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Q.No. Discuss the Salient Features of Indian Constitution.Introduction: The Constitution of India is the supreme law of India. It is a living document, an instrument which makes the government system work. It lays down the framework defining fundamental political principles, establishes the structur...

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Q.No.1. Discuss the Salient Features of Indian Constitution. Introduction: The Constitution of India is the supreme law of India. It is a living document, an instrument which makes the government system work. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers and duties of government institutions and sets out fundamental rights, directive principles and the duties of citizens. It is the longest written constitution containing 448 articles in 25 parts, 12 schedules, 5 appendices and 101 amendments. Dr. Bhimrao Ramji Ambedkar is widely regarded as the architect of the Indian Constitution. The Constitution was adopted by the India Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950. Meaning of Constitution: A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed Salient Features of Indian Constitution: 1. A Written Constitution The Indian Constitution is mainly a written constitution. As you have already read that our constitution was framed over a period of 2 years, 11 months and 18 days, it was adopted on 26th November, 1949 and enforced on January 26, 1950.The British Constitution is an example of unwritten constitution. 2. The lengthiest Constitution in the World: The Indian constitution is the lengthiest in the world. The original constitution had 395 Articles divided into 22 Parts and 12 Schedules, while, the constitution of USA has only 7 Articles. The framers of the Indian Constitution have gained experience from the working of all the known Constitution of the world.. The vastness of the Country and peculiar problems relating to the language have added to the bulk of the constitution. The Constitution contains a long list of Fundamental Rights and also a number of Directive Principles. 3. Parliamentary form of Government India has a parliamentary form of democracy. This has been adopted from the British system. In a parliamentary democracy there is a close relationship between the legislature and the executive. The Cabinet is selected from among the members of legislature. In this form of democracy, the Head of the State is nominal. In India, the President is the Head of the State. Constitutionally the President enjoys numerous powers but in practice the Council of Ministers headed by the Prime Minister, which really

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exercises these powers. The President acts on the advice of the Prime Minister and the Council of Ministers.

4. A Combination of Rigidity and Flexibility: The Indian Constitution is a unique example of combination of rigidity and flexibility. A constitution may be called rigid or flexible on the basis of its amending procedure. The Constitutions of USA, Switzerland and Australia are considered rigid constitutions. While, the British Constitution is considered flexible because amendment procedure is easy and simple. The Constitution of India provides for three categories of amendments. In the first category, amendment can be done by the two houses of Parliament simple majority of the members present and voting of before sending it for the President’s assent. In the second category amendments require a special majority. Such an amendment can be passed by each House of Parliament by a majority of the total members of that House as well as by the 2/3rd majority of the members present and voting in each house of Parliament and send to the President for his assent which cannot be denied. In the third category besides the special majority mentioned in the second category, the same has to be approved also by at least 50% of the State legislatures. Thus, you see that the Indian Constitution provides for the type of amendments ranging from simple to most difficult procedure depending on the nature of the amendment. 5. Fundamental Rights and Fundamental Duties Every human being is entitled to enjoy certain rights which ensure good living. In a democracy all citizens enjoy equal rights. The Constitution of India guarantees those rights in the form of Fundamental Rights. Fundamental Rights are one of the important features of the Indian Constitution. The Constitution provides for six Fundamental Rights. Fundamental Rights are justiciable and are protected by the judiciary. Fundamental Duties were added to our Constitution by the 42nd Amendment. It lays down a list of ten Fundamental Duties for all citizens of India. While the rights are given as guarantees to the people, the duties are obligations which every citizen is expected to perform. 6. Directive Principles of State Policy The Directive Principles of State Policy which have been adopted from the Irish Constitution, is another unique feature of the Constitution of India. The Directive Principles were included in our Constitution in order to provide social and economic justice to our people. Directive Principles aim at establishing a welfare state in India where there will be no concentration of wealth in the hands of a few. 7. Independence of Judiciary 2|Page

India has a single integrated judicial system. The Supreme Court stands as the apex court of the judicial system. Below the Supreme Court are the High Courts. The High Courts control and supervise the lower courts. The Indian judiciary, thus, stands like a pyramid with the lower courts as the base, High Courts in the middle and the Supreme Court at the top. Indian judiciary is independent an impartial. The Indian judiciary is free from the influence of the executive and the legislature. The judges are appointed on the basis of their qualifications and cannot be removed easily

8. Single Citizenship In a federal state usually the citizens enjoys double citizenship as is the case in the USA. In India there is only single citizenship. It means that every Indian is a citizen of India, irrespective of the place of his/her residence or place of birth. He/she is not a citizen of the Constituent State like Jharkhand, Uttaranchal or Chattisgarh to which he/she may belong to but remains a citizen of India. 9. Universal Adult Franchise Indian democracy functions on the basis of ‘one person one vote’. Every citizen of India who is 18 years of age or above is entitled to vote in the elections irrespective of caste, sex, race, religion or status. 10. Emergency Provisions To cope with such situations, the Constitution elaborates on emergency provisions. There are three types of emergency; a) emergency caused by war, external aggression or armed rebellion; b) emergency arising out of the failure of constitutional machinery in states; and c) financial emergency. Q.No. 2. Discuss the legal position and significance of the preamble of the constitution of India with decided cases. Introduction: Every constitution begins with a preamble. The word preamble is a Latin term which means “to go before”, “introduction to important statute”. Preamble says briefly about the objects, purpose intended to be served by the statute. The preamble represents the aspirations of the people of India. In Berubari case, the Supreme Court observed “ the preamble to the constitution is a key to open the minds of the makers and shows the general purpose for which they made the several provisions in the constitution”. The Preamble declares:

