Constitution of India

Dr. Sathish K S
 Syllabus
UNIT-I:
Meaning & Definition of Constitution: kinds of Constitution, Constitutionalism, Salient features of Indian Constitution.
Preamble: Meaning, Scope, Importance, Objectives and Values enshrined in the Preamble.
Citizenship- modes of acquisition & termination.
UNIT-II:
State: Definition under Article 12, New Judicial trends on concept of State Action- need for widening the definition.
Definition and Meaning of Law: Pre- Constitutional and Post- Constitutional Laws, Doctrine of Severability and Doctrine of
eclipse, Judicial Review and Article 13.
Equality and Social Justice: General Equality Clause under Article 14, New Concept of Equality, Judicial Interpretation on
Equality.
UNIT-III:
Protective Discrimination and Social Justice under Articles 15 and 16, New Judicial trends on Social Justice, Constitutional
Provisions on Untouchability under Article 17.
Right to Freedom: Freedom of Speech and Expression, Different dimensions - Freedom of Assembly, Association, Movement
and Residence, Profession, Occupation, Trade or business, Reasonable restrictions.
UNIT-IV:
Rights of the Accused: Ex-post facto Law; Double jeopardy — Right against self incrimination (Article 20). Rights of the
arrested person, Preventive Detention Laws (Article 22), Right to Life and Personal Liberty, Various facets of Life and Liberty
(Article.21), Right against Exploitation, Secularism - Freedom of Religion, Judicial interpretation, Restrictions on freedom of
religion.
UNIT-V:
Cultural and Educational Rights of minorities - Recent trends - Right to Constitutional Remedies: Article 32 and 226 — kinds
of writs - Right to property (prior to 1978 and the present position), Directive Principles of State Policy and Fundamental
Duties- inter relation between fundamental rights and directive principles.
 History
• Congress demanded for constituent assembly in 1935 and the same was accepted. Later the Crips Mission
in the year 1942 announced that after the end of the war steps shall be taken to constitute a body.
• Labour party came to power in England and it was sympathetic towards India and sent a cabinet mission
in 1946 it suggested to put an end to the paramountcy of crown to frame constitution.
• the constitution assembly cane into being in November 1946. It was consisted of 389 members. Of whom
292 were elected from provinces (among them 73 from Muslim league, 208 from congress, and remainders
were independent). 93 were to be nominated from princely states. 4 were to be nominated from chief
commission areas.
• Mount batten plan 1947 announced partition of India and separate constituent assembly for both Pakistan
and India. Persons who are elected from the territories of Pakistan belongs to Pakistan constituent
assembly. There for membership of constituent assembly was reduced to 299. i.e.389-90 =299. Only 284
members signed the constitution on 26th November 1949 others were died.
• In the 14 August 1947 meeting of the Assembly, a proposal for forming various committees was presented.
There are 22 committees were appointed among the members of constituent assembly.10 were on
procedural affairs and 12 on substantive affairs. Such committees included a Committee on Fundamental
Rights, the Union Powers Committee and Union Constitution Committee.
• Dr. Sachidananda Sinha was elected as temporary chairman and later Dr. Rajendra Prasad elected as
permanent president of constitution assembly.
• On 29 August 1947, the Drafting Committee was appointed, with Dr Ambedkar as the Chairman along
with six other members. A Draft Constitution was prepared by the committee and submitted to the
Assembly on 4 November 1947.
 History
• The Assembly met, in sessions open to the public, for 166 days, spread over a period of
2 years, 11 months and 18 days and spent Rs. 64 lakhs to draft the constitution.
• The draft constitution was published in January 1948. The people of india were given 8
months time to discuss the draft and propose amendments. As many as 7635
amendments were proposed and 2473 were actually discussed in total 11 sessions, this
draft constitution was considered for 114 days.
• some provisions of the constitution i.e. articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380,
388, 391, 392, 393 came into force on 26th November 1949, remaining provisions came
into force on 26th January 1950. That is why we celebrate republic day.
• Constitution assembly came to end 24th January 1950 it emerged as provisional
parliament on 26th January till the election to lokasabha Rajendra Prasad appointed as
first president till the election.
• When the constitution came into force it was consisted of 395 articles, 8 schedules, and
22 parts. The Constitution of India has undergone 105 amendments in the less than 60
years since its enactment.
• Know it is consisted of containing 395 articles in 22 parts, 12 schedules and 105
amendments, for a total of 117,369 words in the English language version. Besides the
English version, there is an official Hindi translation.
 SOURCES OF THE CONSTITUTION
• Debates of the constituent assembly
• Provisions of 1909, 1919, 1935, 1947 Acts
• Opinions of the constitutional jurists
• Judicial decisions
• Foreign decisions
• Conventions and usages
• Enactments of the Indian parliaments
• Constitutions of foreign countries
•
 PROVISIONS OF CONSTITUTION AND THEIR SOURCE

