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CONSTITUTION

23/04/2011

1)Preamble

2) Part I - Art 1 to 4 -Union, State, Territory

3) Part II -Art 5 to 11 -Citizenship

4) Part III -Art 12 to 35 -Fundamental Rights

5) Part IV -Art 36 to 51 -Directive Principles of State

Policy

6) Part IV A -Art 51 A -Fundamental Duties

**** *** *** *** *** *** *** *** *** ***

Art 52 to 395 provides for the following Governments :-

1) Central Government

2) State Government

3) Local self Government (after 1992, 73rd and 74th amendments)

In addition there is provision for CAG, AG, Attorney General of India, Advocate

General, UPSC, PSC, Finance Commission, Planning Commission, Backward

Commission etc.

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(I). PREAMBLE

It highlights the source of constitution We the People of India

Aim is to make India the following

(i) Sovereign (Internally and externally independent)

(ii) Socialist (Means of productions, distributions etc are under State

Ownership

(iii) Secular (State has no religion of its own)

(iv) Democratic (Govt by the people, of the people and for the people)(v) Republic (The head is not a monarch but an elected person)

The Constitution ensures the following:-

(1) Equality

(2) Justice -(i) Social (ii) Political (iii) Economic

(3) Freedom


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(4) Fraternity

(5) Unity and Integrity of India

In Berbari Union case the SC held that Preamble is not a part of Indian

Constitution. But in the Keasavananda Bharati v. State of Kerala the same

SC held that preamble is part of the Constitution and hence can be amended bythe Parliament under Art. 368. (Art 143 - advisory opinion of Supreme Court on

matters referred by the President. Here In Re means In the matter of).In Re.

Presidential reference-AIR 1999 SC 1- Judicial Collegiums)

The word Secular was inserted subsequently through an amendment in 1976.

Preamble is itself a mini constitution. Preamble is the key to open the mind

of constitution makers- SC observed

(II). PART I (Art 1 to 4) (Union,State,Territory)

Art 1 declares India, that is Bharat shall be a Union of States. The states,

territories etc. are given in the 1st schedule. Part I empowers Parliament to make

law to change the name, area, boundaries etc. of existing states Parliament has

the power to diminish the area of a state. In Sukumara Sen Guptas case the SC

held the term diminish does not include cession of Indian territory to a Foreign

State. For that purpose there should be international treaty.

(III). PART II (Art 5 to 11) (Citizenship)

A separate chapter on citizenship incorporated due to the following reasons.

(i) Constitutional posts like President, Vice President, MP, MLA, PSC member,

UPSC member etc. can be held only by Indian Citizens

(ii) Certain Fundamental Rights only for citizens . eg. Art. 16. (Equality in publicemployment), Art. 19

(iii) Voting Rights only for Citizens

Constitution contains the provisions relating to citizenship at the time of

commencement of constitution. Art 11 empowers the Parliament to make a law

to govern future Citizenships. In pursuance of this power, Parliament enacted the

Citizenship Act 1955.

Mode of Acquisitions Mode of loss

1). By birth in Indian territory Renunciation - Voluntary

2). Birth outside India, but at thetime of birth parents were Indians

Deprivation Compulsorily takenaway by govt.

3). By registration- on specialgrounds eg. women married to anIndian application must be given to the

Loss of territory


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Central govt.

4). By naturalisation- Application tothe Central Govt. and subject to certainconditions (eg.-Mother Theresa, Larribecker)(i) Knowledge of an IndianLanguage. (ii) Not a Citizen of a State

where Indians are denied Citizenship.

5). Acquisition of a new territory

Domicile is an essential ingredient or a pre requisite for acquiring Citizenship.

It implies residence for a particular period + intention to make India the

permanent home. Louis d Radet v.Union of India (Christian missionary case) The

Christian Missionaries failed to prove intention. The Sc held mere residence not

enough. There should be intention Factum and animus must concur.Sankaran

Govindan v. Lekshmi Bharati case the SC held Not by words, but by deeds

domicile has to be established

Domicile can be of three types. (i) Domicile of Origin Conferred at the time

of birth

(ii) Domicile of choice- acquired by major person.

