Constitution law Notes
Question 1 :- Explain Preamble as a part of constitution?
Answer– The preamble sets out the purpose and object for which a statute is enacted.
The Preamble of the constitution says-
We the people of India having solemnly resolved to constitute India into a sovereign, socialist, secular democratic Republic and to secure to all its citizens. :
Justice, social, economic and political.
Liberty of thoughts, 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 integrity of the Nation.
In our constitution Assembly this twenty-sixth day of November, 1949 do hereby adopt enact and give to ourselves this constitution.
The Preamble of the constitution is a key to open the mind of the makers for which they made several provisions in the constitution. In constitution preamble occupies an important place &
The constitution should be interpreted in the light of the ideals mentioned in the preamble. Keshvanananda Bharati v.State of Kerla 1973.
In Berubari case Supreme Court held that preamble is not a part of the constitution, but in Keshavananda Bharati case the SC held that Preamble is a part of the Constitution and all importance is to be attached to it in interpreting the constitution. In the same case the court also held that the objectives specified in the preamble contain the basic structure of our constitution, which cannot be amended in exercise of the power under Article 368 of the constitution .
Preamble declares that people of India are the source of the constitution. The government derives all its authority from the people of India. The nature of the government which the preamble establishes is a sovereign, socialist, secular, democratic republic.
The objectives of the Indian constitution is to secure to its people, justice, Liberty, and fraternity, the dignity of the individual and the unity and integrity of the nation.
By the Constitution (42nd amendment) Act, 1976 parliament has inserted the words secular, socialist and integrity in the Preamble. In case of Aruna Roy v. Union of India 2003 secularism has been held to be knowledge of and respect for all religions and fostering feeling of respect for them.
Question 2- Describe citizenship under constitution?
ANSWER– At the commencement of this constitution every person who has his domicile in the territory of India and i) who was born in the territory of India ii) either whose parents was born in the territory of India iii) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India.
According to the Federal principle, the constitution of USA provides for dual citizenship i.e. the citizenship of the USA and the citizenship of the state. But India had opted for a single citizenship, that is the citizenship of India. There is no state citizenship.
The citizenship Amendment Act, 2003 has paved for conferring Indian Citizenship not only upon the persons of Indian origin but citizens of certain other countries also. The amendment has obviously reserved the idea of single citizenship and introduced a limited sort of double citizenship.
Question 3:- Define the word ,” State” as per the Article 12 of Constitution of India?
Answer: Article 12 of the constitution of India defines the term State, as, “In this part, unless the context otherwise requires, the state includes the Government and Parliament of India and the government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the government of India.”
Thus the term state includes :–
- The Government of India
- The Parliament of India
- The government of each state
- The legislature of each state
- All local authorities within the territory of India and under the control of the Government of India
- All other authorities within the territory of India and under the control of the Government of India
Thus the state includes Executive and the Legislative organs of the Union and States besides the Local or other authorities within the territory of India or under the control of the Govt., of India.
Authorities- In article 12 of constitution of India the word authority means the person or body having the power to make laws orders, regulations, bye-laws, notifications etc., which have the force of law and have the power to enforce those laws.
Local Authorities :-According to sub-section 3(1) of section 3 of the General Clauses Act 1897, local authority means a Municipal Committee, District Board, Body of Commissioners or other authority legally entitled to or entrusted by the government within the control or management of a municipal or local fund.
Other Authorities :– In case of Electricity Board v. Mohan Lal, SC has observed that the term other authorities used under Article 12 includes all the authorities created by the Constitution of India or Statute on whom powers as conferred by law, whether or not they are engaged in performing governmental functions.
In later decisions the Supreme Court gave a wider interpretation of the expression, ‘other authorities’.
In case of Ramanna Dayaram Shety v. The International Airport authority of India, The Supreme Court held that if a body is an agency or instrumentality of government it is an authority within the meaning of Article 12, whether it is a statutory corporation, a government company or even a registered society. In this case the SC laid down the following tests for determining whether body is an agency or instrumentality of the govt.
