B.A. LL.B. Vth Sem

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B.A. LL.B. Vth Sem
Constitution of India
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UNIT-1

• NATURE OF INDIAN CONSTITUTION, SALIENT FEATURES
  OF THE CONSTITUTION, PREAMBLE, CITIZENSHIP,
  CONCEPT OF FEDERALISM AND INDIAN CONSTITUTION

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HISTORICAL BACKGROUND

• The major portion of the Indian subcontinent was
  under British rule from 1857 to 1947. The impact
  of economic, political and social development
  during this period helped the gradual rise of the
  Indian independence movement to gain independence
  from foreign rule. After the Indian Rebellion of
  1857, the direct rule of the British crown was
  established. When the Constitution of India came
  into force on 26 January 1950, it repealed the
  Indian Independence Act. India ceased to be a
  dominion of the British Crown and became a
  sovereign democratic republic. 26 November 1949
  is also known as National Law Day. The Indian
  constitution is the world's longest constitution.
  At the time of commencement, the constitution had
  395 articles in 22 parts and 8 schedules. It
  consists of almost 80,000 words and took 2 years
  11 months and 18 days to build.
• In the United Kingdom the office of the Secretary
  of State for India was the authority through whom
  Parliament exercised its rule (along with
  the Council of India), and established the office
  of Viceroy of India (along with an Executive
  Council in India, consisting of high officials of
  the British Government). The Indian Councils Act
  1861provided for a Legislative Council consisting
  of the members of the Executive council and
  non-official members. The Indian Councils Act
  1892 established provincial legislatures and
  increased the powers of the Legislative Council.
  Although these Acts increased the representation
  of Indians in the government, their power still
  remained limited. The Indian Councils Act
  1909 and the Government of India Act 1919 further
  expanded participation of Indians in the
  government

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Previous Legislations as Source

• Government of India Act 1858
• After the Indian Rebellion of 1857, the British
  Government took direct control of territories
  formerly ruled by the English East India Company.
  To calm down the after effects of 1857 revolt,
  the Act of 1858 was introduced. This act
  abolished East India Company and transferred
  powers towards the British crown to establish
  direct rule. The Provisions of the bill are
• Provision for the creation of an Indian Civil
  Service under the control of the Secretary of
  State.
• The Crown was empowered to appoint
  a Governor-General and the Governors of the
  Presidencies.
• The Company's territories in India were to be
  vested in the Queen, the Company ceasing to
  exercise its power and control over these
  territories. India was to be governed in the
  Queen's name.
• All the property of the East India Company was
  transferred to the Crown. The Crown also assumed
  the responsibilities of the Company as they
  related to treaties, contracts, and so forth.
• The Queen's Principal Secretary of State received
  the powers and duties of the Company's Court of
  Directors. A council of fifteen members was
  appointed to assist the Secretary of State for
  India. The council became an advisory body in
  India affairs. For all the communications between
  Britain and India, the Secretary of State became
  the real channel.
• Abolition of double government.

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Indian Councils Act 1861

• Indian Councils Act 1861 enacted by Parliament of
  the United Kingdom that transformed the Viceroy
  of India's executive council into a cabinet run
  on the portfolio system. This cabinet had six
  "ordinary members" who each took charge of a
  separate department in Calcutta's government
  home, revenue, military, law, finance, and (after
  1874) public works.
• Indian Councils Act 1861 is an essential landmark
  in the constitutional and political good
  reputation for India. The 1861 Act restored the
  legislative power taken away by the Charter Act
  of 1833. The legislative council at Calcutta was
  given extensive authority to pass laws
  for British India as a whole, while the
  legislative councils at Bombay and Madras were
  given the power to make laws for the "Peace and
  good Government" of their respective
  presidencies. The Governor General was given the
  power to create new provinces for legislative
  purposes. He also could appoint Lt. Governors for
  the same. Its features are
• Indians were involved with law-making process.
  For this purpose, viceroy nominated the Raja of
  Benaras, the Maharaja of Patiala and Sir Dinkar
  Rao.
• Decentralization of legislative powers.
• Establishment of recent legislative councils in
  Bengal, NWFP and Punjab in 1862, 1866 and 1897
  respectively.
• Introduction of portfolio system.
• It empowered the Viceroy to issue ordinances with
  no concurrence of the legislative council
  throughout an emergency. The life of such an
  ordinance was 6 months.

