc. In the fomrer, apalt from a ccnfial'gorcrnment, there
is also
gbvernment. at state level. rvith legislative colnpetence under the consiitutional
arrangemens. This is
the case not just in the US but also in India, Australia, Canada ancl Sourh Africa. On
the other hand.
Britain has a unitary constitution and it is centrally govemed. Howeveq this point may norv
be
challcnged because due to dcvolution poivers to Scotland. Wales and Northern lreland, perhaps
there
is an incipient federal aspecr to r}e British constitur.ion.

The nrain fede ral features of the lntlian'constitution arc as follon,s:

I. ll/ritten Constitution :
The Indian Constitution is a w'ritten docume'nt containing 39,5 Articles and 12 schedllcs,
and
thercfor:c, fulfils this basicrcquiremcntof a fcderal govcrnment. In fact, thelndianConstitution
is the
rirost claboratc Constiturion of rhc rvorld.

2. Supremucy of the Constitution:

India's Conslitution is also suprerne and not thc hand-rnacle of eithcr the Centre or of tfie-srates--If for
lnv rcilson arry orgalt o1'thc Starc drres to.violarc an1' pror.ision of the Constitution, the
courirs ol laws
are there to ensure rhat dignity of the Constitution is upheltl ai all'costs.

3- Rigirt ionslitntiott :
'fhe Indian Constitution is largcly a rigicl Constiturion. AII rhe proyisions of the Constir,tion
corlccrtting Union-Statc rclaliotts can bc arncntlcd on11,b1,' rhc joinr actionsof tltc Srale Lcr:islatures
and the Union Parliament. Such pror'isions cau bd airrenclc.d only if tlre amendrnent prssecl
is i, o *r,oa
lhirds rna.iority of the ntcmbcrs prcsent and voting in the Parlianrcnt (wliich must also consrirlrte
the
absolute ma.jority olthe totnl nrembership) ancl ratified by at least onc-half of fie States-

4. Divisiorr of Pou'ers:
ln a lcdcration' thcrc should bc clear division of poivcrs so that rhc units and the ccntrc
arc rcquircd to.
crtact ancl lcgislatc rvithirr iheir spherc of activitv rnd none r iolarcs irs limirs ard
trics to .cncroach
: - -'---
upon thc {unctions of othcrs, This rquisite is cvident in thc Indian Constitution

The Seventh Sclredule conlailts three Legislative Lists ',r'hich errurnerate sub.jecrs of administration.
Yiz., Union' State and Concurrcnt Legislative Lists. The Union List consisted of 97
subjects. the more
important of rvhich are dcfence, foreign affairs, railrvays. posts aucl ielegraphs, cusency, etc.

Ihe State List consistcd of 66 subjecs- incluclins, inter-alia public order. police, adrninistrarion of
justice, pubiic hcalth. eclttcation. agriculture etc.
The Concunent List embraced 47 subjects inclgding
criminal law, marriase. divorce. bankruptcy, tradc unions, clectricitl.. econornic and social planning,
c(c.

The Union Govertrment enjoys exclusive porvcr to lc,cislatc on the subjccts ruentioned in
thc Uniorr
List. The State Govenrnlcnts have full authority to lcgislate on rhe subiects of rhc State List under
normal circumstatrces. And both the Centre and the Srate carl't legislate on the subjccts mcntioned
in
the Concurrenl List, The residuary'polvers have bceu vestecl in the Ccntral Govcrnrnenl

5. I n tlelrcrt tla tt t Jtt diciu ry:

In Irrclia. Ihc Cottstirtrtion has providcd for a Srrprr-rnc C'ourr nnd evcry cllort has bcerr rnadc
to scc that
the .itrdiciarr in India is indcperrdcnt *d rrp.r',,c. Thc Srrprc'rrrc- Corl oi india can d.;;;; r-l"r- ;=

l
 il
,,I
---- :,J
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':
ii contravenes an-v provisions of the Constitution. In order to ensure
r.rnconstitutional or ulira Vires. if
the impartiality of the judiciary. our judgcs are not rcmovable by thc Executive and their saiarics
cannot be cunailcd by Parliament.

6. Bicomerul Legislulure:
A bicameral system is considered esscntial il a federation because it is in the Upper House alone that
the units can be given cqual rcprescntation. The Consritution of India also provides for a bicarneral
Legislature at the Cenlre consisting of Lok Sabha and Raiya Sabha.

\Vhile the Lok Sabha consists of the elccred rc'prcsentatives ol people, the Rajya Sabha nrainll'
consists of represeutativcs electcd b-v thc State Legislative Assernblies. However. all the States have
not been given cqual representation in thc Raj-va Sabha.

7- Duul Governntatrl Poli4':

Irr a federal State. therc are tu'o govcrnrnerltsithe national or ledcral govenlment and the governlneut
of each component unit. But in a unitarl' Statc there is only one governrnerrt. namely the national
qovernmcnt. So. India. as a lcdcral sJ-stem, has a Central and Statc Govcnrmcnt.

l0.Political and Legal Constitutions

A funhcr constitr-rtional classification is a "political" and a "lcgal" constitution. The formcr is

associated.with holding to accouut thosc who hold political porvcr, because it advocates that the
making of lau,s is thc cxclusive domain of Parliament. and only uhen Parliamcnt lcgislates. does t-hc
larv becorne legitimatiscd- Bchind a political constitution such as the British constitution is the
concept of "r:raioritarianisur", that is. that an clectcd nrajority should makc the dccisions affccting thc
'voters. rather than leaving thosc decisions to the courts. In contrast, a legal consiitution such as the
American oue, empowers.lhe courts. in particular thc Cons(irutional Court to. establish the limits of

Aclvocares of a polirical constitutiou such as Criff'ith and Tomkins argue that polirics ii the best u,ay
to exert governlncnt control bccause entrusting government accountabilitv to the iudiciaiy is ncither
democratic nor efl'ective, due to the fact that judges do not have the dernocratic legitimacy of an
elected governlnerlt. As such. a politicri constitution is thc living representation of the politics that
create it, Perhaps an important difference betrveen a political and a legal constitution is the rveight
given to thc latter. A political constitution is {lcxible and changeable rvhile a Iegal constitution. such
as the Amcrican Constitution. has the status of a civil religion or scripture. the constitutional
document is held in high esieern and the Supreme Court has a very high status rvithin the country as
the "gr.rardian" of the Constitution.

An example ol constitutional zeal is seen in lhe "Tca Party", u,hich advocates can,ving a copy of the
constitution at all times. Furthemrore, literal constitutional interprctation by the Supremc Court has
helped to perpetuate the second amendment r.r,hich allocates a right "to keep and bear amrs".
interpreted by the more iiberal as applying only to a "rvell regulated militia" but interpreted by the
Suprenre Court in Di.slricl of Cohunhia v Heller as alloning the citizens to keep and bcar arms
regardlcss of \r'lrcrlrcr cenain strtes had bannecl \\eapons bascd on public safety.

Arguably, the British political constitution based on thc sovereignty of Parliament has changed
through rhe enactmerrt of the Europcar.r Comrnunities Act 1972 (ECA) ulrich incorporated the
 European Union (EU) Treaiies into the British constitution,
allorving also for tlre primacy of ELr
Iarv' A further constitutional change was the incorporation
of the European convention ou Hi.unan
Rights into national Iaw by the enactrnent of rhe Hurnan Rights
Act l99g (HR{). in order to prorect
fundamental rights which rvere not considered to be protected
by common Iarv in a sufhcient manner
or to have properjudicial articulation.

Critics may argue that this is a sign that the British political consriruiion
is beginning ro shorv
tcndencies torvards becominq a legal constilution, and that both
the ECA and thc HRA have created
entrencltments- HorveYer, il could-also be argucd rhat this
is merely the effect of Britain being part of
a global economY, and that because it remains uncodificd, the
British constitution remains flexible,
and able to change u,ith the times.

Qualities of a Good Constitution:

l. Consriturion must be systcmaticalll, rvrittcn.

2. it should incorporate the constit-ulional larv ollthe state-and cnjoy supremac).. .

i' Ii shoulcl hdve ihe abilitl'to develop and change in accordance wirh thc changcs i, rhe environmenr
and nceds ofl thc pcoplc-
:

4. It should be ncithcr r:liciul.,, ri,tid lor undirl-v flexiblc.

.5.ItrnustprovideforFundamcntalRightsatrdErccdonlsofrhepcople.

6' ft sltould clcerlv definc thc orgaqisation. po\\'crs^ lunctions

i'tcr-rehrions of thc,lo'crnlncrr. of rhc
state and its three organs.

7' [[ rrtttst iiroviclc lor thc organisation ol'a rcprcscntrlivc, rcsponsiblc, lirrrircd ancl accou,ublc

8. Il must proviclc for:

(i) Rule of Lau.

1ii) De-cenrralisarion of porvers

(iii) hrdepenclcnr and porverlul Judicinry

1iv) A sysrem of Localself-governmenr

(v) A Sound it,lethod ofAmendrnent ollhe Constitution

(r'i.1 Process and fu{achinery for the conduct

of free and elections

9. 'fhe Constitution must clearly reflect the sovereignil.of

the people.

Irl. Thc hugunr.rc of the constirution shoulcl be simplc, clcar ancl uualrbisuous

a
r-_

The Constitution must empolver the judiciary rvith thc power to interpret, protect and defend the
Constitution and the ftndamental rights aud freedoms of the people against the possible legislative
and cxecutive excesses. These are the basic features u'ltich must be present in evetY good
Constitrfion.

lnr portance of Constitution:

Each state has a Constitution u,hich lays dorvn the organisation, powers and functions ot- the
Goverlrment of the State. The govcmment ahvffys rvorks according to the Constittttion. no latv or
ordc.r ol the govenrmeni can violate the Constitution. Conslitution is the supretne larv ancl all
goyernrnerlt iristinrtions and metrrbcrs are bound bv it,

Constitutiolr enjoys supreme intllortante in the state becaust:'

I . It rcilects rhe sovcreign will of the pcople.

2. It lics doirn ollhcaims,objcctivcs. valucs and goals *'hich thep.opi.o'rnt to sccurc. .

3. It contains description and guarantee of the furldamcntal rights of the peoplc. .

4. It gives a dctailed account of dre organisatiou of the government. The organisaliotr, porvcrs and
ftrlctions olits three organs of the and their ilitcrrelationsliip.

5. I1 a tedcration. the Constitution lays dori'n tho rjivision of pou,ers betwecn tlrc cartral governltlcllt
apd thc governlneuts of the lederating stalesi'provincc's. It is bindirrg upon_both tlie centrc ancl the sirtc
gOYCrl)lnL'lltS

6, It spccifres the po\yer and mcthod of atnctldttrctrt ol the Corutitution.

7" It lays dorvnlhe election system and political rights of people.

8. It provides for independence ofjudiciarl'-'anci rulc ol law.

9. The consl.itution govems all and no one can violatc its ntlcs.

Evcrry clenrocratic Constilution guarantees to the citizens a protcction against arbitrary govcmlnetrtal
actiotls. A dernocratic state, likc India, lras a rvritten ancl supreme constil.ution rvhiclr bincls all its
lrcoplc rnci thcir govcmnlent.

