CONSTITUTIONAL LAW- I

 Adopted on 26th Nov, 1949

 Came into force on 26th Jan, 1950.

 Articles – 448, 12 schedules and 25 parts.

 2 years, 11 months and 18 days.

 Welfare state – Protector and Provider

What is a constitution?

1. Constitution is a basic document – Written

2. Provisions relating to different organs of government are present.

eg: legislative, executive, judiciary, TNPSC, UPSC, Election Commission etc

3. Concept of Separation of Powers – Montesquieu

4. Regulate the relationship between Part III and Part IV of Constitution.

South African Constitution

 1. Procedure for amendment of the Constitution

 2. Election of members of Rajya Sabha

Canadian constitution

A quasi-federal form of government —

a federal system with a strong central government

 Distribution of powers between the central government and state

governments

 Residuary powers retained by the central government

French constitution
Republic and the ideals of Liberty, Equality and Fraternity in the Preamble

Australian constitution

 Freedom of trade and commerce within the country and between the
states

 Power of the national legislature to make laws for implementing treaties,

even on matters outside normal Federal jurisdiction

 Concurrent List

Constitution of Soviet Union (USSR)

 Fundamental Duties under Article 51-A

 A Constitutionally mandated Planning Commission to oversee the

development of the economy

Constitution of Germany

 Emergency powers to be enjoyed by the Union

 Suspension of Fundamental Rights during emergency.

Constitution of Japan

 Procedure Established by Law

 HISTORY

 Regulating Act,1773

 Charter Act , 1833 and 1853

 Government of India Act, 1858

 Indian councils Act, 1861 and 1892

 Morley - Minto reforms, 1909

  Montague- Chelmsford reforms, 1919

 Government of India Act, 1935

Making of the Constitution

 Working of constitution

 Objective resolution

 Committees on constituent assembly

 Drafting committee

 Enactment

 Enforcement

 Criticism

 Drafting Committee

 7 Members

1. Dr.Ambedkar

2. Gopalswamy Ayyangar

3. Alladi Krishnaswamy Ayyar

4. Dr. K.M.Munshi

5. Syed Mohammed Saadullah

6. T.T.Krishnamachari

7. N.Madhava Rau

 1st draft – Feb, 1948.

 Eight months discussion – 2nd draft on Oct, 1948

Enactment :-
 Final draft on Nov,1948 and finally adopted on Nov 26,1949.

Criticism:-

1. Not a representative body

2.Not a Sovereign body

3. Long time in making the constitution

4.Dominated by congress

5.Lawyer politician domination

6. Dominated by Hindus

Salient Features of Constitution

 1. Lengthiest Constitution

 2. Parliamentary form of Government

 3. Rigidity and Flexibility

 4. Fundamental Rights

 5. DPSP

 6. Adult Suffrage

 7. An independent Judiciary – Judicial Review

 8.A Secular State

 9. Single Citizenship

 10. Fundamental Duties

Lengthiest Constitution:

Articles 448, 25 parts, 12 schedules and 103 rd amendment.

Parliamentary form of government:

1.British model

2.Responsibility is high

3. President is nominal head and real powers is vested with council of ministers
with PM.

Rigidity and Flexibility

Rigid Constitution – Special method of amendment is necessary.

Flexible Constitution – Amendment process is easy and same as legislative

process.

Fundamental Rights

FR are not absolute, they are subjected to restrictions.

Article 14, 19,21, 32 etc

Constitution tries to balance between the individual rights and the social
interest.

Directive Principles of State Policy

- non-justiciable

- Guidelines for policy makers

- balance between FR and DPSP

Adult Suffrage

- earlier communal electorate

- 18 years (61st Amendment Act, 1989)

- Article 326

- basis of independent democracy.

An independent Judiciary – Judicial Review

- where there is a right, there is a remedy.

- an independent and impartial judiciary with a power of judicial review has

been established under the Constitution of India.

- Custodian of the rights of citizens

- Article 13

A Secular State

- 42nd Amendment Act, 1976

- Article 25 to 28

- Basic structure of Constitution

Single Citizenship

Fundamental Duties

- Article 51 A

- 42nd Amendment Act,1976

Nature of Indian Constitution

 Is Indian Constitution Federal in nature?

 Unitary

 Federal

 Quasi Federal

 A federal constitution envisages a demarcation of governmental functions

and its powers between the centre and the state as sanctioned by the
constitution which is a written document. 
Essentials of Federalism:

1. Division of powers

2. Supremacy of Constitution

3. Rigidity of Constitution

4. A written Constitution

5. Authority of Courts

Prof. Wheare : “ The Constitution establishes a system of government which is

almost quasi- federal…….. a unitary State with subsidiary federal features rather
than a federal State with subsidiary unitary features”

 Jennings has characterized it as “a federation with a strong centralizing

tendency”.

