Constitutional Law Notes

Brief Questions
1. Discuss fully Article 21 of the Constitution.

Article 21 of the Constitution provides that no person shall be deprived of his life or
personal liberty except according to procedure established by law. The object of Article
21 is to put a restraint on the Executive, so that it may not proceed against the life or
personal liberty of any individual, except under the authority of law.

This is the most cherished guarantee in the world. Article 21, read with Article 22,
contains the entire provision relating to deprivation of life or personal liberty, as
distinguished from the restriction of the right to move freely throughout the territory of
India, guaranteed under Article 19(1) (b) and (5).

In the Dartmouth College case, the due process clause has been defined as the process of
law which hears before it condemns, which proceeds upon enquiry, and renders judgment
only after trial. Its meaning is that every citizen shall hold his life, liberty and property
and immunities under protection of the general rules which govern society. In short due
process, as regards a criminal trial, means that no person is to be punished except for a
violation of definite and validly enacted laws of the land, and after a trial conducted in
accordance with the specific procedural safeguards contained in the Bill of Rights to
secure a fair trial.

It is interesting to note that the Draft Constitution of India contained the expression
without due process of law in place of the words except according to procedure

established by law. However, the Constituent Assembly preferred the latter expression,
as it was considered to be more certain and definite.

In India, the duty of seeing that no member of the Executive interferes with the liberty or
property of the citizens, except on the condition that he can support the legality of his
actions, devolves on the Court. At the same time, the Indian Constitution does not
guarantee the right to any particular procedure. Though the Supreme Court has denied to
itself the right to examine the reasonableness of any law depriving a person of his liberty,
it has, in fact, interfered in many cases with such orders depriving the liberty of the
citizens, on the ground that the procedure laid down by the law which authorizes such
deprivation, has not been followed. On such grounds, the Court, in a proceeding for
habeas corpus, will at once set the person at liberty. This principle has been applied both
in the case of punitive as well as preventive detention.

In the case of Gopalan v. State of Madras, the Supreme Court held that the word law
occurring in Article 21 is to be understood as State made law and not as natural law. The
formal reversal of this view ultimately came about in the case of Maneka Gandhi v.
Union of India, where the Supreme Court laid down that Article 21 is controlled by
Article 19. The Court observed that if there is a law which prescribes a procedure for
depriving a person of his personal liberty, there may be no infringement of Article 21, but
such law can still be challenged on the ground that it takes away any fundamental right
under Article 19 of the Constitution.

It may be noted that when a person is deprived of his life or personal liberty by a law
prescribing a procedure for the same, Article 21 is not violated.

2. Discuss fully whether the Indian Constitution is federal as well as unitary.

The nature of the Indian Constitution, whether it is federal or unitary can be examined in
the light of certain characteristics which can be summarized as follows:

a) Formation of the Constitution:

Federations elsewhere have been the result of a voluntary agreement between a
number of sovereign and independent States coming under a common
administration for certain specific purposes. But, in India, federation was not a
process of integration, but a process of decentralization. The former imperialistic
unitary State was converted into a democratic union by the Constitution.
Therefore it is not surprising that the Indian Constitution differs from other
federations in many vital respects.
b) Distribution of powers:
The legislative power contained in the Constitution can be summarized by saying
that the legislative power has been distributed between the Union and the States;
with the Union having exclusive legislative with respect to the subjects in the
Union List, while the States have exclusive legislative power with respect to the
subjects mentioned in the State List. However, both the Union and the States have
legislative power with regard to the subjects mentioned in the Concurrent List.
c) Citizenship:
There is a single citizenship for the whole Union and there is no citizenship for the
State as is observed in the United States, where citizenship is of both the Union as
well as the State.

d) Judiciary:
There is no bifurcation of the judiciary between the Federal and the State
Governments. The same system of courts, headed by the Supreme Court,
administers both the Union and the State laws as are applicable to the cases
coming up for adjudication. This is again in contrast to the American system,
where there are Federal Courts and State Courts.
e) Election, accounts & audit:
The machinery for election, accounts and audit is similarly integrated and unified.
The Union Government may give directions to a State Government to ensure due
compliance with the legislative and administrative action of the Union.
f) Failure of constitutional machinery:
Where there is a failure of the constitutional machinery in a State, the President
can suspend the Constitution of the State and assume responsibility for
administration of the State. In such circumstances, the Parliament may legislate
for such a State.
g) The Council of States:
The Council of States is not constituted on the principle of equal representation of
the States.
h) Formation of new States:
The Union Legislature, namely the Parliament has the power to form new States,
to increase or diminish the area of existing States and to alter their boundaries.

Thus, it can be seen that the Indian Constitution has some federal characteristics and
some unitary feature, and the latter are more pronounced during times of national
emergency.

3. Discuss fully, The President is the nominal head and the Prime Minister is the real
executive head.

Before the Forty Second Amendment of the Constitution, there was a controversy
regarding the constitutional status of the President. There were two views on this
question. One view was that the Indian Constitution was essentially providing for the
Cabinet system of Government responsible to the Parliament. Therefore, the President
was just a constitutional head. The other view was that though the Indian Constitution
provided essentially for a Cabinet system of Government, yet the President was not just
figure head, and in exceptional circumstances, his offices could be an office of effective
powers.