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Indian Councils Act 1892

• Enacted due to the demand of the Indian National
  Congress to expand legislative council, the
  number of non-official members was increased both
  in central and provincial legislative councils
  the non official members of Indian legislative
  councils were henceforth to be nominated by
  Bengal chamber of commerce and provincial
  legislative council. In 1892, the council
  consisted of 24 members, only five being where
  Indians. Its features are
• Power discussing budget to legislative councils.
• It deliver to the nomination of some non official
  people in the central legislative council through
  the viceroy on the recommendation of the
  provincial legislative councils which of the
  provincial legislative councils through the
  governors on the recommendations of the district
  boards, municipalities, universities, trade
  associations, zamindars and chambers.

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Indian Councils Act 1909

• Indian Councils Act 1909 commonly known as the
  Morley-Minto Reforms, was an Act of
  the Parliament of the United Kingdom that brought
  about a limited increase in the involvement of
  Indians in the governance of British India. The
  Act of 1909 was important for the following
  reasons
• It effectively allowed the election of Indians to
  the various legislative councils in India for the
  first time. Previously some Indians had been
  appointed to legislative councils.
• The introduction of the electoral principle laid
  the groundwork for a parliamentary system even
  though this was contrary to the intent of Morley.
• Muslims had expressed serious concern that
  a first past the post electoral system, like that
  of Britain, would leave them permanently subject
  to Hindu majority rule. The Act of 1909
  stipulated, as demanded by the Muslim leadership.
• The Act amended the Indian Councils Acts of
  1861 and 1892. Its features are
• The maximum number of nominated and elected
  members of the Legislative Council at the Center
  was increased from 16 to 60. The number did not
  include ex-officio members.
• The right of separate electorate was given to the
  Muslims.
• Official members were to form the majority but in
  provinces non-official members would be in
  majority.
• The members of the Legislative Councils were
  permitted to discuss the budgets, suggest the
  amendments and even to vote on them excluding
  those items that were included as non-vote items.
  They were also entitled to ask supplementary
  questions during the legislative proceedings.
• The Secretary of State for India was empowered to
  increase the number of the Executive Councils of
  Madras and Bombay from two to four.
• Two Indians were nominated to the Council of the
  Secretary of State for Indian Affairs.

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Government of India Act 1919

• After World War I, the British Government opened
  the door for Indians to public office and
  employment. The Provisions of the bill are
• Relaxation of central treatments for the
  provinces by demarcating and separating the
  central and provincial subjects.
• It further divided the provincial subjects into
  two parts transferred (That have been
  administered by governor by the help of ministers
  who are responsible to legislative council) and
  reserved (that have been to be administered by
  the governor and the executive council without
  being responsible towards the legislative
  council).
• Introduction of diarchy, Bicameralism, direct
  elections and establishment of central public
  service commission in 1926.
• Franchise was granted to some limited people on
  foundation of property, tax and education.
• Separation of central budget from provisional
  budget.
• Appointment of statutory commission.

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Government of India Act 1935

• The provisions of the Government of India Act
  1935, though never implemented fully, had a great
  impact on the Constitution of India. Many key
  features of the constitution are directly taken
  from this Act. It is really a lengthy and
  detailed document having 321 sections and 10
  schedules. The majority of the today's
  constitution has drawn from this. Its features
  are
• It delivers to the establishment of an All India
  Federation. The previous names transferred and
  reserved subjects are changed as federal and
  provincial lists and concurrent list is
  definitely an addendum.
• Abolition of Diarchy and introduced provincial
  autonomy.
• Abolition of Council Asia.
• Establishment of RBI, federal court, Provincial
  PSUs and Joint PSUs.
• Extension of bicameralism, communal
  representation and franchise.
• The federal structure of government, provincial
  autonomy, a bicameral central legislature
  consisting of a federal assembly and a Council of
  States and the separation of legislative powers
  between the centre and states are some of the
  provisions of the Act which are present in the
  Constitution of India.

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Indian Independence Act 1947

• The provisions of the Government of India Act
  1935, though never implemented fully, had a great
  impact on the Constitution of India. Many key
  features of the constitution are directly taken
  from this Act. It is really a lengthy and
  detailed document having 321 sections and 10
  schedules. The majority of the today's
  constitution has drawn from this. Its features
  are
• It delivers to the establishment of an All India
  Federation. The previous names transferred and
  reserved subjects are changed as federal and
  provincial lists and concurrent list is
  definitely an addendum.
• Abolition of Diarchy and introduced provincial
  autonomy.
• Abolition of Council Asia.
• Establishment of RBI, federal court, Provincial
  PSUs and Joint PSUs.
• Extension of bicameralism, communal
  representation and franchise.
• The federal structure of government, provincial
  autonomy, a bicameral central legislature
  consisting of a federal assembly and a Council of
  States and the separation of legislative powers
  between the centre and states are some of the
  provisions of the Act which are present in the
  Constitution of India.

