KUK Law Notes Constitution Law PDF

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Question 1 :- What is Preamble? Discuss in detail of Preamble of Indian Constitution and its objects and significance. How can you say that according to Preamble, India is a sovereign, socialist, secular and democratic republic. How these are applied by the courts. Refer to some decided cases? How t...

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Question 1 :- What is Preamble? Discuss in detail of Preamble of Indian Constitution and its objects and significance. How can you say that according to Preamble, India is a sovereign, socialist, secular and democratic republic. How these are applied by the courts. Refer to some decided cases? How the various ideals and goals enshrined in the preamble have been realised in the constitution? Refer some decided cases.

PREAMBLE OF THE CONSTITUTION:- The preamble of an Act sets out the purpose and object for which a statute is enacted. The Preamble of the constitution declares :We the people of India having solemnly resolved to constitute of India into a sovereign, socialist, secular democratic Republic and to secure to all its citizens. :- i) Liberty of thoughts, expression, belief, faith and worship. Ii) Justice, social, economics and political. Iii) Equality of Status and opportunity and to promote among them all.. iv) Fraternity assuring dignity of the individual and the unity an integrity of the Nation. I our constitution Assembly this twenty sixth day of November, 1949 do hereby adopt enact and give to ourselves this constitution. The Purpose of Preamble:- The Preamble to 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.Keswanand Bharti v.State of Kerla 1973. In Berubari case SC held that preamble is not a part of the constitution and therefore it was never regarded as the source of limitations powers. But in Keswanand Bharti 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. The Preamble to the constitution serves the following purposes:i) It discloses the source of the constitution. ii) It lays down the date of the commencement of the constitution. iii) It sets out the rights and freedoms which the people of India wished to secure for themselves. iv) It declares the nature of the government which it wishes to establish in the country. Preamble declares that people of India are the source of the constitution of India. The govt., derives all its authority from the people of India. Administrators are elected by the People of India. The nature of the govornment, which the preamble establishes is a sovereign, socialist, secular, democratic republic. Sovereign because const., does not recognise the legal supremacy of any other country. A democratic because govornment of the people, by the people and for the people. Secular because it treats all the religions equally. It does not recognise any religion as a State Religion. Socialist because it implies economic equality and equitable distribution of income. In such state important means of production is

controlled by the State. And republic because the Head of State is not a hereditary Monarch, political sovereignty resides in the people and Head of State is President of India who is elected by the people for a fixed term. Objectives of the Constitution:- The objectives is to secure to its people, justice. Liberty, and fraternity, the dignity of the individual and the unity and integrity of the nation. // In keswaanand Bharti case it has been held that the preamble is the part of the constitution and therefore it can be amended by the Parliament under its amending power under article 368 with the condition that it should not exercise it amending power so as to destroy the basic features in the preamble. By 42nd amendment of the constitution of India, Parliament did amend the Preamble inserting the words “ socialist secular” before” Democratic Republic and “ integrity”before of the nation. Spirit of these amendments only expressly stated what was already present in the constitution impliedly, the additions did not impair the basic features.In //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. Although socialism has nowhere been defined in the constitution.//In D.S.Nakara v. Union of India 1983 it has been taken to mean raising the living standard of the weaker section and labourers and to guarantee for them lifelong social security while Excel Wear v. Union of India 1979, it was held that the effect of adding the word Socialist is that the court should give more effect to nationalisation and state ownership. In brief our socialism is a unique combination of Maxism.

Question 2 :- “Article 14 permits classification, but prohibits class legislation.” Discuss this statement.

OR What do you understand by reasonable classification in the context of “ Right of Equality”? Can a single person be treated as a class?

Ans:- Introduction:- Classification and class legislation : The guarantee of equality before the law and equal protection of the laws does not mean that all the laws must be universal in application to all persons irrespective of differences in their nature and circumstances. Equal treatment with persons in unequal circumstances amounts to inequality and hence article 14 permits classification of people difference between those put in class is distinct from the others and bears a reasonable relations to the object sought to be achieved by the legislature.// But article 14 does not permit class legislation which means undue discrimination by conferring some advantages or privileges upon an arbitrarily selected group of people though all of them are similarly circumstanced in relation to privilege conferred on the selected class. In other words class legislation amounts to unequal treatment with equals and hence void

under article 14.// Equality is for equals i.e. to say those who are similarly circumstanced are entitled to an equal treatment. The guarantee of equality does not imply that the same rules should be made applicable to all persons in spite of differences in their circumstances and conditions. Refer case Ramesh Prasad Singh v. State of Bihar l978. // In APBC Singh v. Jharkand 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 govt., amalgamating the extremely Backward classes and Backward classes is violative of Article 14 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 a case of chiranjeet lal v.Union of India 1951, It was held that single individual may be considered as a class in special circumstances. The SC ruled that a law may be constitutional even if it applies to a single individual on account of some special circumstances or reasons applicable to him, that individual may be treated as a class itself. Ordinarily a legislation pertaining to a single person would not be valid unless it was possible for the court to discern the special circumstances differentiating that particular person from the rest. If a classification is discernible in the Act, a presumption arises in favour of its constitutionality, but the person affected may show that while there are others having the same differentiating attribute as he, only he is covered by the Act and not others and the Act will then be void. What article 14 prohibits is class legislation. But it does not forbid reasonable classification. 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. Refer case: Shashi Mohan v. State of W.Bengal-1958. In Menka Gandhi case v Union of India- 1978 SC emphasized on the content and reach of the great equalising principle enunciated in Article 14. Warning against any attempt to truncate its all embracing scope and meaning which might violate it activist magnitude, SC 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 1974 that Art. 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. In Ajay Hasia v.Khalid Mujib 1981 SC struck down as constitutionally invalid, the allocation of as high a percentage as 33 1/3 of the total marks for the oral interview for admission to the Engineering college and declared it as infecting the admission procedure with the vice of arbitrariness. The court firmly laid down ha “ what article 14 strikes at negation of equality” so ruled , the court said that not more than 15% of the total marks should be allocated for the oral interview.//In the series of cases State laws creating special Courts to deal with the problems of law and order have been questioned. A law creating special courts can therefore be sustained only if it makes reasonable classification either of the offences or of the cases or of the persons, triable by the special courts. Difficulties usually arise when the law establishing these courts fails to do so itself and instead leaves it to the govt., to decide this matter. In such situation the courts