Those who held that the President was nothing more than a constitutional head, and was
always bound by the advice of the Council of Ministers, held their views for the following
reasons:
a) According to Article 64, there is a Council of Ministers. Therefore, the absence of
ministers and the President acting without the aid and advice of such ministers
would amount to a departure from the Constitution.
b) The very essence of the Cabinet system of Government is the Cabinets
responsibility to the Parliament. If the President were to act independently of the
advice of the Council of Ministers, such action would not fall within the sphere of
parliamentary responsibility.
c) If the President were to act independently, it would lead to a kind of personal
despotism in view of his apparently vast powers. Such a President might dissolve

the Parliament, proclaim an emergency and suspend the elections, and thus
virtually convert the Indian Constitution into an instrument of despotism.

As against the above arguments, those who held that, under certain exceptional
circumstances, the President might act independently of the aid and advice of the Prime
Minister or the Council of Ministers; advanced the following arguments in favor of their
view:
a) The Constitution, as originally framed, only provided for the Council of Ministers;
nowhere did it categorically state that the President has to act only on the aid and
advice of the Council of Ministers.
b) In view of the federal nature of the Constitution, there was no reason to believe
that all the conventions of the British Constitution should be invariably followed
in India.
c) So far as the federal and national problems are concerned, the President who has
been elected by the Parliament and the Legislative Assemblies of the States; may
be made representative of the nation, rather than the Prime Minister, who would
just be a leader of the majority party in the Parliament.
d) It was further argued that the British practice of the requirement of the signature
of the ministers before affixing the royal seal is not adopted in India. Therefore,
there is no constitutional difficulty even if the President were to act without the
aid and advice of the Council of Ministers.
After the 42nd Amendment, the above discussion assumes a purely academic character, as
it is now made clear that the President is bound by the advice of the Council of Ministers.
For this purpose, Article 74 of the Constitution was amended, and it is now provided that
the President shall act in accordance with such advice.

4. Discuss fully the procedure of passing money bills.

It is well known that one of the factors which contribute to the well being of an individual
or nation is finance. The Constitution, therefore, contains some special and important
provisions as regards money bills.

Money bills defined (Article 110):

A money bill is one which deals with any of the following matters only, viz.
a) The imposition, abolition, remission, alteration or regulation of any tax.
b) The regulation of the borrowing of money or the giving of any guarantee by the
Government of India, or the amendment of any law with respect to any financial
obligations undertaken by the Government of India.
c) The custody of the Consolidated Fund or the Contingency Fund of India, the
payment of moneys into or the withdrawals from any such fund.
d) The appropriation of moneys out of the Consolidated Fund of India.
e) The declaring of any expenditure to be expenditure charged on the Consolidated
Fund of India or the increasing of the amount of any such expenditure.
f) The receipt of money on account of the Consolidated Fund of India or the public
account of India or the custody or issue of such money or the audit of the accounts
of the Union or of a State.
g) Any matter incidental to any of the matters mentioned in clause (1) to (6) above.

A Bill is not to be deemed a Money Bill by reason only that it provide for the imposition
of fines or other pecuniary penalties, or for the demand or payment of fees for licenses or
fees for services rendered, or by the reason that it provides for the imposition, abolition,

remission or regulation of any tax by any local body or authority for local purposes. If
any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of
the House of the People (Lok Sabha) is final.

When a Money Bill is transmitted to the Council of States under Article 109, and when it
is presented to the President for assent under Article 111, there must be endorsed on every
such Bill, a certificate of the Speaker of the House of the People, signed by him that it is a
Money Bill.

Special procedure in respect of Money Bills (Articles 109-110(4) &117):

A Bill or amendment making provisions for any of the matters mentioned in clauses (1) to
(6) above cannot be introduced or moved except on the recommendation of the President
and a Bill making such provision cannot be introduced in the Council of States. (Article
117(1)) The three important steps in this special procedure are laid down in Articles 109
and 110 as under:
a) A Money Bill cannot be introduced in the Council of States. (Article 101(1))
b) On being passed by the Lok Sabha, a Money Bill must be sent to the Rajya Sabha
which must return the same with its recommendations within 14 days, which may
be accepted or not by the former. If the Money Bill is not returned within the
requisite period, it is deemed to have been passed by both the Houses in the form
in which it was sent by the Lok Sabha. (Article 109).
c) If the Lok Sabha accepts any of the recommendations made by the Rajya Sabha,
the Money Bill is deemed to have been passed by both the houses with the
recommendations incorporated into the Bill. If the recommendations are not
accepted the Bill is deemed to have been passed in its original form.

5. Discuss fully the procedure of amending the Constitution under Article 368.

Article 368 prescribes a special procedure in case the Constitution has to be amended.
There are four steps in the procedure as under:

An amendment of the Constitution may be initiated only

a) By the introduction of a bill for the purpose in either House of Parliament. It must
be remembered that the process of amending the Constitution is a legislative
process and an amendment Bill is ordinarily to be passed as a legislative measure.

b) When the Bill is passed in each House by a majority of the total membership of
the House and by a majority of not less than two-thirds of the members of the
members of that House present and voting, it is presented to the President for his
assent.

c) Upon such assent being given to the Bill, the Constitution stands amended in
accordance with the terms of the Bill.

d) However, if such amendment seeks to make any change in any of the following
eleven matters
i.

