Comprehensive Study Notes: Constitution of India

CONSTITUTION OF INDIA: UNIT-I INTRODUCTION

• Definition of Constitution: A document containing laws that govern a political state, implying governmental powers, people's rights, and the relationship between them.

• Constitutional Law: Rules regulating the structure of the principal organs of government, their interrelationships, and their principal functions.

SALIENT FEATURES OF THE INDIAN CONSTITUTION

1. Written and Lengthiest Constitution: Framed over $2$ years, $11$ months, and $18$ days. Adopted Nov 26, 1949; enforced Jan 26, 1950. Contains $446$ Articles, $22$ parts, and $12$ schedules. (Comparison: USA: $7$, Australia: $128$, Canada: $147$ Articles).

2. Parliamentary Form of Government: Adopted from Britain. Close relationship between legislature and executive. President is nominal head; real power vests in Council of Ministers headed by the Prime Minister.

3. Rigidity and Flexibility: Combination of special amendment methods (rigid) and ordinary legislative processes (flexible).

4. Fundamental Rights and Duties: Basic rights essential for personality development (Articles $14-32$, Part III). Fundamental Duties (Article $51A$) added by $42^{nd}$ Amendment, 1976 (originally $10$, now $11$).

5. Directive Principles of State Policy (DPSP): Contained in Part IV; aims for a welfare state providing social and economic justice. Borrowed from the Irish Constitution.

6. Centralized Federation: Federal structure with clear division of powers (Seventh Schedule: Union, State, and Concurrent lists), but with a strong centralizing character.

7. Universal Adult Franchise: Political equality via "one person, one vote" for every citizen $18$ years and older.

8. Independent Judiciary: Free from executive/legislative influence. Provisions for Supreme Court and High Courts to protect rights.

9. Secular State: No state religion; treats all religions equally.

10. Single Citizenship: Only Indian citizenship exists; no separate state citizenship (unlike USA).

PREAMBLE AND PHILOSOPHY

• Nature: Acts as an introduction or preface, explaining purposes and objectives. Termed the "Key of the Constitution."

• Sovereign, Socialist, Secular, Democratic Republic:

  • Sovereign: Independent authority; free from external/internal control.

  • Socialist: (Added $1976$) Commitment to social/economic equality and removal of inequalities.

  • Secular: (Added $1976$) No official state religion; state is neither religious nor anti-religious.

  • Democratic: Government of, by, and for the people via universal adult franchise.

  • Republic: Head of state (President) is elected, not a hereditary monarch.

• Justice, Liberty, Equality, and Fraternity: Ensures social, economic, and political justice; liberty of thought/faith; equality of status; and fraternity to ensure national integrity.

CITIZENSHIP (PART II)

• Constitutional Provisions (Articles $5-11$): Identifies citizens at the commencement ($26^{th}$ Jan $1950$).

  • Article 5 (Domicile): Requires domicile in India AND (born in India OR parent born in India OR resident for $5+$ years).

  • Article 6 (Migrants from Pakistan): Categories based on migration before/after July $19$, $1948$.

  • Article 7 (Migrants to Pakistan): Citizenship lost if migrated after March $1$, $1947$ (subject to exceptions).

  • Article 8 (Indians Abroad): Registration by diplomatic representatives.

  • Article 9: Voluntary acquisition of foreign citizenship terminates Indian citizenship.

• Citizenship Act, 1955: Governs acquisition (Birth, Descent, Registration, Naturalization, Incorporation) and termination (Renunciation, Termination, Deprivation).

• Corporate Citizenship: Companies/Corporations are NOT citizens under Article $19$ (State Trading Corp. case), though shareholders can challenge abridgment of rights (R.C. Cooper case).

FUNDAMENTAL RIGHTS (PART III, ARTICLES $12-35$)

• Article 12 (Definition of State): Includes Government/Parliament of India, State Governments/Legislatures, Local authorities (Municipalities, Panchayats), and "Other authorities" (Statutory bodies like LIC, ONGC, CSIR). BCCI is not "State."

• Article 13 (Judicial Review): Laws inconsistent with Fundamental Rights are void. Includes Pre-Constitutional (Article $13(1)$) and Post-Constitutional laws (Article $13(2)$).

  • Doctrine of Severability: Only the invalid portion of a law is struck down if separable.

  • Doctrine of Eclipse: Overborne pre-constitutional laws remain dormant, not dead, until the "eclipse" is removed by amendment.

  • Doctrine of Waiver: Citizens cannot voluntarily give up Fundamental Rights as they are based on public policy.

• Article 14 (Equality):

  • Equality before law: Negative concept (English origin); absence of special privileges.

  • Equal protection of laws: Positive concept (USA origin); equals must be treated equally.

  • Test of Classification: Must be based on (1) Intelligible differentia (2) Rational nexus to the object.

• Article 15 (Non-Discrimination): No discrimination based only on religion, race, caste, sex, or place of birth. Exceptions for women/children ($15(3)$) and backward classes/SC/ST ($15(4) \& 15(5)$).

• Article 16 (Public Employment): Equality of opportunity. Permits reservations ($16(4)$) and backlog vacancies ($16(4B)$). 50% ceiling applies per Indra Sawhney.

• Article 17: Abolition of Untouchability.

• Article 18: Abolition of Titles (Military/Academic distinctions allowed; Bharat Ratna is an award, not a title).

• Article 19 (Six Freedoms):

  • (a) Speech and expression (includes freedom of press and right to silence).

  • (b) Peaceful assembly without arms.

  • (c) Formation of associations/unions.

  • (d) Free movement.

  • (e) Residence/Settlement.

  • (f) Practice of profession/trade.