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Constituent Assembly

• The Constitution was drafted by the Constituent
  Assembly, which was elected by the elected
  members of the provincial assemblies.Dr B.R.
  Ambedkar, Sanjay Phakey, Jawaharlal Nehru, C.
  Rajagopalachari, Rajendra Prasad, Sardar
  Vallabhbhai Patel, Kanaiyalal Munshi, Purushottam
  Mavalankar, Sandipkumar Patel, Maulana Abul Kalam
  Azad, Shyama Prasad Mukherjee, Nalini Ranjan
  Ghosh, and Balwantrai Mehta were some important
  figures in the Assembly. There were more than 30
  members of the scheduled classes. Frank
  Anthony represented the Anglo-Indian community,
  and the Parsis were represented by H. P. Modi.
  The Chairman of the Minorities Committee
  was Harendra Coomar Mookerjee, a distinguished
  Christian who represented all Christians other
  than Anglo-Indians. Ari Bahadur Gururng
  represented the Gorkha Community. Prominent
  jurists like Alladi Krishnaswamy Iyer, Benegal
  Narsing Rau and K. M. Munshi, Ganesh
  Mavlankar were also members of the
  Assembly. Sarojini Naidu, Hansa Mehta, Durgabai
  Deshmukh, Rajkumari Amrit Kaur and Vijayalakshmi
  Pandit were important women members.The first
  temporary 2-day president of the Constituent
  Assembly was Dr Sachidanand Sinha.
  Later, Rajendra Prasad was elected president of
  the Constituent Assembly.The members of the
  Constituent Assembly met for the first time on 9
  December 1946.

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Drafting

• On the 14 August 1947 meeting of the Assembly, a
  proposal for forming various committees was
  presented. Such committees included a Committee
  on Fundamental Rights, the Union Powers Committee
  and Union Constitution Committee. On 29 August
  1947, the Drafting Committee was appointed,
  with Dr B. R. Ambedkar as the Chairman along with
  six other members assisted by a constitutional
  advisor. These members were Pandit Govind Ballabh
  Pant, Kanaiyalal Maneklal Munshi (K M Munshi, Ex-
  Home Minister, Bombay), Alladi Krishnaswamy
  Iyer (Ex- Advocate General, Madras State), N
  Gopalaswami Ayengar (Ex-Prime Minister, JK and
  later member of Nehru Cabinet), B L Mitter
  (Ex-Advocate General, India), Md. Saadullah (Ex-
  Chief Minister of Assam, Muslim League member)
  and D P Khaitan (Scion of Khaitan Business family
  and a renowned lawyer). The constitutional
  advisor was Sir Benegal Narsing Rau (who became
  First Indian Judge in International Court of
  Justice, 195054). Later B L Mitter resigned and
  was replaced by Madhav Rao (Legal Advisor of
  Maharaja of Vadodara). Owing to death of D P
  Khaitan, T T Krishnamachari was chosen to be
  included in the drafting committee. A Draft
  Constitution was prepared by the committee and
  submitted to the Assembly on 4 November 1947.
  Draft constitution was debated and over 2000
  amendments were moved over a period of two years.
  Finally on 26 Nov. 1949, the process was
  completed and Constituent assembly adopted the
  constitution. 284 members signed the document and
  the process of constitution making was complete.
• The Assembly met in sessions open to the public,
  for 166 days, spread over a period of 2 years, 11
  months and 18 days before adopting the
  Constitution, the 308 members of the Assembly
  signed two copies of the document (one each in
  Hindi and English) on 24 January 1950. The
  original Constitution of India is hand-written
  with beautiful calligraphy, each page beautified
  and decorated by artists from Shantiniketan includ
  ing Beohar Rammanohar Sinha and Nandalal Bose.
  Two days later, on 26 January 1950, the
  Constitution of India became the law of all
  the States and territories of India.
  Rs.1,00,00,000 was official estimate of
  expenditure on constituent assembly. The
  Constitution has undergone many amendments since
  its enactment.

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Parts

• Preamble
• Part I Union and its Territory
• Part II Citizenship.
• Part III Fundamental Rights.
• Part IV  Directive Principles of State Policy.
• Part IVA  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 The Panchayats.
• Part IXA The Municipalities.
• Part IXB  The Co-operative Societies.
• Part X  The scheduled and Tribal Areas
• Part XI  Relations between the Union and the
  States.