( 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 governmental in essence.
( v ) Deep and pervasive State control
( f ) Object of Authority
Further, In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, The Supreme Court has held that the Council of Scientific and Industrial Research is an instrumentality of the State within the meaning of Article 12 of the constitution.
JUDICIARY AS A STATE
The present position appears to be that when the judiciary acts in its judicial capacity, it is not included within the term other authorities and therefore it is not ‘State’ within the meaning of Article 12 of Indian Constitution, whereas when it acts in administrative capacity it is included within the term’ other authorities’ and therefore, it is a State.
Question 3 :- “Article 14 permits classification, but prohibits class legislation.” Discuss?
Ans:- The guarantee of equality before the law and equal protection of the laws doesn’t mean that all the laws must be universal in application to all persons irrespective of differences in their circumstances. Equal treatment with persons in unequal circumstances amounts to inequality and hence article 14 permits classification of people between peoples which are unequal on basis of circumstances but article 14 does not permit class legislation which means undue discrimination by conferring some privileges upon an arbitrarily selected group of people though all of them are similarly circumstanced in relation to privilege conferred on the selected class. The class legislation amounts to unequal treatment with equals are void under article 14.” Equality is for equals” means those who are at similar circumstances are entitled to an equal treatment.
The guarantee of equality does not imply that the same rules shall be applicable to all persons in spite of differences in their circumstances. In APBC Singh v. Jharkhand state Vaishya Federation 2006, the Jharkhand state had amalgamated extremely backward class and backward class into one group for the purpose of reservation in professional and educational institutions. The court has held that the decision of the state government, amalgamating the extremely backward classes and backward classes is violative of Article 14 of constitution because two different classes have been treated similarly. Merely showing that the Council of Ministers had applied their minds in order to arrive at the decision is not tenable and such decision is arbitrary and unreasonable and is subject to judicial review.
In case of Shashi Mohan v. State of West Bengal, the court laid down- What article 14 prohibits is class legislation. But it does not forbid reasonable classificat ion. The classification should not be arbitrary but must rest upon some real and substantial distinction having some relationship which is reasonable to the things in respect of which the classification is sought to be made. The classification can be based on the basis of geography or other objects or occupation.
In Menka Gandhi case v Union of India, the Supreme Court observed that equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. The court reiterated the majority view in E.P.Royappa v.state of Tamil Nadu that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades article 14 like a brooding omnipresence.
Question 4- Explain Doctrine of Severability?
Article 13 Clause (1) provides that all laws in force in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of this part, shall to the extent of such inconsistency, be void.
Clause (2) of Article 13 says that the state shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention be void.
It means that where only a part of law is inconsistent with or contravenes the fundamental rights provided in part III of constitution, it is only that part which shall be void under article 13 and not the whole of the law. The courts apply the doctrine of severability to separate the invalid portion of the law from the valid portion.
In a case State Of West Bengal v .Committee for protection Democratic Rights, West Bengal Supreme court held that, Any law that abrogates or abridges fundamental rights are void and would be violative of the basic structure.
In Keshavananda Bharati vs State of Kerala and Minerva Mills ltd. vs Union of India supreme court held that The basic features of the constitution cannot be amended by exercising the power of amendment under article 368 of constitution.
Question 5- Describe Doctrine of Eclipse?
According to this doctrine a law existing at the time of coming into force of the constitution and inconsistent with a fundamental rights though becomes inoperative from the date of the commencement of the constitution. It is not dead altogether. Though it is overshadowed by the fundamental rights and remains dormant, it is not wiped out from the statute books. It stands for all the transactions and for the enforcement of rights incurred during pre-constitution period. If this shadow or eclipse is removed by the appropriate constitutional amendment the law recover consciousness. This question was considered by the Supreme court in Bhikaji Narain v. State of MP the court held that an existing (pre-constitution) inconsistent law is not dead and can be revived by any subsequent amendment of the constitution. In that case a law authorised the State Government, to nationalize motor transport business. This law became void on coming into force of the constitution in 1950 as it is violated article 19(1)(g). In 1951 Article 19(2) was amended which authorised the state government to nationalized motor transport business. It was held, the amendment had removed the shadow and made the law enforceable. All existing laws are continued to be valid till courts declares them to be in conflict with fundamental right enshrined in Part III of Indian constitution and therefore void. Therefore the declaration of validity of the court is necessary.