CONSTITUTIONALISM
i variety of meanings. N{ost generally. it is "a complex of ideas, attitude,s. and
has a
lConstitutionalism
-pattems
of b9la--v.iolql3bontilg the principle that the authority of Fie.nrnenia"iii=t from and is
\
limitcd by a body of fundamental lau"' f-
For gcnuine democmcies. constitutions consist of overarching arangcments that dcter rtrinc the
political, Iegrl and social structLrrcs by rvhich socicty is to be govcrned. Constitutional pr:olisions arc
thcre lorc considercd to be paranrount or [undamcntal larv. Undcr Lhcse circuntstances. il'c.onstitutir:nal
larv irscll is inadequate. the nature of dcrnoct'acy and rule of larv within a c9u.r1t+_ i1 allectcd; The
stlucrurc of modern natiolls has bccu shaped rvith government being dividcd ittto cxr'ctttirc,
lcgislariir- and jr;drcial lodics, r.r,irh thc corr:monlv acccplcd notion thalthcsc bodics and lhcir po\\rcrs
c-et,l^l;tlr.L(lviu-\ i, i
Csr*Afutu'ts-\
& 'i
?eqs}re\T: \'b ''1.' L(qql
I 'f't
*X-* *'uY*'
,
d.,ot.r**u,^-t
\ r{> u*+n' *" c*^t
O s utcid l*\'*" i ;$ * 0"ttp+':[,*,,?*', ?orL{ I
 mustbe separated, Clcourse- tlre separation olpowers doc-s rrot mcan tltese bodies function alote-
rathcr they work interdcpendentl,v. but rnaintain their autonomy- Othcr lenets inch.rde the idea of
limited goyernmcnt and the suprcnacy of larv. Toecther. these cru bc termed the concept of
constitutiol.lalism. In orher $.ords, consrirutionalism is the idea that govetlutertt should be limited in
its porvers alcl tlrat its authority depends on its obsen'ation ol these lirtritations. A constittttior is the
legal and moral liameu.ork settins out these po\!'ers and their limit;rtions. This liamervork utml
,.f,r.r.nr t6e u,iil ol thc people. and should therefore have becn arrivcd al tlrrough conserlsus'

lltaning of Constitutionalisnt
i
{iolstitrrionalisrn . ,-.r:
has a variery.olnrcanings. \'lost generally, it is "a cotnplex olideas, nttitudes. ald
]-orto*, ol- beliavior elaborating the principle rhat the authoritl'- of govcmtrrcnt derives from and is
b.,-- a body ol fundamental lau,". A political organization is constitutional to the
extent that iI
iimiteU
,'containdsl institurionalizctl mechanisrns of power. control lor the prolection of the inleress and
" liberties."f t]r" tirizeniy, inclirding thoie that m1y be in the rnittotity". As des'cr-ibed by political
scientist and consritutional sclrolar David Fellman: It nra-v be said - that tlie touchstone of
constitutionalism is thc colrcept ol Iirnited go!'ernment unde r a highcr lalv-
.

'Constitutiorulisnt' It is anlithesis olarbitrary

rlle1rls iimitcd goremment or lirnitation on go\jcntmcnt.
powers. Constitutional;sni rctogniTii-ih6-nb-cd for gcii;cmmcnt tvith po\\'crs bui at lhc same tirne
insiss thar lirniration be placed oll.thas!-trlQr:ers. Thc ahtithcsis-ol c:onslitr-ttionalism is despotism-A
gol,ernlrclt ivhich gocs be-yond irs limits loses irs authoritv arrd legilirnacy. Thcrefore, to prcserr"e the
lasic frccdo,.,rs of ric inclividual. ard to mairuain his dignit-v and pcrsonirlity, thc ConstitLuion slould
bc pcrineatc.d rvith.'Co4314u1jonaiism',. it should lttve sotnc inbrrilt rL:slrictions on thc powers

conlcrrccl b1- it ort govcrnlncll{.31 organs.

Constitutiortalism-[n ]lininral Arttl Irt Richer Sensc

Iu sou.rc rlinimal scnsc ol thc tcrnt. a "constitution" corrsists ol' a sct of rulcs or nQffns creating.
structuripg and dctining thc linrits of, gol'cnrmcnt powcr or atrlhority. Takc thc cxtren:e case of an
absolute Loparcl1.-- .Rcx. u,ho cornbines unlimited power itl all thrce domains. lf it is rvidel-v
' acknou,leclgcd r]rai Rex has rlrbsc powc'rs. as well as the auth&ity to excrcisc lllcl'l') at iis
pleasure,
oulv ouc rulc. rvhich grants unlirnited power
then rire constitution of rhis siare coulcl be said to con{ain
is
to Rex. Whatcver 6c clccrccs constitLrlionalll.' valid. When scholars talk of constitutionalism.
howevcr. thcy normallv nrcan somcthing that rules out Rcx's casc. Thcy mr-fln not oirly that there are
rules crear.ing legislariye. e'xecurir,e ancl iudicial porvers, but ihat thesc tules irupose lirris
on thosc
po\\iers.

limited in
Constitutionalisnt in this richer scnsc of rhe term is the iclca thal goverunrent can;'should be
its pou,ers an6 that its authority dcpcnrls ou its obsening thcsc Iimitaiiotrs. In this richer sense of the
term. Rcr's socit-l-v has nol crnbiaccd constitutionalism bccausc lhc mlcs dcfining his authority
iutposc tto consritttLiorlal limits.

USAGE OF CONSTITUTIONALISN{
this
Constitutionalislr has pr:escriptive ancl descriptive uses. Lau' profcssor: Gerhrrd Casper captured
aspecl o[ the teln. Usecl deicriprivcly. it re]ers chiefly to the historical strtrgglc
for constitutional

reiognitiop of the peoplc's right io 'conse nt' and certain other rights. freedoms, and privileges-...
Used
prcsJriptir-el-v iis rneaning incoqlorates those fcalures ol govctunrcnt seen as the essential elements

olthe ... Coustitution."

Destrilttivt trse

lnv pro{cssor Bcrrlard Schu'artz's sccks to racc

One e-raurplc olcolsrirutioualism's dcscriptive use is

10
 the origir:s of the U.S. Bill of R ights. \\ihile irardl"v presenling a "straight-line." the account illusrrates
the historical struggle to recognizc and enshrinc constitutionil rights and principles in a constitutional
ordcr.

Prescriptivc use

In coutrast to describing rvhat constitutions arc. a prescriplive lpproach addresses rvhat a constitution
should bc. As presented by Canadian philosopher Wil Waluchorv, constilutionalisni embodies "the
idea ... tlrai govt-mment carl lnd should be legally' limited in its pos,erc, and that its authority- depends
on its obscrliuu t.hcsc Iimitltions.

hr ciiscussing the hislor-v ancj na{.urc of corrtitulionalism, .a conrparisou is olten drarur betrvecn
Thomas Hobbes and John Lockc rvho arc .thought 1o have defended, respectively, the notion.of
constirutionally unlirnired sovcreigrrty (e.g., Rex) r,ersus Lhat of sovereignty timitedby the terurs of a'
social coniract containing substantive linritations (e.g-. Regina). But an equall-v good lbcal point is the
English legal ihcorist John Austin who, like .Hobbes, thought that ihe very notion of limited
sovcreigntv is incoherent- For Afustin. all larv is the-command of'a sovcreign person or-body of
llcrsorls, and so the notion that tlrc sovereign could be limit'ecl tr-v larv recluircs a sovercign u'ho is self.
binding. u,ho comrnancls hiny'hc'riitself. Bur no one can "contmtnd" hirnsell; except in some figurative
scllse. so rhe notion of limited sovcle'ignty'is, lor Austia (and Hobbes), as incohereut as the idea'of a
squarc circle. Auslin says thrt sor,crcigllty ulay lie u,ith the peoplc. or some otller person or body
i.vhosc nuthoritv is unlimitcd- Govcrnrxcnt bodies - e.g.,'Parliamcnt or the.iudiciary - can be limiled by
constitutipnal llrv. but the sor,crcign - i.c.- "the people" - reinaius'unlimited. tsur if rve iclentill'the
'
comrrauders u,ith "thc people", therr ne hrve the paradoxical rcsult identific'd by' H.L.A. Hart - the
cornnrandcrs arc comrnatidirrg' tht comtnnnders
IIIPORTANT FEATURES OF CONSTITUTIONA,LISJ\T

Entrenchnrcnt:

Accorcling to nlost theorists, onc of thc important featrirps ol constitutionllisut' is .rltat thc nonns
inrposing linr.its upon gor ernrncrri power.nrust bc in somc *,ay' be glqqqh.:d, e ither b;,' larv or by rray
'convcutiorr.
6f coniiirrriioual l
Entlcnclrnrcnt not ou[;.' laciliratcs dcg.cc of stability ovcr rirrrc. it is
argLrably a requirement ol the ver-v possibilitl.' of constitutionally lirrrited governrnent. \\"ere a
govemntent institution clttitlcr,l. at its pleasure, to change the yery terms oll its constilutional
lirnitations. rvc uright bcgin to qucslion rvhcther thcre rvould. in reality, be any such limitations.

\\'r'irtrn ncss:

Some scholars believe that constitutional rulcs do not exist unless thc-y arc in sontc u'ay' cnshrined iu a
t!-1!e-!-elocurnent. Others arguc that corrslitutions can bc unu'rittcn, and citc, as an obvious example of
riris possibility, the constitution ol the United Kingdorn. Tirough the UK hrs notJring resembling the
American Constirutiou and irs Bill olRights. it nevenlreless conlains a nunrber of lvritlen instrunrcnts
rvhicir alguably form a central elemcnt of its constitution. N'lagna Carta (1215 A.D.) is pcrhaps the
earliesr ciocumcnt of thc British conslilution, rvhile others include The Petition of Right ( 1628) and the
Billof Rights (1689).

ELEI'IENTS OF CONSTTTUTIONALISI{

/ W,itt..,, consrllrints in thc corrstitutir)r). ho$'cvcr, lrc nol constraining hy rltcrttsclr'.'s. Tlrents will not
'-trccomc benevolcnt rulcrs sirnpll'becausc thc cortslitution tclls thcm to. In order to guard against
.,,iohiions aqainsi thc lctrcr rricl spiltt of the constitution- tlrere needs to be a scr of inslitutional

11
 alranqcrnen{s. Louis Henkin defines constitutionalisnr as cottstituting the follorving elements: (l)
governmerlt according to the constitution; (2) separation ct'por','er: (-1) sovereigntv of the people and
dcnrocraric govcrnmcnt. (4) constitutional revieu,; (-5) indr.'pcndcnt judiciary; 16.1 limited govemnrcnt
subject ro a bill of individual rights: (7) controlling tlre police, (til civilian conuol of t}e military': and
19) no state power. ol' yery limited and strictly circumscribcd state power. to suspend the operaiion of
sonre parls oL or thc cntirc, constitution. )

' Broadly speaking. Hcnkin's nine elenrcnts of constitutionaiism cau bc. divided into trvo groups, one
colrccr-ns powcr ce'rnstnrction ard porver lodging: and thc othcr dcals rvith rjglis protection. Thesc trvo
groups oi i,rt irra&emenrs tr.ort-tog;ahcr to cnsure the suprelnacv orliie ionitirution, the
cristence of limited _t-et strong government and the protection of basic freedom.',

CONSTITUTIO }TALI S},I AND DEil,TOCRACY

Authorirarian go\,crntncnLs.are by thcir vcry naturc uttconslitul.ional. Such govcrnmenis think of

'thentsclves as above the l-arv. rnd thercfore sec no uecessity l'or the separation of porvers or
'
rcprcsenlativc govcrnance.@o,rstitutionalisrn.however. is primaiil-y bascd ori thc notioug&99p!"'!
. sovcreigntv, r.thicir is-to be exercised--in a limited manncr--by a rcprcscnLative
governnrcnt. [he only
forisensual aucl rcprcscrilati\€ form of govcnlance in i.ristence todal', is dctnocratic uoventmena. Itt
' this rvay', there is a verl important and basic link between democrircy and constitutionalisrn. Just as
mcrc constitutions clo not.make coultries constitutional. political lrarlir-'s and elcctiolts do not make
go\.qrnn.)cllts dernocralic.:"Genuine democracies rest olr thc sovcrcitttt-t" of the pcople, not tlte ntler:s.
Llcc,tccl reprcscntrtiv", ,L ,o exercise authority on behrll of thc-pcople^ based on 1he rvill of the
people. Without genuine detlocracy. there can bc no cottstitutionalisttt.