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“ 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 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”. SIGNIFICANCE OF THE PREAMBLE: The significance of the preamble as follows: 1. We the people of India: The phrase “we the people” has taken from the constitution of U.S.A. this means that the constitution of India has been framed and enacted by the people of India. 2. Sovereign State: India declared by the preamble itself as ‘Sovereign’. The word sovereign means supremacy of the nation. Sovereign power is also described as that power which is absolute and uncontrolled. Both internally and externally India is sovereign. India at present is not under the control of any other nation as it maintains its own sovereignty. 3. Socialistic: This is a new term inserted in the constitutional 42 nd Amendment Act 1976. The constitution of India adopts socialistic pattern of society. That is, a form of ownership and control of the means or factors of production and distribution by the economy in the interests of the society as a whole and to ensure fair and equitable distribution of the wealth of the country.

4. Secular: Our Government respects all religions. It does not uplift or degrade any particular religion. No religion is recognised as religion of the state. 5. Democracy:

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The real powers is in the hands of the people. That is, the rulers are elected by the people, and are responsible to the people. Every citizen of India who is aged 18 years and above, is entitled to vote, irrespective of his caste, religion, race, economic position, language. 6. Republic: The term Republic used in the preamble of our constitution signifies that India has elected representatives as the head of the state. The president of India is the elected head of the state. The President of India is not a hereditary monarch. He is an elected person, chosen for a limited period, usually for 5 years. 7. Justice: The preamble intends that the justice must be given to every citizen irrespective of poverty, richness, caste, race, religion, sex, political power. Justice aims at the attainment of common good. Justice includes social economic and political justice. Social justice implies that all citizens are treated alike irrespective of their caste, creed, religion etc. economic justice means treating the rich and the poor equally. Political justice means equal right to all citizen in the political process without any discrimination. 8. Liberty: Liberty implies the creation of conditions necessary for the fullest development of the personality of an individual which is essential for social progress. Liberty is one of the pillars of the democratic system. Liberty implies liberty of thought, expression, belief, faith and worship. 9. Equality: Equality means equality of status and of opportunity. As all human beings are born equal, they should be provided equal opportunity’s in all walks of life under equal circumstances. Equality ensures equal protection of law. 10. Fraternity: Fraternity means the spirit of brotherhood among all the sections of the people of India. Fraternity is necessary to ensure both the dignity of the individual and the unity and integrity of the nation. SOME OF THE LEADING CASES RELATING TO SIGNIFICANCE OF THE PREAMBLE: 1. In Beru Bari Case, the Supreme Court held that the preamble was not a part of the constitution, and so, it could never be regarded as a source of any substantive powers.

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2. In Keshavananda Bharati Case, the Supreme Court rejected the above view and held that the preamble is the part of the constitution. All importance has to be attached to the preamble in a constitution should be read and interpreted in the light of the grand and noble vision expressed in the preamble. 3. In Indira Gandhi V/S Raj Naraian Indira Gandhi, the then Prime Minister and Raj Naraian were the rivals in a General Elections of Parliament. Raj Narain filed a case against her contending that she misappropriated her power in the elections. The Allahabad High Court quashed the election of Indira Gandhi as void. To protect the seat of Prime Minister ship, the Parliament inserted Article 329-A protecting Prime Minister and Speaker from any election disputes and guaranteed for their term. The Supreme Court held that certain provision of Article 329- A is against the Basic Structure Theory, and it is against the essential element of “Democracy” mentioned in the preamble. The Supreme Court, therefore, struck down certain provisions Article 329- A as unconstitutional. Q.No.3. Who is a Citizen? How Citizenship may be acquired through domicile? The population of a country can be divided into two classes namely 1. Citizens and 2. Aliens. A citizen of a state is a person who enjoys full civil and political rights. Citizens are different from aliens who do not enjoy all these rights. Citizenship carries with it certain advantages conferred by the Constitution. Part- II Articles 5 to 11 of the constitution deals with the Citizenship.  Fundamental Rights Available to the Citizens: The following fundamental rights are available only to citizens: (1) The right not to be discriminated against any citizen on the grounds of religion, race, sex, or place of birth. (2) The right to equality of opportunity in the matter of public employment. (3) The six freedoms enumerated in Article 19, i.e., freedom of speech and expression; assembly; association; movement; residence; profession. (4) Cultural and educational rights. (5) There are certain offices under the constitution which can be occupied by citizens only e.g., office of the President, Vice-President, Judges of the Supreme Court or a High Court, Governor of a State etc…. (6) The right to vote for election to the House of the People and the Legislative Assemblies of States is available to the citizens.  The rights guaranteed by Articles 14 and 21 are available to aliens also.  Meaning and Definition of Citizenship: Citizenship is membership of a society living under the one Government According to Han’s Kelson, “Citizenship is a legal status determined by the specific 6|Page