Question 6- Discuss Protection in respect of conviction for offence?
PROTECTION FROM EX-POST FACTO LAW
Article 20(1) of the constitution of India provides, “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor he subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence.”
It means that person can only be convicted of an offence, if the act was charged against him was an offence under the law in force at the date of commission of the act. In other words if an act is not an offence at the date of its commission, it cannot be made an offence at any date subsequent to its commission and a person cannot be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. In case of Venkataraman v. Union of India the court held that such a trial under a procedure different from what obtained at the time of the offence or by a court different from that which had the competence at the time cannot ipso facto be held to be unconstitutional. Protection of cause (1) or Article 20 cannot be claimed in cases of preventive detention.
PROTECTION FROM DOUBLE JEOPARDY
Article 20(2) provides “No person shall be prosecuted and punished for the same offence more than once.”
The constitutional protection against double jeopardy is available to the citizens as well as non citizens of India. In order to bring the matter within the prohibition of Article 20(2) it must be shown that he had been (i) Prosecuted before a court. (ii)Punished by it (iii) The punishment was for,” the same offence “ for which he is being prosecuted again.
In case Kalawati v. State of M.P the court laid down that accordingly there can be no constitutional bar to a second prosecution and punishment for the same offence unless the accused had already been punished in the first instance.
Article.20(2) it embodies four essentials :
- There must be a person accused of an offence.
- The proceedings of the prosecution shall have taken place before a court or judicial tribunal and not before the executive or administrative action.
- The proceeding should have been taken before the judicial tribunal or court in reference to the law which creates offences.
- The person must have been prosecuted and also punished in the previous proceeding.
Article 20(3) of constitution of India provides,” no person accused of any offence shall be compelled to be a witness against himself.” This means that no accused shall be compelled to confess which might lead to his conviction.
i) It is the right of an accused
The privilege under article 20(3) is confined only to an accused i.e. a person against whom there is a formal accusation relating to commission of an offence, which in the normal course may result, in prosecution. In Veer Ibrahim v. State of Maharashtra, the court held that where a custom Officer arrests a person and informs him of the ground, for the purpose of holding enquiry there is no formal accusation of an offence.
ii) It is protection against compulsion to be witness.
The phrase used in Article 20(3) is “ to be witness” and not “appear as witness“. Every possible volitional act which furnishes evidence is testimony and testimonial compulsion connotes a coercion which procures the positive volitional evidentiary acts of the person as opposed to the negative attitude of silence or submission on his part. Case : M.P.Sharma v. Satish Chandra 1954. The interpretation of the phrase,“ to be witness” given in above case is too wide and requires a qualification. Self-incrimination can only mean conveying information based upon personal knowledge of the person giving information and cannot include merely mechanical process of providing documents in court.
iii) The Prohibition is only against the compulsion of the accused to give evidence against himself.
There is not constitutional disability against an accused being a witness on his own behalf. In case of Nandini Satpathi v. P.L.Dhani, the court laid down that the phrase, compelled testimony” must be read as evidence procured not merely by a physical threats or violence but also by psychic torture.
In case of Yusafali v. State of Maharashtra the Supreme Court observed that production of a tape-recorded statement of the accused recorded without his knowledge and without use of force or oppression was held to be not hit by Article 20 (3) and hence admissible in evidence.
Question7 :- Discuss the scope of the right to freedom of speech and expression. Does the constitution permits its curtailment? If so on what ground and to what extent?
Answer:- Freedom of speech and expression is a fundamental right provided under Article 19(1) (a) in the part III of the constitution of India. Article 19 provides certain freedom for the individual. In a case LIC v/s Manu Bhai D.Shah, the apex court held that,”speech is Gods- gifted to mankind. Through speech a human being conveys thoughts, sentiments and feeling to others, freedom speech and expression is thus a natural right which a human being acquires on birth.”