CONS'TITUTIONALTS}I AND RULE OF LA\Y

Rulc ol law rcL:rs to thc suprclnacy of larv: titat socicty is govcntcd by iau, and this larv applies
eqrretl! to all persons. inilu@goGmrncnr and srate'officials. Follorving basic principles of
ConstitLrtionlllisrn, cor;rrnon institutional provisions uscd to mainlain the mle of la1r, inclndc thc
separrtion o{'porvcrs. judicial reyiew, thc prohibitiou oi'retroactive lcgislation and habeas corpus.
Genuine colrsliturionalisrn thcrefore provides'a miniural girerantcc of thc justice of botlr the content
arrd the fonn ol lalv. On the other hand. constitutioualism is safeguarded by tle rule of larv. Onl-v
q.'hen rhe suprenraclr of rhe rulc of larv is established. cau suprenrac,v of thc constitution exist.
Constitutionalisnr additionally requires effective laws and their enforccn]cnt to pror.ide sructure to its
lranrcrt'ork.

CONSTIT UTIONALISN,T AND CONSTITUTIONAL CONVENTION

The iclca of constitutionalism is usually thought to rcquirc- lcgal limitltion on governrnent power and
authoritJ.. But according to urost constitutional scholars, there is tnore to a constitttiion than
constitutional larv. But rhere is a long-standing uadition ol'conceiviue of constitutions as containing
ntuch rnore than coustitutional law- Dice1.- is famous for proposing that, in addition to constilutional
larv, the British couslitudonal system contains a numbcr ol "coustilutional conr.entiotts" rvhich
effectiveiy iirnir goverrunent in the absence of legal lirnitation. Thesc are, in effect, social rules arising
rvithin thc' practiccs 01'the political cornmurity ard rvhich itrpose important. but non-legal. limits on
govcn)rncnt po\\'crs.

CONSTITUTIONALISilI IN DIFFERENT COUNTRIES

[.lnitttl States

American couslitutionalisrn has bccn definecl as a complcx ol ideas, attitudes, and patterns of behavior
chborating the principle rbal the authorir-y olgor.ernmcnt derivcrs from tlre pcople, and is limite'd by a

12
 body of frtrtdamcnlal larv. Thesc ideas- anitudes and panc-rns ol bchavior- according ro ouc analyst-
derive lrom "a d-r:ramic political and historical process rathcr ihan frorn a static bodv of thought iaid
dowu itl thc eighteenth cenluryi'. In U-S. history, constitution;ilisrn-in both its descriptive and
prescriptive scltse-hts traditionalll'focuseci on the lcderal Constilution- hdeecl, a routire aisumptiol
of manv scholars has bccn thal understandins "Americau corrstitutioualism" necessarily entails the
thotrgirt thal rvcrtl into the dlaftingof the federal Constitution aud rhe Americanexperience g.i{.h rirat
constitution since its ratii]catiott in 1789. Thcre is a rich traditt'on o1-state constitulionalism that olTers
broader insight iuro constitutionalism in the Unitcii Sratcs.

Unitc{l Kingtlom

Thc Unitcd Kincdoln is pcrhrps the bcst instancc ol consritutionalism in a country that hrs rp
rrncodit-red cotlstitLrtion. A varict-v of dcvcloprncnts in SC\r-utccnLh-cclltur_\i England, including ',the.
protracted-strugglc lor porvcr bctr.vccn king and Parlianrcnt was accompanied by an eftloresccpce of
political idc-as in rvhich rhe cbncept of-counlcn,niling pot:crs u'as clcarl-v dcfined," lcd io a rvell-
dc.veloped polit-v-rvitlr rnultiple governmelltal aud privrrc- institurions thaicountcr ih. poru,., of t5e
siatc.

POLIS H-LITHUANI.4N COM il{ON\YEALTI I

From iir'e mid-si.\tee1t1h to the late eighlccnth ccutury'. thr- Potish-Lithuaniau Conimonu.eafth uulizcd
thc libelum vcio, it foru of unanimity voting rule, in irs parliameniary deliberations. The "principl- ol
Iibcrr.rm veto played an irnportant rolc in fthe] cmcrgcnce ol thc unique polish lbnn gf
constittrliotrirlisrn " This constrainl on thc powcrs of thc monarch u,crc significant in rnakr^ng the
"l rltiic ol larv^ religious toleiartce and limited constitutional gor,errrurcnt... thc uorni in polaucl in
limcs u'hen thc rcsi'of Europe was being devastaled by re liuious hatrccl and de spotisrn."

CONSTITLi'TIONALISiT W IruNIA

lndia is I tlcnroc,ratic courltrv u,ith a ivrittcn Corrstirution. Rulc of Larv is the basis for governance of
the country antl all thc administrative stmcturcs arc c\pcctr-d to lbllor.v it in both letter ind spir:it. It is
cipcctcd tl.i:l Constirutiortalisn is a natural coroliarw to govcmancc iu Irrclia. But the cxpericnce rvitlt
1he proccss ol'govet:trancc in India in the last six dcc:rdcs is a mixecl onc. On the.one [rand. u.c havc
c.xcellent adurinistrative strrrctlires'put.in placr-- to o\icrscc r-r,cn rhe nrinutcst of c{etails relatecl to
q,ellare rna.ximizalion but cruciallyor the other ii has only rc-sultecl in excessive bureaucratizalion
and
cventual aiicnatiolt oI thc rulcrs frotu the ruled. Sincc indcpcuclence. thosc regions whjch 11,s11g
backrvard ren.:aittcd the samc, the gap betrvccn lhe r:ich ancl poor has r.r.idcncd, pcoptc at the bottom
lcvcl ol thc p-v-ramid rcmaincd ar thc periphcr-y ol- dcvclopmcnral prccess, bureaucracy retaincd
colonial charaLrtcrs and overall developrneut rc'mained much belorv llrc cxpcctrtions of lhe people-
CASE LAWS \YIIERE PRINCIPLE OF 'CONSTITUTIONALISil{ iS LEGALLY
RECOGNISED BY SUPREI\IE COURT

In R. Cocllio ( Dcrd ) B)' LRs. vs. Statc of Tanrii Nadu and Ors. r it-u takcn by thc suprenrc C6urr --
I.
1'lrc principlc of cottstilirtionalisrn is norv a legal principle rvhich rcquires conrrol ouei the exercise of
Govctltmcntal porver to crlsure that ii does nol dcstro!' lhe clemocratic principles upon rvhich it is
based. 'I-itesc dctnocratic principles include rire protection ol' luuclameutal righis. The principle of
constittttionslism advr:caies a clleck and balancc urodel cll'the scparation olpowers, it rcquircs a
dil'{usion of'porvcrs, neccssitaling differcnt indepcndent ccr}ters of decision nraking. Theprotection of
fundautcntal constiiutional rights tlrroulh the cornnrorr lar.v is main feature of common larv
coustit ut iona I i sur.

inRamtslirvtr Prasatt anrt Ors. \'s. Union of Intlia (tloU antl Arrr'. "Thc constirutionalisnt or
constitutional systctn olGovcrntncnt abhors absolutism - it is prcnrisecl on thc Ruleof Lary in x.hich
slib.iectivc sat;slftction i.s srrbsritutcd b1, objectivitr. providccl bv thc- provisions ol thc Constiturion
irsclf." ('onstirutiornli:ur is aboui Iirnirs arrd aspiratiorrr.

13
 r--

As observed by Clrandrachud- CJ. in r\'Iinerva l{ills Lttl. - "The Constiturion is a precioris heritage
and- therefore. you carulot destro-v- its identiry,',

On one lrand, our judiciary elicit such intellectual respolses that "Fairh in rhc judiciar1,
rs of pri*e
ittlportance- Ours is a free nation. Atrong such people'respcci lor law and belief
in its co,stitutional
intelpretation bl" cours require an errraordiuaw degree oltolerance and cooperation
for the value of
democrac-v- and surv'ival of constitutionalisnr" said in Indra Sarvhney and
Ors. vs.Union of India (UOD
and Ors.

L r'rtrcrsnls
Conslitutiorlalisrn has bccn the sub-iect of criticism by nunrerous anarchist thinkers.
For eraurple.
i\'lutray Rothbard, u'ho coined the ternt "anarcho-capitalisnr", atracked constitutionalism.
arguipe lhat
collstittltions are incapable of rcsfiaining.governmcnts nnd ilo not protccl thc riglts
of cirizens frorn
lheir govermnens. Legal scholar Jerernv Waldron .conrends rhht consririitionahsm ;;*
uttclemoctatic: Constitutions are not just about reuaining and limiting poq'cl.;
;f;;;,
thcv ar.e about t6c
etnporverutetrt of ordinaT people in a democracy and allowing them to *ut
oj thc solces of larv and
-harness.t'h.e.apparatus of governmenl to their aspirations. of coursc, it is ahvays possible ,o pi.."rir"
altcrttative to conslitutibnllism as an altcmatilc form of constitutionalism: schols.s
talk of ,,popular
constitutiolalisnr" or "democratic constilutionalisur." But I think it is u,orth sctling
out a stark
of the antipalhl' bctu'een constitutionalism.and clemocraric or popular sell'-g-ortr-nment^ version il only
becausc that rvill help us to rneasu-re more clearly tire extent to whicfi a nc\\:
ald rnature tlcory of
constjtulional larv talies propcr tccount of thc constitutional burilcn of ensuring rlrat
ihe people arc not
iiscnfi'anchiscd b1.' thc very docur::cnt thrt is supposccl to gi,,:e thcrn their po*,.i.

Conrlusion
. i-
Rothbcrg \'Yrote thal is lrue that. irr the' Unircd Siatc-s, ar least. ws have a cousiiturion \
rhar imposes
si.rict lirnits oll some po!v.-rs of govcrnntcut. But, as rtc havc discovcred irr Lhe plrst
centlr-y, no
constitLttion can intcrpret or enforce itself; it must be interlrreted by mcn- And i{.thc
ultinrate powcr to
intelplet a constitution is given to the govcrnnrent's oru,l Srp..r.,e Cou(, thcn thc inevitable
'is'flot Lhe Court to continuc to place its itnprimatur tendenc:;
on er.cr-brcaderpowers lbr irs orvn governrnr-rlr-
Ful'tltcnnorc, thc highly'.lottted"chccks and balancers" and "separaiion of po*crs"
in ttr'e,q.rncrica,
govcrtlment are flimsy' indeed, since in the final analy'sis all of these divisiols
al-e port of rlre sa,re
governlncllt and arc governed by thc sanre sct of rulers. Criminaliz-:tion of politics
is a baric for
dcnlocracy and unlcss urgent steps arc taken to coulltcr it, might sec d:c er.'cntual
faifmgs of ;t.
Political and administrative corruption is a sacl reaiity of InrJian adminisrratiol
and this cancer should
be reltroved frorn the body politic of Lrclian clcmocracl' on an emergency basis.
Aspirations of people
at tlre local leve'l are increasing at an exponential manner and ii they arc rutfiited. ihe rpouuting
fitstrations arc extremely dangerous for lunctioning of democratic systein.