Article 54: Election of the President

ii.

Article 55: Manner of the election of the President

iii.

Article 73: Extent of the executive power of the Union

iv.

Article 162: Extent of executive power of the State

v.

Article 241: High Courts for Union territories

vi.

Chapter IV of Part V: The Union Judiciary

vii.

Chapter V of Part VI: The High Courts in the States

viii.

Chapter I of Part XI: Legislative relations

ix.

Any of the lists in the Seventh Schedule

x.

The representation of States in Parliament

xi.

The provisions of Article 368 itself, -

the amendment must also be ratified by the Legislature of not less than half of the
States, by resolutions to that effect passed by those Legislatures, before the Bill
making provisions for such amendment is presented to the President.

The 42nd Amendment, 1976, had provided that no amendment of the Constitution,
including the provisions relating to the Fundamental Rights, made or purporting to be
made under Article 368, could be called into question in any Court on any ground.

The amended Article 368 also declared that there would be no limitation whatsoever in
the power of the Parliament to amend, by way of addition, variation or repeal, any of the
provisions of the Constitution under Article 368.

The above two provisions introduced by the 42 nd Amendment, 1976, were challenged
before the Supreme Court in the case of Minerva Mills v. Union of India. The five
member Bench of the Supreme Court, which tried this case, were unanimous in its
opinion that both the provisions void, as they were beyond the amending powers of the
Parliament.

6. Discuss fully the position of the Prime Minister as well as his functions.

The Prime Minister is appointed by the President, and holds office during the pleasure of
the President.

His duties are to be found in Article 78 and as are under:

a) To communicate to the President, all decisions of the Council of Ministers relating

to the administration of the affairs of the Union and proposals for legislation.

b) To furnish such information relating to the administration of the affairs of the

Union and proposals for legislation, as the President may call for.

c) If the President so requires, to submit for the consideration of the Council of

Ministers, any matter on which a decision has been taken by a Minister, but has
not been considered by the Council.

The Prime Minister certainly occupies a position of superiority over the other ministers.
He is often described as the keystone of the cabinet arch. Sometimes, he is also
described as primus inter pares, the first among equals. However, this seems to be an
understatement, inasmuch as a Prime Minister, and more so, a powerful Prime Minister,
has no equals.
.

The superiority of the Prime Minister is also reflected in the fact that it is he who
recommends to the President, the appointment of the other ministers. Likewise, he can
also recommend to the President, the dismissal of a particular minister.

Normally, a minister who does not agree with the Prime Minister has to resign. Such a
minister cannot continue in the ministry, and at the same time criticize the Prime Minister
openly. Such behavior would be incompatible with the basic principles of the cabinet
system of government.

Again, it is the Prime Minister who defends the cabinet on the floor of the House. His
resignation would mean the fall of the entire cabinet. A person with a strong personality
and comfortable majority in the Lok Sabha can well become a very powerful Prime
Minister. It is, therefore, said that the office of the Prime Minister is what its holder
chooses to make it. And, recent history has shown how true this statement can be.

There is yet another weapon in the hands of the Prime Minister. He can advise the
President to dissolve the Lok Sabha. It is this potent power tha gives the Prime Minister
full control over the Lok Sabha and not vice versa. With a relatively weak President, the
Prime Minister can almost become an elected dictator.

7. Discuss fully untouchability under Article 17 & the Civil Rights Act, 1955.

Untouchability is abolished and its practice in any form is forbidden. The enforcement
of any disability arising out of untouchability, shall be an offence punishable in
accordance with law.

The complete abolition of untouchability was one of the foremost visions of Mahatma
Gandhi. Article 17 seeks to adopt the Gandhian idea without any qualification. The word
untouchability has not been defined in the Constitution, but it is meant to cover different
acts in different in India. This Article abolishes untouchability which, like slavery,
amounts to a denial of human equality. This Article also makes untouchability in any form
an offence.

It will be seen that this Article enacts two declarations. It is firstly declared that
untouchability is abolished and its practice in any form is forbidden. Secondly, it is laid
down that if a person seeks to enforce any disability arising out of untouchability, he will
be guilty of an offence.

It is interesting to note that the word untouchability (as appearing in Article 17) is
enclosed in inverted commas. This would suggest that the subject matter of Article 17 is
not untouchability in its literal or grammatical sense, but the practice as has developed in
India through the ages.

In 1955, Parliament passed the Untouchability (Offences) Act, which was later renamed
as the Protection of Civil Rights Act. Although this enactment has not been strictly

enforced, it is a step in towards a socialist India, where all men are equal in the eyes of
society and law.