• Independence of Judiciary-USA Constitution

• Judicial Review-USA Constitution
• President as the Executive head-USA Constitution
• President as the Supreme Commander of the Armed Forces-USA Constitution
• The Vice-President as the ex-officio Chairman of the council of states… USA Constitution
• Fundamental Rights-USA Constitution
• Preamble-USA Constitution
• Removal of Supreme Court and High Court Judges-USA Constitution
• Law making procedures-UK Constitution
• Rule of Law-UK Constitution
• System of single citizenship-UK Constitution
• Parliamentary system with ministerial responsibility-UK Constitution
• Federation with a strong Centre-Canadian Constitution
• Distribution of powers between the Union and the States and placing residuary powers with the Centre-Canadian
Constitution
• Directive Principles-Irish Constitution
• Method of Election of the President-Irish Constitution
• Nomination of members of the Rajya Sabha by the President-Irish Constitution
• Emergency and its effect on Fundamental Rights Weimar Constitution of Germany
• The Concurrent List-Australian Constitution
• Provision regarding trade, commerce and intercourse … Australian Constitution
• Constitutional Amendments-South African Constitution
• Fundamental Duties-Japanese Constitution
• Republic-French Constitution
 PARTS
• (Preamble)
» Part I- Union and its Territory
• » Part II- Citizenship.
» Part III – Fundamental Rights
» Part IV – Directive Principles and Fundamental Duties.
» Part V – The Union.
» Part VI – The States.
» Part VII – States in the B part of the First schedule (Repealed).
» Part VIII – The Union Territories
» Part IX – Panchayat system and Municipalities.
» Part X – The scheduled and Tribal Areas
» Part XI – Relations between the Union and the States.
» Part XII – Finance, Property, Contracts and Suits
» Part XIII – Trade and Commerce within the territory of India
» Part XIV – Services Under the Union, the States and Tribunals
» Part XV – Elections
» Part XVI – Special Provisions Relating to certain Classes.
» Part XVII – Languages
» Part XVIII – Emergency Provisions
» Part XIX – Miscellaneous
» Part XX – Amendment of the Constitution
» Part XXI – Temporary, Transitional and Special Provisions
» Part XXII – Short title, date of commencement, Authoritative text in Hindi and Repeals
 Schedules
• Schedules are lists in the Constitution that categorizes and tabulates bureaucratic activity and policy of the
Government.
• First Schedule (Articles 1 and 4): States and Union Territories – This lists the states and territories on of India, lists
any changes to their borders and the laws used to make that change.
• Second Schedule (Articles 59, 65, 75, 97, 125, 148, 158, 164, 186 and 221) — Emoluments for High-Level
Officials – This lists the salaries of officials holding public office, judges, and Comptroller and Auditor-General of
India.
• Third Schedule (Articles 75, 99, 124, 148, 164, 188 and 219) — Forms of Oaths – This lists the oaths of offices
for elected officials and judges.
• Fourth Schedule (Articles 4 and 80) – This details the allocation of seats in the Rajya Sabha (the upper house of
Parliament) per State or Union Territory.
• Fifth Schedule (Article 244) –This provides for the administration and control of Scheduled Areas[Note 1] and
Scheduled Tribes[Note 2] (areas and tribes needing special protection due to disadvantageous conditions).
• Sixth Schedule (Articles 244 and 275) — Provisions for the administration of tribal areas in Assam.
Seventh Schedule (Article 246) — The union (central government), state, and concurrent lists of responsibilities.
• Eighth Schedule (Articles 344 and 351) — The official languages.
• Ninth Schedule (Article 31-B) – This covers land and tenure reforms; the accession of Sikkim with India. It may be
reviewed by the courts.
• Tenth Schedule (Articles 102 and 191) — “Anti-defection” provisions for Members of Parliament and Members of
the State Legislatures.
• Eleventh Schedule (Article 243-G) — Panchayat Raj (rural development).
• Twelfth Schedule (Article 243-W) — Municipalities (urban planning).
 Meaning and definition
• The word ‘Constitution’ is derived from the word ‘constitute’ which means: ‘to form’, ‘to
establish’, or ‘to compose’.
• The Constitution contains the fundamental law of the land. It is the source of all powers of,
and limitations on, the three organs of State, viz. the executive, legislature and judiciary.
No action of the state would be valid unless it is permissible under the Constitution.
Therefore, it is imperative to have a clear understanding of the nature and working of the
Constitution.
• Constitution means a document having a special legal sanctity, which sets out the
framework and principal functions of the Government.
• Woolsey : “ Constitution is the collection of principles according to which the powers of
government , the rights of the governed and relation between the two are adjusted”.
• Lord Bryce: A constitution is “ the aggregate of laws and customs under which the life of
the state goes on”.
• MacIver: A constitution is “the law which governs the state”
• Aristotle explains, “Constitution as the way in which, citizens or the component parts of
the state are arranged in relation to one another”.
• Austin has defined constitution saying, “That it fixes the structure of supreme
government.”
 SALIENT FEATURES OF THE INDIAN CONSTITUTION
1. Lengthiest and Written Constitution
2. Supremacy of the Constitution
3. Drawn from Various Sources
4. Blend of Rigidity and Flexibility
5. Federal System with Unitary Bias
6. Parliamentary Form of Government
7. Rule Of Law
8. Integrated and Independent Judiciary
9. Fundamental Rights
10. Directive Principles of State Policy
11. Fundamental Duties
12. Democratic Republic
13. Parliamentary System of Government
14. Secularism
15. Universal Adult Franchise
16. Single Citizenship
17. Independent Bodies
18. Emergency Provisions
19. Three-tier Government
 SALIENT FEATURES OF THE INDIAN CONSTITUTION

• The main features of Indian Constitution are the following:

