Prof.

Santanu Mitra LAB 1

CONSTITUTION OF INDIA (COI)

- Came into force on 26th January, 1950.

- Contains395 Articles divided into 22 parts & 12 schedules.
- All public authorities legislatives, administrative & judicial get their powers from
it- but Constitution gets authority from the people.

- PREAMBLE of COI - Provides the objects of the constitution Constitution proclaims

INDIA to be Sovereign, Socialist, Secular, and Democratic Republic.
Sovereign- implies that the Republic is externally and internally sovereign or
independent.
Socialist- to secure to the people Justice Social, economic& political- contained
in Part 1V through the directive Principles of State Policy.
Secular-Security & respect to all religions.
Democratic Republic- Implies that our Government is of the people, by the
people& for the people. Essentials of Democracy are- justice, liberty,
equality,& fraternity.

FORMS / FEATURES OF THE CONTITUTION:

- Features of Federal System:-
1)Duel Government
2) Distribution of powers
3) Supremacy of Constitution
4) Authority of the Courts
5) Rigidity
6) Written etc.
Political system of India is based on the above features of federalism- Indian
constitution possesses the above principles of federalism. But at the same time
Indian Constitution differs from the federal systems in the following ways: -
1) A federal union is formed by an agreement between a number of sovereign &
independent states (like American Constitution)- But in India a unitary
constitution is formed by creation of autonomous units & combining them into a
federation by one.
2) In a federal system, a number of safeguards are provided for the protection of
state rights but in India as the States are not sovereign, the rights are exercised
by Union.
3) In federal system (like USA), a dual citizenship, a double system of Courts
exists but in India, a single citizenship exists, no division of public services or
judiciary.
Thus the Constitution of India is NIETHER PURELY FEDERAL NOR PURELY UNITARY.
It is a combination of both. Main principles are that in spite of federalism, the
nationalism interest is paramount as against autocracy along with the
establishment of supremacy of law.

FUNDAMENTAL RIGHTS (FRs)

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fundamental Rights under Indian Constitution is exhaustively enumerated in

Part III of the constitution, they are:-
1) Rights to Equality- Articles 14 to 18
2) Rights to freedom Articles 19 to 22
3) Rights against exploitation Articles 23 to 24
4) Rights to freedom of religion Articles 25 to 28
5) Cultural & educational rights Articles 29 to 30
6) Rights to constitutional remedies- Articles 32

- Right to property (article 31) has been eliminated by the 44th Amendment-
Now it has become a legal right & not fundamental right.

The object of the fundamental rights is to secure to the people Liberty of

thought, expression, belief, faith, worship; Equality of status & opportunity &
fraternity assuring the dignity of the individual.

1) RIGHT TO EQUALITY OF STATUS & OPPURTUNITY

-Article14 It guarantees that the state shall not deny to any person EQUALITY
BEFORE LAW OR THE EQUAL PROTECTION OF LAWS within the territory of India.

Meaning- by birth & attainment all persons are not equal one always differs
from the other in one respect or the other it means that among equals, equal
laws shall be applicable & among unequal same laws shall not be applicable- by
applying equal laws to persons who are not equal, inequality is made (Aristotle)
- Like should be treated alike (Jennings) e.g. charging uniform rate of Income-
Tax on all persons (poor/ rich) inequality arises.
- Article 15 Prohibition of discrimination on the grounds of religion, race, sex,
caste etc.
Exceptions- 1) reservations of seats for women in buses & railways is valid;
1) reservation of seats for ST/SC candidates.
-Article16- Guarantees equality or opportunity for all citizens in matters relating
to employment.
Exceptions- 1) Backward classes for inadequacy of representation in the service.
2) Head of the Badrinath temple shall be Hindu or head of Durgah at Ajmeer be
Mohammedun is valid.

Article17- Abolition of title like Rai Bahadur, Sir, Knight etc.

2) RIGHT TO FREEDOM- ARTICLE19

a) Right to freedom of speech & expression
Exception- 1) for security of the state
2) Morality
3) Public Orders etc.
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b)RIGHT TO ASSEMBLY- Assembly must be peaceful & without arms.