As it is not possible to give a precise definition of untouchability, the Protection of Civil

Rights Act makes provisions with respect to the commonest forms of untouchability
practiced in India. Fine and imprisonment are prescribed under the Act for several such
acts, as for example:

a) Preventing a person, on the ground of untouchability, from entering any place of

worship, which is open to other members of the same religion.
b) Preventing any person, on the ground of untouchability, from worshipping or
performing any religious services in any place of religious worship, or bathing in
any sacred tank, well, spring, etc.
c) Denying to any person, on the ground of untouchability, access to any shop, public
restaurant, hotel or place of public entertainment;
d) Enforcing against any person, on the ground of untouchability, any disability with
regard to the practice of any profession, or the carrying on of any occupation,
trade or business;
e) Denying any person, on the ground of untouchability, the use of any public
musafir-khana or dharamshala which is open to the general public;
f) Refusing admission to any person, on the ground of untouchability, in any
hospital, dispensary, educational institution, etc., established or maintained for the
benefit of the general public.

8. Discuss fully the preamble to the Constitution.

The Preamble serves as an introduction to the Constitution. It is a statement of the

purposes for which the Constitution was enacted.

The Preamble serves two purposes. Firstly, it indicates the source from which the
Constitution springs into existence, namely the people of India. The political power in the
Republic of India, therefore, vests ultimately with the people of India. Our Constitution is
broadly based on the consent and acquiescence of the people. It is not imposed by some
external authority, as was the case with the Government of India Act, 1935. it is true that
the Constituent Assembly, which framed the Constitution, was not directly elected by the
people, nor was the draft of the Constitution subjected to the vote of the people. Yet the
Constituent Assembly was fairly representative of all sections of the people.

Secondly, the Preamble throws light on the aims and objectives of the Constitution. The
declared object is to secure justice, liberty, equality and fraternity to all the citizens. Thus,
the Preamble expresses the political, moral and civil values which the Constitution is
intended to promote.

As observed by the Supreme Court, the Constitution is a living and organic thing, which,
of all instruments, has the greatest claim to be construed broadly and liberally. As the
Supreme Court observed, the Constitution is not merely law, but the machinery by
which all laws are made. (Goodyear India Ltd. V. State of Haryana)

It is well established rule of interpretation that it is only when an Act is ambiguous, a

Preamble can be used to throw further light on the express provisions of the enactment.
Thus, the Preamble cannot be used to control an enactment, when the enactment itself is
expressed in clear and unambiguous terms. In other words, an ambiguity cannot be
created or imagined, just to draw a clarification form the Preamble as that would mean
frustration of the main enactment. (Gopalan v. State of Madras)

In Gopalans case, it was contended that since the Preamble seeks to give India a
democratic Constitution, Article 21 should be read in such a way as would invalidate any
law opposed to the principles of natural justice. The Supreme Court, however, rejected
this argument, observing that the word law in Article 21 refers to positive or State made
law and not to natural law or justice.

In the case of Keshavananda Bharti v. State of Kerala, a majority of the Full Bench of the
Supreme Court held that the objectives stated in the Preamble reflect the basic structure of
the Constitution, which cannot be amended by exercising the power of amendment under
Article 368 of the Constitution.

The Supreme Court has also observed that the Preamble to the Constitution is, in the
words of the emionent jurist, Story, a key to open the minds of its makers in In Re
Berubari Union and Exchange of Enclaves.

9. How is the independence of the Supreme Court protected?

The framers of our Constitution have tried to secure the independence of the Supreme
Court by various measures. While providing for such safeguards, the framers drew
inspiration form the American, Swiss and British examples. The various safeguards in the
Constitution too ensure the independence of the Supreme Court can be summed up as
follows:
a) Appointment:
A Judge of the Supreme Court is appointed by the President, by a warrant under
his hand and seal, after consultation with such judges of the Supreme Court and of
the High Courts, as the President may deem necessary for the purpose, and holds
office till he attains the age of 65 years. Thus, the appointment of judges has
rightly been lifted from the realm of pure politics.

b) Removal:
A Judge of the Supreme Court cannot be removed from office, except by an order
of the President passed after an address by each House of Parliament, supported
by a majority of the total membership of that House and by a majority of not less
than two thirds of the members of that House present and voting, presented to the
President in the same session for such removal, on the ground of proved
misbehaviour or incapacity.

c) Salaries and allowances:

The salaries of the Judges have been fixed by the Second Schedule and cannot be
altered or varied to their disadvantage after their appointment. Thus, independence

is ensured by this assurance that a Judges salary and allowances will not be
adversely affected even if Parliament makes a new law after his appointment.

d) Charge on the Consolidated Fund of India:

The administrative expenses of the Supreme Court, including all salaries,
allowances and pensions payable to the Judges and other officers and servants of
the Supreme Court are charged upon the Consolidated Fund of India. The sums
which are charged upon the Consolidated Fund of India are not put to the vote of
Parliament.

e) Appointment of officers:
The appointments of the officers and servants of the Supreme Court are made by
the Chief Justice of India or such other Judge or officer of the Supreme Court as
he may direct, provided that the President may, by rule, require that in such cases
as may be specified in the rule, no person not already attached to the Court can be
appointed to any office connected with the Court, save after consultation with the
Union Public Service Commission.

f) Conduct not open to discussion in Parliament:

The Constitution also forbids any discussion of the conduct of a Judge in
Parliament except upon a motion for his removal.

g) No right to practice:
Under Article 124(7), a person who has been a Judge of the Supreme Court cannot
plead or act in any Court or before any authority in India.