• Supremacy of the constitution
• Enacted and written Constitution: The Indian Constitution is mainly a written constitution. A written
constitution is framed at a given time and comes into force or is adopted on a fixed date as a document. As
you have already read that our constitution was framed over a period of 2 years, 11 months and 18 days, it
was adopted on 26th November, 1949 and enforced on January 26, 1950. Certain conventions have gradually
evolved over a period of time which have proved useful in the working of the constitution.
• Longest constitution
• Rigid and flexible ;Partly rigid and Partly flexible: A constitution may be called rigid or flexible on the
basis of its amending procedure. The Constitution of India provides for three categories of amendments. In
the first category, amendment can be done by the two houses of Parliament simple majority of the members
present and voting of before sending it for the President’s assent. In the second category amendments require
a special majority. Such an amendment can be passed by each House of Parliament by a majority of the total
members of that House as well as by the 2/3rd majority of the members present and voting in each house of
Parliament and send to the President for his assent which cannot be denied. In the third category besides the
special majority mentioned in the second category, the same has to be approved also by at least 50% of the
State legislatures.
• Preamble
• Secular
• Single Citizenship: In India there is only single citizenship. It means that every Indian is a citizen of India,
irrespective of the place of his/her residence or place of birth. He/she is not a citizen of the Constituent State
like Jharkhand, Uttaranchal or Chattisgarh to which he/she may belong to but remains a citizen of India. All
the citizens of India can secure employment anywhere in the country and enjoy all the rights equally in all
the parts of India.
• Integrated and independent judiciary; : Indian judiciary is independent an impartial. The Indian judiciary is
free from the influence of the executive and the legislature. The judges are appointed on the basis of their
qualifications and cannot be removed easily.
• Fundamental rights Fundamental Rights are one of the important features of the Indian Constitution. The
Constitution provides for six Fundamental Rights about which you will read in the following lesson.
Fundamental Rights are justiciable and are protected by the judiciary. In case of violation of any of these rights
one can move to the court of law for their protection. Fundamental Duties were added to our Constitution by the
42nd Amendment. It lays down a list of ten Fundamental Duties for all citizens of India. While the rights are
given as guarantees to the people, the duties are obligations which every citizen is expected to perform.
• Directive principles of state policy The Directive Principles of State Policy which have been adopted from the
Irish Constitution, is another unique feature of the Constitution of India. The Directive Principles were included
in our Constitution in order to provide social and economic justice to our people. Directive Principles aim at
establishing a welfare state in India where there will be no concentration of wealth in the hands of a few.
• Parliamentary Democracy: India has a parliamentary form of democracy. This has been adopted from the
British system. In a parliamentary democracy there is a close relationship between the legislature and the
executive. The Cabinet is selected from among the members of legislature. The cabinet is responsible to the
latter. In fact the Cabinet holds office so long as it enjoys the confidence of the legislature. In this form of
democracy, the Head of the State is nominal. In India, the President is the Head of the State. Constitutionally the
President enjoys numerous powers but in practice the Council of Ministers headed by the Prime Minister, which
really exercises these powers. The President acts on the advice of the Prime Minister and the Council of
Ministers.
• Federal Policy: The Constitution of India does not use the term ‘federal state’. It says that India is a ‘Union of
States’. There is a distribution of powers between the Union/Central Government and the State Governments.
Since India is a federation, such distribution of functions becomes necessary. There are three lists of powers such
as Union List, State List and the Concurrent List.
• Language Policy: India is a country where different languages are spoken in various parts of the country. Hindi
and English have been made official languages of the central government. A state can adopt the language spoken
by its people in that state also as its official language.
• Special Provisions for Scheduled Castes and Scheduled Tribes: The Constitution provides for giving certain
special concessions and privileges to the members of these castes. Seats have been reserved for them in
Parliament, State legislature and local bodies, all government services and in all professional colleges.
• A Constitution Derived from Many Sources: The framers of our constitution borrowed many things from the
constitutions of various other countries and included them in our constitution. That is why; some writers call
Indian Constitution a ‘bag of borrowings’.
• Universal Adult Franchise: Indian democracy functions on the basis of ‘one person one vote’. Every citizen of
India who is 18 years of age or above is entitled to vote in the elections irrespective of caste, sex, race, religion or
status. The Indian Constitution establishes political equality in India through the method of universal adult
franchise.
• Emergency Provisions: The Constitution makers also foresaw that there could be situations when the
government could not be run as in ordinary times. To cope with such situations, the Constitution elaborates on
emergency provisions. There are three types of emergency; a) emergency caused by war, external aggression or
armed rebellion; b) emergency arising out of the failure of constitutional machinery in states; and c) financial
emergency.
NATURE OF THE INDIAN CONSTITUTION
– Federal, Unitary, Quasi-federal
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.

What is Federal and Unitary Constitution?

In a Unitary Constitution, all the powers of a Government are concentrated in a central authority. The States
or the different constituents of the Country are subordinate to such central authority. However, in
Federal Constitution, powers are distributed among the center and the States. States are not
subordinates of the central government. Constitution of USA, Australia are considered to be federal in
nature.

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 means a federal set up where despite having two clear sets
of government – central and the 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.
 Unitary characteristics of Indian constitution

• The creation of a very strong centre

• The absence of separate constitutions for the states
• The right of Parliament to amend major portions of the constitution by itself
• A single citizenship for all
• Unequal representation to the states in the Rajya Sabha
• The right of Parliament to change the name, territory or boundary of states without their consent
• The presence of All- India Services which hold key positions in the Centre as well as the States
appointment of the Governor by the President
• The granting of extensive powers to the President to deal with various kinds of emergencies
• The right of Parliament to legislate on state subjects on the recommendation of the Rajya Sabha
• The presence of a single judiciary with the Supreme Court of India at the apex
• The residuary powers under the Indian Constitution are assigned to the Union and not to the
States.
• The exclusive right of Parliament to propose amendments to the Constitution.
• On account of the presence of a large number of non- federal features in the Indian Constitution
India is often described as a ‘quasi-federal ‘country.
 Federal characteristics of Indian constitution

• Distribution of powers between the state and centre

• Supremacy of constitution
• Written constitution
• Rigid constitution
• Authority of courts
•

The Constitution provides a federal system of government in the country

even though it describes India as ‘a Union of States’. The term implies
that firstly, the Indian federation is not the result of an agreement
between independent units, and secondly, the units of Indian federation
cannot leave the federation. The Indian Constitution contains both
federal and non- federal features. Indian constitution is not purely
federal and purely unitary it is combination of both hence quasi federal
PREAMBLE
 PREAMBLE

 The Preamble represents the aspirations of the people of the India

 We, the people of India
 Part of the Basic Structure
 Sovereign
 Socialist
 Democratic
 Secular
 Justice
 Liberty
 Unity and Integrity of Nation
Importance of the preamble
The aims and objects of constitution are represented in the preamble. The aspirations and wishes of the framers
of the constitution also reflect in the preamble. The preamble is the key to open the mind of the makers of
the constitution. The preamble is the basic feature of the constitution.
The supreme court of India is the competent body to interpret the constitution. It also quashed some of the
amendments made by parliaments which were unconstitutional while interpreting it any provision gives
contrary meaning it may take preamble as an aid to solve that situation.

Significance of preamble;
According to K.M. Mushi—Political Horoscope
According to Barkar--- Key to open the Constitution
According to Thakurdas Bhargav—soul of the Constitution

Can preamble be amendable?