  • Restrictions (Article $19(2)-(6)$): Must be "reasonable" and based on security, public order, morality, etc.

• Article 20 (Conviction Protection):

  • $20(1)$: Prohibition of Ex-post facto laws (no retroactive punishment).

  • $20(2)$: Protection against Double Jeopardy (no dual punishment for the same offense).

  • $20(3)$: Prohibition of Self-incrimination (cannot be compelled to witness against self).

• Article 21 (Life and Personal Liberty): Expanded by Maneka Gandhi case to include rights to dignity, livelihood, health, shelter, privacy, and free legal aid. Right to Die is not a fundamental right (Gian Kaur).

• Article 21A: Right to free/compulsory education for children ages $6-14$.

• Article 22 (Arrest/Detention): Rights to be informed of grounds, consult lawyers, and production before Magistrate within $24$ hours. Excludes enemy aliens and preventive detention.

• Article 23 \& 24 (Exploitation): Prohibition of human trafficking, forced labor (begar), and employment of children under $14$ in hazardous industries.

• Article 25-28 (Religion): Freedom of conscience and practice. Secularism is part of "Basic Structure."

• Article 29 \& 30 (Minority Rights): Protection of distinct language/culture and right to establish/administer educational institutions.

• Article 32 (Constitutional Remedies): The "Heart and Soul." Power to move Supreme Court via Writs (Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo-Warranto).

DIRECTIVE PRINCIPLES OF STATE POLICY (PART IV)

• Nature: Non-justiciable but fundamental to governance.

• Objectives: Establish social/economic democracy and a welfare state. Includes articles on right to work ($41$), living wage ($43$), Uniform Civil Code ($44$), and environmental protection ($48A$).

• Interrelationship: Fundamental Rights and DPSPs are complementary; neither is superior (Minerva Mills).

THE UNION EXECUTIVE

• The President (Articles $52-62$ \& $72$):

  • Election: Indirect by electoral college (MPs/MLAs) via proportional representation.

  • Powers: Legislative (promulgate ordinances, summon Parliament), Executive (appoint PM, Governors, CJI), Financial (recommend money bills), and Judicial (Pardon powers - Article $72$).

  • Veto: Can return bills for reconsideration (except Money Bills) or use pocket veto.

  • Impeachment: Ground: Violation of the Constitution (Article $61$).

• Vice President: Ex-officio Chairman of Rajya Sabha. Acts as President during vacancies for max $6$ months.

• Council of Ministers (Articles $74-75$): Aid and advise the President. President must act on advice (post $42^{nd}/44^{th}$ Amendments). Collective responsibility to Lok Sabha.

• Attorney General (Article $76$): Highest law officer; right of audience in all courts.

THE STATE EXECUTIVE (GOVERNOR)

• Governor (Articles $153-167$): Appointed by President; holds office during President's pleasure. Constitutional head of State. Powers mirror President (except military/diplomatic/death sentence pardons). Article $200$: Assent to state bills or reservation for President's consideration.

JUDICIAL PROCESS AND SUPREME COURT

• Supreme Court (Articles $124-147$):

  • Jurisdiction: Original ($131$), Appellate ($132-134$), Advisory ($143$), Special Leave to Appeal ($136$).

  • Article 141: Law declared by SC is binding on all courts in India.

  • Article 142: Power to pass any order for "complete justice."

• High Courts (Articles $214-231$): Article $226$ allows issuing writs for any legal right violation (broader than SC's Article $32$).

• Judicial Review: Doctrine allowing courts to invalidate legislative/executive actions inconsistent with the Constitution. Part of "Basic Structure."

• Public Interest Litigation (PIL): Expansion of locus standi; allows public-spirited individuals to approach courts for the disadvantaged and for environmental protection.

FEDERALISM AND CENTRE-STATE RELATIONS

• Nature: Quasi-federal. Federal features (written constitution, division of powers) vs. Unitary features (strong centre, single citizenship, All India Services).

• Legislative Relations (Articles $245-255$): Three lists. Residuary powers with Union ($248$). Parliament can legislate on state subjects during emergency ($250$) or if Rajya Sabha resolves ($249$).

• Administrative Relations (Articles $256-263$): Union can give directions to states. Establishment of Inter-State Councils ($263$).

• Financial Relations (Articles $264-281$): Distribution of tax revenues. Role of Finance Commission ($280$).

• Freedom of Trade (Articles $301-307$): Interstate trade is free ($301$). Subject to reasonable restrictions in public interest ($302-304$).

CONSTITUTIONAL AMENDMENT (ARTICLE $368$)

• Methods: (1) Simple Majority (2) Special Majority (3/3) (3) Special Majority + State Ratification.

• Basic Structure Doctrine: Keshavananda Bharati case ($1973$) ruled that Parliament cannot alter the essential features of the Constitution (e.g., secularism, federalism, judicial review, republic form).

EMERGENCY PROVISIONS (PART XVIII)

1. National Emergency (Article 352): War, external aggression, or armed rebellion. Approved by Parliament within $1$ month. Suspends Article $19$ but NOT Articles $20$ and $21$.

2. State Emergency / President's Rule (Article 356): Failure of constitutional machinery in a state. Approved within $2$ months. Maximally $3$ years duration.

3. Financial Emergency (Article 360): Financial stability threat. Never invoked in India.

SERVICES UNDER THE STATE

• Doctrine of Pleasure (Article 310): Civil servants hold office during the pleasure of President/Governor.

• Constitutional Safeguards (Article 311): No removal by authority subordinate to appointing one. Right to inquiry and reasonable opportunity to be heard (subject to exceptions like security or criminal conviction).