Unitary features:

1. Appointment of Governors – Article 155 and 156

2. Parliament’s power to legislate in the national interest – Article 249

3. Parliaments powers to form new states and alter boundaries of existing

States – Article 3

4. Emergency Provisions – Article 352, 356, 360

Federal Structure

 Prof. Wheare has coined the word “Quasi –Federal”.

 American Constitution is truly federal type.

 Framers of Constitution took note of the practical needs of the country

designed on federal structure ‘not on the footing that it should conform to
some theoretical, definite or standard pattern, but on the basis that it
 should be able to subserve the need of the vast and diverse country like
India’.

 Thus , the Indian Constitution is mainly federal with unique safeguards for
enforcing national unity and growth.

Preamble of the Constitution

 The preamble declares :

“We, the people of India having solemnly resolved to constitute India into a
Sovereign, Socialist Secular Democratic and Republic and to secure its citizens:

Justice, Social, Economic and political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and opportunity; and to promote among them all;

Fraternity assuring the dignity of the individual and the unity and the integrity of
the Nation.

In our Constituent Assembly this twenty- sixth day of November, 1949 do

hereby, Adopt, Enact and Give to Ourselves this Constitution” .

 - is an introduction to the statute.

 - it embodies in a solemn form of all the ideals and aspirations for which
the country had struggled during the British regime.

 - it is a key to open the mind of the makers – Held in Berubari’s Case.

Ingredients :

(a) Source of authority of the Constitution – people

(b) Nature of Indian State

(c) Objectives of Constitution

(d) Adoption of Constitution

1. Sovereign –supreme power, independent , absolute and uncontrolled.

2. Socialist- added by 42nd Amendment Act,1976 - DPSP

3. Secular – added by 42nd Amendment Act,1976. Treating all the religions

equally. State does not recognize any religion.

4. Democratic – form of government which get its authority from the will of
the people.

(a) Direct

(b) Indirect

5. Republic – head of the state is not hereditary monarch.

Objectives

 Justice – Social, Economic and Political

 Liberty – of thought, expression, belief, faith and worship.

 Equality – of status and opportunity

 Fraternity – assuring the dignity of individual and the unity and integrity of
the nation.

42nd Amendment Act,1976 -:

1. Secular - S.R. Bommai v. Union of India , the supreme court held that
“secularism is the basic feature of the Constitution.”

2. Socialist

3. Integrity
Can Preamble be amended?

 Article 368 – Amendment Procedure

 In Re Berubari Case – SC held preamble is not a part of Constitution and it

is a key to open the mind of the makers.

 Presidential Reference “under Article 143(1) of the Constitution of India on

the implementation of the Indo-Pakistan Agreement Relating to Beruberi
Union and Exchange of Enclaves” which came up for consideration by a
bench consisting of eight judges headed by the Chief Justice B.P. Singh.

 Justice Gajendragadkar delivered the unanimous opinion of the Court. The

court ruled out that the

 Preamble to the Constitution, containing the declaration made by the

people of India in exercise of their sovereign will, no doubt is “a key to
open the mind of the makers” which may show the general purposes for
which they made the several provisions in the Constitution but
nevertheless the. Preamble is not a part of the Constitution

 Kesavananda Bharati vs State of Kerala (AIR 1973 SC 1461)- 13 Judges -

Held, preamble is a part of Constitution.

 Justice Sikri CJ – “It seems to me that preamble of our Constitution is of

extreme importance and the Constitution should be read and interpreted in
the light of the grand and noble vision expressed in the preamble”

Union and its Territories Article 1 to 4

 Article 1(1) – India that is Bharat – “Union of states”

 - No concept of federation between the states(agreements).

 Article 1 (3)– territory of India falls under three categories:

(a) States
 (b) Union territories

(c) Territories acquired by government of India.

 - Creation of states

 - Classified based on religion

 - Dhar commission (1948) – examined the situation for the reorganization

of states on linguistic basis.

 - JVP committee (1949) – Nehru, Patel and Pattabhi Sitaramayya- examined

the issue and concluded that India cannot be divided on linguistic basis
unless the people demand it.

 Fazl Commission – On dec 22, 1953, commission submitted the report

based on the wish of the people and created states based on linguistic
basis.

 - 14 States and 6 Union Territories was created under State Reorganization

Act, 1956.