In Berubari case 1960 the supreme court was held that article 368 empowers the Parliament to amend the
constitution only but preamble is not a part of the constitution, hence preamble is not amendable.
Later In Kesavananda Barati case preamble is a part of the constitution, it can be amendable under
Article368 but not basic structure. preamble is not enforceable by courts (non-justiciable).
42nd Amendment Act 1976 added 3 terms to preamble those are socialist, secular, and integrity.
 THE UNION AND ITS TERRITORY
Article 1
(1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be as specified in the First Schedule.
(3) The territory of India shall comprise —
(a) the territories of the States;
(b) the Union territories specified in the First Schedule; and
c) such other territories as may be acquired.
 Draft Article 1 was debated on 15th and 17th November 1948, and 17th and 18th September 1949.
 Why India that is Bharat two names
 Why it is union of states instead of federation?-
the Indian Federation is not the result of a state-to-state agreement
States do not have the right to secede from the union
The Indian Federation is an indestructible Union of destructible Units
• Distinguish between the terms "Union of India" and "Indian Territory.“
Only the States that are members of the federal system and share a power distribution with the Union are
included in the Union of India.
"Territory of India" refers to both the States and the Union Territories, as well as any other territories that
India may acquire.
 Conti….

Article 2: Parliament may by law admit into the Union or establish, new States on such terms and conditions,
as it thinks fit.
Article 2 grants two powers to the parliament:
• Admission of states which are already in existence.
• Establishing new states which were not in existence previously.
Parliament has admitted by using this power, for example, the French settlements of Pondicherry,
Karaikal, etc.

Article 3: Parliament may by law

form a new state by separating a territory of any state, or by uniting two or more states or parts of states, or by
uniting any territory to a part of any state;
• increase the area of any state;
• decrease the area of any state;
• alter the boundaries of any state;
• alter the name of any state.
Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the
recommendation of the President and unless, where the proposal contained in the Bill affects the area,
boundaries or name of any of the States 1***, the Bill has been referred by the President to the Legislature
of that State for expressing its views thereon within such period as may be specified in the reference or
within such further period as the President may allow and the period so specified or allowed has expired.
 Conti….

• Article 4:
(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First
Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may
also contain such supplemental, incidental and consequential provisions (including provisions as to
representation in Parliament and in the Legislature or Legislatures of the State or States affected by such
law) as Parliament may deem necessary.
(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of
article 368.
 THE UNION AND ITS TERRITORY

Article 1: Name and territory of the Union; India that is Bharat shall be a union of states --- not purely federal and not purely unitary but it is
combination of both
1st schedule – before 1956 it shall consist of part A, part B, part C,& part D states but 7th constitutional amendment act abolished these
states and now only states and union territories. There are 28 states and 7 union territories.
Article 2: Admission or establishment of new states—provides that the parliament may by law admit into the union or establish new states on
such terms and conditions as it thinks fit.

Article 3: Formation of new States and alteration of areas, boundaries or names of existing States; this article empowers the parliament to
form a new state to increase or decrease the area of any state to alter the boundaries of any state or to alter the name of any state.

Can parliament give its territory to foreign country?

In berubari case 1960 parliament by making law do all acts mentioned in article 3 but it cannot give its territory to other country. it can do by
making amendments to the Indian constitution.

Article 4: Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental
and consequential matters
CASE LAWS
In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845 47
Ram Kishore Sen v. Union of India, AIR 1966 SC 644
Union of India v. Sukumar Sengupa, AIR 1990 SC 1692
N. Masthan Sahib v. Chief Commissioner Pondicherry, AIR 1962 SC 797
R. C. Poudyal v. Union of India, AIR 1993 SC 1804
Babulal Parate v. State of Bombay, AIR 1960 SC 51
 CITIZENSHIP

India has two sets of people as (i) Citizens (ii) Aliens. Citizens are full members of Indian state. They enjoy all
civil and political rights. Constitution confirms certain advantages such as fundamental rights like articles
15, 16, 19, 29, 30 are available only to the citizens. Certain posts only reserved for Indian citizens. The right
to vote confirmed only to Indian citizens. Aliens do not enjoy all the civil and political rights.

Citizenship at the commencement of the constitution

Citizenship under the Indian citizenship act 1955

Citizenship at the commencement of the constitution

Article 5: Citizenship by domicile; every person who has his domicile in the territory of India and
Who was born in the India
Whose parents were born in India
Who has been ordinarily resident in the territory of Indian for not less then 5 years immediately preceding such
commencement shall be citizen of India.
Article 6: citizenship of emigrants from Pakistan Citizenship by Birth
Article 7: Rights of citizenship of certain migrants to Pakistan
Article 8: Rights of citizenship of certain persons of Indian origin residing outside India
Article 9: Persons voluntarily acquiring citizenship of a foreign State not to be citizens
Article 10: Continuance of the rights of citizenship
Article 11: Parliament to regulate the right of citizenship by law; as per the powers confirmed to parliament by
this provision parliament enacted the Indian citizenship act 1955. It was amended in 2003. 2019
 Conti……

Article 5: Citizenship During the Commencement of the Constitution

During the commencement of the Indian Constitution, each person who has his or her domicile in the territory
of India and :
(a) who was born in the Indian territory; or
(b) either of whose parents was born in the Indian territory; or
(c) An individual who has been ordinarily resident in the Indian territory for at least 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 Territory
from Territory of Pakistan
Any person who has migrated to the territory of India from the territory currently enclosed in Pakistan shall be
deemed to be an Indian citizen at the commencement of this Constitution if –
• If a person migrated from Pakistan to India before 19 July 1948 shall be considered as an Indian citizen if
either of the person’s parents or any of his grandparents were born in India as expressed in the Government
of India act, 1935 and has been living or residing since the date of migration.
• For people who migrated after 19 July 1948, they should be registered as a citizen of India by an officer
from the Government of India but for registration, the subjected person has to be a resident in the territory
of India for a minimum of six months, preceding the date of his application.
 Conti….

