Constitution - Lecture notes 38 PDF

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Q Salient Features of the Indian Constitution Synopsis Intro A Lengthiest Constitution of the World The Indian Constitution is one of the lengthiest constitutions in the world and it is also very detailed. There are 12 schedules and 448 articles in our Constitution. The Indian Constitution has incor...

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Q.1 Salient Features of the Indian Constitution Synopsis Intro A.The Lengthiest Constitution of the World The Indian Constitution is one of the lengthiest constitutions in the world and it is also very detailed. There are 12 schedules and 448 articles in our Constitution. The Indian Constitution has incorporated various articles by taking inspiration from the various constitutions around the world. B.Parliamentary form of Government The Bicameral Legislature system is followed in our country. The Unicameral legislature system is followed in countries like Norway. The law making procedure is easy in the unicameral legislature but the bicameral legislature is effective as there would be a lot of discussions and deliberations before making legislation. Articles 74 and Article 75 is concerned with the Parliamentary system at the centre and Article 163 and Article 164 is concerned with the Parliamentary system at the states. Article 74 of the Indian Constitution provides that there should be a Council of Ministers with the Prime Minister and Council of Minister can aid and advise the President. Article 75 of the Indian Constitution deals with the other provisions relating to the appointment of Ministers. C . preamble : D.A unique blend of rigidity and flexibility The Indian Constitution is neither rigid nor flexible, this is also one of the reasons for its length. The famous example of the rigid constitution is the Constitution of the U.S., and it is known as a rigid constitution as the amendment process is very difficult. The Indian Constitution is not very difficult to amend, as the Constitution of The U.S.A. It has gone through 103 amendments so far but there are certain steps to be satisfied before bringing in the amendment. Thus the Indian Constitution is a unique blend of rigidity and flexibility. E.Fundamental rights :(book shukla) F.Directive Principles of State Policy Part IV of the Indian Constitution deals with the Directive Principles of State Policy. It is the duty of every State to apply these principles while making any new legislation. The Directive Principles of State Policy is similar to the ‘Instrument of Instructions’ that is in the Government of India Act 1935. They are basically instructions to the legislature and executive that has to be followed while framing new legislation by the State. G.A Federation with a strong centralising tendency The famous salient feature of our Indian Constitution is that it is a federation with a strong centralising tendency. The constitution of India is neither federal nor unitary. H.Adult suffrage The concept of Adult suffrage allows every citizen of our country who is above eighteen years has the right to vote in the elections. Any adult who is eligible to vote should not be discriminated on any basis like gender, caste and religion. I.An Independent Judiciary The Judiciary ensures the proper functioning of the constitution and the enforcement of various provisions of the Constitution. The Constitution makers ensured that Judiciary has to be independent so that it will not be biased. The Supreme court is considered as the watchdog of democracy.

J.A Secular State The term Secular State means that there is no separate religion for the State and every religion is respected equally in the State. The Preamble of the Indian Constitution itself states that India has to be a secular state. K.Single Citizenship: book S L.Fundamental Duties Article 51A of the Indian Constitution provides various fundamental duties. There are no specific provisions to enforce fundamental duties in the Courts like the fundamental rights but it is also necessary to follow the fundamental duties. In the case of AIIMS Student Union vs AIIMS, it was held that the fundamental duties are equally important as the fundamental rights. M.Judicial Review The concept of judicial review is an essential feature of the Constitution which helps the constitution to work properly. The judicial review is an important check and balances in the separation of powers. The court that is authorized with the power of judicial review can invalidate any act that is violative of the various basic features of the Constitution. Conclusion The Indian Constitution has a lot of salient features which makes it special. The lawmakers have taken all the factors into consideration and have tried to accommodate all the differences in our Country. The Constitution and various rights provided in the Constitution acts as a guardian to our citizens. Q.2 preamble intro From TB Significance of the Preamble The Preamble of our Constitution provides India to be a Sovereign, Socialist, Secular, Democratic and Republic Country. There are also various other terms in the Preamble which ensure equality and protect people. The various other terms are Justice, Liberty, Equality, and Fraternity. In Our Constituent Assembly this twenty-sixth day of November, 1949, do Hereby Adopt, Enact And Give To Ourselves This Constitution.[3] Components of Preamble 1. It is indicated by the Preamble that the source of authority of the Constitution lies with the people of India. 2. Preamble declares India to be a sovereign, socialist, secular and democratic republic. 3. The objectives stated by the Preamble are to secure justice, liberty, equality to all citizens and promote fraternity to maintain unity and integrity of the nation. 4. The date is mentioned in the preamble when it was adopted i.e. November 26, 1949. 3 broad goals in the preamble (from TB) SOVEREIGNTY The term Sovereignty was incorporated in the Preamble to provide supreme power to the Government. The term Sovereignty is the backbone of our Indian Constitution that protects the authority of the people. Sovereignty is an essential factor of every State. India is sovereign bcoz it can make or unmake any decision with the respect to itself