 - Maharashtra, Gujarat

 Article 2 – Admission or establishment of new states:-

Parliament has two powers:

(a) Admit into the Union new states

(b) Power to establish new states.

Here, the word state includes Union Territory also.

- Federation like USA, Switzerland – the power is given to states.

 Article 3 – New states may be formed or established in the following ways:

(a) by separation of territory from any state

(b) by uniting two or more states

 (c) by uniting any parts of states

(d) by uniting any territory to a part of any state.

Eg: Sikkim- was added to India by Thirty Sixth Amendment Act, 1975 .

 Cases: -

1. Berubari union

2. Maganbhai Ishwarbhai Patel vs Union of India(Rann of Kutch case).

Dispute between India and Pakistan regarding the adjustment of boundary of

Rann of Kutch. Tribunal passed an order and it was implemented by the state.

Article 4 – Proviso clause

 Is the consent of state legislature necessary to separate a state?

- Telangana divided from Andhra Pradesh.

Citizenship (Article 5 to 11)

 Article 5 to 9 – determines who are the Indians at the commencement of

Constitution.

 Article 10 – Continuance of such citizenship

 Article 11 – power of parliament to make law regarding citizenship.

 Citizenship Act, 1955

Citizenship:

Hans Kelson “ Citizenship is a legal status determined by the specific rights and
duties”

Kinds:

1. Single

2. Dual
National, Citizen and Domicile - differences

 Article 5

 Article 5 – Acquisition of Citizenship

(a) who was born in the territory of India (or)

(b) either of whose parents was born in the territory of India (or)

(c) who has been ordinarily resident in the territory for not less than five years
immediately preceding such commencement.

Section 3 of Citizenship Act,1955 – confers citizenship by his birth in India.

 Article 6 and Article 7

 Migrants from Pakistan:

Due to Independence Act,1947, India was partitioned into India and

Pakistan, with effect from 15-8-1947.

- migrates from Pakistan were given citizenship by Article 6 and 7.

- Classified into two category:

1. Migrants from Pakistan before 19th July,1948

2. Migrants from Pakistan to India on or after 19th July,1948.

 Category I – Migrants before 19th July,1948:-

-these people were secured citizenship without application.

Eg: Advani

 Category II – Migrants on or after 19th July, 1948:-

- have to apply for registration for citizenship before the commencement

of Constitution and be residents for not less than 6 months preceding the date of
such application.
 - the applicant shall have to submit an application to the officer appointed
for this purpose.

- on registration, the second category persons acquired the citizenship.

(Sec 5 of Citizenship Act,1955)

Article 8 – Rights of citizenship of certain persons of Indian origin residing outside

India

Article 9 – if a person acquired citizenship of any other state, he shall cease to

claim citizenship in India.

Article 10 and 11 - Power of parliament to make laws for Citizenship.

 Citizenship Act 1955 and 2019

 Acquiring Citizenship (5 ways):-

 Citizenship by Birth – Born on or after Jan,1950- father should not be an

alien enemy.(sec 3)

 Citizenship of Descent- a person born outside India on or after January

26,1950 shall be a citizen by descent if his father is a citizen of India at the
time of the person’s birth.

 Should register with Indian Consular or his father should have been in
government service at the time of his birth.( sec 4 of Citizenship Act,1955)

 Citizenship by registration – sec 5 of Citizenship Act.

Indian origin who stays in India for 7 years before making an application.

 Citizenship by naturalization- A foreigner can acquire citizenship, on

application for naturalization to the government of India.(sec 6 of
Citizenship Act,1955).

 Stay for 12 months as well as 11 years out of 14 years.

 2019 Amendment – second requirement is reduced from 11 to 5 years.

  Citizenship by Marriage – A foreigner who marries an Indian citizen – can
apply for citizenship in India.(stay for 7 years)

Eg: Sonia Gandhi

Usha w/o K.R.Narayanan (Ex-President)

 Citizenship by incorporation of territory- if new territory is incorporated,

the automatically they are citizens of India.(sec 7 of Citizenship Act,1955)

Eg: Sikkim, Goa

 Overseas Citizenship of India (OCI)– Sec 7A to 7D.

 Persons of Indian Origin (PIO)- Card holder repealed in 2015.

Termination of Citizenship

1. Renunciation :

Renounce by declaring and registering with other country.(at the age of

majority)

2. Termination:

Voluntarily acquiring the Citizenship of another country ceases Indian

Citizenship.