Article 7: Rights of Citizenship of Certain Migrants to Pakistan

• Any person who has after the 1st day of March 1947, migrated from the Indian territory now encompassing
in Pakistan shall not be deemed to be a citizen of India:
Article 8: Rights of Citizenship of Certain Persons of Indian Origin Residing Outside India
The eighth article reads that any person who or either of whose parents or grandparents were born in India as
stated in the Government of India Act 1955 and who is residing ordinarily in any country outside India
shall be considered to be a citizen of India.
Article 9: Persons Voluntarily Acquiring Citizenship of a Foreign State Not to be Citizens
The Constitution of India does NOT allow dual citizenship, i.e., holding Indian citizenship and citizenship of a
foreign country simultaneously
Article 10: Continuance of the Rights of Citizenship
Every person who is or is deemed to be a citizen of India in any of the preceding provisions of this Part shall,
subject to the provisions of any law that may be made by Parliament, still be a citizen.
Article 11: Parliament to Regulate the Right of Citizenship by Law
Given the already declared provisions in this part, there is nothing else that can take away the power of
Parliament to make any provision with respect to the acquisition and termination of citizenship and any
other matter regarding the same.
 THE CITIZENSHIP ACT, 1955

Article 10: Continuance of the rights of citizenship

Article 11: Parliament to regulate the right of citizenship by law
Entry 17 of Union List - Citizenship, naturalization and aliens

The Parliament enacted the Indian Citizenship Act, 1955. it consist of 19 section and mainly deals
with the acquisition and termination of the citizenship.

The Citizenship Act, 1955

There are five ways by which a person can acquire citizenship of India after commencement of the
Constitution.
• Citizenship by Birth
• Citizenship by Descent
• Citizenship by Registration
• Citizenship by Naturalisation
• Citizenship by Incorporation of Territory
 Conti…

Citizenship by Birth (Section 3)

• Born in India on or after 26th January 1950 irrespective of their parent’s nationality. Whoever
is taking birth in India from 26th January, 1950 to 1st July, 1987 would automatically get
Indian Citizenship.
• Born on or after 1st July 1987– before 3rd December, 2004- Either of his parents is a citizen
of India at the time of Birth.
• Born on or after 3rd December 2004 – Either of Parents is a citizen of India and the second
parent must not be an illegal migrant.
• The children of foreign diplomats posted in India and enemy aliens cannot acquire Indian
citizenship by birth
By Descent (Section-4)
• After 26th January 1950 , but before the 10th day of December, 1992– Born outside India if
father was citizen
• After 10th December 1992– Either of Parent is Citizen
• After 3rd December 2004– Person born outside India– Must file an application within one
year of birth condition to that minor does not hold passport off any other nation.
 Conti…

By Registration (Not illegal migrant) for application must fulfill (Section 5)

• An ordinary resident for seven years.
• A person of Indian origin who is ordinarily resident in any country or place outside undivided India.
• Married to the Indian citizen and should be a resident for seven years.
• Minor children of persons who are citizens of India.
By Naturalization (Section 6)
• A person can acquire citizenship by naturalization if he/she is ordinarily resident of India for 12 years
(throughout 12 months preceding the date of application and 11 years in the aggregate in the 14 years
preceding the 14 years) and fulfils all qualifications in the third schedule of the Citizenship Act.

By Incorporation of Territory (Section-7)

• If any foreign territory becomes a part of India, the Government of India specifies the individuals who
among the people of the territory shall be the citizens of India. E.g. Pondicherry.(Puducherry ) August 16
1962
• The Citizenship (Amendment) Bill, 2016 -The Bill amends the Citizenship Act, 1955 to make illegal
migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh,
and Pakistan, eligible for citizenship.
 Conti…

Loss of Citizenship
• By Renunciation Declaration by the person himself.
• By Termination On acquiring other citizenship, his/her Indian citizenship terminates automatically.
• By Deprivation In the case of fraud acquisition of nationality or any disloyalty to Constitution or
country or any person citizen by registration or naturalization who imprisoned in any country for
two years or citizen residing outside country for seven years, citizenship will be terminated.
Citizenship Amendment Act 2019 (CAA)
– The Act gives permission to non-Muslim immigrants from Pakistan, Bangladesh and
Afghanistan to become citizens of India.
– It indirectly entitles Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians emigrated from the
three nations, to seek Indian citizenship who had arrived in India before 31 December 2014.
– The amendment relaxes this requirement from 11 years to 6 years, for Hindus, Sikhs,
Buddhists, Jains, Parsis, and Christians from the three nations.
Citizenship Amendment Act 2019 (CAA)
– Amendment of Third Schedule:
– 'Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian
community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or
service of Government in India as required under this clause shall be read as "not less than five
years" in place of "not less than eleven years"
 Conti…

Single Citizenship: Indian Constitution is federal and envisages of dual polity (centre & state). It provides for only single
citizenship, that is the Indian citizenship. The citizens in India owe allegiance only to the union. There is no separate
state citizenship. But USA & Switzerland having dual citizenship.

A Company/ Corporation whether citizen under Article 19?

• Part III confirms only natural persons but not juristic person. In State Trading Corporation of India and
Commercial Tax Officers AIR1963 SC 184 the Supreme Court held that company /corporation is not a citizen of
India therefore cannot have fundamental rights.
• Same judgement was upheld by the Supreme Court in Tata Engineering and Locomotive Company v/s State of
Bihar AIR 1956 SC 40.
• But in Bank Nationalization Case AIR 1970 SC states that if the action of the state impairs the right of the
company there by affecting the rights of an individual shareholders the protection of Article 19 will be available to
him.
• Same judgement was followed in Bennet Coleman and Company v/s U.O.I.
• In D.C.&G.M V/S U.O.I the Supreme Court held that writ can also be maintainable.
 FUNDAMENTAL RIGHTS