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PARTS

• 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.
• Part XIVA  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

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Schedules

• Schedules are lists in the Constitution that
  categorize and tabulate bureaucratic activity and
  policy of the Government.
• First Schedule (Articles 1 and 4) - This lists
  the states and territories of India, lists any
  changes to their borders and the laws used to
  make that change.
• Second Schedule (Articles 59(3), 65(3), 75(6),
  97, 125, 148(3), 158(3), 164(5), 186 and 221)- 
  This lists the salaries of officials holding
  public office, judges, and Comptroller and
  Auditor General of India.
• Third Schedule (Articles 75(4), 99, 124(6),
  148(2), 164(3), 188 and 219)Forms of Oaths
  This lists the oaths of offices for elected
  officials and judges.
• Fourth Schedule (Articles 4(1) and 80(2)) This
  details the allocation of seats in the Rajya
  Sabha (the upper house of Parliament) per State
  or Union Territory.
• Fifth Schedule (Article 244(1)) This provides
  for the administration and control of Scheduled
  Areas andScheduled Tribes (areas and tribes
  needing special protection due to disadvantageous
  conditions).
• Sixth Schedule (Articles 244(2) and 275(1))
  Provisions for the administration of tribal areas
  in Assam, Meghalaya, Tripura, and Mizoram.
• Seventh Schedule (Article 246) The union
  (central government), state, and concurrent lists
  of responsibilities.
• Eighth Schedule (Articles 344(1) and 351)The
  official languages.
• Ninth Schedule (Article 31-B) Validation of
  certain Acts and Regulations.
• Tenth Schedule (Articles 102(2) and
  191(2))"Anti-defection" provisions for Members
  of Parliament and Members of the State
  Legislatures.
• Eleventh Schedule (Article 243-D) Panchayat
  Raj (rural local government).
• Twelfth Schedule (Article 243-W) Municipalities
  (urban local government).

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Preamble to the Constitution of India

• These are the opening words of the preamble to
  the Indian 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, ENACT AND
  GIVE TO OURSELVES THIS CONSTITUTION.

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Meaning

• The enacting words, "We, the people of India
  ...in our constituent assembly ...do here by
  adopt, enact and give to ourselves this
  constitution", signify the democratic principle
  that power is ultimately rested in the hands of
  the people. It also emphasises that the
  constitution is made by and for the Indian people
  and not given to them by any outside power (such
  as the British Parliament). The phrase "we the
  people" emphasises the concept of popular
  sovereignty as laid down by J. J. Rousseau All
  the power emanates from the people and the
  political system will be accountable and
  responsible to the people.

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Sovereign

• The word sovereign means supreme or independence.
  India is internally and externally sovereign -
  externally free from the control of any foreign
  power and internally, it has a free government
  which is directly elected by the people and makes
  laws that govern the people. She allies in peace
  and war. The Popular sovereignty is also one of
  the basic structure of constitution of India.
  Hence, Citizens of India also enjoy sovereign
  power to elect their representatives in elections
  held for parliament, state legislature and local
  bodies as well. People have supreme right to make
  decisions on internal as well as external
  matters. No external power can dictate the
  government of India.

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Socialist

• The word socialist was added to the Preamble by
  the Forty-second Amendment. It implies social and
  economic equality.
• Social equality in this context means the absence
  of discrimination on the grounds only
  of caste, colour, creed, sex, religion,
  or language. Under social equality, everyone has
  equal status and opportunities.
• Economic equality in this context means that
  the government will endeavor to make the
  distribution of wealth more equal and provide a
  decent standard of living for all. This is in
  effect emphasized a commitment towards the
  formation of a welfare state. India has adopted a
  socialistic and mixed economy and the government
  has framed many laws to achieve the aim.

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Secular

• Secular means the relationship between the
  government and the people which is determined
  according to constitution and law. By the 42nd
  Amendment, the term "Secular" was also
  incorporated in the Preamble. Secularism is the
  basic structure of the Indian constitution. The
  Government respects all religions. It does not
  uplift or degrade any particular religion. There
  is no such thing as a state religion for India.
  In S.R. Bommai vs UOI (1994) The SC of India held
  "A state which does not recognise any religion as
  the state religion, it treats all religions
  equally". Positively, Indian secularism
  guarantees equal freedom to all religion. it
  stands for the right to freedom of religion for
  all citizens. Explaining the meaning of
  secularism as adopted by India, AlexandrOwics has
  written, "Secularism is a part of the basic of
  the Indian Constitution and it means equal
  freedom and respect for all religions."