Restrictions on the right for :-
1) Integrety of India
2) Public Order

RIGHT TO ASSOCIATION- Freedom to hold meeting & take out Processions

without arms.
Restrictions- 1) Integety
3) Public Order
4) Morality.

d)RIGHT TO MOVEMENT- to move freely throughout the territory of India.

e) RIGHT TO RESIDENCE- guarantees to a citizen the right to reside & settle any
part of the territory of India.
g) RIGHT TO PRACTISE ANY PROFFESSION, TRADE OR BUSINESS
f) RIGHT TO PROFESSION- to pratice any profession or to carry on any trade
business.

3) RIGHT AGAINST EXPLOITATION: (ARTICLE 23 & 24 OF COI)

- Available not only against the state but also against private persons.
a) Art.23 imposes a complete ban on traffic in human beings & forms of
forced labour.
b) Art.24 prohibit the employment of children below 14 years of age in
any factory/ other hazardous employment

4) RIGHT TO FREEDOM OF RELIGION- Art.25 to 28 include a) Freedom of

propagation of religion, b) Freedom to manage religious affairs, c) Freedom to
attend religious worship in educational institution.

5) Cultural & Educational Rights (Minority Rights)

Art.29- a) Protection of interest of minorities
1) Protection of distinct language & culture.
2) Protection for admission in educational institute.
b) Right of Minorities to establish & administer educational institutions.

ART.30- For granting aid to educational institutions, the state discriminate on the
ground that it is under the management of a minority, whether based on religion
or language.

6) RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32 TO 35)

Art.32 guarantees the enforcement of Fundamental Rights as mentioned earlier

through Supreme Court Supreme Court may issue orders like Labeas Corpus,
mandamus, prohibition, quo warranto& certiorari.
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DIRECTIVE PRINCIPLES OF STATE POLICY(DPs)

There are two types of fundamental rights one which can be enforced in the
Courts of Law & the other which cannot be enforced. The former contained in Part
111 & the later contained in Part 1V (Art.36 to 51) of the constitution under the
head Directive Principles of State Policy.
The duty imposed upon the state under Part 111 is not to do certain things, but
the duty imposed under Part 1V is to do certain things.

The important directive principles are as follows:-

1) State to secure a social order for the promotion of welfare of the people.
2) State to secure that the operation of legal system promote justice on the basis
of equal opportunity. (Art.39A)
Under Article 226 of COI, a writ petition can be filed before the court.
3) The state to take steps to secure the participation of workers in the
management of undertakings. (Art.43A)
4) The state should provide a uniform civil code for all Indian Citizen.
5)The state must promote the economic & educational interests of ST,SC& other
weaker sections. (Art.46)
6)Provision for free & compulsory education for all children upto 14 years of age.
(Art.45)
7) to take steps to organize the village Panchayats. (Art.40)
8) to provide human conditions of work. (Art.42)
9) to secure living wage & good standard of life to workers. (Art.43)
10) to protect the environment & to safeguard the forests & wild life.
(Art.48A)
11) to protect monuments etc. (Art.49)
12) to separate executive from judiciary in public services. (Art.50) etc.

FUNDAMENTAL DUTIES OF EVERY CITIZENS (ART.51A)

Introduced by the Constitution (Forty Second) Ammendment Act 1976- Duties are
not enforceable in Law Courts.
1)to abide by the constitution,
2)to protect the sovereignty, unity& integrity of India,
3) to defend the country,
4) to preserve the rich heritage of our culture,
5) to safeguard the public property etc.

ORDINANCE MAKING POWERS : (ART.53)

The President of India , the head of the Executive Powers under Art.52, has the
following powers :-
1) Administrative to administer the Govt. Dept. [Art.(I)].
2) Military to command the armed/ Defence forces of the Union. [Art.53(II)].
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3) Legislative Summoning etc. of legislature (Power to make Rules/

Regulations Notifications & promulgate ordinances- (Art.123)
4) Judicial Granting of pardons etc. to criminals. (Art.72)
The Constitution provides that the President has the power to legislate by
ordinance with the Parliament cannot do the same immediately. But an ordinance
shall be of temporary duration. It may be retrospective or amendment of any law
etc. (Art.123)

PECULARITIES OF ORDINANCE
1) This power can be exercised by the President only on the advice of his
council of Minister
2) The ordinance must be laid before both the Houses of Parliament when it
re- assembles. It shall cease to operate on the expiry of 6 weeks of re-
assembling.
3) The power is available only when the parliament is not in session.