(iii). Domicile of dependence- eg. That of a minor, lunatic, wife

etc.

(IV). PART III (Art 12 to 35) (FUNDAMENTAL RIGHTS)

State shall not make any law which violate Fundamental Right. If any law is

made by the state in violation of Fundamental Rights the Supreme Court can

(under Art.32) and the High Court can (under Art.226) declare such law

unconstitutional and hence void. This is called doctrine ofJudicial review.

This doctrine has been propounded by Justice Marshal of US Supreme Court in

Marbury v. Maddison case.- It is emphatically the duty and province of the

judicial department to say what the law is. For the purpose of Part III, State is

define under Art 12. Art 13 defines law. Fundamental Rights under Art. 14 to

30 and 32.

30/04/2011

Art.12- State is defined so as to include the following:-

-Legislature and executive of the Central Government,

-Legislature and executive of the State

(It is to be noted that Judiciary is excluded)

-Local authorities, eg:- Panchayath , Municipality, Corporation

-Other authorities ,


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This phrase (Other authorities) created confusion among Judges- for instance

some high courts regarded University other authority and hence State under

Art.12. But some others held it not to be State. To resolve the conflict the SC

interfered and brought within the ambit (umbrella) of Art.12- Any agency or

instrumentality of the State wherein there is deep and pervasive governmental

control. (Agency or instrumentality eg:- (1). Rajastan Electricity Board v. Mohanlal Electricity Board is State.

(2). R.D.Shetty v. International Airport Authority IAA is State

(3). PBM Namboodiripad v. Cochin Devaswam Board Devaswam Board is

State

(4) Sukhdev singh v. Bhagath Ram LIC, ONGC, FCI, etc are State

Art.13- Define law to include that made by the Legislature and that made by

executive- Subordinate Legislation like Ordinance, Rules, Orders, Regulations.

Art 13 incorporates the following doctrines:-

(1). Doctrine of Judicial Review

(2). Doctrine of waiver- F.R can not be waived- eg:- An accused can not waive

his F R and get convicted straight away.

(3). Doctrine of Eclipse- Pre constitutional laws which are violative of F R will

be overshadowed by the constitution and such provisions will get eclipsed by

constitution.

Such provisions remain inoperative or becomes dormant (not dead). If

Parliament subsequently amends and omits a fundamental right, the inactive

provisions become active.

4). Doctrine of severability or separability or Blue Pencil test:-

A provision in a statute violate Part III, the question before court is whether to

struck down the entire Statute or that Provision alone.

As an answer the SC propounded doctrine of severability if the provision can

be separated from the rest then that provision alone has to be declared void. If

such a provision is inextricably connected with the rest, the entire statute has to

be declared void.

Eg:- Kihotto Holohan v. Zachilu 10th schedule (Ante defection law)- the

decision of Speaker shall be final. SC held that this provision is unconstitutional

because it takes away the power of judicial review of the high court and SC.

Fundamental Rights 14-30 & 32.

(1) Right to Equality -Art 14 to 18


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Art.14 :-Equality before law and equal protection of law. But absolute equality

is an Utopian idea, hence constitution itself permits special treatments for certain

classes- President, Governor (special provisions relating to arrest, prosecution

etc), MPs MLAs and women, children, SC, ST,OBC, Minorities etc.

Art 14 contains many doctrines- (1) Rule of law it means law rules- that is

governed by law and not by men ; not according to the whims and fancies of

ruler. Lord Coke of England propounded this doctrine- law is the king of kings. A V

Dicey developed this concept so as to include equality before law and supremacy

of law.

(2) Doctrine of reasonable classification:-

Equals to be treated alike and hence State can make reasonable

classification. Eg :- K A Abbas v. Union of India - Cinematograph Act 1962-

classifying cinema into (A), and (U)- not unreasonable- the aim of the act is to

prevent younger from viewing obscene films. And for that purpose such a

classification is necessary that, there is a rational nexus between the

classification and this object sought to be achieved by the Act. Rational nexus

theory or intelligible differentia test.

Indian Express news paper case- Classification of news papers into three-

large, medium , small on the basis of circulation and imposition of more tax on

the former- not violation of Art. 14.