Kinds of Rights
• Natural or Human Rights
• Moral Rights
• Legal Rights – Civil and Political Rights
• Fundamental Rights in India
Natural Rights
• Natural Rights are those rights that are available to each and every being, including human
beings. Rights that are specific to Human beings are also called as Human Rights. Natural
rights deals with right to life, right to movement, etc.
• Article 21 deals with right to protection of life and personal liberty.
• At the same time, when a person lives alone in an island, he does not have right but freedom.
Only when a man lives as a group or in a community, rights evolve. Because, when a man
lives in a group, there is always conflict and absolute freedom cannot be assured. Hence, the
concept of right is correlated with duties.
• Every right has an obligation to duty. Recognition of freedom of others forms the basis of
rights. Our rights is based on other’s duties and other’s rights based on our duties. State does
not create rights, but only recognizes, maintains and co-ordinates the rights of its people.
 Origin of Fundamental Rights

• The rights that are basic to the advancement of the human race are called Fundamental Rights.
All other rights are derived from these rights as direct implications or application of their
principles. It is an accepted belief among the philosophers that these rights are nothing but
“natural human rights”, which distinguish between humans and animals and which have been
so instrumental in bringing humans from the stone age to the present age. Among all, the right
to life and liberty is considered to be the most basic.
• The history of legally enforceable fundamental rights probably starts from Magna Carta, which
was a list of rights extracted from King John by the people of England in 1214 AD. This was
followed by the “Bill of Rights” in 1689 in which Englishmen were given certain civil and
political rights that could not be taken away. Later on the French compiled the “Declaration of
the rights of Man and of the Citizen” after the French Revolution in 1789.
• The most important advancement in history of fundamental rights occurred when the USA
incorporated certain fundamental rights in the form on “Bill of Rights” in their constitution by
the way of first 10 amendments. These rights were deemed to be beyond the vagaries of
politics. The protection by the constitution meant that these rights could not be put to vote and
were not dependent on the whims of politicians or of the majority.
• After this, nearly all democracies of the world have given a constitutional sanctity to certain
inalienable rights available to their citizens.
The need for Fundamental Rights
Rule of Law
These rights are a protection to the citizens against the govt and are necessary for having the rule of law and not of a
a govt or a person. Since explicitly given by the constitution to the people, these rights dare not be transgressed
by the authority. The govt. is fully answerable to the courts and is fully required to uphold these rights.
2. First fruits of the freedom struggle
After living in subjugation for such a long time, people had forgotten what is meant by freedom. These rights give
people hope and belief that there is no stopping to their growth. They are free from the whims of the rulers. In
that sense, they are first fruits of the lengthy freedom struggle and bring a sense of satisfaction and fulfillment.
3. Quantification of Freedom
Every Indian citizen in free to practice a religion of his choice, but that is not so in the gulf countries. Our right to
speech and expression allows us to freely criticize the govt. but this is not so in China. (Source: Hanumant.com)
Fundamental Rights in India
As regard India Simon Commission and Joint Parliamentary Committee had reject the idea of enacting declaration
of Fundamental right on the ground that the abstract declaration is useless. Although the demand of the people
was not met by the British Parliament under the government of India Act 1935 yet the enthusiasm of the people
to have such right in the constitution was not impaired. The recommendation of the Nehru Committee was
included in the constitution in 16 May’1946 by the cabinet mission.
 PART III Fundamental Rights
• Right to Equality (Article 14 – 18)
• Right to Freedom (Article 19 – 22)
• Right against Exploitation (Article 23 – 24)
• Right to freedom of Religion (Article 25 – 28)
• Cultural and Educational Right (Article 29 – 30)
• Right to Constitution Right (Article 32)
 Fundamental Rights
Fundamental Rights Article Provisions

14 Equality Before Law

15 Prohibition of Discrimination

Right to Equality 16 Equality of Opportunity in Public Employment

17 Abolition of untouchability

18 Abolition of Titles

19 Protection of 6 Rights

20 Protection in Respect of Conviction for Offences

Right to Freedom 21 Protection of Life and Personal Liberty

21-A Right to Education

22 Protection Against Arrest and Detention

23 Prohibition of Human Trafficking and Forced Labour

Right Against Exploitation
24 Prohibition of Child Labour
Fundamental Rights Article Provisions

25 Freedom of Conscience, Profession, Practice and Propagation

26 Freedom to Manage Religious Affairs

Right to Freedom of Religion
27 Freedom from Taxation for Promotion of a Religion

28 Freedom from Attending Religious Instruction

29 Protection of Interests of Minorities

Educational and Cultural Rights Right of Minorities to Establish and Administer Educational Institu-
30
tions

32 writs

provides the Parliament with the authority to limit or abolish the

33 fundamental rights of “Members of the Armed Forces, paramilitary
forces, police forces, intelligence agencies, and analogous forces”
Right to Constitutional Remedies

Provides for the restrictions on fundamental rights while martial

34
law(military rule) is in force

35 Empowers the Parliament to make laws on Fundamental Rights

 Characteristics of Fundamental Rights
• Some FRs are available only to citizens: Article 15, 16, 19, 29 and 30
• Fundamental Rights are not absolute but qualified.
• Most of the rights are available against the actions of the state but some are available against the
actions of the private individuals too
• Some FRs is negative in character while others are positive. FRs are justiciable in nature
• FRs are defended and guaranteed by the constitution. Hence, an aggrieved party can approach
the SC for any violation directly rather than by the way of appeal
• Parliament can amend the provisions of the FRs by the way of a constitutional amendment act
so long as they do not violate the basic structure of the Indian constitution
• FRs can be suspended during the operation of a National Emergency except the rights
guaranteed by Article 20 and 21. Additionally, FRs under Article 19 can be suspended only
during the operation of emergency declared on the grounds of war or external aggression
• The scope of FRs is limited by Article 31A, 31B and 31C
• Parliament can restrict or abrogate the application of FR in the case of armed forces, para-
military forces, police forces, intelligence agencies and analogous services
• FR can be restricted while martial law is in force
• Only Parliament can make a law for the enforcement of the FR
 DEFINITION OF STATE
Article 12 of the Constitution defines the State as follows:
“In this part, unless the context otherwise requires, “the State” includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all local
or other authorities within the territory of India or under the control of the Government of
India.”