AS OBSERVED BY CHANDRACIIUD, CJ , N,IINERVA }IILLS LTD- * .THE

CONSTITUTION IS A PRECIOUS HERITACE AND THEREFORE, YOU CANNOT

SALTENT FEATURES OF. THE rNprAN coNST_I-LUTI-ON-

Some of the salient features of our Indian constitution are as follows;
"tu^
lJi
1. The lengthiest constitution in the world
2. Parliamentary form of Government
3. Mixnrre of rigidity and flexibility.
4. Fundarnental rights and Fundamental ch.rties.
5. Directive principles of stale policy
6. A centralized federation
7. Universal adult franchise

14
:

8. An independent and impartial judicierv"

9. A secular state
10. Single citizenshiP

6. fn. rvrittcn and lengthiest constitution in the rvorld: The Indian Constitution is mainly a written
tonstitution. A nritten constitution is lrauicd at a given time and comes into force or is adoptcd on a
fixed date as a doclment. Our constitution rvas framed over a period of 2 vears' ll
nronths and 18
days; itrvasadopledon26thNovembcr, lg4gandcameintoforceonJanuary26,1950.Thelndiarr
constitution is the lengthiest and rrost detailed of all utitten constitutions of the u'orld.
The
consriution consists of ++e Articles divided into 22 parts and 12 schedules.)he Anierican consists of
7 Articles, Australian constitution consists of 128 Articles and.the Canadian constitution -consists of
147 futicles.

WRITTEN AND UN\YRITTEN CONSTITUTIONS: Constiiution rnay be classified as (a) rvritten

. and (bi unrvritten Constitution. The Constitution oi most of the countries is r,witten. The beslg&lqplg-
ol an }!rrllrt-rensri,r(tiru,rp4.,i1_!,!gJ_9,!!ig:V.fr*Jctually, all tlie constitutions are a mixture of w'ritten
and un-ffien elemerls. Tlie'uriiGir ionstitutions contain some unwritten elements in the form of
custorns and com.entions and unwritten constitntions coutain uT itten eletlents in the fomr of statutes,
iudiciai decisions, etc. even the consdnrtion of U.K. rvhich is. regarded as the best example of
unr.vritten constitution contains rnany u,ritten elements in:the form of statutes,
judicial decisions and
charler. All constitutions are in lact a mixture of u.'rittcn law and unuritten custoln.

K.C.Wheare.has rightly observed, "We cannot agree that.there is any country, least of all the Unitcd
Kingdom, q,hich has a system of Government ernbodied solely in rtritten rules or solely in unr.vritten
rulei. Consequently, the classification ol constittttion into uT itten and unlvrirteu. has lost rts
'significancc

rj. parliamentary iorm of Governmr:nt: lndia has a parliamenlary form of democrac.r-. Tliis has been
iaopted lrom the British system- In a parliamentary dcmocracy there is a close relalionship betUgen
thc icgislature and the exccurivc. The Cabinet is selccted from among the meurbers of legislatureJhc
cabinct is responsille to thc lattcr. h fact the Cabinet holds offrce sb long as it enjoys the confidence
of the legislanrre-,{he constilution of India establishes 4 parliamentary form of Government.both at
Center and at the Stiies- Presiderit is. only..the notninal head of the nation. The real executive power
is vested in council of ministcrs rvho's hcad is Prime lvlinister. The President acts on the advice of the
Prime N{inistcr and the Cotrncil of lvlinistcrs.

To give reality and contcnt to the democratic ideals propounded in the Preanrble, the constitution
.rtoLlirh., parliamentary form of government both at the Centre and the State, in rvhich the executive
is responsible to an clected legislature. This systern differs ftmdanrcntally from the presidcntial system
pr.uuilirg in Arnerica. \Vhereas the American system is based on the doctrine of separation of powers
between thc executive and the legislative organs. the Indian system is based on the principle of co-
ordination and co-operation of the two orgalts.

The Head of a Statc is thc Govcmor rvho is a nontinee of thc Centre and, though largcly a symbol like
the president, ,vet has some firnctions to discharge as a representative of the Central Govemnlent.
Effeitivc power'in a State, like the Centre, Iies in the Council of l\'linisters headed bv the Chief
Minister and responsible to the electcd House of the State Legislature-
/:r
i:)- ruCfO AND FLEXIBLE CONSTITUTION: ilIixture of rigidity' antl flexibility: :-A constitution
is callcd rigid if, for thc amcndmcnl orrcvision olits provisions, a spccial procedurc, is rcquircd to bc
followed and a constitution is callcd flexible if its provisions can be amended or revised by the
orclinary legislative p.o.ctr) The constirution of U.K. rnay be mentioned as an example of flexible
constinition. The provision( of the constitution of U.K. tnav be amendcd or revised by an act of
Parliament. The constitution of U.S.A. may be mentioned as au example of rigid constittttion-

15
 T-

The rigiC constitution possesscs &e quality of stability'. Its provisions cannor be changed easily at the
desire of the ruling party. The constitution is regarded as a body of superior laws and commands
much respect- Under such constitution the rights of the people are more secure. Certainty an6 stabilitv
are considered the rnost important merits of the rigid constitution.

FRIEDRICK has rightly obsen'ed. "Thc qreat and outstanding advantage of a flexible constiturion is
it can be adapted to new conditions and altered conceptions in the
the smoothness with u'hich
community".

BRYCE has said, "Flexible constittttion can be stretched or bent so as 10 rneet elnergencies rvithout
{
i breaking their fiamework: and when the emergency has passcd they slip back inro rheir old fonn Iike
whosc outer branches have becn pullcd aside to let a vehicle pass."
I
a trec
I
I

t,
I
I The constitution confains a long list of Fundamental Righs and also a nurnbcr of Directive principles.
i: it u,as also felt tha[ the- srngoth rvorking of an infant democracy might be .jeopardized unlesi the-
ii
i'r - consfitution mentioncd in detail things which were left in other consritutions to ordinary legislation.
i,
This explains rvhy 'uve have in our constitution detailed provisions about the organization oi the
judiciary, the senices the public sen'ice Commissions, Elections and many transitory provisions and
tlrelike.(ConstituentAssenrblyDebates;Vo1X|pp839-40)

It is only the amcndmellt of a fcrv of thc provisions of thc constitution-thal rcquircs ratification by the
State Legislatures and even then ratification by only'r1 of them rvould.suffice(whilc the Arnerican
Constitution requires ratification by % of the States).

Thc rcst ol thc cortstitution mav bc arrtcndcd bv a spccial mejority ol rht- Union Parliarncnt. i.e.. a
majority of not less than 2i3 of the rnembe rs of each House present and voting, rvhich, again, must be
n-rajority of the total rnembership of the House.

On the othcr hand. Parliament has been givcn thc power to atter or r1rodily rtrapy of the pror..isions of
the constitution by a simple majority as is required for general legislation. For exanrple (a) Changes -
in the names. boundaries, areas of. and amalgamation and sepamtion of States.

3. Funda:nental rights antl.FuPtlamcntal dutics:'Evcry human bcing is erriitled rd enjoy certain

rights rvhich ensurc good living.i In a dcnrocracy all"Citizcns enjoy equal rights: The Constitution of
India grrarantees thosc rights in thc fonn of Fundamentdl Rights- Fundamenral rights are basic rights,
rvhich are very much essential for tlre development of one's personality in a free societv. We find a
list of fundamental rights lronr Article 14 to 32 in part threc of our Indian constitution. This is one of
the unique feature of or.tr constitution. The fundaEeiiial iights have becn taken by the Arnerican
constitution )
Part-III of the Indian Constitutionguarantees certain fundamental rights. These rights are called
fundamenml rights because they are considered neccssary for the developnrent of human personalitv.
Fundamental Rights fonl the basic structure of tbe Constitution and thcreof. They may be abridged
by the constitutional amendmenLs but they cannot be abrogatcd or desrroyed-lXcitrvananda Bharti
V/s State of Kcrala XAIR 1973 SC 1461) The doctrinc of rvaiver does uot apply to ihe Fundamenral
Rights includcd in part tII of the constitution and . thus, a persorl cannot waive any of these
Fundamental Rights. In case ol infringenrent of Fundamental Rights special remedy has been
provided. Article 32 guarantccs thc right to movc thc Suprcme Court by appropriarc proceedings for
the enforcement of fundanrental rights. The right to move the Supremc Court under Article 32 is
itsetf a fundamental Right. Besidesl in the case of infringement of Fundamental Rights, the aggrieved
person may go to the High C0urt under Article 226.The constitution of U.S.A. has been a source of
inspiration for the inclusion ol the Fundanrcntal Rights in the Constituiion ol lndia.
a
'
.1.Rights and duties are co-rtlative: A citizen rvho en-foys various ftrndamental rights must also be
willing to perforrn his part of thc duties tou,ards the state and the societl'. With this objective, the 42'"1

16
__
{:i E
t

ar.rendment act 1976 has inserted a new article 5l(a) consisting of 10 fundarnental duties to the
citizens of India. At prescnt the number of fundamental duties has been increased to I I )

5. Directive principle s-of .state policyfart IV of the Constitution of Intlia certain principles called
Directive Principles, u'hich are fundamlnldl-inT[e governance of the country and rhe state is under
duty to apply these principlcs in making larv, although thcy are not enforceable by court"(Afi.3A.)
-
thesc direc-tivc principles bear a close resemblance to the Directive Principles of social poliry of the
Irish constitution.@ese directive principles are intended for rhe guidance of the state. They liy down
the objectives or goals n'hich the state should u-y- to achieve)They impose cerrain obligations on the
state to take positive action to achieve economic democracy /nd to establish a rvelfare stlte.

(artictes 36 to 5.1 contain the DirectivePrinciplesof Stare Pqticy rhe idea ro have such principles in
1lr*e constitution has been borrorved from the Irish constitution}rhere was a time. known as the lcltsq

firire crq. wh-en the staLc was tnainly concemed with fhe mainlcnance of law and order and defence of
the cguntry against extemal aggression. Such a restrictive concept of tlie statc no longer rerhains valid.

Thc Iriakers of rhe constitution had realized that in a poor country likc India, political dcmocracy
.rvould be uscless rvithout.cconotrric democracy. Accordingly. they incorporatcd a fcw provis-ions in
the constitution with: a vieu, to achieve arnelioration of rire s-ocio-ec'oriornic condition of rhe rnasses:

Todav uc arc lit'ing irt ltt cra olu'clfare statc which sccks to promo{.c thc prospcriry and wcll-bcing of
the people- The directive principles strengthen and promote lhis concept by seeking to lay doqn somg
socio-ccotrotrric goals rvhich the various goverrlments in India have to sti ive to achieve.

In a nlttnber olplortortncemcnts- the Supieme Court has irrsisted that these dilcctive principies seek
to
inrodttcc the concept of a r.velfoic state in the country. Thus, rve need the Supleme court oisen'ing in
Paschim Banda:

"The constitution cnvisages the establishnrent of a rvelfare state at the fccleral Ievel
as rvell as the
state level. In a welfare stale the pr.irnary duty of the Government is to secure the u,elfare of the
p,'op le:,

6. A ctntralizcrt li'ttcra(irn, - ( notablc lcarurc o[the Indian constitution is lhc u,ay in

u,hich the
nomral peace-time federalisrn can be adapted to an emergency situation. The f:ramers of the
Constitution felt that, in an emergcncy, the Centre should have overriding poq,ers to control and direct
ali aspccts of adrninistraiion and legislation tkoughout the counrry;)The Union parliament is
entpowered to legislate on any subjccs mentioned in the Stat tist. I hc Ccnrral Gor,cmment is
emporvcrcd to givc dircctions to statcs as to the manncr in which it should cxcrcisc its executive
porversy'he frnancial arrangements betrveen the Center and States can also be altered by the Union
Governinent. 1'hus duiing thc proclamation of emergency all pou;ers are centralized in the Union
governlncnt and consritution acquircs a unitary charactcr.