ORDINANCE MAKING POWERS OF GOVERNOR

- The Governor of the state has the Legislative Powers to make Ordinance under
Art.243.
The Governor must be satisfied that the circumstances exists which render it
necessary to take immediate action. (other procedure/ rule is same).

LEGISLATIVE POWERS OF THE UNION & THE STATES:

The arrangement for the operation of legislative powers of the centre & the
states w.r.t. different subjects of legislation is as follows:-

1) In respect of matters enumerated in Union List or List I, the Parliament

has the exclusive power to make laws.
2) In respect of matters enumerated in the State List i.e., List II the
legilature of the state has the exclusive power to make laws.
3) In respect of matter enumerated in the concurrent List, i.e., List III, the
Parliament & the State Legislatures both have powers to make laws. Thus both of
them can make law even with respect to the same subject & both the laws shall
be valid, in so far as they are not repugnant to each other. In case of repugnancy,
then the law made by Parliament shall prevail over the law made by the State
Legislature.
4) In respect of all matters which are not included in any of the 3 lists,
Parliament has the exclusive power to make laws which is called Residuary
Legislative Powers of Parliament.

POWERS OF THE PARLIAMENT TO MAKE LAWS ON STATE LISTS (EXCEPTION TO

GENERAL RULE):
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1) If necessary for the National Interest (Art.249) such law cease to

operate automatically after 1 year. (i.e., the validity period of the resolution
Empowering Parliament to make such law).
2) During proclamation of emergency. ( Art.250)
3) Breakdown of constitutional Machinery in a State (Art.356 & 357)
4) On the request of two or more states (Art.252)
5) For enforcing international agreement (Art.253).

Delegated Legislation may be

1) SUPREME which proceeds from sovereign power in the State;

2) SUBORDINATE which proceeds from any authority other than the
sovereign power;
Again Subordinate Legislation may be

a) EXECUTIVE e.g., rules framed by the Government under various

Municipal Acts;
b) JUDICIAL e.g., High Courts are authorized to frame rules for
regulating Courts Procedures.
c) MUNICIPAL e.g., Municipal Authorities making bye-laws;
d) AUTONOMOUS e.g., Universities making regulations.

FREEDOM OF TRADE, COMMERCE & INTERCOURSE :

Part XIII (Articles 301 to307) of the Constitution of India guarantee freedom of
trade, commerce & intercourse. But this freedom may be restricted for the
following reasons :-
1) For public interest, 2) For dealing scarcity of goods, 3) For creating state
monopoly in trade etc. (viz., in transport, in banking etc.,).

Freedom does not mean absolute regulations through licensing of vehicles or on

use of electricity for specific hours etc. are not open to challenge. If it is allowed
to challenge then every law shall become contrary to Art.301. To avoid such
situations the Supreme Court held that only those laws which DIRECTLY &
IMMEDIATELY RESTRICT THE FREEDOM OF TRADE & COMMERCE (are covered by
ART.301 & SUCH LAWS WHICH DIRECTLY & INCIDENTALLY AFFECT THE FREEDOM
GUARANTEED IN THE ARTICLE ARE NOT WITHIN THE REACH OF ART.301.
(def. Of case Atiabari Tea Company. Vs. State of Assam).

WRIT JURISDICTION OF HIGH COURTS:

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The constitutional remedy of writ is available to anyone whose fundamental

rights are infringed by state action. (on an application under Art.226) (on an
Application Under
Art.32). Every High Courts or Supreme Court has the power to issue orders/ writ
in the nature of Habeas Corpus, Mandamus, Prohibition Quo Warranto &
certiorari. These prerogative writs are extraordinary remedies applied in
exceptional cases where ordinary legal remedies are not adequate. ( Rashid
Ahmed Vs. Municipal Board).
1) HABEAS CORPUS
- Available to a person who is confined without legal jurisdiction.
- Habeas Corpus literally mean to have the body.
- This writ has to be obeyed by the detaining authority by production of the
person before the Court.
- The disobedience to the writ results in punishment for contempt of court under
the contempt of courts Acts.
This is an order to let the Court on what ground he has been connect to set him
jail if there is no jurisdiction for his detention.
2) MANDAMUS
Implies a command issued to direct any person of inferior court or Government
requiring him to do a particular thing pertains to his office which is in the nature
of public duty.
WRIT order or process issued by a Court/ Judicial Officer asking any person to
perform or refrain performing any net. In every case, the writ itself contains
directions as to what is required to be done.