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Democratic

• The first part of the preamble We, the people of
  India and, its last part give to ourselves this
  Constitution clearly indicate the democratic
  spirit involved even in the Constitution. India is
  a democracy. The people of India elect their
  governments at all levels (Union, State and
  local) by a system of universal adult franchise
  popularly known as "one man one vote". Every
  citizen of India, who is 18 years of age and
  above and not otherwise debarred by law, is
  entitled to vote. Every citizen enjoys this right
  without any discrimination on the basis of caste,
  creed, colour, sex, Religious intolerance or
  education.

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Republic

• As opposed to a monarchy, in which the head of
  state is appointed on hereditary basis for a
  lifetime or until he abdicates from the throne, a
  democratic republic is an entity in which the
  head of state is elected, directly or indirectly,
  for a fixed tenure. The President of India is
  elected by an electoral college for a term of
  five years. The post of the President of India is
  not hereditary. Every citizen of India is
  eligible to become the President of the country.
  The leader of the state is elected by the people.

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Forty-second Amendment

• On 18 December 1976, during the Emergency in
  India, the Indira Gandhi government pushed
  through several changes in the Forty-second
  Amendment of the constitution. A committee under
  the chairmanship of Sardar Swaran Singh
  recommended that this amendment be enacted after
  being constituted to study the question of
  amending the constitution in the light of past
  experience. Through this amendment the words
  "socialist" and "secular" were added between the
  words "sovereign" and "democratic" and the words
  "unity of the Nation" were changed to "unity and
  integrity of the Nation".
• The idea for the addition of 'socialist' was
  prompted by Indira Gandhi, as an ode to India's
  growing relationship with the erstwhile USSR.

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States and union territories of India

• India is a federal union of states comprising
  twenty-nine states and seven union territories.
  The states and union territories are
  further subdivided into districts and further
  into smaller administrative divisions.

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Salient Features of the 'Constitution of India

• Features of the Indian Constitution
• 1. Fundamental Rights
• Justiciable in nature (i.e. they are legally
  enforceable by the court of law)
• It promotes political democracy
• Not absolute in nature have some restrictions
• Parliament can amend them but not those
  provisions that form the basic structure of the
  constitution
• Suspended during National Emergency (Except
  Article 20 21)-(Article 20 - Protection in
  respect of conviction for offences)-(Article 21
  - Protection of life and personal liberty)
• - See more at http//www.erewise.com/current-affa
  irs/salient-features-of-the-constitution-of-india_
  art52f4d21832d1e.html.VIA6WdKUcqM

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2. Fundamental Duties Non-justiciable in nature
(i.e. they are not legally enforceable by the
court of law) Not present in the original
constitution. (Added by 42nd Amendment Act, 1976
on the recommendation by Swaran Singh
committee.) Reminds people that while enjoying
rights they have some duties to do 3. Directive
Principles of State Policy Non-justiciable in
nature (i.e. they are not legally enforceable by
the court of law) Ambedkar described it as novel
feature of Constitution Promotes social and
economic democracy Aims to establish welfare
state 4. Lengthiest Written Constitution Indian
constitution is the lengthiest written
constitution so far. Reasons for such a vast
length
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6. Rigidity and Flexibility Indian Constitution
is not very rigid as the US constitution nor it
is as flexible as the British constitution. Synthe
sis of both 7. Federal System with a strong
centre Indian constitution establishes India as
the federal system of government. Federal system
means a political system where is there division
of powers between centre and state. But Indian
federal system is unique in itself as it has a
strong centre. So, Indian Political structure can
be rightly described as federal system with
strong centre 8. Three Tier Government Indian
constitution provides three tier
government. Originally, it was two tier i.e.
Centre and the State But by 73rd and 74th
Amendment Act, 1992 three tier government has
been established. (Centre, state local self
government)
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9. Emergency Provisions  -
Sr. No.  Article Name of the Emergency  Description
1 Article 352 National Emergency Proclaimed on the ground of war or external aggression or armed rebellion
2 Article 356 State Emergency Proclaimed on the ground that constitutional machinery has broken down in a state
3 Article 365 State Emergency Proclaimed on the ground that a particular state has failed to follow the directions of the Centre
4 Article 360 Financial Emergency Proclaimed on the ground that there is threat to the financial stability or Credit of India
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Independent Bodies Indian0 overnment (Central
and state) but also establishes certain
independent bodies for effective unbiased
administration in certain areas. Examples of such
independent bodies include Election
Commission, Comptroller and Auditor General of
India, Union Public Service Commission, State
Public Service Commission, etc. 11. Single
Citizenship   People of India have been given
single citizenship even if any person belongs to
different state in India. 12. Universal Adult
Franchise  Indian constitution adopts universal
adult franchise as a basis of elections to the
Lok Sabha and the state legislative assemblies.
(Those above the age of 18 can vote) -
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13. Secular State  India has no official
religion of the Indian State. Any person in India
has the right to preach and practice religion of
his choice. 14. Integrated and independent
judiciary Indian judiciary is not controlled by
the executive. It is independent in nature has
no control over it. Also, it is integrated
hierarchical in nature where Supreme Court is at
the top followed by high court then subordinate
courts. 15. Synthesis of Parliamentary
Sovereignty and Judicial Supremacy Indian
Constitution envisages for a synthesis of
Parliamentary sovereignty and Judicial
Supremacy. Supreme Court on one hand can declare
parliamentary laws as unconstitutional (by
judicial review). On the other hand, parliament
can amend the major portion of the Constitution
(by constitutional Amendment
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16. Parliamentary form of government The
constitution of India envisages for the British
Parliamentary system of government rather than
American Presidential System of Government. The
Parliamentary system is based on the principle of
cooperation and coordination between the
legislative and executive organs while the
presidential system is based on the doctrine of
separation of powers between the two organs
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Citizenship