T.Universalattultfran_ctrisc:fhelndianconstitutionguaranteestocvery citizenofthiscountrywho
has attained ail age of I 8years has thc right to elect and the right to be elected in an election) TLe old
system of cotnmu-nal electorate has been given up by our constitution. Furtheri'Indian
f,emoc.acy
functions on the basis of 'otte person one vote'. Every cirizen of India u'ho is I 8 ye\rs ol age
or above
is entitled to vote in the elections irrespective of caste, sex. race, religion or status- ih, trdi-
Constitution establishcs political cquality in India tkough thc mcthod oIuniversal adult franchisei

The old systcrrt olcotrtmunal eleclorates has bcen abolishcd and thc uni{bnn adult suflrage
system has
bcen adopted. Undcr the Indian Conslitution evcry man and u.orlan above tS
lConititution 6l't
Amcntlmcnt Act, 1989) -vcars ol a age has bccn givcn thc right ro clcct rcprcscntatiyes for rhe
icgislattrre. The adoption of thc ur-riversal Adult Su{Irage (Article 326) rvithout any qualfication

17
 {-

either of sex, property, taxation, or ihe like is a bold erperiment in India, having regard to the vasr
extent of the country and its population, rvith an overwhelming illiteracy. This suflrage is u,idcr rhan
all the democralic countries rvhich have given right to vote to their people.

8. An indepentlent and impartial jurliciary{ tnaion judiciary' is independent and irnpartial. The
Indian judiciary is &ee from the influence of-ihe executiye and the legislature. The judges are
appointed on the basis of their qualifications and cannot be removed easily\Rights and rernedies are
tu,o faces of the same coin. Riglrts are incomplete without proper rernedy../ndced the rery existence
of a right depends upon the lemedy for its enforcement for this purpose, an independent and irnpartial
judiciary is very necessary- \The constitution has made a provision for the establishment of a Suprerne
Court and High courts loi tffirotection of fundamental rights of every citizer).

To enable the courts to discharge their multi-faceted functions effectively, it is extremelv important to
the courts enioy independence. Therefore, independence oflhe judiciary becomes a basic creed in a
democratic sociefy-. The need for judicial independence'becomes all the more necessary-in India as
judicial revieu, is regarded as the 'fundanrcntal feature' of the Indirin constitutiou.-

Great emphasis has been laid on the independence of 1he High Coyts by severil judges of the
Suprenre Court in S.P.Gupta V/s Union of fnrtia (AlR 1982 SC 119).\fhas been said that iudicial
independence is one of the ceJ!.Ial values inherent in the constitutidn;'that the judiciary plays a
creatiye rolc in so lar as it keeps governlueit organs rvithin legal limits and protccts the citizcn against
abuse ofporver by them and so it is essential that the.judiciary be free from goyernlnent pressure or
influence.
,"/
\
In the S.C. Advocatc-on-rctord casc again, the Supreme Court has laid grcat emphasis on the
indcpendcnce ol the judiciary in a dernocratic sociery. "Independence of the judiciary" has becn
-ofihe
characterized " as a pari baSic sfrueture of the constitul.ion". " io serure the 'nrle'of larv',
cssential for the prcscrvation olthe dernocratic society"'.

In Kumar Patlma Prasad V/s Union of India {AIR 1992 SC 1213. 1232@1992)2 SCC 428, Sec
B(b)) the Supreme Court has observ-ed : "the independence of judiciary is part of thc basic structurc
of the consrinrtion

Ernphasizing uponthc indcpendcnce ofjudiciary in a dcmocracy. thc'suprcmc court has obscn,cd in

High court of judicature at Bombay \'/s Shirish Kumar R.Patil (AIR 1997'SC ar2627) " In a
democracy governed b1' rule of law. under rvritten constitution, .judiciary is the scntinel on the qui
vive to protect the fundamental righs and posed to keep even scales ofjustice between the citizens
and the state or the states inter se. Rule of law and judicial revieu, are basic features of the
constitutjon. As its integral constitutional structure, independence of the judiciary in an essential
atfibute of rule of lar.r.. Judiciary must. therefore, be frec from pressure or in{luence from any quader.
The constitution has secured to them, the independence:,

It has been'iudiciallv ruled that the judges of the Suprcme Court and the High Courts are not
governmcnt serrallts in the ordinary sense of the tenn. A judge of any of these courts docs not hold "
a post in the service under the State". He is not under the Government of India as to hold so rvill
militate against the conccpt of independence of the'iudiciary ivhich is a basic feature of the
constitution.

9. A sccular state:{ndia is country of religions. There exist rnultifarious religious groups in the
country but, in spite of this, the constitution stands for a secular state of India. The rvord 'secular' was
not present originally in the Preamble. It rvas addcd thereto by the 42d_constitutional Amendment in
197 (t.

In Kcsavanantla V/s State of Kcrala (AIR 1973 SC 146), S.R.Bonrmai V/s Union ot lndia (AIR
1994 SC 19.18) thc Supreme Court has declared secularisur as the basic feature ol the Indian
Constitution

18
r-
:;.

To give reality and content to the democratic ideais propounded in the Preamble, the constitution
..t"6lirh"r parliarnentary form of government both at the Centre and the States. in u'hich the
executive is responsiblc to an elected legislature-

This system differs findamerrtally lrom the presidential system prevailing in America. Whereas the
American system is based on the doctrine of separation of porvers betrveen the executive and the
lcgislative organs, the Indian system is based on the principlc of co-ordination and co-operation of the
t$'o organs.

The popular Houses at the Centre and the States are elected on the basis of adult suffrage. The
prcsident, the Head of the Indian Unio4 is elected by the elcctcd nrembers of Parliament and the State
Legislative Assemblies. This system of election ensures that the President is the choice of the people
throughout the country.and that he represents both the Centre and the Shtes.

The Head of thc State is the Governor who is a nomiilee of the Centrc and; though largely a symboi
.like the Prcsident, yet has some functions to disihaige as a rcprcsentative of the Central Government,
Effective power in a Srate, like the Centre. lies in the Council of lv{inisters headed by the Chief
lvfinister and rcsponsible to the elected Housc of the State Legislatue.

A scculer Statc is onc rvhich has no rcligionof its own as rccognizcd rcligion, but rvhich treats all thc
ieligion cqually. Onc of rhe obiectives of the preamble is to secure to all thc citizens of India, liberty
of thought, cxpression. bcliei, fairh and worship.')
. A secular is a state which is neuu-al in religiors *orr",r. The Citizcns in a secular state may have nay
r,eligion hc iikes or no rcligion at all and the state does not prosecute hinr or imlrose disabilities on Itim
beciuse of his religiour opinion. In Aruna Roy V/s Union of India. (AIR 2002 SC 3176) tire Cottrt
has held that' the q,ord "secularism" used in the Preamble of the constitution is reflected in the
provisions conrained in Articles 25 to 30 and Article 51A (Article,slA Prescribes the Fundarnentai
dutics)

f'O Singte citizenstrip:ftn India. the citizens are given srngle citizenship i.e., the citizenship of India.
There is no separate citizensirip of the states irrespective of the place .of his/her residence or place of
birth. In a lederal srate usually the citizens enjqys double citizenship as is the case in the USA. All the
citizens of Ipdia cari sccurc ernplovrncnt anyw'herc in thc country and enioy all the rights cqually in all
" the parts of India-)

In thc Unitcd Starcs of Amcrica, an Amcrican has dual cirizcnsliip. Hc is a cirizen of thc State
concerlcd as rvell as the citizen of thc U.S.A. he is subject to lrvo governments and owes allcgiance to
both. Under thc l4'r'Amendrnent 'All persons bom or naturalized in the Unitcd States, and subject to
the jurisdiction thereof. are citizens of the United States and of the State citizenship and there is one
citizelship, i.e., the citizenship of India. (Article.5 of the Indian Constitution)

l. Eraminc h11v thc basit structurc of thc ronstitulion has cvolvctl through jutlicial
" decisions. June 2010, N{arks:5
Z. Can a llreanrtrlc be amendcd under artitlc 368? Ansrver tvith the aitl of a decidttl case.
Jan uary, 201 l, i\'Iarks :5
3. Write a note on preamble of the constitution. December 2012 , Marks :5

PREAil,{BLE
The Constitution of India commences with a,Preantble. Let us find out rvhat a'Preamble' it. Ti.
Prearnble is like an introduction or preface of a book. As an introduction, it is not a part of thc
contents but it explains the purpos'es and obiectives u,ith r.vhich the docurnent ltas been rvritten. So is
rhe case rvrth the 'Prcamble' to the Indian Constitution. As such rhe 'Prgan&lg' provides the guide
lilcs ol the Colsritgtiop. Thc Preamble- in brief, explains thc obi':ctives ol the Constitution in tr.vo
*dys: o1c, about thc strircturc of the governancc and thc other, abottt thc ideals to bc achin'ed in

19
 independent India- It is because of this. the Preamble is considered to be the key of
the Constirution.
- The objectives, which are kiid dourr in the preaurblc. are:
i) Description of Indian Slate as Sovereign, Socialist, Seculaq Democratic Republic. (Socialist,
Secular added by 42nd Arnenciment , lg7 6).

iD Provision to all the citizens of India i.e., a) Justice social, economic and political
b) Liberty
of thought. expression, beliel, faith and worship c) Equality of sratus and opporrunity

ilIeaning:- Arcording to Oxford. Dictionarv:-the rvord ..preamble,' has been defined as an

introductory paragaph or part in a statute deed or other documcnt, setting forth rhe grounds
and
intention of it". In Golak Nath Y/s Statc of Punjab(AIR 1967 SC 1645) preamble
means it is
introduction of preliminary state ment cspcciallv to a legal document setring forth its ground
and
intention. The preamble ro an'act scrs our. lhe_rnain objeitivcs rvhich rhe legislation
is lntended to
achieve. l

ViewsofDyerC.J-inStarvell\'/sLarttZouch i(1959)lPlou,d.3-53)prearnbleisakey.roopenthe
nrinds of the maker of the Act and the mischief which they intend to rgdress.
{F P.eaSJI!SIE,|]3I19I=tI. Constitution:- thc riieg.lhat pr.ornbl. docs not forrnthc part of thc
constitutrb;has-befrl6eEilEite supreme courr in the case of Kq.shvana",i th;;;;i.v/s state if
Kerala (AIR 1973 SC 1461) *e Srp..r.,e Courr has held ,har ;Tp;;.,"b]" ;"rnls
;rrt.bf the
constitution and the constittttion should.be read and interprered in thc light of the grounci
and noble
vision expressed in thc prearnblc. It is part of thc basic shxctue of the Constitutionl In S.R.Bommai
Y/s-Union o{lndia (J.7.1991(2) SC'215) the Suprerne Court. has held rhar thc prear:rble rr""rp;;_
of the constitution.

,{ Can Pyennrllle be amtndctl:: ,.{s regrtrtls llte issue of the power of the purtiarirertt to arttetrtl the
prniiii'ti, r,.lo io'k.shvanantl g'ir,'oii vls Srare of Kerala (AIR t973 SC l46t) it may be
concluded that the prearnblc is thc part of the Constitution and theiefore it can be or.r";,d"d
by the
parliament under Article 368 but the 'basic fcatures' in the preamble cannot be
arnended. The
preamble has been amended by rhe constitirtion (42"d Amendment) Acr, 1976.