10. Discuss fully the writs available under articles 32 and 226.

The writs available under Article 32 & 226 are as follows:

a) Habeas Corpus:
This writ may be regarded as one of the most important safeguards of personal
liberty. This writ is available in all cases of deprivation of personal liberty or
wrongful detention. On an application, the Court is empowered to direct that the
detained person be produced before it, and is entitled to inquire into the grounds
of his detention. If the Court is satisfied that such detention is illegal, it can order
immediate release of the person.

b) Mandamus:
The writ of mandamus (literally meaning We command) is a high prerogative
writ of a most extensive remedial nature. Today, it is used principally for public
purposes and to compel the performance of public duties. It is, however, also sued
to enforce private rights when they are withheld by pubic officers. it is to be noted
that mandamus lies, not only against executive authorities, but also against
judicial and quasi judicial authorities. The four conditions to be satisfied before a
writ of mandamus can be issued are:
i.

The petitioner must show that he has a legal right to obtain performance of a
legal duty.

ii.

Such duty must imposed by the Constitution or any other law, but not under
a contract.

iii.

Such a duty must be a ministerial duty and not discretionary in nature.

iv.

The right which is claimed should be judicially enforceable right.

c) Prohibition:
The writ of prohibition has been described as a judicial writ, issuing out of a Court
of superior jurisdiction, and directed to an inferior Court, for the purpose of
preventing the inferior Court from usurping a jurisdiction with which it is not
legally vested, or in other words, to compel Courts entrusted with judicial duties,
to keep within the limits of their jurisdiction. Thus, Courts have issued a writ of
Prohibition to prevent a Tribunal from proceeding further in a matter, when the
Tribunal
i.

Is acting without jurisdiction;

ii.

Is acting beyond its jurisdiction;

iii.

Is acting in violation of the rules of natural justice;

iv.

Is proceeding under a law which is unconstitutional or ultra vires;

v.

Is acting in contravention of a fundamental right.

d) Certiorari:
Certiorari means To be more fully informed of . Such a writ issued by a Superior
Court and is directed to the judge or officer of an inferior Court of record. It
require that the record of the proceedings in some cause or matter pending before
such inferior Court be transmitted to the superior Court to be dealt with, in order
to ensure that the applicant will have sure and speedy justice.

e) Quo Warranto:
The writ of quo warranto is issued to prevent the illegal assumption of any public
office or usurpation of any public office by anybody.

11. Discuss fully the features of the Constitution.

The Constitution of India, which came into effect on 26 th January, 1950, has certain
distinguishing features. Though the Constitution has gained from the constitutional
experiments of other countries, it has its own salient features. The following may be said
to be the salient features of the Indian Constitution:

a) The Constitution has the distinction of being the most lengthy and detailed
constitutional document the world has ever produced. When originally enacted,
the Constitution had 395 Articles 8 Schedules.
b) The Constitution is federal in character, and provides for a division of powers
between the Union and the States. The peculiarity of our federalism is that it has
created a substantially strong centre.
c) Though the Indian Constitution is federal in form, it is the most flexible of all
federal written constitutions. Most of the provisions of the Constitution can be
amended by the Parliament, only in a few cases, ratification by the States is
necessary. In fact, one unique feature of the Indian Constitution is that it has
been amended more than ninety times so far.
d) The Constitution makes provisions for directive principles which are fundamental
in the governance of the country.
e) The Constitution also provides for an independent judiciary, having the power of
judicial review. But, at the same time, it attempts at a reconciliation of the
principle of judicial review and parliamentary supremacy.
f) Though the Constitution is federal in nature, yet it provides for a single citizenship
of the Union. There is nothing like State citizenship (as for example, in the United

States of America). Thus, all citizens are citizens of India, and not of Karnataka or
Madhya Pradesh.
g) Another important feature is the concept of a secular state. There is complete
freedom of religion. There is no State religion, and each person is free to pursue
the religious beliefs of his choice. This aspect of the State was highlighted by the
42nd Amendment 1976, which emphasized the secular nature of the country, by
introducing the word secular in the Preamble. Moreover, freedom of religion is
one of the fundamental rights under the Constitution.
h) Another important feature of the Constitution is the abolition of communal
electorates. The framers of the Constitution seem to have learnt form their past
experience. In the interest of national solidarity, it has been found that there
should be no voting on communal lines. Only a few seats have been reserved, and
that too, only for some time, for the Anglo-Indians and the Scheduled Castes.
i) Another important feature is the provision for adult franchise. Every citizen who
is 18 years of age (under the Constitution as enacted, it was 21) has been given the
right to vote. Unfortunately, there is no duty to vote, as in some European
countries.
j) Another interesting feature of the Constitution is that it superimposes an elected
President upon the cabinet system of government, which is responsible to the
Parliament.

12. Discuss fully Article 14 & Article 19.

Article 14:
Article 14 provides that the State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India. The right to equality
guaranteed under Article 14 consists of two parts:
a) Equality before the law.
b) Equal protection of the laws.

The first phrase equality before the law owes its origin to the English common law.
Equality before the law means the absence of any special privilege in favour of any
individual, and the equal subjection of all classes to the ordinary law. It means that the
law should be equal and should be equally administered, that like should be treated alike.
The meaning of this phrase is that there shall not be any discrimination before the law on
extraneous grounds like rank, office, etc.