• Citizenship at the commencement of the
  constitution of India.
• Persons domiciled in the territory of India as on
  26 November 1949 automatically became Indian
  citizens by virtue of operation of the relevant
  provisions of the Indian Constitution coming into
  force, and most of these constitutional
  provisions came into force on 26 January 1950.
  The Constitution of India also made provision
  regarding citizenship for migrants from the
  territories of Pakistan which had been part of
  India before .

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Citizenship by birth

• Any person born in India on or after 26 January
  1950, but prior to the commencement of the 1986
  Act on 1 July 1987, is a citizen of India by
  birth. A person born in India on or after 1 July
  1987 is a citizen of India if either parent was a
  citizen of India at the time of the birth. Those
  born in India on or after 3 December 2004 are
  considered citizens of India only if both of
  their parents are citizens of India or if one
  parent is a citizen of India and the other is not
  an illegal migrant at the time of their birth. In
  September 2013, Bombay High Court gave a
  judgement that a birth certificate, passport or
  even an Aadhaar card alone may not be enough to
  prove Indian citizenship,unless the parents are
  not Indian citizens.

34
Citizenship by descent

• Persons born outside India on or after 26 January
  1950 but before 10 December 1992 are citizens of
  India by descent if their father was a citizen of
  India at the time of their birth.
• Persons born outside India on or after 10
  December 1992 are considered citizens of India if
  either of their parents is a citizen of India at
  the time of their birth.
• From 3 December 2004 onwards, persons born
  outside of India shall not be considered citizens
  of India unless their birth is registered at an
  Indian consulate within one year of the date of
  birth. In certain circumstances it is possible to
  register after 1 year with the permission of the
  Central Government. The application for
  registration of the birth of a minor child must
  be made to an Indian consulate and must be
  accompanied by an undertaking in writing from the
  parents of such minor child that he or she does
  not hold the passport of another country.

35
Citizenship by registration

• The Central Government may, on an application,
  register as a citizen of India under section 5 of
  the Citizenship Act 1955 any person (not being an
  illegal migrant) if he belongs to any of the
  following categories
• a person of Indian origin who is ordinarily
  resident in India for seven years before making
  application under section 5(1)(a) (throughout the
  period of twelve months immediately before making
  application and for six years in the aggregate in
  the eight years preceding the twelve months).
• a person of Indian origin who is ordinarily
  resident in any country or place outside
  undivided India
• a person who is married to a citizen of India and
  is ordinarily resident in India for seven years
  before making an application for registration
• minor children of persons who are citizens of
  India
• a person of full age and capacity whose parents
  are registered as citizens of India.
• a person of full age and capacity who, or either
  of his parents, was earlier citizen of
  independent India, and has been residing in India
  for one year immediately before making an
  application for registration
• a person of full age and capacity who has been
  registered as an overseas citizen of India for
  five years, and who has been residing in India
  for one year before making an application for
  registration.

36
Citizenship by naturalization

• Citizenship of India by naturalization can be
  acquired by a foreigner (not illegal migrant) who
  is ordinarily resident in India for twelve years
  (throughout the period of twelve months
  immediately preceding the date of application and
  for eleven years in the aggregate in the fourteen
  years preceding the twelve months) and other
  qualifications as specified in Third Schedule to
  the Citizen Act.

37
Renunciation and termination of Indian
citizenship

• Renunciation is covered in Section 8 of the
  Citizenship Act 1955. If an adult makes a
  declaration of renunciation of Indian
  citizenship, he loses Indian citizenship. In
  addition, any minor child of that person also
  loses Indian citizenship from the date of
  renunciation. When the child reaches the age of
  eighteen, he or she has the right to have his or
  her Indian citizenship restored. The provisions
  for making a declaration of renunciation under
  Indian citizenship law require that the person
  making the declaration be "of full age and
  capacity".