without any interference by any other country. SECULARISM It is mandatory to incorporate this term to promote peace between various communities in our country. Secularism promotes the development and unity of various religions. The term “Secular” was added by the 42nd amendment in the Preamble. In the case of S.R Bommai v Union Of India, it was held that “in matters of State, religion has no place” and also said that secularism is one of the basic features of the Constitution DEMOCRACY (from TB) SOCIALIST The system of socialism promotes equality among people and ensures the welfare of people. The term “Socialist” was incorporated by the 42nd amendment. The term Socialist was discussed in the case of Samantha v State of Andhra Pradesh, and according to the case,” the term socialist is used to lessen the inequalities in income and status and to provide equality of opportunity and facilities”. REPUBLIC from TB Interpretation By The Supreme Court ·Berubari Union case[6] In this case, it was held by the Supreme Court that the Preamble is the part of the Constitution.However, it recognised that the Preamble could be used as a guiding principle if a term in any article of the Constitution is ambiguous or has more than one meaning. ·Keshvananda Bharti v. State of Kerala[7] In this case, The Supreme Court overturned its earlier decision and held that the Preamble is a part of the Constitution and can be amended under Article 368 of the Constitution. Again, in LIC of India case, the Supreme Court held that the Preamble is a part of the Constitution. Q.3 ARTICLE 12: STATE Introduction Article 12 gives an extended significance to the term ‘state’. It is very important to determine what bodies fall under the definition of a state so as to determine on whom the responsibility has to be placed.The framers of the Constitution used the words ‘the State’ in a wider sense than what is understood in the ordinary or narrower sense. Scope of Article 12: The definition of Article 12 is only for the purpose of application of the provisions contained in Part III. It cannot be used to interpret any provision outside Part III, e.g., Art. 311.[xiii] Within the territory of India or under the control of the Government of India is limited in its application only to Part III and by virtue of Art. 36, to Part IV: Definition of State: Initially, the definition of State was treated as exhaustive and confined to the authorities or those which could be read ejusdem generis with the authorities mention in the definition of Art. 12 itself.