(3) Doctrine of Non-arbitrariness

E.P Royappa v. Tamil Nadu, Supreme Court held equality and arbitrariness

are sworn enemies wherever there is arbitrariness. There is violation of Art.14.Eg. i) Captain Satheesh Sharmas case & Common cause V. Union of India)

illegal allotment of Petrol Pump by the Petroleum minister to his relatives SC

held it arbitrary violation of Art.14 and hence quashed it, directed CBI enquiry

and Rs. 60 lakh as compensation. ii) Sheela Kauls case- Arbitrary allotment of

Flats.

(4) Doctrine of Natural Justice :-

Violation of audi altrem partem, rule and nemo judex in cause sua rule-

also violate Art.14. Maneka Gandhis case passport case.

(5) Doctrine of legitimate expectation :-

By past practice, pomise etc govt created legitimate expectation in the mind

of the public. Subsequently if Government wishes a deviation from this practice,

hearing must be given to those who are likely to be affected.

FCI v. Kamadenu cattle feeds.


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Art. 15 :- Equality in public place like road restaurant etc. But special

provisions can be made for women and children (Art.15 (3) and Backward

classes (Art. 15(4)). Eg. Reservation in Bus.

Art. 16 :- Equality in Public employment

Art. 17 :- Demolition of untouchability (protection of civil rights act).Art.18 :- Military title , Academic title

14/05/2011

Art. 16 :- Equality in Public employment All are equal for employment ; but

the following are the exceptions :-

i). Some posts can be reserved for SC/ST and OBC

ii). In backward States, some posts can be reserved for residents

iii). In the case of offices relating to religion, posts can be reserved for

persons belonging to that particular religions (eg. Hindus in Devaswam Board,

Muslims in Waqaf board) Indira Sahni v. Union of India (Mandal commission

case 1) , the SC interalia held :-

i). No reservation in promotion. In promotions, merit and seniority must be

considered

ii). Backward classes must be further divided into backward and more

backward classes. Crme lairmust be identified and eliminated.

iii). Maximum reservation shall not exceed 50 % except in extraordinary

situations.

In order to dilute this decision, the Parliament amended the constitution

and inserted certain provisions in Art.16 so as to permit reservations in

promotion also for SC and ST only.

All States except Kerala implemented crme lair concept as directed by

the SC. Kerala Govt. files an affidavit In the SC stating that there was no

crme lair in Kerala. Consequently N.S.S filed Mandal Commission-2, and the

court appointed a commission.

Art. 17 :- Prohibition of untouchability To implement this article theParliament enacted Untouchability (Offences) Act 1955, which was renamed in

1976, as Protection of Civil Rights Act (PCR), the SC and ST (Prevention of

Atrocities) Act 1989.

Art. 18 :- Abolition of titles but academic and military titles can be given.

It is to be noted that though the basic philosophy of Indian constitution is,

there shall be no discretion on the grounds caste, creed, religion, place of birth,

language, the Indian constitution itself recognises discriminations. The intention


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is to protect the weaker sections. Hence called protective discrimination. It

has been incorporated as a protective step ; Hence called a positive

discrimination. And to compensate backward classes who suffered a lot before

the commencement of Indian constitution; hence called compensatory

discrimination.

Article 19 (FUNDAMENTAL FREEDOMS)

Indian Constitution guarantees Fundamental Freedoms only to citizens. This

Freedoms are not absolute. State can impose reasonable restrictions. A persons

rights to stretch his hand ends where anothers nose begins. Rosco Pounds

Social Engineering theory is reflected in Art. 19- Whenever there is a

conflict between private interest and public interest, the latter shall prevail.

Fundamental Freedoms Reasonable restrictiongrounds

19(1)(a)-Freedom of speech andexpression

-Freedom of Press included- (BhrijBhushan case and Indian Express newspaper case)-But trial by media notpermitted. (Rajendra Gandhi v.Maharashtra)

-Freedom of silence included-(National Anthem case- Bijoy Immanualv. State of Kerala)

-Right to know:- Association forDemocratic Rights v. Union of India (voters right to know) in 2005Parliament enacted Right to InformationAct.