have held that the law would not be valid if it does not lay down the policy or principle to regulate and control administrative discretion to decide which cases offences or persons would be triable by these courts. In Bhagwanti v Union of India-1989 it has been held that classification between marriage during service and after retirement for the purpose of giving family pension is arbitrary and violative of Article 14. In state of UP v. Committee Management 2010 SC the respondents were running unaided school which was upgraded as High School and Intermediate college in 1991-1999. After 30.6.84 Junior schools wee granted recognition covered by the Grants-in-aid scheme but the court held that the action of the State creates class within class which is arbitrary and violates Article 14 of the constitution. A distinction between two schools of the same category was created while one category of schools continued to get the grants-in-aid benefit inspite of upgradation of other junior High school were excluded from benefit.

Short Notes A. DOCTRINE OF SEVERABILITY WAIVER. B. DOCTRINE OF ECLIPSE. C. CITIZENSHIP D. WAIVER E. Protection Against Self-Incrimination F. PROTECTION FROM EX-POST FACTO LAW G. PROTECTION FROM DOUBLE JEOPARDY CITIZENSHIP

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. Though the Indian constitution has adopted the federal principle of the American constitution but it 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. DOCTRINE OF SEVERABILITY A :- Clause (1) of Article 13 provides : 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. Clause 1 and 2 of article 13 thus declare that laws inconsistent with or in contravention of the fundamental rights shall be void to the extent of inconsistency or contravention as the case may be. It means that where only a part of law is inconsistent with or contravenes the fundamental rights, 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 or separability to separate the valid portion of the law from the invalid portion. In a case State Of West Bengal v .Committee for protection Democratic Rights, W.Bengal 2010 SC held that, Any law that abrogates or abridges such right would be violative of the basic structure. Doctrine. In some other cases Keshavaananda Bharti v/s State of Kerla 1973, Minerva Mills v/s Union of India 1980, Waman Rao v/s Union of India l981 and Srinivasa v/s State of Karnataka 1987, it was held by SC, The basic features” of the constitution cannot be amended by exercising the power of amendment under article 368. DOCTRINE OF ECLIPSE DOCTRINE OF ECLIPSE :- 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 book It stands for all the transactions and for enforcement of rights incurred during pre-constitution period. It this shadow or eclipse is removed by the appropriate constitutional amendment the law revives. This question was considered by the SC in Bhikaji Narain v. State of MP 1955 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 Govt., to nationalize motor transport business. This law became void on coming into force of the constitution in 1950 as it is violated article 18(1)(g) in 1951. Art.19(b) was amended which authorised the state govt to nationalized motor transport business. It was held that 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 and therefore void. Thus the declaration of validity of the court is necessary.

THE WAIVER ?

Protection Against Self-Incrimination It is a trite law in English & American Jurisprudence that no one should be compelled to give evidence or be witness against himself. Article 20(3) of constitution 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 make confessions which might lead to his conviction. i) It is the right pertaining to a person “accused of an offender” 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 (R.K.Dalmia v. Delhi Administration 1962) 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. ( Veer Ibrahim v. State of Maharashtra, 1976) ii) It is protection against compulsion to be witness. The phrase used in Art.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. Case Nandini Satpathi v. P.L.Dhani-1978, It is laid down that the phrase, compelled testimony” must be read as evidence procured not merely by a physical threats or violence but also by phychic torture. In case: Yusafali v. State of Maharashtra-1968. 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 art. 20(3) and hence admissible in evidence.

PROTECTION FROM EX-POST FACTO LAW Article 20(1) of the constitution says, “ 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. Article 20(1) corresponds to the provisions against ex-post-facto laws of the American constitution. Expost-facto-laws are laws which impose and enhanced penalties upon acts already done i.e. retrospectively. This 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. However it does not prohibit the imposition of civil liabilities retrospectively. So a tax can be imposed with effect from a past date. This first part of art.20(1) simply means that 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. The second part of the clause provided that 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. Case: Shiv Bahadur singh v. State of U.P.-1958 : The prohibition :- it will be noted, extends not only to the passing of ex-postfacto laws but also the conviction or the sentence under such laws. It was held that penalty means penalty for the offence committed. In case : Venkataraman v. Union of India.1954: -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 English and American laws bar second prosecution of an accused for the same offence whether he was convicted or acquitted as a result of the first prosecution. No one should be vexed twice for the same act. But art.20(2) of the constitution of India has adopted this principle to a rather narrower extent as its protection against prosecution for which the accused has already been prosecuted and punished. Art.20(2) provides “ No person shall be prosecuted for the same offence more than once.” The constitutional protection against double jeopardy is available to the citizens and non citizens of India. Thus the Indian provision enumerates only the principle of autrefois convict but not that of autrefois acquit. In England and the USA both these rules operate and a second trial is barred even when the accused was acquitted at the first trial for that offence.

In order to bring the case of a person within the prohibition of art.20(2) it must be shown that he had been (i) Prosecuted before a court. (ii)Punished by it (iii) The punishm...