Meaning of State under Article 12 the state comprises of the following: 1.Government and Parliament of India i.e the Executive and Legislature of the Union 2.Government and Legislature of each State i.e the Executive and Legislature of the various States of India 3.All local or other authorities within the territory of India 4.All local and other authorities who are under the control of the Government of India. Key terms discussed under the article 1. Government (Union and state) 2. Parliament and state legislature 3. Local authorities 4. Other authorities 5. Territory of India 6. Control of the government of India The above-mentioned terms are better explained in the following section along with relevant cases. Government (Union and state), Parliament and State Legislature. Parliament: The parliament comprises of the President of India, the lower house of the parliament that is the Lok Sabha as well as the upper house of the Parliament, that is the Rajya Sabha. Executive: It is that organ which implements the laws passed by the legislature and the policies of the government. Legislature: The legislature is that organ of the government which enacts the laws of the government In simple words, the legislature is that organ of the government which formulates laws. Government: The law-making or legislative branch and administrative or executive branch and law enforcement or judicial branch and organizations of society. Lok Sabha (the lower house) and Rajya Sabha (the upper house) form the legislative branch. Indian President is the head of the state and exercises his or her power directly or through officers subordinate to him. The Supreme Court, High Courts, and many civil, criminal and family courts at the district level form the Judiciary. State Legislature: The legislative body at the state level is the State Legislature. It comprises of the state legislative assembly and the state legislative council. Local Authorities: According to Webster’s Dictionary; “Authority” means a person or body exercising power to command. Local Authority: As per Section 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.” The term Local authority includes the following: Local government: According to Entry 5 of the List II of VII Schedule ‘local government’

includes a municipal corporation, improvement trust, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was held that within the meaning of the term local authority, village panchayat is also included. Other Authorities The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the Constitution nor in the general clauses Act, 1897 nor in any other statute of India. Therefore, its interpretation has caused a good deal of difficulty, and judicial opinion has undergone changes over time. The functions of a government can be performed either the governmental departments and officials or through autonomous bodies which exist outside the departmental structure. Such autonomous bodies may include companies, corporations etc. So, for the purpose of determining what ‘other authorities’ fall under the scope of State, the judiciary has given several judgements as per the facts and circumstances of different cases. In the University of Madras v. Shanta Bai, the Madras High Court evolved the principle of ‘ejusdem generis’ i.e. of the like nature. It means that only those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions. Further, it cannot include persons, natural or juristic, for example, Unaided universities. In the case of Ujjammabai v. the State of U.P., the court rejected the above restrictive scope and held that the ‘ejusdem generis’ rule could not be resorted to the in interpreting ‘other authorities’. The bodies named under Article 12 have no common genus running through them and they cannot be placed in one single category on any rational basis. Lastly, in Rajasthan Electricity Board v. Mohan Lal, the Supreme Court held that ‘other authorities’ would include all authorities created by the constitution or statute on whom powers are conferred by law. Such statutory authority need not be engaged in performing government or sovereign functions. The court emphasized that it is immaterial that the power conferred on the body is of a commercial nature or not. Territory of India Article 1(3) of the Constitution of India states that; “The territory of India shall comprise- (a) the territories of the States;(b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired.” In the case of Masthan Sahib v. Chief Commissioner, the court held that the territory of India for the purposes of Article 12 means the territory of India as defined in Article 1(3). Control of the government of India

Under Article 12, the control of the Government does not necessarily mean that the body must be under the absolute direction of the government. It merely means that the government must have some form of control over the functioning of the body. Just because a body is a statutory body, does not mean that it is ‘State’. Both statutory, as well as non-statutory bodies, can be considered as a ‘State’ if they get financial resources from the government and the government exercises a deep pervasive control over it. Conclusion The Constitution of India not only gives fundamental right to the citizens but also imposes the duty on the state to ensure that the fundamental rights are protected. The court through its interpretations has widened the scope of the term State to include a variety of statutory and non-statutory bodies under its umbrella. Q.3 Article 13 Intro Part III of the Constitution is said to contain the Bill of Rights for the people of India. A significant feature of the Indian Bill of Rights is that the remedy for the enforcement of the fundamental rights is itself declared a fundamental right and is included in the very chapter on fundamental rights. An act of the State, whether legislate or executive, if inconsistent with a fundamental right, is declared to be null and void under Article 13. In I.R. Coelho v. State of Tamil Nadu[vi], a nine-Judge bench of the Apex Court observed that the Rights were not limited; narrow rights, but provide a broad check against the violations and the excesses by the State authorities. These rights have proved to be the most significant constitutional control on the Government, particularly legislative power. They form a comprehensive test against the arbitrary exercise of State power in any area. Article 13 of the Indian Constitution States that: “Laws inconsistent with or in derogation of the fundamental rights (1) 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. Article 13 is the key provision as it gives the teeth to the fundamental rights and makes them justiciable.[lxxv] The effect of Article 13 is that Fundamental Rights cannot be infringed by the government either by enacting a law or through administrative action. This clause provides that all “laws in force” at the commencement of the Constitution which clash with the exercise of the Fundamental Rights, conferred by Part II of the Constitution shall, to that extent, be void.[lxxvii] A pre constitution law, after the commencement of the Constitution, must conform to the provisions of Part III of the Constitution. [lxxviii] However, infringement of a fundamental right cannot be founded on a remote or speculative ground.[lxxix] But this does not make the existing laws which are inconsistent with the fundamental rights void ab initio. The entire Part III of the Constitution including Art. 13(1) is