PREAil{BLE \YE, THE PEOPLE oF INDIA, having solenrnll'resolved to constirute India into
a
SOVEREIGN SOCIALIST SECULAR DEN{OCRIUC nipUgl-fC ,,ra ,o."..,rc to ail its
citizens: JUSTICE, social, cconomic and political: LIBERTY of rhought, belief faith
and worship: EQUAI,ITY of status and of opportunity; and to promote "*p;r;;;,
among them all
IRATERNITY assuring tlie dignity of the individual and the unitv and intcgrity of the-Nation; IN
-g+1.
OUR CONSTITUENT ASSEI'IBLY this trventy'-sixth day of Novembe., f do HEREBy
ADOPT, ENACTAND GI\,'E TO OTiRSELVES THTS CONSTITUTION.\

The preamble begins rvith. "rve, the people of India" rvhich means the consrirution derives
its
authority from tire peoplc of India. So the ultimate source of all powers is vested in the hands of
people. The sovereignty of the narion be longs to the people

In Gopalan V/s State of l\{adras,( 19-50 S.C.R. 88) Union of Intlia Y/s rnadan Gopal(1954
S.C.R.
541) the importance and utility of the Prearnble has been poinred out in several decisions
of our
Supreme Court. though, by itsell if is not enforceable in a Court of law, in Re Berubari
Union, A
' (1960 S-C, 84-5) the preamblc to a rvritten constitution states rhe objects which ithe
i constitution seeks
,
to establish and promol.e and also aids thc Icgal interpretation of theionstitution where
i'
the Ianguage is
lound to be arrbiguous.

Before independence- 1r'e \ticrc undcr thc British rule. the

Queen of Britain g,as tire sovcreign hcad of
the state and tvc had no powcrs to rnrkc larv. norv at prcscnr. wc havc our own dcnrocratjl rulc.
the
president is the head of our state/natiorr and rhc sovereign porver belongs to the
stateination is vested

20
j'
in our parliament, *'hich represenls the people of lndia, who are the masters of their oun destiny.
Sovereign means the independent authority of the stateination

Sovereignty: is one of the foremost elements of any independent State.,It lreans o!56lpte
independence, i.e., a government rvhich is not controlled by any other pourer: internal or external.'A
.ouniry cannot have its o\r.rr constitution u'ithout being sovereig.r-'draiu is a sovereigrr country. It is
&ee ['om external control. It can frame is policies.llndia is free to formulate its o,uvn foreign policy.

Socialist:r The uord socialist irnplies social and econornic equalitl'. social eqrrality in this context
means absence of discrimination on the grounds of crste. colour, creed sex. religion, language etc., the
q,ord socialist rvas not there in the Prearnble of the Constitution in its original form. In 1976, the 42nd
Amendment to the Constitution incorporated'Socialist'and'Secular', in the Preamble. The'rvord
'socialism'had been used in the context of economic planning. It significs maior role in thc cconomy.
It also means commitment to attain ideals like removal ol inequalities, provision of rninimurn basic
necessitie.s to all, equal pay for equgl rvork- The aimof socialism rvas to abolish social evil such as un-
touchability' and zamindari systern.

In Ercel Wear \/A union of Tanril Nadu.(AIR 2001 SC 1435) The word i'sqcialist" has been added
by the constitution (42M Amendment) Act, 1976 u'.e.f. 3.1.1977. After the'adclition of the ivord
"iocialist" it had become nrorc clear that thc goal of Indian policy is socialisrn. The addiiion of the
word "socialist" in the prcamblc rnay enable the Courts io lean more and tnore in lavour of
nationalization and state ou'nership of an industry.

According to lv{rs.lndira Gandhi thc tcrrn has been uscd to dehote thc bctter lilc for the people. It may
be taken to mean democratic scicialism. In the casc of D.S.Nakara V/s Union of Intlia(AIR 1983 SC
li0) the Snpreme Court has observed that thc basic framc-rvork of socialisnr is to provicle a decent
srandard of life to the working people and cspecielly provide security front cradle to grave. On
cconomic side it envisages economic cquality and cquitable distribution of incomc. Articlcs 39(b) and
39(c) contain 'the directive' principles as to ccononric equalitv and cqual disuibution ol wealth. In
Air India Statutory, Corp V/s Unitetl Labour Union (AIR 1997 SC 64-5) the Supreme Corrt has
held that the rvord l'socialism" was expressly brought in thc constitution to establish an egalitarian
social order through rule of law as its basic structure.

It rvas hrltl in G.B.Pant Univcrsity of Agriculturr: & Tcchnttlogl' \/ls Statc of Uttar Prarlcsh (AIR
2000 SC 2695) Democratic socialism aims to end poverty. ignorance, disease and inequality of
opportunity socialistic concept of society should be implernented in the true spirit of the constitution.

In Sanranth \r/s Statc of Andhra Pratlesh(AlR 1997 SC 3297,3330) thc Supremc Court has stated
whilc dehning socialisrn: " Establishrncnt o[ the egalitarian social order through rulc of law is thc
basic structurc of the constitution". [n Air India Statutory Corp V,/s United Labour Union (AIR 1997.
SC 615) The court has laid en:phasis on social justice so as to attain substantial degree of social,
economic and political equality, social iustice and equality are complimentary to each other-

. I ;rrd
sccuransm:Uas also inscrted into thc prearnble by 42'r amendment act of 1976. Secularistn mcans
state has no official religion. Herc, all rcligions are equal, the frcedom to follou, any religion is
guaranteed by our constinrtion)n orher words it is said that 'India is neither rcligious, nor irreligious
nor anti-religious-'Norv rvhat does this irnply'? It implies that in India there rvill be no 'State' religion
- the'State' rvill not support any particular ieligion out of public fund. fhis has trvo irnplications, a)
every individual is free to bclicvc in. and practice, any rcligion her'she belongs to, and, b) State rvill
not discriminate against any individual or group on the basis of religion.)

Articles 25 to olrhc constitulion guarantcc to every pcrson the lreedorn olconsciencc ancl thc right
2t{
to profcss. practice and propagate religion. In St Xavier College \A State of Gujarat (AIR 1974 SC
1389) the Suprcme Ccurt iras said, " altirough the lvords Secular Statel are not expressly' mcntioned in

2t
 the constitution but there can be no doubt that constitution makers u'anted to establish such a state"
and accordingly Articles 25 to 28 have been included in the constil.ution.

In S.R.Bogrrnai V/s Union of India (1991 SCC 1) the Supreme Court has held tltat " secularism is
the basiJGituie oi rhe Constitution".

In Aruna Ro1.'V/s Union of Intlia (AlR 2002 SC 3176) the Supreme court has said that secularism
has a positive meaning that is developing. urrderstanding and respect towards different religions.

(Demgcratic: Indir is a democraric country, Democracy' is generally know'n as goYerlunent of the

is elected by the
!-eopte, by the people and for the people. Effectively this means that th'e Government
p"opt". it is rcsponsible and accountable to the people. The democratic principles are highiighted *'ith
thc provisions of uri+,ersal adu.lt franchise. elections. fundamental rights. and re5ponsible governmeirt.'

.A.sregaids rhe:naturc bf tne hdian polity, the Prearnblc to ti," constitution declares India to be a
'soveieign'socialist Secular Democraiic Republic'- The terrn'severeign' denotes that India is subiect
to no external authority-and that the state has po*'er to legislate on any subject in conformity rvi&
:
constituiional limitations.(Synthetics \'/s State of Uttar Pradesh(AlR 1990 SC 1927) .

The tcnrr 'dcnrocratic' signilics thar India lrrs a responsiblc and parliarltcntary lonri of govcrnnrcnt
rvhich is accoultablc to an elected legislature. The Supreme court has declared 'democracy' as the
basic feature of the constitution. (S.R.Bomnrai VA Union of India-AIR 1994 SC 1918).

RcpuSlic: A state in wliich the executive head is not a hereditary tnonarch. but clected representative
is called a rcpublic. ,'ihc Preamblc also.declares India as a Republic.,li mcans that the head of the State
-
is the President rvho is indircctly elected and he is not a hereditary tuler as in case of the British
l\lorrorch.

D ffr" tcnrr 'Republic' clenotcs that the head of the statc is not a hercditary monarcli. but an elected
lunctionary.
.' :
are entitled'to in terms of basic rights to food, clothing.
" Jpsticc: promises to give people rvhat they living with dignity as human beings..The Preamble
housing; participation in the decision-making and
covers all these dimcnsions of justice- social, econon.ic and political.-'Besides, thc granting of
political justice in the fonn of univcrsal adult franchise or the representative form oldentocracy.

(f .iberh.': the Preambie also mentions about liberty of thought and exprcssion. These freedoms have
6""n g.,arunteed in the Coristimtion through the Fundamental Rights.-Thotrgh freedotn from rvant has
not been guarantecd in the Fundamental Rights. certain directives to thc Statc havc bcen mentioned in
thc Dircctivc Principlcs.

( Equalrt-v :is considercd to bc the essence of modern democratic ideology- The Constitution makers
placed ttre ideals of equaliry in a place bf pride in the Preamble. All kinds of inequality basedon the
concept of ruters and ihc .,,1"d o. on the basis of caste and gender, rvere to be eliminated.@tt c;tizens
of India should be treated equally and extended equal protecdon of larv without any discrimination
based on caste, crecd, birth. ,"ligioo. sex etc) Similarly equality of opportunities implies that
regardless of the socio-economic situations into which otte is born. he/she rvill have the same chance
as everybody else to develop his,{rer talents and choose means of livelihood.

i Justicc, Libcrt-v, Equality, Fraternity. Unity and Integritl'' of nation: these words indicatc the
obiects to be achiev.a. fnt preamblc sccurcs to all its citizens social. econor.nic and political justicc.
The directive Prirrciples havc bccn inscrted for this pulpose. Article l5 rtrakcs it cicar that state shall
not discriminate against any gy1gn, on ground only'of reliqion. race. caste, sex, place of birth 9..-y
of tlcm. It provides ttriino itzen shall. on grotmd only of religion. racc, casie sex. place of birth or
nay of them, be subject to any' disability, rcstriction or condition with regard to access to shops' public

22
g
:e

--

restaurants., hotels and place of public entertainrnent or to use wells, tanks, etc.. Article l7
abolishes..
untouchability"- Articles 38 & 39 rnakes provisions for socio-economic jusLicc. I,
Lingappa VA
State of l{aharashtra (AIR 1985 SC 389) statcs that 'Socio-economic justicc implies
also'rhe forced
distribution of lvealth for the purpose of fair division of material resources among ihe
members ol
society.

Politicaljistice has been secured by providing for universal adult franchise. The preamble
ensures the
libertv of thought, expressiot.t. laith and,vr.orship- Article 19(l) An.2-s & Arr 26 make provision
for
such liberty.

Tlre preamble also ensures the cquality olstatus and opporrunity articles l4 to lg nrake provision for
such equality-

1. wtro is a citizcn .I{0rr t'itiztrrshill nray be acquirctl through rlomicilc. Junc,20t0,l5

il{arks:15

CITIT.ENSHIP
INTRODUCTI0N:- a cil,i11 of a givcn statc is a pcrson who cnjol,s lull nrcnrbcrship
of rhc
p.-olg.ql conrmunity o. state.'Citircns are diffcrcnt frorrraliens or mere residents
who do not have all
the rights rvhich.go to ttiake full mcmbership of a state. Thus. in India, aliens
do.not enjoy all the
fundamental rights secured to the citizens. Again, cilizens'alone have the right
to uora ...rrin high
offices sttch as those of Presidcnt, vice-Presidcnt. and.governor of a State]Juclge
of the Supreme
- Court. High court Judgc. Atlorrrc-\,Gcncralan4 thc Advoiate-General, The righr
tJyore to.the Unior
or stalc Lcuislarurc or to bccomc tlrcir rncnibcr is conhncd onlv to citizcns. .

'Part-II olconstitr-rtion describes classes of pcrsons rvho u,ould be cleemcd to bc citizcns

of India at
commencenrent of the Indian constitution. 26,1, January I950.

