1. INTRODUCTION TO CONSTITUTION DISCOVER . LEARN . EMPOWER
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UNIVERSITY INSTITUTE OF LEGAL
STUDIES
B.A. LL.B. 1st SEMESTER
CONSTITUTIONAL LAW 1
2. 2
Constitutional Law – I
LLT-303
CO
Number
Title Level
CO1 Nature of Indian constiution Remember
CO2 Preamble Understand
CO3 Sources of Indian Constitution Understand
CO4 Salient features of Indian Constitution Understand
CO5 Rule of Law Understand
CO6 Basic Structure Doctrine Understand
CO7 Separation of Power Understand
CO8 Citizenship Understand
Course Outcome
3. Nature of Indian Constitution
• In a Democratic government, Constitution plays a primary role in efficient governance.
Constitution is a set of fundamental principles or established precedents according to which a State
can be governed. Constitutions may be classified into two categories. Such as: Federal or Unitary.
• Is Indian Constitution a federal or unitary in nature? Indian Constitution is an hybrid of both
federal and unitary nature of a Constitution and hence rightly termed as ‘Quasi-federal‘
Constitution. It mean a federal set up where despite having two clear sets of government – central
andthe states, more powers are given to the Central Government.
• Prof. Wheare put-forth his view that to say a Constitution is federal in nature, it should displays
federal character predominantly
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4. • The debate whether India has a ‘Federal Constitution’ and ‘Federal Government’
has been grappling the Apex court in India because of the theoretical label given to
the Constitution of India, namely, federal, quasi- federal, unitary. The first
significant case where this issue was discussed at length by the apex Court was
State of West Bengal V. Union of India. The main issue involved in this case was
the exercise of sovereign powers by the Indian states.
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5. Preamble of Constitution
• WE, THE PEOPLE OF INDIA, having solemnly resolved to
constitute India into a [SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC] and to secure to all its citizens:
• JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the [unity and
integrity of the Nation];
• IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of
November, 1949, do HEREBY ADOPT, ENACTAND GIVE TO
OURSELVES THIS CONSTITUTION.
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6. Sources of Indian Constitution
• i. Government of India Act, 1935:Federal Scheme, Office of Governor, Judiciary, Public Service Commissions, Emergency provisions,
Administrative details.
• ii. British Constitution:
• Parliamentary government, Rule of Law, Legislative procedure, Single citizenship, Cabinet System, Prerogative Writs.
• iii. US Constitution:
• Fundamental Rights, Independence of Judiciary, Judicial Review, Impeachment of the President, Removal of Supreme Court and High Court
judges and post of Vice-President.
• iv. Irish Constitution:
• Directive Principles of State Policy, nomination of members to Rajya Sabha and method of election of President, Federation with a strong
centre, Vesting of residuary powers in the Centre, appointment of State Governors by the Centre and advisory jurisdiction of the Supreme
Court. 6
7. Sources of Constitution
• v. Canadian Constitution:
• Federation with a strong centre, residuary powers with the centre, appointment of state governors by the centre and advisory jurisdiction of
the Supreme Court.
• vi. Australian Constitution:
• Concurrent List, Freedom of trade, commerce and intercourse joint sitting of the two Houses of Parliament.
• ix. French Constitution:
• Republic and the ideals of liberty equality and fraternity in the Preamble.
• x. South African Constitution:
• Procedure for amendment, the Constitution and election of the members of Rajya Sabha.
• xi. Japanese Constitution:
• Procedure established by law. The drafted Constitution was finally adopted on November 26, 1949. 7
8. Salient Features of Constitution
• The bulkiest constitution of the world
The Indian constitution is one of the bulkiest constitution of the world, comprising of 395 articles, 22 parts and 12
schedules. So far the constitution underwent 100 amendments (28 May, 2015).
• Rigidity and flexibility
The Indian constitution is combination of rigidity and flexibility, which means some parts of it can be amended by the
Parliament by a simple majority, whereas some parts require a two-third majority as well as not less than one-half of the
state legislatures.
• Parliamentary system of government
The Indian constitution provides for a parliamentary system of government, i.e., the real executive power rests with the
council of ministers and the President is only a nominal ruler (Article 74).