19(2) Public order, decency, Publicinterest, security and sovereignty ofIndia, Friendly relations with ForeignStates, defamation abetment to anoffence

19(1)(b) Assemble peaceful withoutarms-

19(3) Public order, sovereignty andsecurity of India, Public interest (eg. Sec144 Cr.P.C not violative of 19(1)(b).

19(1)(c) Freedom of Association- toform associations, trade unions etc, to

join or not to join

19(4) - Public order, Public interest,sovereignty and security of India.

19(1)(d)- Move freely throughoutIndia

19(5)- (i) Interest of ScheduledTribes

(ii). Public interest (eg. Kausalya v.State of Maharashtra- Prostitutesmovement prevented), Helmetcompulsory

19(1)(e)- Reside anywhere in India 19(5) do the same

19(1)(f)- Freedom of property. By amendment this has been omitted


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19(1)(g)- Trade, Occupation,profession, business

19(6)- (i).State can create monopolyand exclude citizens partially or wholly

(ii). Public interest (Eg. KeralaMatsya thozhilali Federation v. State ofKerala- deep sea fishing ban duringmansoon justified in public interest)

(iii). State can impose qualifications,conditions etc for any trade or business.

Art.20 Rights of an accused :-

Art. 20 guarantees the following three rights for an accused person:-

(i). Protection against expost facto law, (Art.20 (1)- No retrospective

effect for a criminal law; An act must be regarded as an offence, only if it has

been violation of any law at the time of commission. Similarly the punishment is

subsequently enhance, the enhance punishment shall not be given to theaccused but if the punishment is subsequently reduced, benefit must be given to

the accused.

(ii). Protection against double jeopardy (Art. 20(2)) :-Nemo bis debet

vexari No one shall be prosecuted and punished more than once for the same

offence. Simultaneously disciplinary action not violation of Art.20(2).

(iii). Right against self-incrimination (Art.20(3)). No one shall be

compelled to be a vitness against himself (testimonial compulsion). Nandini

Satpathis case- tiring interrogation for many hours is violation of Art.20(3). But

samples of blood, hand writing, finger prints, saliva etc can be compelled. (Kathi

kalu oghad v. Bombay)- Narco analysis is violation of Art. 20(3).

28/05/2011

Article 21

Right to life and personal liberty:-

No person shall be deprived of his life on personal liberty except according to

the procedure established by law. That means a persons life and personal liberty

can be curtailed subject to the following conditions :-(1) There should be a law

(2) There should be a procedure prescribed by the law

(3) That procedure must be just and fair

In US and UK, there is the concept of due process of law.

Article 21 has been subjected to both restrictive and activist interpretations

of the apex court of India


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Eg : In AKGs case, the SC gave a restrictive interpretation but in Menaka

Gandhis case the SC gave very wider interpretation. Following the foot prints,

the subsequent courts have brought with in the umbrella of the Article 21 every

basic human rights except the right to die.

Eg:-

(1)Right to travel abroad (Sathwanth singh v. Asst. Passport Officer). To

implement this Parliament passed Passport Act 1967.

(2) Speedy trial:- Hussain aira Katoon v. Home Secretary Bihar, Fast track

courts constituted, plea bargaining under Cr. P C 2006 amendment.

(3) To free legal aid :- (M H Hoskot v. Maharashtra), Legal Services Authorities

Act 1987 passed.

(4) To healthy environment (M C Mehtha case for Taj Mahal, Genga water

protection.

(5)To get doctors assistance (Paramanantha Khatras case)

(6) Right against third degree methods by police:- (Sunil Bhathra v. Delhi

Administration)

(7) Death sentence only in rarest of the rare case (Bachan Singh v.Panjab)

(8) To mingle with fellow beings (Charls Sobharaj v. Thihar jail Authorities)

No solitary confinement- Open jail system introduced

(9)Right to privacy :- PUCL v. Union of India- No unnecessary telephone

tapings(10) To have live in relationship:- Khushbus case

(11) Right to die not included :- Ratnam case (Right to die Fundamental Right,

hence sec 309 IPC unconstitutional). But Gyan Kaur case v. Panjab it was over

ruled.