Thus, cilizens of India have lhe follori,ing righrs under &e constiturion
rvhich aliens shall not have:

(il Sottte of lltc fi.tnciantental right belongs tocitizen alonc.srrch as Art-lr, f C. ,1.
(ii) only cirizens are eligibie ro. ."..tolo ';,.
;;';j,";;' ;;
;;
"fn;; of rhe supreme courr presidenr
{Art.-r8(1)(a)};Vice -President {Arr.6(3)(a)}:Judgc
or of a High Court rrArt 217(2)):Attonrey - General llrt.lilzyl;Governor{Arr.l21(3)}
of a srate
{Art.l,57,i advocare - gcneral {Art.l65rr
(iii) The right of suflrage for election to thehouse of people (of thc union) and
the Legislative
Assembly of every state {Art 326} and the right to become a member of parliament
{g4}
and of the Legislature ola state {fut 191(d)} are also confined tc citizens.
Nature of Citizenship: Citizelship-lrqqlr q1-e-r-n!er5hip gt-p sq4te It is derennined by municipal
(i.e., State) law. Sonre states aciopis the principle ofjui ioli (nignt
of the soil) in coniening rheir
citizenship -on this Principle all persons born on the state's i.oito.y beconie
its citizcns. Thus a
cifizen is "Born" and not "nrade". There are othcr states which follorv
Ur" p.ir.ifoi
songuinis (right ofthe blood).They confer citizenship on rhose born
to the ir nationals "i;;
tfl rvorld i.e-' if the parent is citizen of state 'e', ihe child also become its cirizen.auyrvhcre in Here again
citizenship arises by'parenlage i.e, b.v birth. That is rvhy it is somcLi,res said ..,l.iiir., is born
and not madc".

('tcqulstrloN oF clrIzENSHlP (Cirizcnship Au I955):- Unclcr Arricle 5 ro

constitiition
in the Indian il
dorvrl as to $:ho are the citizens of t ala ot ,rr. .o-,rencelnent of the constitution
la.u-
i.e..
on January ?6 1950. These citizens have bcen classified into:

23
 lE-
,-rr:.

1. Citizcns try domicile;

2. Citizens trv migration, and
3. Citizens by registration. \

r' I. Citizcnship by tlomicile:- ART.5 lavs down tu'o conditions. First, at rhe commencement of the
constitution, a person musl have his domicile in the territory of India. Second. *.t p..ron musl
fulfill any one of the three conditions laid down in the article. narirely, (i) he must have" been bom in
the territory of India, or (ii) either of his parents must ha'e been bom in ih. t..ritory oi t
aiu. or (iii)
he bust have been ordinarily resident in the territory of Inclia for not less than fir-e
i,ears imrnediately
preceding the commencement of the co_nstitution.\i,

In il{ohd Rcza v/s State of Bomtray (AIR 1966 SC 1436) Domicile in India is an essenrial
requirenrenl for acquiring Indian citizenship. The ternr 'dornicile' is not defined in rhe
constirution.
Ordinarily, it n:ean3 a pennanent homc or placc u,hcrc a pcison residcs with the intention
rernaining there for an indefinite period. Brief facts of the case tirc appellant .rrn. * maio'i"
-of
19i(. ii;
went or1 pilgrirnage to Iraq in'1945. On returu, he u.as registered as a foreigrer and several
times his
stay in India rvas extended. In 1957 his request to extend the stay period rvas refuscd. He contended
that he must be regarded as a citizen of India under Article -S,. but his appeal rvas dismissed. The
court
held that though he rvas original resident, he did nor acquirc Indian.itir.rrtipu..ause he
did nor
have a donricilc in India.

rtliAhmatt Vis Pati( AIR.1965 Pat 371) Central Bank of Intlia v/s Ram Narain(AIR 1955 SC 36)
-Dorrricilc
is not the same thing as residence. Residerrce implies a purely prri,5i.rirr.i tlie fact,
the
Iact of .irrst bcing and living in a partjcular placc. But Ao,rr;"it" ;s not only residence: it is residence
couplcd u'ith iutcnrion to live indcfinitcly in thc placc,

Thcre are lrvo clhsses ofdomicile i.e., dornicile olorigin ancl dornicile of choice- Domicile o{.origin
lneans indir''idualit,v by birth. Domicilc of choice means rcsidence in tenitory sub.iect to a distinctive
lcgal systcnr

Illustration - A is the claughter of iin lraria., National .She rvas boni in l92l in India. Her mother
belongs to madras -A has a positive intention of making lndia hcr pcnnanent honie- She neyer Ieft
lndia sincc her birth. Her father died in 1962 .Is A'a citizen of India.

Undcr Art-S, A acquires citizcnship. She is born in tndia. She has her domicile in India .So at rhc
cornlncncerlrent of the constitution: she possesses the quaiification for citizenship under Art 5. The
nationality of her parents is imrnaterial in such a case.

Citizenshill try tlomieilc has trvo-conditions: l. He must have his domicile in rerritory in Inclia 2.
Such person must fulfill any one of three conditions laid dorvn in that Article. a). he rvas born in Inclia.
b).either one of his paren6 rvas bom in India. c).he must have been ordinarily resident in territory of
India not less than 5 years.

DOI'IICILE BY ORIGIN: - the domicile of origin, thus. may be undersrood as rhe domicile which is
received by him at his birth. To a legitimate chilcl. the dornicile of father is assigncd and to an
illegitimate child thc domicile of mother is assigned.

PRADEEP JAIN V/S UNION OF INDIA(AIR-I984 SC 142) Supreme court has held Art 5
recognizes only one domicile i.e.. domicile of India. It cloes not recognile stare domicllc. If a person
utovcs fronr one state to another state to settle permanently he trasineiitlzersr,iffi citizenship of
India.

DOItICILE BY CHOICE:- Beforc obtaining thc flull agc. thus- an infant is nor capablc of acquiring
b-v his oum act anY independent domicilc of choice. The dornicile of a married lvonran is the domicile

24
 of her husband.(State of Bihar r,/s lv{.A. Singh(AIR 1952 SC 282) Thus, minor and married \l'omen
are regarded as dependent persons and therefore. they cannot acquire the domicile ofchoice.

In Louis De Raedt r/s Union of India ((1901) 3 SCC 554) the petitioners, who u,ere foreign
nationals challcnged the order of the Central Govenrment expelling them from India on their lailure to
acquire Indian Citizenship. The petitioners canre to India bclore independence and u'ere staying
' continuously on the basis of foreign passpofi and residential permits. They rvere engaged in Christian
missionary u,ork. They contended that they becarne citizens of India by virtue of Article 5C of the
constitution as they rvere saying in Inclia for morc than 5 years immediately before the
commencernent of thc constitution. The court held that they failed to establish that they' had an
inten[ion to residc iir India pemranent]y. The petitioners did not have their domicile in India. For the
acquisition of dornicile of choice, it must be shorvn that the person concemed had a certain state of
mind, the animus manendi. If he claims that he had acquired a new domicile a particular time he must
prove that he had formed the 'intention of.rnaking his permanent home in the country of residence.'
Residence. alone, unabcompanied byrhis state of mind. is instrfficient. Dornicile of origin is lost'onl-v
ou acquisition of dornicile of choice and not on rncrc conJinuous'stay in other country.

MICIIAEL V/s STATE Ot BOMBAY, a person born in Goa came to Bombay in his boy-hood,
cducatid and resided there and continued his fatlicr's business in Bombay, he was held zis Indian
citizcn by domicilc olchoicc.
n

12) Citizcnshirr of mierants to India fronr Pakistan (Art.6): Persons r.vho have migrated from Pakistan
to India havc becn classified into trvo categories for thc purposc olcitizenship i.e.. L Thosc rvho came
io India beforc l9'r'.July, 1948.2. Those rvho came to India on or al1cr l9'l July. 1948. Arricle 6
' provides that a person who has migrated to India fronr Pakistan shall be dcerncd to bc citizens of India
at comnencenent ol conslitution i.e., on 20'h January 1950 if he or eilher of his parents or an-v of his
grandparents rve're born in India as defined in Government of lndia Act, 1935., I

h Unibn o[Inrlia"Karanr Ali(AIR 1970 A&N l4lrr1, Sharuro Devi" i\langal Sain (AIR I96l SC.
the migration envisaged in Article 6 only means coming to India from outside and it must have
--s8)
taken placc before, and noi after, the comrnencernent of the constitution.

'!)lCitizcnshirr of mierants of Pakistan (An.Zl: Undcr Articlc 7 a cirizen brv donricile (Arr.5) or a
-'2ta,tr.r, by ,r€"r{ron to India from Pakistan (Art.6) ceases (cliscontinues) to be a citizen if he has
migrated to Pakistarr aftcr l" N'{arch. 1947. Holver,er this rulc is subjcctcd to an cxception if he
fulfills the conditions undcr Aniclc 6.

KULATHI V/s STATE OF KERALA. the Court has held that the term migrated could
nothing except voluntariiy going lrom India to Pakistan permanently or temporarily.

Illrrstration - X, his rvife Y and his chrld,Z rvere all citizens of India. ln march 1948 ,X and child Z
left for Pakistan and stayed there for over sir lnontils and there was no explanation for such stay .X
continued to livc in India .Can Y and Z considcred to bc citizens of Indial)

The decision in Kulathil Mammu V State of Kerala, makes it clear that there can bc rnigration
without change of domicile. Here Y's domicile and her child's (Z) douricile continue to be India
because X is in India. Still thcrc is migration and loss of Indian citizenship.

Migration means moving from one country to another not being for a short visit.

In State of Bihar r',rs Kumal Amar Singh (AIR 1955 SC 2S2) A lady went to Karachi in July, 1948,
lcaving her husband in India. Her story that she went there temporarily fo medical treatment \yas
l-cund baseless. Shc rcturncd to India in Dcccurber, 1948, after obtaining a temporarv pcnlit. stating
in licr application for thc said pcrmit thaL shc rvas domicilcd in Pakistan and shc lvas a Pakisrani

25
 national. On the expiry of that temporary; t:permit- she went back to Pakistan in April i949. She made
an atlempt to obtain a perntit for permancnt rctum to India only after steps had been taken to takc
over
her property and vcst the same in thc custodian. Her effons failed, and she could not get a permit
for
permanent settlerneilt in India. It was held that there could be no doubt that rhe lady itusr
be held to
have migrated from &e territory of Inclia after lv{arch l,lg47 although her husband had
stayed in
hdia.

State of Andhra Pratlesh'\7s Abtlul(AIR l96l SC 1967), State of l,Iadhya pratlesh V/s peer
Mohd ( AIR 1963 SC 645) Migration in this article refers ro one before Jinuary 26, 19-50, i.e.,
betrveen IVIarch l, 1947 and January 26, 1950. Migration to Pakistan after January 26,
' determined unde the provisions of the Citizcnship Act, t 9-sS.
19,50, is

,Ff\
I tr) Citizenship of Indidn abroad (Art.8): Articlc 8 provides r.hat anv person of Indian origin. residing
outside India can obtain Indian citiz-enship if he fulfills the follovuing conditions t.suci
persorl or
eithcr of his parenls rvas born in India as defincd in Cor,ernment of India Act, 1935.
2. Hc shall be
deemed to be citizen of India. as if he has been registered as. citizen ol India
by diplomatic
representatives of India in the country rvhere he is lor the time being residing
on an appiication made
b,v him therefore to.such diplomatic or consuiar-representati;, whether before or
after the
commencembnt of this cottstittttion, in the form and manner prescribed by Government '
of lndia _

As ller Article 9, Persons voluntarily accluirinu citizenship of a foreign' state shall not rerlain
as
citizens of India. Fu-rther. which lays down that no person can be a citizen of krdia
by virtue of Art.5
or bc deetned to bc a citizen of India by virtue of Art.8, if he has voluntarily acquired the
citizens6ip
of any forcign slate)',ln Statc of trtatih;ra Pratksh \i/s Pccr i\Iohtl (AIR 1963 SC 64-5) Article.g
applics only tb thosc cascs r.vhcre forcign citizenship had been acquired before. and not
iftcr. the
comllletlcerlent ol the constitution. The latter t;.'pe of situation has been dealt rvith
uncler the
provisions of the Indian citizenshrp Act. i9-s5-.