Sate under Art 12 of the constitution has Four Components:

1. The Government and Parliament of India; Government means any central government
departments or institution of department such as railways, postal, defense, telephone etc..
Parliament shall consist of the President, the House of People and Council of State.
2. The Government and Legislature of each State. State Legislatures of each State consist of the
Governor, Legislative Council ,and Legislative Assembly or any of them.
3. All Local Authorities and; It means, Municipal boards Panchayats, Body of Port
Commissioner, and other legally entitled to or entrusted by the government.
4. Other Authorities; to consider other authorities as a state it should be
• within the territory of India
• under the control of Government of India.
• Created by statute of the central or state legislatures.
 Conti…..

 Ramana Dayaram Sheety v. International Airport Authority of India:-Held that if a body is an agency or
instrumentality of the government it may be an authority in Article 12.
 In Rajasthan State Electricity Board v. Mohanlal, the supreme court ruled that a state electricity board,
set up by a statue, having some commercial function to discharge , would be an authority under article 12.
 In Sukhdev Singh v. Bhagatram:- held that oil and natural gas commission life insurance corporation and
industrial finance corporation are authorities within the meaning of article 12 of the constitution.
 In Ajay Hasia v. Khalid Mujib it has been held that a society registered under the societies registration
act 1898 is an agency or instrumentality of the state and hence a state within the ambit of article 12.
Its composition is determined by the representatives of the government. The expenses of society are entirely
provided by the central government the rules made by the society requires prior approval of the state and is
completely controlled by the government. The government has the power to appointment and remove the
member of the society.
 In Manmohan Singh Jaitla v. Commissioner, Union Territory of Chandigarh, the Court following Ajai
Hasia's case held that an aided school which received a Government grant of 90 per cent was an
"authority" within the meaning of Article 12.
Similarly, it has been held that the Food Corporation of India, the Steel Authority of India, Bihar State
Electricity Board, Indian Oil Corporation, are the 'State' within the meaning of 'other authorities' under Article
12 as they are instrumentalities of the State.
 Zee Telefilms v. Union of India case judgment held that BCCI cannot be called a State under Article 12 of
The Constitution as it is not created by a statute, not dominated by government either financially,
functionally or administratively.
 Conti….

Examples of State-
(a) Council for Scientific and Industrial Research (CSIR) is a State: Held in Pradeep Kumar Biswas v. Indian Institute of
Chemical Biology (2002) 5 SCC 111.
(b) Sainik School Society is State: Held in All India Sainik Schools Employees’ Association v. Sainik School Society AIR 1989
SC 88.
(c) U.P. Rajya Karmachari Kalyan Nigam is a State: Held in Virendra Kumar Srivastava v. U.P. Rajya Karmachari Kalyan
Nigam (2005) 1 SCC 722.
(d) Rajasthan Electricity Board is State: Held in Rajasthan Electricity Board, Jaipur v. Mohan Lal, AIR 1967 SC 1857
(e) Indian Council of Agricultural Research is State: Held in P.K. Ramachandra Iyer v. Union of India, (1984) 2 SCC 141
(f) Indian Statistical Institute is State: Held in B.S. Minhas v. Indian Statistical Institute, (1983) 4 SCC 582
(g) Children’s Aid Society is State: Held in Sheela Barse v. Secretary, Children’s Aid Society, (1987) 3 SCC 50
(h) Buddhist School is State: Held in Chairman, School of Buddhist Philosophy v. Makhanlal Mattoo, (1990) 4 SCC

Following are not included in definition of State-

(a) Board of Control for Cricket in India (BCCI)- Zee Telefilms Ltd. Union of India, 2005 (4) SCC 649
(b) Institute of Constitutional and Parliamentary Studies (ICPS)- K.L. Basandhi v. Union of India, [1988]2 SCR 260
(c) National Council of Educational Research and Training (NCERT)- Chander Mohan Khanna v. National Council of
Educational Research and Training and Others 1991 (4) SCC 578
(d) International Crops Research Institute (ICRI)- G.B. Reddy v. International Crops Research Institute AIR 2003 SC 1764
(e) Cooperative Banks- Khaja Industries v. State of Maharashtra AIR 2008 NOC 44 (Bombay)
(f) Stock Holding Corporation of India Dharmender Sharma v. Union of India and others on 21 March, 2013
(g) The Institute of Road and Transport Technology, Erode- K.R. Palanisamy v. The Director, Institute of Road Transport,
Taramani, Chennai on 25 April, 2014
(h) Utkal Gomangal Samiti registered under the Societies Registration Act, 1860- Nagendra Nath Mohapatra v. State of Orissa
and others on 22 April, 2014
(i) Mirchpur Cooperative Credit and Service Society Ltd., Hisar- Aster Beg v. Joint Secretary And others on 30 June, 2014
(j) Red Cross Society-M/S New Balaji Chemist v. Indian Red Cross Society on 2 February, 2018
 Conti….

In Ajay Hasia v/s Khalid Mujib &Sheela Barse v/s Secretary Childrens Aid Society it was held that the companies
registered under companies act 1956 and societies registered under societies registration act 1860 are state within the
meaning of article 12.
Somprakash v/s U.O.I Bharat Petroleum Corporation is state
Mohan Khanna v/s NCERT National Council of Educational Research Training is state.
In Ramana Dayaram Shetty v/s The International Airport Authority of India( Airport Authority case) Supreme
Court held that International Authority was set up by Parliament and it is under the control of Central Government
hence it is state. It also states that any authority not created by constitution or by a statute could not be a state within
the meaning of state.
Universities, Electricity Board, oil and Natural Gas Commission, LIC, KSRTC, state Finance Corporation etc are
state.