The names of Krishna Iyyer and P N Bhagavathi (JJ) deserve a special mention

in this context.

Article 21 A

Free and compulsory education for children in the age group 6 to 14. InMohini Jain case and Unni Krishnan v. AP- Capitation fee case- SC held right to

education a Fundamental Right under Art. 21.

Art. 22

Right against arbitrary arrest and detention :-


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I. Right of persons arrested under Punitive law like IPC

(a) Grounds of arrest to be communicated immediately

(b) to be produced before the court

(c ) detention beyond 24 hours only with court order

(d) Consultation with lawyer

In addition the SC issued detailed guidelines regarding arrest in Joginder

Kumar case and D(ileep) K Basu v. West Bengal (eg. nominee to be informed- By

2006 amendment to Cr. P C sec 50 A inserted to implement this guideline.

II. Persons arrested under Preventive Detention Law like MISA(Maintenance of Internal Security Act), TADA etc.

(a) grounds of detention to be communicated.

(b) to make representation against detention(c ) periods of detention timely review by an Advisory Board consisting of

Judicial Officers.

Art. 23 & 24

Right against exploitation:-

(a) Art. 23:- Prohibits slavery, forced labour, traffic in human beings

(b) Art. 24 :- Prohibits child labour in dangerous operations

Art. 25 to 28Religious Freedoms Secularism

I. Available to individuals :-

(a) Freedom of conscience right to practice propagate and profess religion

(Art.25). But no right to convert others.

(b) No compulsion to pay tax, the proceeds of which are used to promote a

particular religion (Art. 27)

(c ) No religious instructions in educational institutions wholly maintained

out of state funds (Art 28)

II. Available to religious denominations (Art. 26)

(a) to decide the matters of religion

(b) hold and acquire properties and to administer it.

But the above said rights are not absolute. State can impose reasonable

restrictions on the ground of social reforms, public orders, morality, health,

decency etc.


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Eg (1). Anantha Margi case thandava dance by hindu Ananthamargies

with lethal weapons and human scull prohibited on the ground of public order-

SC upheld it

(2). Church of god (full gospel) v. KKR Majestic colony Residence

Association loud speakers removed from churches SC upheld it on the

ground of public health.

(3). Adityan v. State of Kerala Even a non Brahmin can offer pooja in hindu

temples.

(4) Ismael Farooqui v. Union of India Babery Masjid case Mosque is not

an essential part of Islam

(5) Mohammed Haneef Quireshi v. Bihar- Cows slaughter during Bakreed

prohibited.

Art 29 & 30 Cultural and Educational right

04/06/2011

Minorities :- based on religion or language (religious or linguistic

minorities)- have a fundamental right to conserve their culture, language,

script etc.; and for that purpose they have fundamental right to establish

educational institutions, and to administer it (in ascertaining minority status,

sate shall be the unit and not entire population of India)

But the right to administer does not include the right of maladministration.

Therefore govt. can interfere. Eg. admission procedure, fees structure,

infrastructure, qualification of teachers etc.Various aspects of Art. 29 and 30, were elaborately discussed by the SC in

T.M.A Pai Foundation case. Islamic Academic case and Pushpagiri case.

Art. 31-A, B &C Saving of some laws

Eg:- Laws given in 9th schedule is having immunity from judicial review, ie

Judicial scrutiny not possible over certain laws, even though such laws are

violation of fundamental rights.

Art. 32 Right to approach the SC to enforce

Fundamental Rights

Right to constitutional remedies (similar power is conferred upon High

Court also under Art. 226- for (i) enforce fundamental rights (ii) any other

purpose.

For the enforcement of Fundamental Rights, the above said courts can

issue any orders, directions or writs including the following:-
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I. Habeas Corpus :- Produce the body to find out whether a detention is

legal or not. If the detention is found to be illegal, court can order release.

II. Quo-warranto :- By what authority to question by what authority a

person occupies a substantive public office like District Collector, Vice-

chancellor etc.

III. Mandamus :- We command to compel a public body to do a public

duty

IV. Prohibition :- to prohibit a body form taking a decision without

jurisdiction etc.- to stay a promotion order.