The other phrase equal protection of the law, owes its origin to the American
Constitution. While both the expressions, equality before the law and equal protection
of the laws aim at establishing equality of legal status for all, there is some difference
between these expressions. The former expression is somewhat a negative concept,
implying absence of any special privilege in favour of individuals, while the latter is a
more positive concept, implying equality of treatment in equal circumstances.

Examining the scope of Article 14, the Supreme Court has, in several cases, observed that
this Article guarantees equal treatment to persons who are equally situated. Unequals are

not only permitted to be treated unequally, but also must be so treated. Equal treatment,
when given to unequals, amount to inequality.

Article 19:
Article 19 enshrines several important liberties of citizens. The list is quite
comprehensive, and these rights, which are enjoyed by all citizens, are not absolute, as
they are qualified and limited; as for instance, the right of a person to move anywhere
does not enable him to enter any place he likes. The restrictions imposed by the
legislature are for the public good.

Rights are declared in unqualified terms, but later on they are properly qualified, thereby
suggesting sometimes that rights have been given by one hand and taken by the other. The
Constitution makers, after studying all the different Constitutions, have tried to include
the essence of other Constitutions in Article 19 of the Constitution, but unlike the
American Constitution, they have been properly codified. The right to freedom
guaranteed under Article 19 can be classified under the following seven important heads:
a) Freedom of speech and expression.
b) Freedom of assembly.
c) Freedom to form associations or unions.
d) Freedom to move freely throughout India.
e) Freedom to reside and settle in any part of India.
f) Freedom to acquire, hold and dispose of property. (no longer a fundamental
right)
g) Freedom to practice any profession.

Short Notes

1. Election Commission.

The Election Commission consists of the Chief Election Commissioner and other election
commissioners, all of whom are appointed by the President. The Chief Election
Commissioner acts as the Chairman of the Election Commission.

The superintendence, direction and control of the preparation of the electoral rolls for, and
the conduct of all elections to Parliament and to the Legislature of every State and of
elections to the office of President and Vice-President (including the appointment of
election tribunals for the decision of doubts and disputes arising out of or in connection
with the elections to parliament and to the Legislature of States) are vested in the Election
Commission.

Article 324 thus provides for the creation of an independent body, with exclusive powers
to decide certain matters. When read with Articles 103 and 192, it becomes clear that, in
case of doubts and disputes as to the qualification of members of the Legislatures, the
President or the Governor takes a decision in consultation with the Election Commission;
but in cases of doubts relating to elections, the same is to be decided by the Election
Tribunals appointed by the Election Commission.

2. Directive Principles of State Policy.

The framers of our Constitution have chosen the middle path between the ideal and the
practicable. They realized that some salutary principles, though necessary and highly
desirable, could not be placed on the same level as the fundamental rights. Hence, these
directive principles, as they are called, have been put on a separate footing in Part IV of
the Constitution.

This part embodies a series of general injunctions, a number of pious wishes styled
Directive Principles of State Policy, which are intended to give an indication of the
policy which the Union and the States ought to follow. They are directions to the State to
meet those social, economic and cultural reforms which the framers of the Constitution
looked upon as the ideals of the new order, but to which they did not give legal effect in
the framework of the organic law itself.

The Directive Principles are like the instrument of instructions which were issued to the
governors of the colonies by the British government. The only difference is that they are
instructions tot eh legislative and executive. Such a concept is welcome. Whenever there
is a grant of power in general terms of peace, order and good government, it is necessary
that it should be accompanied by instructions regulating its exercise.

The Directive Principles of State Policy can be used for the purpose of political and
private criticism, but they confer no legal right nor create any legal remedies. They are
good guides, but they cannot be enforced. Thus, the Directive Principles cannot be
enforced by any Court.

3. Pith and substance doctrine.

When the legislative powers of the Union and the States are divided in mutually exclusive
lists, it is possible that a question may arise in practice as to whether a law purporting to
be made under an entry in one list, falls in fact within an entry in another list, over which
such legislature has no power to make laws.

O answer such questions, the Privy Council evolved the doctrine of pith and substance,
which is an important feature of the Canadian Constitution. Under this doctrine, one must
see the pith and substance, or the true nature and character of the legislation. As the
Supreme Court explained, if an Act falls substantially within the powers expressly
conferred upon a Legislature, such Act is not invalid merely because it incidentally
encroaches on matters which have been assigned to another Legislature.

Therefore, when the vires of a law is challenged, the encroachment must be looked at as
an organic whole, and not as a mere collection of Sections from different pats of such an
Act. If the impugned Act is substantially within the legislative competence of the
legislature, it cannot be set aside.

This doctrine was first applied by the Privy Council in the Central Provinces Case, and
has been followed by the Supreme Court in several subsequent cases.

4. Doctrine of severability.

Whenever two interpretations of a statute are possible, one of which would make the law
valid and the other void, the former is always to be preferred. However, if this is not
possible, the Court will have to decide whether the law is bad as a whole, or whether the
part which is bad can be severed (i.e. separated) from the rest and declared void, leaving
the other parts of the statute intact.