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9. Salient Features of Constitution
• Federal system with a unitary bias
Indian constitution described India as a 'Union of States' (Article 1), which implies that Indian
federation is not the result of any agreement among the units and the units cannot secede from
it.
• Fundamental rights and fundamental duties
The Indian constitution provides an elaborate list of Fundamental Rights to the citizens of India,
which cannot be taken away or abridged by any law made by the states (Article 12–35). Similarly,
the constitution also provides a list of 11 duties of the citizens, known as the Fundamental
Duties (Article 51A).
• Directive principles of state policy
The Indian constitution mentions certain Directive Principles of State Policy(Article 36–51) which
that government has to keep in mind while formulating new policy.
• Secularism
The constitution makes India a secular state by detaching from religious dogmas (Forty-second
Amendment).
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10. Salient Features of Constitution
• Independent judiciary
The constitution provides an independent judiciary (Article 76) which ensures that
the government is carried on in accordance with the provisions of the
constitution and acts as a guardian of the liberties and fundamental rights of the
citizens.
• Single citizenship
The Indian constitution provides a single citizenship for all the people residing
different parts of the country and there is no separate citizenship for the states
(Article 5–11).
• Bicameral legislatures
The Indian constitution provides a bicameral legislatures at centre consisting
of Rajya Sabha (Council of States) and Lok Sabha (House of the People)(Article
79). 10
11. Salient Features of Constitution
• Emergency powers
The constitution vests extraordinary powers, known as Emergency
Powers in the President during emergencies out of armed rebellion or
external aggression or due to failure of constitutional machinery in
the state (Article 352–360).
• Special provisions for minorities
The constitution makes special provisions for minorities, Scheduled
castes, Scheduled Tribes, etc. by granting them certain special rights
and provisions.
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12. Rule of Law
• The formal origin of the word is attributed to Sir. Edward Coke, and is
derived from French phase ‘la principe de legalite’ which means the
principle of legality. The firm basis for the Rule of Law theory was
expounded by A. V. Dicey and his theory on the rule of law remains
the most popular. Dicey’s theory has three pillars based on the
concept that “a government should be based on principles of law and
not of men”, these are:
• Supremacy of Law:
• Equality before the Law:
• Pre-dominance of legal spirit:
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13. Rule of Law
• Rule of Law in India:
The Supreme Court of Indian has further strengthened this mechanism through its
various judgments, the foremost of them being, A D M Jabalpur v. Shivkanth
Shukla In this case, the question before the court was ‘whether there was any
rule of law in India apart from Article 21’. This was in the context of suspension of
enforcement of Articles 14, 21 and 22 during the proclamation of an emergency.
The answer to the majority of the bench was in negative for the question of law.
In Chief Settlement Commr; Punjab v. Om Prakash, it was observed by the
Supreme Court that, “In our constitutional system, the central and most
characteristic feature is the concept of rule of law which means, in the present
context, the authority of law courts to test all administrative action by the
standard of legality. The administrative or executive action that does not meet
the standard will be set aside if the aggrieved person brings the matter into
notice.”
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14. Rule of Law
• Most famously in the case of Kesavananda Bharati v. State of
Kerala the Supreme Court held that the Rule of Law is an essential
part of the basic structure of the constitution and as such cannot be
amended by any Act of Parliament, thereby showing how the law is
superior to all other authority of men.
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15. Basic structure (doctrine) of the Constitution
• Evolution of the Basic Structure
• The word "Basic Structure" is not mentioned in the constitution of India. The concept
developed gradually with the interference of the judiciary from time to time to protect
the basic rights of the people and the ideals and the philosophy of the constitution.
• • The First Constitution Amendment Act, 1951 was challenged in the Shankari Prasad vs.
Union of India case. The amendment was challenged on the ground that it violates the
Part-III of the constitution and therefore, should be considered invalid. The Supreme
Court held that the Parliament, under Article 368, has the power to amend any part of
the constitution including fundamental rights. The Court gave the same ruling in Sajjan
Singh Vs State of Rajasthan case in 1965.