V. Certiorari :- to quash a decision taken without jurisdiction Prohibition

and certiorari are available on similar grounds.- Prohibition at an earlier stage

and certiorari at the latest stage.

Who can approach (Who has locus standi)

Old position :- Only the aggrieved party had the locus standi

Present position :- Any member of the public having sufficient interest

(probono publico) can approach the court to redress the grievance of

persons, who can not approach due to ignorance of law, poverty etc.- through

P.I.L (Public Interest Litigation) or S.A.L (Social Action Litigation-USA)- even

through letters (Epistolary jurisdiction).

Eg. (1) PUDR (Peoples Union for Democratic Right v. Union of India)-

Asiad case

(2). M C Mehtas case to protect Taj Mahal- Genga water- Sivakasi

child labour

(3). Vishakha v. State of Rajastan sexual harassment in work place.

(4). D.K Basu v. West Bengal Arrest guidelines

(5). Common cause v. Union of India Captain Satheesh Sarma Petrol

pump allotment- CBI enquiry.

(6) Sivasagar Tiwari v. Union of India sheela kaul Flat case

(7) Vineeth Narayan v. Union of India to restructure CBI CVC (CentralVigilance Commission)

(8). Association for Democratic Right v. Union of India Voters right to

know about assets, liabilities criminal antecedents etc of candidates.

According to Ambedkar , Art. 32 is the heart and soul of Indian

constitution. For a right there should be remedy.
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Exhaustion of local remedy rule :- only after the exhaustion of local

remedy available to the affected party.

Art. 33 Permits the state to make law and take away

any of the fundamental rights of persons employed in

defence, police, intelligence, telecommunications etc.(IV). PART IV (Art 36 to 51) (DIRECTIVE PRINCIPLES OF

STATE POLICY)

Directives to be implemented through state policy and laws. Eg :- (1)

Prevention of concentration of wealth in a few hands- to implement this, the

Parliament enacted FERA 1973, MRTP (Monopolies and restricted trade practice)

1969, etc. But after 1991 NEP (New Economic Policy), LPG( liberalisation , p,

Globalisation), Govt. replaced FERA with FEMA, MRTP with competition Act.

(2) Maternity benefit In 1961 Maternity Benefit Act was passed.(3) Protection of aged persons- Senior Citizens Welfare Act 2007.

(4) Free and compulsory education- Art 21 A inserted by the Parliament

(5) Protection of workers- Bonus Act 1965, Gratuity Act 1972 etc.

(6) Equal pay for equal work for both men and women Equal

remuneration Act 1976.

(7) Protection of environment Air Act 1974, Water Act 1981, Wildlife

Protection Act 1972, Forest Conservation Act 1980, Environmental Protection Act

1986

(8) Uniform civil code- Art 44 .

Even after the lapse of six decades, this Article remains in the cold storage.

This is the most controversial directive. In Sarala Mudgal case 1995, the SC

stressed the need for a uniform civil code to prevent illegal conversion. But the

SC in Lilly Thomas case 2000, held that Sarala Mudgal was an obiter.

Relationship between Part III and Part IV

(1) Part III is justiciable (enforceable through the court of law ; Part IV is non

justiciable)

(2) For the violation of Part III, state is answerable before the court, for the

violation of Part IV, state answerable before the electorate in the forthcoming

elections.

(3) Phase I Part IV regarded by the SC as a mere appendage to the

constitution. Whenever there is a conflict between Part III and Part IV, the former

prevails.
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Phase II Doctrine of harmonious construction (Minerwa Mills case)

Part III & Part IV are complementary and supplementary to each other. Judges

must maintain a harmony between Part III and Part IV.

Phase III Air India Statutory Corporation v. United labour Union :- SC

held that directives are elevated to the status of inalienable fundamental rights

and hence they are enforceable by themselves especially under Art 21.

Part IV A- Art. 51 A Fundamental Duties

Eg. Respect National Flag, National Anthem, Constitution, Institutions

constitute by the constitution, Cherish freedom struggle, protect environment,

respect women, not to resort to violence, or destruction of public property, the

guardian or parent of children below 14 years have a duty to provide opportunity

for their children to have education.

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