Thus, it is only if the valid and the invalid provisions are separate and distinct that this
doctrine can be applied, provided further that after striking out the invalid portions what
remains is itself a complete code independent of the rest (which has been struck down). It
follows that if the valid and invalid provisions are so inextricably mixed up that they
cannot be separated, the whole statute will be declared void.

It has been held that where the valid and invalid provisions are joined together by using
words and or or, and the enforcement of the valid provision is not dependent on the
enforcement of the invalid provision, i.e. if the valid provision can be enforced even if the
invalid one cannot be enforced, the two provisions can be said to be severable. In such a
case, only the valid provision will be upheld and given effect to.

5. Doctrine of colorable legislation.

When a legislature lacks legislative competence in a particular field, it may frame its
statute so as to make it appear that the statute falls within one of the entries it has the
power to legislate upon. This is called colorable legislation, which means that, while the
statute pretends to be on a subject falling within the competence of the legislature, it is in
reality a law on a prohibited field. Such a law will be examined by the Courts, and if
found to be an instance of colorable legislation, it will be struck down as void.

In a federal constitution, the transgression of its limits by a legislature, central or State,

may in some cases be open, direct or overt. In other cases, it may be disguised, indirect
and covert, in the shape of colorable legislation.

Before applying the test of colorable legislation, the pith and substance test should be
applied. If the legislature is competent to pass a law, and it incidentally encroaches on the
sphere of another legislature, the law will not be invalid. But if a legislature which lacks
competence purports to act under a relevant entry, with a view to assuming legislative
competence, it would be a case of colorable legislation, and the law would be declared to
be invalid. Thus, the doctrine of colorable legislation looks to the competence of a
legislature, and not to its motives.

6. Comptroller and Auditor General.

The Comptroller and Auditor General of India is appointed by the President by warrant
under his hand and his seal. Before he enters upon his office, he has to make and
subscribe before the President (or some person appointed in that behalf), an oath or
affirmation in the prescribed form.

It is also provided that neither his salary nor his rights in respect of leave, pension or
retirement age, can be varied to his disadvantage after his appointment.

After he has ceased to hold his office, he is not eligible for further office either under the
Government of India or under the Government of any State.

The Comptroller and Auditor General can be removed from office only in the manner and
on like grounds as a Judge of the Supreme Court. In other words, he cannot be removed
from his office, except by an order of the President passed after an address by each House
of Parliament, supported by a majority of the total membership of that House and by a
majority of not less than two thirds of the members of that House present and voting,
presented to the President in the same session for such removal, on the ground of proved
misbehaviour or incapacity.

The Comptroller and Auditor General performs such duties and exercises such powers in
relation to the accounts of the Union and the States as may be prescribed by Parliament.

7. Special provisions for scheduled castes and scheduled tribes.

Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making
any special provision for the advancement of any socially or economically backward class
of citizens or for the Scheduled Castes and Tribes. (Article 15(4))

Article 15(4) was added in 1951 as a result of the judgment of the Madras High Court in
the case of Champakam Dorairajan v. State of Madras, which decision was upheld by the
Supreme Court.

The question of the validity of reservation for the Scheduled Castes and Tribes came up
before the Supreme Court in the case of M. R. Balaji v. State of Mysore, where an order of
the Mysore Government reserving 68 per cent of the seats for the Scheduled Castes and
Tribes and for the Backward Classes was challenged. In this case, it was held that the
impugned order made a classification based only on caste, without regard to other
relevant factors, and that such classification was not permissible under Article 15(4).

The Supreme Court also observed that, generally speaking, such a reservation should be
less than 50 per cent, and that as the impugned order reserved 68 per cent of the seats, it
was void on that ground also. Interestingly enough, the Supreme Court did not specify as
to how much below 50 per cent such reservation should be.

8. Doctrine of eclipse.

An existing law inconsistent with a fundamental right, though becomes inoperative from
the date of the commencement of the Constitution, is not dead altogether. It is a good law
if a question arises for determination of rights and obligations incurred before the
commencement of the Constitution, and also for the determination of the rights of persons
who have not been given fundamental rights by the Constitution.

This has led the Supreme Court to apply to the existing laws, i.e. pre-Constitution laws,
what may be described as the doctrine of eclipse. According to the doctrine of eclipse, an
exiting law, i.e., a law made before the commencement of the Constitution, remains
eclipsed or dormant to the extent it comes under the shadow of the fundamental rights,
i.e., it is inconsistent with any fundamental right, but the eclipsed or dormant parts
become operative and effective again if the prohibition brought about by the fundamental
right is removed by an amendment of the Constitution. The Supreme Court decision in
the case of Bhikaji Narain Dhakras v. State of M.P. is a good illustration of the application
of this doctrine.

9. Union Public Service Commission.

Article 315(1) of the Constitution provides that there shall be a Public Service
Commission for the Union and a Public Service Commission for each State.

The Chairman and other members of a Public Service Commission are appointed by the
President. A member of the Union Public Service Commission holds office for six years
from the date on which he enters upon his office or until he attains the age of sixty five
years.