38

• Termination is covered in Section 9 of the
  Citizenship Act, 1955. The provisions for
  termination are separate and distinct from the
  provisions for making a declaration of
  renunciation

Section 9 (1) of the act provides that any
citizen of India who by naturalisation or
registration acquires the citizenship of another
country shall cease to be a citizen of India.
Notably, the termination provision differs from
the renunciation provision because it applies to
"any citizen of India" and is not restricted to
adults. Indian children therefore also
automatically lose their claim to Indian
citizenship if at any time after birth they
acquire a citizenship of another country by, for
example, naturalisation or registration even if
the acquisition of another citizenship was done
as a result of actions by the child's parents.
39
Overseas citizenship of India

• In response to persistent demands for dual
  citizenship, particularly from the diaspora in
  North America and other developed countries, the
  Overseas Citizenship of India (OCI) scheme was
  introduced by amending The Citizenship Act,
  1955 in August 2005. The scheme was launched
  during the Pravasi Bharatiya Divas convention at
  Hyderabad in 2006. Indian authorities have
  interpreted the law to mean a person cannot have
  a second country's passport simultaneously with
  an Indian one even in the case of a child who
  is claimed by another country as a citizen of
  that country, and who may be required by the laws
  of the other country to use one of its passports
  for foreign travel (such as a child born in the
  United States or in Australia to Indian parents),
  and the Indian courts have given the executive
  branch wide discretion over this matter.
  Therefore, Overseas Citizenship of India is not
  an actual citizenship of India and thus, does not
  amount to dual citizenship or dual nationality.
  Moreover, the OCI card is not a substitute for an
  Indian visa and therefore, the passport which
  displays the lifetime visa must be carried by OCI
  holders while traveling to India.

40
Eligibility
The Central Indian Government, on application,
may register any person as an Overseas Citizen of
India if the person- was a citizen of India on
26 January 1950 or at any time thereafter
or belonged to a territory that became part of
India after 15 August 1947 or is the child or
grandchild of a person described above and has
never been a citizen of Pakistan or Bangladesh
and has had no involvement in serious offences
like drug trafficking, moral turpitude, terrorist
activities or anything leading to imprisonment of
more than a year. Applicant's country of
citizenship allows dual citizenship (even though
OCI is not an actual Indian citizenship).
41
Privileges

• An Overseas Citizen of India will enjoy all
  rights and privileges available to Non-Resident
  Indians on a parity basis excluding the right to
  invest in agriculture and plantation properties
  or hold public office. It is very important that
  the person carry his existing foreign passport
  which should include the new visa called U visa
  which is a multi-purpose, multiple-entry,
  lifelong visa. It will entitle the Overseas
  Citizen of India to visit the country at any time
  for any length of time and for any purpose. Any
  changes to the foreign passport, should be
  conveyed to the Indian Embassy, so that
  everything will be consistent.
• Overseas citizens of India will not enjoy the
  following rights even if resident in India (i)
  the right to vote, (ii) the right to hold the
  offices of President, Vice-President, Judge of
  Supreme Court and High Court, Member of Lok
  Sabha, Rajya Sabha, Legislative Assembly or
  Council, (iii) appointment to Public Services
  (Government Service). Also, Overseas Citizens of
  India are not eligible for an Inner Line Permit,
  and they have to apply for a protected area
  permit if they want to visit certain areas in
  India

42
Effect on granting British citizenship

• Acquiring Overseas citizenship of India prevents
  British nationals (Overseas) from registering as
  full British citizens under Section 4B of
  the British Nationality Act 1981 (which requires
  that nationals have no other citizenship in order
  to register).It does not prevent them from
  acquiring full British citizenship by a different
  method and it does not revoke their British
  citizenship if they have already registered under
  Section 4B.