Article 19(2) imposes certain reasonable restrictions on these freedoms. The preamble of our constitution also provides right of the freedom of speech and expression.
Freedom of speech means one has the freedom to speak. But this freedom is not absolute or complete, no one can speak in such a manner which is injurious to others and on such a matter which is prohibited by law itself.
Freedom of expression means to express or propagate a thing. Expression may be done through written or through other means.
In National Anthem Case 1986, It was laid down that the right to speak also includes the right not to speak. In this case, three students of Jehyesh’s school were expelled by the governing body of this school on the ground of not speaking national anthem with other students. They challenged it in the court. The Supreme Court held that the freedom of speech and expression also includes not speaking and not expressing their thoughts. One cannot be compelled to speak or express.
The right of freedom of speech and expression is available even outside of India. In Case of Menka Gandhi v/s Union of India, the government argued that this right can be restricted on the ground of out of the territory of India because this right is available only within India. It cannot be enforced in the foreign countries. But, Supreme Court held that this right could not be restricted on the ground of territorial extent. It includes the freedom of speech and expression even outside of India.
FREEDOM OF PRESS: The right of speech and expression includes the freedom of press. The idea of the freedom can be expressed by the way of press. Press is the fourth estate of the democracy the fourth pillar of the democracy. Thus no restriction can be imposed on the freedom of press. In case of Sakal Papers v/s Union of India, the Daily Newspapers (Price and Page) Order, 1960, fixed the number of pages and size which a newspaper could publish at a price was held to be violative of freedom of press and not a reasonable restriction under the Article 19(2).
Similarly, in case of Bennett Coleman and Co. v/s Union of India, the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Court holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2).
Article 19 (2) imposes reasonable restrictions on freedom of speech and expression on grounds of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement of defence.
- Sovereignty & Integrity of India: By 10th amendment so any such speech which can be dangerous to the Unity and integrity of India can be restricted.
- Friendly relation with foreign states: by first amendment 1951 friendly relation should be maintained with other countries.
- Public Order: Any such speech which is dangerous to the unity of the country can be restricted under Article 19(2).
- Decency and morality: Any such speech and expression which is against morality can be restricted. To show film is also a mode of freedom of speech and expression. Any such thing or scene or speech which is injurious to the society will be prohibited under Article 19(2).
- Contempt of Court:-Any-thing said against the interest of the court can be prohibited, if any one interferes in courts business it is offence and Punishable.
- Defamation:- Any statement which gives injuries to man’s status under section 499 and 500 of IPC.
- Incitement for an offence– Abetment or to provoke through speech It is an offence under section 107 IPC.
These are the reasonable restrictions, which can be imposed on the right of freedom and speech and expression under constitution of India.
Question 8: What is right to life and personal liberty ? How the new dimension Has been given to it by Judiciary?
Answer- The right of life means to live and survive. Personal liberty means freedom of person. These are the most important rights of a person. No one has the right to take away these two rights of a person. These rights are protected by the constitution under article 21. The concept of personal liberty is borrowed from the American constitution.
According to Article 21 “ No person shall be deprived of the right of life or personal liberty except according to the procedure established by law”
No Person includes any person whether citizen or non-citizen
Personal Liberty: It consisted two things i) Personal ii) Liberty. Personal means relating to person or body. Liberty means freedom. So personal liberty means the freedom of the body or bodily freedom in art. 19 there are certain freedoms, but art 21 contains certain other types of freedoms which are particularly related with body. For exp. To eat, sleep and sit etc., according to one’s own choice.
In case of A.K. Gopalan v. State of Madras, the Supreme Court held that freedom under Article 21 was restricted to bodily freedom only but later Menka Gandhi case overruled the A.K Gopalan case and the concept of personal liberty was applied very widely by the Supreme Court.