3. Deprivation:

-Compulsory termination of Citizenship of India

 Citizenship acquired by naturalization, registration, domicile and residence

may be deprived by an order of central government if acquired under
following grounds:

1. Concealment of material facts, fraud or false representation.

 2. Unlawful trading with enemy during war or enjoying business assisting an
enemy.

3. Disloyalty towards the Indian Constitution.

4. Resident out of India for 7 years except he is a student of any educational

institution.

Article 12 – “State”

Definition of state:

1. Government and Parliament of India

2. Government and legislature of state

3. Local authorities

4. Other authorities

Within the territory of India or under the control of the Government of India.

Local Authorities:

Sec 3(31) of the General Clauses Act,1897 – “ Local authority shall mean a
municipal committee, district board, body of commissioner or other authority
legally entitled to or entrusted by the government within the control or
management of a municipal or local fund”.

 Local governments includes municipal corporation, district board, village

panchayat etc

 Ajit Singh vs State of Punjab – Held that village panchayat is also included
within the meaning of Local authorities.

Other Authorities

 University of Madras vs Shanta Bai

 Ujjambai vs State of UP
  Rajasthan Electricity Board vs Mohan Lal

 Sukdev vs Bhagatram

 R.D. Shetty vs Airport Authority of India

 Ajay Hasia vs Khalid Mujib Sehravardi

 Pradeep Biswas vs Indian Institute of Chemical Biology (2002)

1. University of Madras vs Shanta Bai(1953)

1) Whether Article 15(1) prohibits discrimination only by the State and

whether the University of Madras is a State and its directions are valid?

2) Whether  the right of a citizen to get admission into an educational

institution is governed not by Article 15(1), but by Article 29 ?

3)Whether the directions given by the University do not deny the right of
women to be admitted into colleges, but only regulates the exercise of that right?

 The Madras HC held that the University of Madras is not a state as defined
in Article 12 of the Constitution and that its regulations are not subject to
the prohibition enacted in Article 15(1); that admission to colleges is
regulated by Article 29(2) and that the regulations of the University
requiring that colleges should provide certain facilities for women before
they could be admitted are not discriminatory on the ground of sex. 

 These words must be construed 'ejusdem generis' (same kind or nature)

with Government or Legislature and so construed can only mean
authorities exercising governmental functions. They would not Include
persons natural or Juristic who cannot be regarded as Instrumentalities of
the Government. The University of Madras is a body corporate created by
Madras Act VII of 1923.

 The University is authorised to raise its own funds of income from fees,
endowments and the like. It is a State-aided institution, but it is not
maintained by the State.
2. Ujjammbai vs State of UP (1962)

The court rejected the restrictive interpretation given by Madras High Court
and held that the principle of ‘Ejusdem Generis’ cannot be applicable to Article
12.

3. Rajasthan Electricity Board vs Mohan Lal

(1967)

The word ‘other authorities’ include all authorities created by the

Constitution or statute. It is not necessary that the statutory authority should be
engaged in governmental or sovereign function. Hence electricity board comes
within the definition of state under Article 12.

Umesh vs V.N.Singh(1968) – Held Patna University is a state.

4. Sukdev vs Bhagatram (1975)

The court in 4:1 majority held that Oil and Natural Gas Commission, Life
Insurance Corporation and Industrial Finance Corporation are authorities within
the meaning of Article 12.

They have the power to make regulations under the statute.

- Court now tried to give liberal interpretation in Airport Authorities Case.

5. R.D. Shetty vs The international Airport Authority of India(1979)

Held, if a body is ‘an agency or instrumentality of government’ it may be an

authority under Article 12.

The Court laid down the following test to determine whether a body is an
agency or instrumentality?

(i) Entire share capital is owned or managed by state.

(ii) Enjoys monopoly status
(iii) Department of government is transferred to corporation
 (iv) Functional character is governmental in essence
(v) Deep and Pervasive state control
(vi) Object of authority

6. Ajay Hasia vs Khalid Mujib Sehravardi(1981)

It was held that society registered under Societies Registration Act,1898 is an

agency and instrumentality of the state. The expenses of the society is entirely
provided by the government.

7. Pradeep Biswas vs Indian Institute of Chemical Biology (2002)

Held, that the Council for Scientific and Industrial Research (CSIR) is not the State
within the meaning of Article 12  of the Constitution.

 -The Government does not hold the entire share capital of CSIR. 

 -It does not enjoy any monopoly status, much less conferred or protected
by Government. 

 -There is no provision in the rules or the byelaws that the government can
issue such directives as it deems necessary to CSIR.

 -CSIR did not discharge any governmental or sovereign functions.

 -True that there is some element of control of the government but not a
deep and pervasive control.

8. Alim Basha Case

9. BCCI Case