• • In Golak Nath vs State of Punjab case in 1967, the Supreme Court overruled its earlier
decision. The Supreme Court held that the Parliament has no power to amend Part III of
the constitution as the fundamental rights are transcendental and immutable. According
to the Supreme Court ruling, Article 368 only lays down the procedure to amend the
constitution and does not give absolute powers to the parliament to amend any part of
the constitution.
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16. Basic structure (doctrine) of the Constitution
• • The Parliament, in 1971, passed the 24th Constitution Amendment Act.
The act gave the absolute power to the parliament to make any changes in
the constitution including the fundamental rights. It also made it obligatory
for the President to give his assent on all the Constitution Amendment bills
sent to him.
• In 1973, in Kesavananda Bharti vs. State of Kerala case, the Supreme Court
upheld the validity of the 24th Constitution Amendment Act by reviewing
its decision in Golaknath case. The Supreme Court held that the Parliament
has power to amend any provision of the constitution, but doing so, the
basic structure of the constitution is to be maintained. But the Apex Court
did not any clear definition of the basic structure. It held that the "basic
structure of the Constitution could not be abrogated even by a
constitutional amendment". In the judgement, some of the basic features
of the Constitution, which were listed by the judges.
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17. Separation Of Power
• he theory of Doctrine of Separation of Power was first propounded by
Montesquieu, a French scholar in and 1747 published in his book
‘Espirit des Louis’ (The spirit of the laws).
• To avoid this situation with a view to checking the arbitrariness of the
government he suggested that there should be clear-cut division of
power between the three organs of the state i.e. Executive, Legislative
and the Judiciary.
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18. Separation of Power
• The theory of separation of powers signifies three formulations of
structural classification of governmental powers:
• The same person should not form part of more than one of the three
organs of the government. For example, ministers should not sit in
Parliament.
• One organ of the government should not interfere with any other
organ of the government.
• One organ of the government should not exercise the functions
assigned to any other organ.
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19. Separation Of Power
• Separation of Powers and Judicial Pronouncements in India
The first major judgment by the judiciary in relation to Doctrine of
separation of power was in Ram Jawaya v state of Punjab. The court
in the above case was of the opinion that the doctrine of separation
of power was not fully accepted in India.
Then in Indira Nehru Gandhi v. Raj Narain, where the dispute
regarding Prime Minister’s election was pending before the Supreme
Court, it was held that adjudication of a specific dispute is a judicial
function which parliament, even under constitutional amending
power, cannot exercise
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20. Citizenship
• Part II of the Constitution of India (Articles 5-11) deals with the
Citizenship of India.
• Article 5 speaks about citizenship of India at the commencement of
the Constitution (Nov 26, 1949).
• Article 11 gave powers to the Parliament of India to regulate the right
of citizenship by law.
• Thus Citizenship Act 1955 was enacted by the Parliament. It is an act
to provide for the acquisition and termination of Indian citizenship,
and the same acts speaks about citizenship of India after the
commencement of the Constitution.
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21. Citizenship
• Article 5 states that “every person” who has domicile in the territory
of India and:
• Who was born in the territory of India or
• Either of whose parents were born in the territory of India or
Who has been ordinarily resident in the territory of India for not less
than 5 years immediately preceding such commencement shall be a
citizen of India
• Article 6: Rights of Citizenship of certain persons who have migrated
to India from the territory now included in Pakistan shall be deemed
to be a citizen of India at the commencement of this Constitution
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22. Citizenship
• Article 8: These are Rights of Citizenship of certain persons of Indian
origin residing outside India for the purpose of employment,
education, and marriage
• Article 9: Persons who voluntarily acquire citizenship of a foreign
state will not be citizens of India.
• Article 10: Every person who is citizen of India under any provisions of
this part will be subject to any law enacted by the Parliament.
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www.cuchd.in Campus: Gharuan, Mohali
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Text Books Author/Publication
The Constitution of India Government of India Publication/ Universal Publication
Constitution of India J. N. Panday/ CLA
Reference Books Author/Publication
Shorter Constitution of India D.D.Basu/ Lexis Nexis
Constitution of India H.M.Seervai/ Universal Publication
Constitution of India M.P.Jain/Lexis Nexis
Introduction to Constitution of India B.K.Sharma/PHI
REFERENCES- Books