prospective. Hence, existing laws which are inconsistent with any provision of Part III are rendered void only with effect from the commencement of the Constitution, which for the first time created the Fundamental Rights. The inconsistency referred to in Art. 13(1), therefore, does not affect transactions past and closed before the commencement of the Constitution or the enforcement of rights and liabilities that had accrued under the ‘inconsistent laws’ before the commencement of the Constitution. [lxxx]The effect of Art. 13(1) is not to obliterate the inconsistent law from the statute book for all times or for all purposes or for all people.[lxxxiv] The effect is that the inconsistent law cannot, since the commencement of the Constitution stand in the way of exercise of fundamental rights by persons who are entitled to those rights under the commencement of the Constitution, as regards persons who have not been given fundamental rights, e.g., aliens. Doctrine of Eclipse It follows, therefore, that if at any subsequent point of time, the inconsistent provision is amended so as to remove its inconsistency with the fundamental rights, the amended provision cannot be challenged on the ground that the provision has become dead at the commencement of the Constitution and cannot be revived by the amendment. All acts done under the law since the amendment will be valid notwithstanding the fact of inconsistency before the amendment.[lxxxv] It is known as the doctrine of eclipse. [lxxxvi] For the same reason, if the Constitution itself is amended subsequently, so as to remove the repugnancy, the impugned law becomes free from all blemishes from the date when the amendment of the Constitution takes place.[lxxxvii] Although a pre-constitutional law is saved in terms of Art. 372 of the Constitution, challenge to its validity on the touchstone of Arts. 14, 15 and 19 of the Constitution is permissible in law.[lxxxviii] Validity of a statute may be subject to changes occurring in societal conditions in domestic as well as in international arena with time. Doctrine of Eclipse Article 13(1) talks about the pre-constitutional law as it says that the laws existing before the commencement of the constitution if found inconsistent with the provisions present in article 13 then they will be void. But the Doctrine of Eclipse says that the inconsistent laws though becomes out of whack but not completely dead. It is eclipsed by the fundamental rights and can again be alive through some constitutional amendments. It is only applicable to citizens as non-citizens do not have fundamental rights so they can’t challenge the validity of any law. Article 13(1) talks about the laws which were present before the constitution came into force. It says that if they are inconsistent with the provisions of the part of this article will be void to the extent of the inconsistency. Article 13(2) talks about the laws which are passed after the constitution came into force. It renders all the laws void which violates the provisions of this part.

Doctrine of Severability As in article 13(1), it is mentioned that the pre-constitutional law will only be void to the extent of the inconsistency while in article 13(2) it is mentioned that post-constitutional law will be void to the extent of the contravention. The doctrine of Severability says that is if a part of any law is inconsistent then the rest of the part will remain valid. It applies to both pre and post-constitutional law. Doctrine of Severability It is not the whole Act which would be held invalid by being inconsistent with Part III of the Constitution but only such provisions of it which are violative of the fundamental rights, provided that the part which violates the f...