One half of the members of the Union Public Service Commission should be persons who
have held office for at least ten years under the Government, before being so appointed. A
member of the Union Public Service Commission may, by writing under his hand and
addressed to the President resign from his office. The Chairman of the Union Public
Service Commission can be removed from his office by an order of the President only on
the ground of misbehaviour, after the Supreme Court (on reference being made to it by
the President) has, on inquiry reported that he should be removed. The President may, in
the meanwhile, suspend such member.

10. Powers of the governor.

The powers of governor of a State are analogous to those of the President, except that the
Governor has no diplomatic, military or emergency powers. The following powers
are conferred on him by the Constitution:

a) He is the head of the executive power of a State. The executive power of the State
being vested in the governor, is to be executed by him directly by him or through
officers subordinate to him in accordance with the Constitution. (Article 154(1))
b) All executive action of the Government of a State is o be expressed to be taken in
the name of the governor.
c) The governor appoints ministers, and they hold office during his pleasure.
d) The governor has a right of opening addresses, of addressing and sending
messages to and summoning of, proroguing and dissolving the Legislature, just as
the President has.
e) He has the power to cause the Annual Financial Statement to be laid before the
State Legislature, and making demands for grants and recommending Money
Bills.
f) He has the power of promulgating ordinances during any recess of the Legislature,
and power of vetoing State Bills, with power to reserve them for the consideration
of the President.
g) Lastly, he has the power to grant pardons.

11. Attorney General.

Articles 76, 88, 124 contain important provisions regarding the Attorney General of India.

The President appoints a person who is qualified to be appointed a Judge of the Supreme
Court to be Attorney General for India.

The qualifications of the Attorney General of India are the same as those of the Supreme
Court, laid down in Article 124, namely
a) He must be a citizen of India.
b) He must have been
i.

At least for five years, a judge of a High Court or of two or more such
Courts in succession; or

ii.

He must have been, for at least ten years, an advocate of a High Court, or
of two or more such Courts in succession; or

iii.

He is, in the opinion of the President, a distinguished jurist.

The Attorney General holds office during the pleasure of the President, and receives such
remuneration as the President may determine.

His duties are to give advice to the Government of India upon such legal matters, and to
perform such other duties of a legal character, as may be referred or assigned to him by
the President, and to discharge the functions conferred on him by the Constitution.

12. Secularism.

This word was also added by the 42 nd Amendment, 1976 to emphasize the secular nature
of the nation. The provisions contained in Articles 25 to 30 aim at making India a truly
secular nation.

A secular State is one where the State has no official religion. The State provides full
opportunity to every person to profess and practice a religion of his choice. On the other
hand, the Constitution guarantees a persons freedom of religion, and on the other hand,
also ensures equal freedom even for him who has no religion.

Dr. Radhakrishnan, a former President of India has, in his book, Recovery of Faith,
stated as under:

When India is said to be a secular state, it does not mean that we reject the reality of an
unseen spirit or the relevance of religion to life or that we exalt religion. It does not mean
secularism itself becomes a positive religion or that the State assumes divine
prerogative We hold that not one religion should be given preferential status. This view
of religious impartiality, or comprehension and forbearance, has a prophetic role to play
with the national and international life.

13. Citizenship.
The following are the four classes of persons mentioned in Articles 5 to 8, who can be
citizens of India:
a) Citizenship is conferred by the Constitution on every person who had his domicile
in India at the commencement of the Constitution, and
i. Who was born in India; or
ii. Either of whose parents was born in India; or
iii. Who has been ordinarily resident in India not less than 5 years immediately
preceding 26th January , 1950.
b) A person who has migrated to India from Pakistan can be a citizen of India provided
the following two conditions are fulfilled
i. He or either of his parents or any of his grand parents was born in India.
ii. In case where such person has migrated before 19 th July, 1948, he should have
resided in India since the date of his migration. If however, he has migrated on
or after 19th July, 1948, he should have been registered as a citizen of India by an
officer duly appointed by the Government. But such a person cannot be so
registered unless he has resided in India for six months prior to his registration.
c) Anyone who has, after 1st March, 1947 migrated from India to Pakistan cannot be a
citizen of India. But such a person can be an Indian citizen if he has returned to
India under a permit for resettlement or permanent return, and such a person would
be deemed to have migrated to India after 18th July, 1948. (Article 6)
d) Article 8 then confers citizenship on any person who or either of whose parents or
of whose grand parents was born in India and who is residing outside India,
provided he has been registered as a citizen of India by the diplomatic or consular
representative of India in the country where he resides.

14. Official language.

In a country with more than 1600 spoken languages, constitutional provisions about
languages are bound to be a difficult task. The founding fathers of the Constitution,
therefore, had to recognize some of these languages for official communication, to save
the country from utter confusion prompted by a multiplicity of languages.

It is provided that the official language of the Union is Hindi in Devnagri script, and the
form of numerals to be used for the official purpose of the Union are the international
form of Indian numerals, but the English language is to be continued to be used for all the
official purposes of the Union for fifteen years from the commencement of this
Constitution. The President may, however, during the said period, authorize the use of
Hindi language in addition to the English language and of the Devnagri form of numerals.

It is also laid down that, after the said period of fifteen years, Parliament may provide for
the use of the English language, or the Devnagri form of numerals. Pursuant to this
power, the Official Languages Act, 1963, has been enacted, under which English is still
being used, in addition to Hindi, for official purposes of the Union.