'i:1 Continuance of the rights of citizenship (Ar1.l0) that, every person who is or is deenied to
be a
citizen of India shall continue to be citizen of India subjeci tie provisions of any passed
by the
parlirment.

i 'Parliament, in excrcise of the pos'er given ro i1 under Article I I of rhe constirution has passed
,: ' citizenship Act, 1955. (This aci is a scparate enacrmcnt, and does not form part of rhe Constitution of
a

Indta.) making T,egal provisions rclatjng to acquisition and termination olcitizenship

of India are ("
containcd in thc Cirizcnship Act. 1955.

Citizenship of lndia can be acquiretl Ily: Birth, Descent, Registration, Naturalization, Incorporarion
of tenitory, Termination. Renunciatiorr. Acquisition of another country. Deprivation
.
Qifizenshin hv.Birfh (Sec.3):-Every pcrson born in lndia on or afrer thc 26'r'January, 1950. is a
citizen of India by birth excepr if at the time of his birth-

A- his father possesses such immunity from suits and legal process as is accorded to an envoy ol
a foreign sovercign power accredited to the President of India and is not a citizen of India; ;
or
B. his father is an enemy alien and the birth occurs in a place than undcr occupation by the
enenly. l
I

Front 1" July, l9B7 i.e. the date of enforcenrent of the Citizenship(amendment) Act, 1986. except {
as
provided atga) & 9b) abovclGvcrypcrson bom in India on o.onei26'r'January. ry,iO Uut before
thc I
comnlencenient ol thc act antron or aflcr such commellccntent and cither of u,hosc parents
a citizen in
India at rhc ume of his binh. shall bc cirizen of India by birth. t
I
C

)A
 !t

@(Sec.4):-ApersonbornoutsideIndiaonorafter26-01-l950acquiresIndian
citizenship provided, at the time his birth, his fathcr was a citizen of India .if the father was himself a
ciizenof fidia only b, {ggT1. the sott acquires Indian cirizenship onl-y rvhen his birth is rcgistercd ar
consulate within one ycar or the father was a sen'ant of the govcrnment of India.
Tlrdi3"
Citizenshin by Rcnstrath (Sec.5):- Subject to certain conditions and restrictions, thc Central
Govemment, in the lr{inistry of home Affairs, n1ay. on application madc in this behall, r-qgjsp1q,s._q
citizen of India any person u,ho is not alrcady such citizen and belongs to any of the follorving
iaregories-

a. Pcrsons of Indian origin who are ordinarily resident in India and have becn So rcsident lor five
years immediately before making an_._?pplig?-li-o1-!-o-1_ rqgiqtration. Prior to the corning inro
force of the Citizenship (Arnendrnent) Act, 1986 i.e. l" July 1987, tlis period was six months.
b. Persons of Indian origin u,ho are ordinarily resident in any country or place outside undivided
India:
c- Persons who are or have bcen married to citizens of India and are ordinarily resident in India
and have been so rcsidcnt for five lcars irumediately before making an application for
registration. Prior to the Citizenship act, 1986 thc clause read " rvollen rvho are or have been
. rnarried to citizens ol lndia"
d. lv{inor children of persons rv}ro are citizens of.In<iia; and

Pcrsons of full age and capacity rvho are citizens of a country specified in the first Schedule of the
citizchship Act 1955

Citizenshin.bv Naturilization(Sec.6):- Whcre an application is made in the prescribcd rnanner by

any person of fulI age and capacity rvho is not a citizen of acounl.qr specificd in'ihe First Schcclule
1'1.I for the grant of a eertificatc of a naluralization to him. theCentral Government may, if satisfied
that lhe applicant is qualificd for naturalization under tlie provisions if the Third Schedulc. grant 1o
him a certi ficatc of naturalization.

Provided that. if in the. opinion of the Central Government, the applicant is a person rvho has renclered
distinguishcd services to thc causc of scicircc. philosophy, ad, literature, rvorld peace or hnrnan
progress generaliy, it uray rvaivc all or any of the conditions spccificd in the Third Schedule of
Citizenship act. 1955.

isi
(Jhc pcrson to whom a ccrtificatc ol naturalization is granted shall, on taking a oath of allegiancc in H
i.s
the lorm spccified in thc Sccond Schedule, be a citizcn of India bynaturalization as frorr the date on ffi
6;
that certificate is granted.\i
"vhich ffi
L Citiztnshio bv Incornoration of Tcrritoff (Sec.7):-lf any territory bccomes a part o1' India, thc ffi
i&
Central Govemment, rnay by orders notified in the Official Gazette, specily the pcrsons u,ho shall be #
&
. citizens of India by reasons of thcir conncction rvith that tenitory. and those pclsons shall be citizens H&
m
of india as from the date to be specified in the order. " ffi
ffi
Rcnunciation of Citizcnship (Scc,8):-lf any citizcn of India of full agc and capacity, rvho is also a .$
.ffi

citizen or national of another country, makes in the prescribed manner a declaration renouncing his ,#
indian citizenship: the declaration shall bc regisElgC_ly-.the prescribed authority, ancl upon such ,ffi
registration, thatperson shall cease to be a citizen of Indian. Proi,ided that if any such declaration is
mide during any war in rvhich hrdia niay' bc cngagcd r"cgistration thereof shall bc u,ithheld until the
Central government othern,ise di rccts.

Whcre a person ceases to bc a citizen of India evcry ntinor child of that pcrson shall tlrcrcupon cease
to bc a citizen of India, provided that any such child uray. within one year aftcr at.taining full age.
niake a declaration that he w'ishcs to rcsumc Indian citizenship and shall thereupon again bccomc a
citizcn of India.

27
 T_
i-
r.
l
i

For the purpose of rhis section- Any woman rvho is-. or has been. married
shall be deemed to be of fiill
age

Termirration (Scc.9)

citizenship is terminated eirher b-v renunciat&r4-o_racouisltlon_of citizenship of another

counrry.
/Aco,
Acculslnon oI cltlzenship o[ another Countn':- Any citizen of India *'ho.
by naruralization,
iegistration or otherwise uot*tr.itircqui.o. ortas or any time bet*,een
trr" zo;o;;r;;1950 and
thc comrrrencemcnt of this Act voluntarily acquired. the ciiizenship ol
anothe. ;"-;;.;;;se ro be a
citizen of India. Hou'ever. this does not apply to a citizen of India. drring any
war in wliicir India may
b1 r'oluntarily acquires the citizenship of anorher country, untii rhe Central
"rs1s"9,
olnenvrse drrects^
d;;;;;
If any question arises as to rvhcther. when or how any person has acquired
the citizenship of anorher
country, it shall be cteteimined by such authority, in rr.t, *u*"i having regard to stich rufes of
evidcncc, as ulav be prescribed in this behalf. "no

Depfivation (Sec.l0):- The Cenrral govcrnrxent under section 10. of thc lndian citizenship Act, 1955
deprives any citizcn of Indian Citizcnship if ir is satisfied that_

a. thc rcgisrration or ccrtificatc ol nrruralization u,as dbtaincd by prca,s of fraud, false

representation or conccalmcnt of any malerial facl: or
b- that citizen has shou'n himself by act or speech to be dislo.v'al or disaffe6ed torvards {.he
Constilurion of Indir as by Iarr. esrablished; or
c. that citizen has, during the u,ar in *'hich India may bc engegecl. unlarvfully tradcd or
cotntnunicated rvith an enclliy or becn engagcd in or associatca o-irtr. any busincss
iiis
,h;i;;; ;;
. klorvledgc carried on in such nlanner as to assist any enemy in thar war; or
d' that citizcrt has. trit}in fir'c years afrer regislration or naturaiization, becn scntenced in any
country [o imprisonrnenl ror a term of nor less than rwo years: or
'e' That citizen has been ordinarily resident out of lndia for a continuous period of scven y,ears,
an'l cluring thrt pcriod. has ncither been at any time a student of any educational institutior,
,n
a country'outside India or in the senice of a Covcmrnenr of L*ti; ;;;l:;r-intemattooat.
grganization of u'hich India is a mcmber-
4or rcgistcrcd annually i,i,fr.p..r..ib.d n,ooo"r r,
an Indian consulate his intention to retain his citize,ship of Inclia.

The Cenlral Govcrnment shall not dgpriyg a person of citizcnship unless it is

satisfied that it is not
conducive to the public good that p..son ihould continue ro be o of India.
"iiir",
can compan)' or corr)oration he a citizen? Januarv 2012. il{arks: 5
A company or Corporation rvhether citizen under Afticle 19,- The question whether
a company is
a.citizen bc'cotne irnportant as fundamental right under Art. l9 can be ciairneci only
by citizen. All rhe
shareholder of a company ma-y be citizen or only some shareholclers'rnay be citizens.
In eithercase
can the company has its o\\'n personality distinct form that of its sharcholders.
The qucstion. therefore.
arise whether a company as such can clairn to be citizen.

In slute T'roeling Corporation of Inrtiu commercial rosc officer:

L/
-
Fact of the cuse, ln this case the statc Trading Corporation u,as sought to be laxed in rcspect
of sales
effected by thern in the course of their businesJ operation- The corporation contended
ttrat it is
transaction related to inter-state sales and rvas, thereforc exempted from taxation
by Art 2g6(l)(a).
The illegal tax was therclore inlringement of their fundarnenrai right r.rnder art
D1i;1g1to carryon
their tradc or busincss

The Suprerne Coun hcld that company' or corporation is not a citizen of India and cannot,
therefore.
claim strch of thc frrrl.llntcntrl riglrts as have been conlcrrcd upon cirizcns. Thc citizcnship
conferred

28
 H
on a citizen by part II of the constitution,
The court said. citizenship concerned only rvith natural
iE3
r{+

persons and not juristic persons, Fulther the court said that state trading corporafion )l..as not a citizen :i$

and thcrcforc could not clairn the right under Arr. l9 ( I )(g). r;{

R.C. Cooper v/s union of India (Banks Nationalization Casc)

Facl of th e ccse, In that case several banking companies \\.ere nationalized by means of the banking
companies (Acquisition and transfer of undertakings) Act.l969.The public limited cornpanies which
u,ere thus nationalized could not have challenged the act. under Art-12 rvhich conlers certain
fundrmental rights only ou citizens

The court held that "A measure executiye or Legislative ma)i irnpair the right of the cornpany alone,
and not of its shareholders: it may impair the right of the shareholders and nor of the company, ir may
impair the right of.shareholder as well as of the company .A shareholder is cntirled to the protection
.under Article I9 of constitution".

In Gotlhra Elettric co., Lttl V/s State of Gujarat, (AIR 1975 SC32) Thc courr held that though a
company $'as not a citizcn under Article 19 but a shareholder, a managing director oia company had
,right to garr)- on business throrlgh agency of company and if that right u'as takcn arvay or abridged he
$,as not disriblcd lroni challcnging the ,aiiOity of the provisions of iny act. rvhich affected his right-

Bank Nationalisation artrl Bcnnctt Colcman casrs thc Sultrcnre Court hclri in DC &.GJ\I.v/s
union of Intlia, {AIR 1973 SC.106 (1972).}, has held that \Vrit Pctition hlcd by a company
conrplaining dcnial of fundarnental rights guaranteed unde r Article l9 is maintajnable . In th6 rnaite of
fundanrental ftcedoms guarauteed by Article 19, Desai,J. hcld. thc right of a shareholdcr and the
colllpany r.vhich the shareholders have formed are co-extensivc and the dcnial lo orle of thc
Iundailental lreedoms rvould be denial to the other. The iudge pcinted ouI that this is the modern
trcnd and strggested that the controversy on the point should beput to an end by'passing appropriate
Icgislrtion.

29