In A.K.Gopalan v/s State of Madras, A.K.Gopalan was aarrested under the Preventive Detention Act 1950 and It was held by the Supreme Court that the arrest and the imprisonment of the accused under this act is not against Article 21.
Right of Privacy:- in Case of Kharak Singh v/s State of U.P., the police of UP state suspected that the petitioner has links with certain Dacoits. For the purpose of investigation, the police interfered in the personal life of Kharak singh. Police even searched his house at night and police used to ask from the petitioner at midnight about his whereabouts. The petitioner challenged these actions of the police under article 21. He argued that these actions of the police infringe his personal liberty.
The Supreme Court held that the police could not interfere in the personal life of the petitioner without the procedure established by law. People want to live with privacy. Thus in this case, the right of privacy was included in the right of liberty.
RIGHT TO TRAVEL TO ABROAD- In Menka Gandhi v/s Union of India, passport of the petitioner was confiscated by the Passport authorities giving no reason for confiscation to the petitioner. The petitioner challenged the confiscation on the ground of personal liberty. Supreme Court held that law should also be based on the principle of natural justice. The procedure established by the law should be reasonable and based on natural justice and the opposite party should be given opportunity of being heard.
RIGHT TO DIE : In case of Marui Sripati Dubal v/s State of Maharashtra 1986 the Bombay High court held that the right to die also comes under the right of personal liberty. So committing to suicide should not be taken as an offence. It is a freedom of human beings to live or to die. Therefore section 309 of IPC is against Article 21 of Indian constitutin. In this case a police constable due to adverse family circumstances tried to commit suicide. He was prosecuted for this act. The court held that he was not liable under section 309 of IPC.
In another case of P.Rathanam and Nag Bhushan Patnaik v/s.Union of India, The Supreme Court confirmed the decision of Bombay High Court and held that the right to live also includes the right to die, so it is personal liberty of a person to finish his life.
RIGHT OF EDUCATION: In case of Miss Mohini Jain V/S State of Karnataka, the petitioner could not get admission in the professional course due to high capitation fees. There are some orders of the Government, of Karnataka for taking capitation fees. The fee was Rs.60,000/-for the out state candidates. Petitioner challenged it on the ground that the right to education also come under the right of personal liberty. The Supreme Court held that its decision according to the petitioner’s argument.
In case of Unikrishanan v/s State of Andhra Pradesh, the court modified the scheme laid down in Mohini Jain case in relation to NRI students and held that out of entire the seats only 5% seats can be filled up by NRI students, on the basis of merit, to be judged by the management of the college concerned and not on the basis of entrance examination.
DOCTOR LIABILITY:- In case of PARMANAND KARTARA V/S UNION OF INDIA, it has been made a rule now there is no need to file FIR, according to the rules of CrPC for the purpose of curing the wounded person in an accident. The Supreme Court held that it is a duty of professional doctor whether private or government, to cure(care) the wounded person first and to report to police afterwards.
SUSPENSION OF ARRTICLE 21 DURING EMERGENCY:- During National emergency, under article 352 of Indian Constitution, Article 21 cannot be suspended. In 44th amendment 1978 it has been added that Article 21 cannot be suspended during emergency.
Question 9: Constitution of India Provides freedom of Religion or Secularism. What are the restrictions which can be imposed by the State on this freedom?
Answer: Right to freedom of religion is contained from Article 25 to28 of constitution of India, these articles are contained in the part III of the constitution. As part III is related with the fundamental rights, Article 25(1) gives the conditions for the freedom of religion. Under Article 25(2) there are certain restrictions on this freedom of religion. Article 26 deals with the management of the religious affairs and the maintenance of religious institution. Article 27 talks about the income earned by the way of religious activities shall not be taxable, Article 28 provides that the Government, shall not give any aid for the religious activities. These four Articles give the ideas of secularism. The preamble of the constitution also says that there is freedom of thought, expression, belief and faith.
Secular state means a State, which is neither anti-religious, nor religious. It means such a state has not its own religion but it does not prohibit any person for adopting any religion.