Does the definition state also include judiciary?/Whether Judiciary Is State

In Naresh v/s State of Maharastra AIR 1967 SC 1 it was held that even it a court is the state a writ under article 32
cannot be issued to a high court of competent jurisdiction against its judicial orders.
The judges or magistrates are not state while they are functioning as judiciary but they are also functioning administrator
then they come under the meaning of state.
Jurists like H.M.Seervai, V.N.Shukla consider judiciary to be State. Their view is supported by Articles 145 and 146 of
the Constitution of India.
( i ) The Supreme Court is empowered to make rules for regulating the practice and procedure of Courts.
( ii ) The Supreme Court is empowered to make appointments of its staff and servants; decide the its service
conditions.
ARTICLA 13: LAWS INCONSISTENT WITH OR IN DEROGATION OF THE
FUNDAMENTAL RIGHTS

Article 13 (1); Doctrine of Eclipse

Article 13 (2); Doctrine of Severability
Article 13 (3)(a); What is law
Article 13 (3)(b); Laws inforce
Article 13 (4); Amendment is not law
 DOCTRINE OF ECLIPSE (PRE CONSTITUTIONAL LAWS) ART 13 (1)

Art 13 provides that any law which made before the commencement of constitution must be consistent with
the part III of the constitution .if any statue is inconsistence with the provisions of part III of the
constitution such statue shall become void. At the same time such statue shall not be treat as Dead
unless it is abolish by Parliament. It will be treated as dormant or remains eclipsed to the extent it
comes under the shadow of the fundamental rights. Regarding the doctrine of eclips few points need to
be consider. It is held to be applied only the Pre Constitutional Laws, and not to be post constitutional
laws.
Bhikaji v/s State of MP AIR 1955
The MP Government passed an Act in the year 1950 for nationalizing the motor transport before
commencement of the constitution. The statue was challenge by the petitioner under Art 19(1)(g). The
Center Govt. Amended Act 1955 on27-4-1955 enabling the state to nationalize the motor transport.
That SC held that the statue of MP sate State nationalizing the motor transport 1950 was cured by the
4th Amendment Act 1955 and therefore the Doctrine of Eclipse has-been applied and the such Act is
valid.
In Deep Chand v/s State of U.Psupreme court held that post constitutional law void ab initio. There for
doctrine of eclipse does not apply. But State of Gujarat v/s Ambica Millsand Dulare Lodh v/s III
Additional District Judge Kanpurmodified its view in deepa chand case.
Bhikhaji v. State of M.P., AIR 1955 S.c. 781 M.P government passed an act in 1950 nationalizing the
motor transport before commencement of the constitution but it fall under list I but 4 th constitutional
amendment act 1955 empowers the states to nationalize even though the act of 1950 was against to the
provisions. It was in dominant nature later act become valid.
 DOCTRINE OF SEVERABILITY – (POST CONSTITUTIONAL LAWS ) ART 13 (2)

Art 13 provides that Act is void which is inconsistent with the Part III of the constitution. Art 13 is having
a flexible nature; it does not make the whole Act inoperative. It makes inoperative only such
provisions of it as are inconsistent with or violative of fundamental right. Sometimes valid and invalid
portion of the Act are so intertwined that they cannot be separated from one another. In such cases,
the invalidity of the portion must result in the invalidity of the Act in its entirety, the reason is that the
valid part cannot survive independently. In determining whether the valid parts of a statue are
severable from the invalid parts. In intention of the Legislature is the determining factor. In other
words it should be asked whether the legislature would have enacted at all that which survive without
the part found ultra virus

The rule of severability applies as much clause (2) as to Clause (1) of Art 13Jia Lal v/s Delhi
Administration AIR 1962
The appellant was prosecuted for an office u/s 19 (f) of the Arm Act 1878. In fact, section 29 of this Act
provides that in certain area in which the petitioner did not obtain any license in which the petitioner
was residing, it was not necessary to obtain the said license for possession fire arm. Section 29 was
challenged as ultra virus and unconstitutional as offending Art 14 and also section 19(f) of the Arms
Act 1878 on the ground that two sections were not severable, on the question of severability the SC
held that the section 29 of the Arms Act 1878 was ultra virus.
R.M.D.C. v. Union of India, AIR 1957 S.c. 628 section 2(d) of prize competition act which was broad
enough to include competitions of a gambling nature as well as competitions involving skill. it is
severable
 DOCTRINE OF WAIVER

The FR under Part III Art 12 to 35 of the constitution are conferred to every citizen of India by the
constitution. These constitutional rights are not absolute. There are reasonable restriction impose by the
constitution. The primary objective of these FR are based on public policy. Therefore no individual can
waive off such RF rights
Basheshr Nath v/s Income Tax commissioner AIR 1959 SC 149
In this case the petitioner whose matter had been referred to the Investigation commissioner u/s 5(1) of the
Taxation of Income Act 1947 was found to have concealed a settlement u/s 8 A to pay Rs 3 Lakhs in
monthly installments, byway of arrears of tax and penalty. In the meanwhile the SC in another case
held that section 5(1) is ultra vires the constitution, as it was inconsistence with Art 14. So the
appellant cannot his waive off his FR

WHAT IS LAW?
Article 13 (3);in this article unless the context otherwise requires
(a). Law includes any ordinance, order, bye law, rule, regulation, notification, custom, usage, having in the
territory of india the force of law.
(b). Laws inforce includes laws passed or made by a legislature or other competent authority in the territory
of India before the commencement of this constitution and not previously repealed notwithstanding
that any such law or any part thereof may not be then in operation either at all or in particular areas.
 IS CONSTITUTIONAL AMENDMENT A LAW UNDER ARTICLE 13(2)?

In Shankari Prasad V/s Union of India supreme court held that it is not law. Same thing
upheld in the Sajjan Singh V/s State of Rajashthan case also. But in Golaknath V/s State
of Punjab it was held that it is a law. Inorder to overcome form the decission passed by
the supreme court in Golaknath case parliament enacted 24th constitutional Amendment
act in 1971 there by introduced article 13(4).

Article 13(4)It states that nothing in this article shall apply to any amendment of this
constitution made under article 368.

Again this act (24th constitutional Amendment act) is challenged in the Keshvanad Bharti V/s
State of kerala case.but court overruled the the golaknath case and upheld the validity of
24th constitutional constitutional amendment act.