rights and duties of which the statute is the condition. Citizen of a State is he who has political rights, the duty of military service and diplomatic protection afford by the state concerned”. Citizenship may also be defined as the legal relationship between an individual and the state under which an individual pledges his loyalty to the state, and the state offers protection to the individual. Citizenship is confined to only natural or physical persons. It is not extended to Corporations and juristic persons.  Significance of Citizenship: It determines the relationship between the state and the citizens. It signifies permanent commitment of an individual to the country. That is through citizenship, a citizen expresses his loyalty to the nation. In return, the nation provides protection to the citizen. Citizenship grants to a person the right to vote and the right to contest in the election. Citizenship provides certain special right i.e., fundamental rights to a person. It provides to a person an opportunity to hold public offices.  Modes of Acquiring Citizenship: 1. Citizenship at the commencement of the Constitution 1. Citizenship by Domicile 2. Citizenship of Migrants to India from Pakistan 3. Citizenship of Migrants of Pakistan. 4. Citizenship of persons of Indian residing outside India 2. Citizenship under the Citizenship Act- 1955 1. By Birth 2. By Descent 3. By Registration 4. Naturalization 5. By Incorporation of territory.  Acquisition of Citizenship By Domicile: Article-5 of the Constitution deals with the provisions relating to Acquisition of Citizenship by Domicile. Domicile of a person is his permanent home. No person can be without a domicile and no person may have more than one operative domicile. Persons domiciled in the territory of India as on 26 November 1949 automatically became Indian citizens by virtue of operation of the relevant provisions of the Indian Constitution coming into force, and most of these constitutional provisions came into force on 26 January 1950. According to Article-5 a person entitled to citizenship by domicile if he fulfills the following 2 conditions: 1. He must be at the commencement of the constitution, have is domicile in the territory of India. 2. such person must fulfill any one of the 3 conditions laid down in that article, namely:  He was born in India  Either his parents was born in India 7|Page

 He must have been ordinarily resident in the territory of India for not less than 5 yrs immediately before the commencement of the constitution. Therefore domicile in India is considered as an essential requirement for acquiring the status of Indian Citizenship. The civil status of a person, his legal rights and duties, capacity to marry are determined by the law of his domicile. The term ‘Domicile’ is not defined in the Constitution. The domicile of a person is in that Country in which he either has or is deemed by law to have his permanent house. There is a distinction between Domicile and Residence. Residence alone in a place is not sufficient to constitute domicile. It must be accompanied by the intention to make it his permanent home. But it is basically a legal concept for the purpose of determining what is the personal law applicable to an individual, and even if an individual has no permanent home, he is invested with a domicile by law.  Classes of Domicile: 1. Domicile of Origin: Domicile of Origin is attached to the individuals by birth. 2. Domicile by Choice: Domicile by Choice is acquired by the residence in territory subject to a distinctive legal system, with the intention to reside there permanently. In Pradeep Jain v/s Union of India (AIR 1984 SC 142): In this case the Supreme Court has held that in India Article-5 recognises only one domicile i.e., domicile of India. It does not recognise the idea of state domicile. Domicile is not same thing as residence. The concept of ‘domicile’ has relevance to the applicability of municipal laws whether made by the Union of India or by the States. Two elements are necessary for the existence of domicile: --(i) A residence of a particular kind, and (ii) An intention of a particular kind. The residence need not be continues but it must be indefinite, not purely fleeing. The intention must be a permanent intention to reside forever in the country where the residence has been taken up. Domicile is not the same thing as residence In Mohammad Raza v/s State of Bombay (AIR 1956 SC 1436): The Supreme Court held that though he was original resident, he did not acquire Indian Citizenship because he did not have a domicile in India. Further it was held that there was an insufficient to establish that there was a change in his mind of the kind necessary to acquire a new domicile. A minor married woman is not independent person, neither of these classes has the legal capacity to make a change of domicile. Therefore, the domicile of an infant generally follows the domicile of his father, while a married women takes the domicile of her husband. A widow retains the domicile of her husband until changed by her own act. 8|Page

Intention is an important element in determining the domicile of a person. It can be inferred from the conduct of the persons. Thus a person in Government Services, who was given the choice for opting for India or Pakistan, who opted for Pakistan, actually went to Pakistan, served there under the Government of Pakistan, but who subsequently resigned his job there and came to India cannot claim the benefit of Article-5 for he never became the citizen of India.  Conclusion: Citizenship constitutes the indispensable foundational principle of democratic polity. A citizen means a person owing commitment to and entitled to the protection of a sovereign state. Citizenship provides rights such as right to vote, and are also subjected to duties or obligation, such as paying taxes. Q.No.4. Explain “State” as provided under Art.12 of the Constitution with reference to decided cases. Introduction Article 12 OF the constitution defines the term State, It lays down, 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.” Meaning an...