RIGHT TO FREEDOM OF RELIGION: According to article 25(1) there is guarantee to every person for the freedom of conscience and right to profess, practice and propagate the religion. It gives the guarantee for the freedom of religion. This article mainly contains the following two things:
- Freedom of conscience.
- Right to profess, practice and propagate the religion.
Freedom of Conscience: Every person has freedom of conscience. It means, to think according to one’s own will. Conscience is an internal matter upon which there is no control of any other person. In India a person is free to adopt any religion or he is free to adopt no religion. He may be antitheist.
RIGHT TO PROFESS, PRACTICE AND PROPAGATE: Profess means to accept anything. In India a person is free to accept any religion. There is no restriction on him for this purpose. Practice means to perform the religious activities. It means that one is free to follow the customs or ceremonies or other activities of a religion. Propagate means to spread the religion it means one has the right to spread his religion. It means one has the freedom to make others as his followers in this religion. For this purpose one has the right to express his thoughts or ideas about his religion but propagation of this does not mean the conversion of the religion. Conversion is interference in the propagation of another religion.
RESTRICTION OVER THE FREEDOM OF RELIGION: Freedom of religion is not an absolute freedom. Some restrictions may be imposed on this right for the interest of public. The article 25(2) lays down certain restrictions.
Restriction in the interest of public morality and health:-To maintain law and order is prime duty of the government. So, the government may impose certain reasonable restriction on the religious activities. If they are dangerous to the public. In caae of Gulam Abbas V/s State of UP, the Supreme Court rejected this argument and held that to decide a dispute between two sections such acts petition come under the reasonable restrictions.
Recently, in election of Maharashtra Chief Minister during Dec., 1995 the election of Mr. Murli Manohar Joshi was challenged on the ground of religion and freedom of speech and expression. The petitioner argued that Mr.Joshi used some words like Hindu or Hinduism during his election speech.
Supreme Court held that to ask for votes in the name of Hindu or Hinduism do not denote or represent religion. These words are used for a particular community residing in India. Mr joshi was protected with reference to freedom of religion and freedom of speech and expression.
- Morality: To Practice or propagate any such activity in the name of religion which effects the morality of persons is restricted. That is to practice prostitution in the name of religion, is not valid.
- Health:- In the shia act, there is a provision for slaughtering the cows in the public place because of its effects on the health it is not reasonable even if to be related with religion.
- Regulating economic or secular of administrative activities: it means monitory or financial matters. Some reasonable restrictions may be imposed on the economic, financial or political matters of the religious activities. There are certain secular activities which have no link with the religion can be prohibited under Article 25(2). Case: SP Mittal v/s Union of India 1983. In this court held that certain reasonable restrictions could be imposed in the administrative activities of any religion. In other case :State of W.Sbegal v/s Ashutosh Lohri -1995, The SC held that the decision of the Mohd. Hanif & Qureshi v/s state of Bihar, the slaughtering of cows no the essential elements of Muslim religion.
- Social Welfare Reform : Certain restricitions may be imposed for the purpose of social reforms, for example Sati Pratha which is considered as a religious activity under Hindu religion has been prohibited by passing the sati pratha prevention act. Similarly in south Devdasi Pratha according to this pratha the girls were sent to the temple for entertain of the guests in the temple under this practice, there were incidents by which these girls were misused, so the restrictions in the name of social reforms imposed on this pratha under section 25(2).
Article 26 Freedom to manage religious Affairs : Says that any denomination has the freedom to manage the affairs of its religion. For this purpose, following rights have been given:
- To establish and maintain institution for religious or charitable purposes.
- To maintain the religious affair in these institutions.
- To acquire and hold movable and immovable property for these institutions.
- To dispose of such properties according to law.
Article 27 provides that no tax can be imposed upon religious income. Even state can also not impose tax on any person or property for the promotion of religion.
Article 28 also provides that no religious instruction shall be provided in any educational institution wholly maintained out of state funds. There is complete freedom of religion in India except certain restrictions as explained above. Thus, India is a secular state.