43
Persons of Indian origin (PIO) card

• This is issued to any person currently holding
  foreign passport, who can prove their Indian
  origin up to three generations before. The same
  holds for spouses of Indian citizen or persons of
  Indian origin. Citizens of Pakistan, Bangladesh,
  and other countries as may be specified by the
  central government are not eligible for grant
  of Persons of Indian Origin card The PIO card
  must be produced alongside the foreign passport
  when entering or departing any port in India. Any
  changes in the foreign passport - name changes or
  passport renewal - must also be reflected in the
  PIO card.
• A PIO card is generally valid for a period of
  fifteen years from the date of issue. It gives
  the holder the following benefits
• exemption from registration at a Foreigners'
  Regional Registration Office (FRRO) for periods
  of stay less than 180 days,
• enjoy parity with non-resident Indians in
  economic, financial and educational fields,
• acquire, hold, transfer, or dispose of immovable
  properties in India, except for agricultural
  properties,
• open rupee bank accounts, lend in rupees to
  Indian residents, and make investments in India
  etc.,
• being eligible for various housing schemes under
  the Life Insurance Corporation of India (LIC) or
  the central or State governments,
• their children can obtain admission in
  educational institutions in India in the general
  category quota for non-resident Indians.

44

• Possession of a PIO card will not entitle the
  holder to
• being eligible for the exercise of any political
  rights
• visit restricted or protected areas without
  permission
• undertake mountaineering, research, and
  missionary work without permission.
• In early 2011, the then Prime Minister of
  India, Manmohan Singh, announced that the Person
  of Indian Origin card will be merged with
  the Overseas Citizen of India card. This new card
  is proposed to be called the Overseas Indian
  Card.

45
CONCEPT OF FEDERALISM AND INDIAN CONSTITUTION

• The Government of India (referred to as the Union
  Government) was established by the Constitution
  of India, and is the governing authority of
  a federal union of 29 states and 7 union
  territories.
• The government of India is based on a tiered
  system, in which the Constitution of
  India delineates the subjects on which each tier
  of government has executive powers. The
  Constitution originally provided for a two-tier
  system of government, the Union Government (also
  known as the Central Government), representing
  the Union of India, and the State governments.
  Later, a third tier was added in the form of
  Panchayats and Municipalities. In the current
  arrangement, The Seventh Schedule of the Indian
  Constitution delimits the subjects of each level
  of governmental jurisdiction, dividing them into
  three lists
• Union List includes subjects of national
  importance such as defense of the country,
  foreign affairs, banking, communications and
  currency. The Union Government alone can make
  laws relating to the subjects mentioned in the
  Union List.
• State List contains subjects of State and local
  importance such as police, trade, commerce,
  agriculture and irrigation. The State Governments
  alone can make laws relating to the subjects
  mentioned in the State List.
• Concurrent List includes subjects of common
  interest to both the Union Government as well as
  the State Governments, such as education, forest,
  trade unions, marriage, adoption and succession.
  Both the Union as well as the State Governments
  can make laws on the subjects mentioned in this
  list. If their laws conflict with each other, the
  law made by the Union Government will prevail.

46
UNIT - II

• Concept of the state
• Right to equality
• Protective discriminition and social justice

47
CONCEPT OF THE STATE

• Article 12
• Simply speaking, the 'State' includes Government
  and Parliament of India i.e the Executive and
  Legislature of the Union
• Government and Legislature of each State i.e the
  Executive and Legislature of the various States
  of India
• All local or other authorities within the
  territory of India
• All local and other authorities who are under the
  control of the Government of India
• The meaning of the three terms are different -
  Authorities, Local Authorities, Other Authorities
  Whether or not a body is state will have to be
  considered in each case, on the basis of the
  facts available, and considering whether the body
  is financially, functionally, and
  administratively dominated by or under the
  control of the government. The same definition of
  'State' was again used in Article 36 that deals
  with the Directive Principles of State
  Policy under Part IV, unless otherwise the
  context requires. This definition of 'State' does
  not apply for Part XIV or other parts.

48
Related Cases / Recent Cases / Case Laws

• R D Shetty v International Airports Authority
  International Airports Authority is held to be
  within the meaning of a 'State'Som Prakash Rekhi
  v Union of India Bharat Petroleum Corporation is
  a Government company registered under the
  Companies Act and is within the meaning of a
  'State'Ajay Hasia v Khalid Mujib Regional
  Engineering College established under Societies
  Registration Act is within the meaning of a
  'State'Tekraj Vasandi v Union of India, (1988) 1
  SCC 236 Institute of Constitutional and
  Parliamentary Studies is not a 'State' for the
  purpose of writ jurisdiction.Unni Krishnan v
  State of AP The scope of 'authority' when
  applied in the sense of Article 226 should be
  more liberal because High Courts deal with writs
  of non-fundamental right nature, unlike in the
  case of Article 32 where Supreme Court deals with
  writs of only fundamental right
  enforcement.Pradeed Kumar Biswas v Indian
  Institute of Chemical Biology Overruling
  Sabhajit Tiwari v Union of India case that said
  CSIR is not a State, the SC has now held that
  CSIR is a 'State' Balmer Lawrie and Co and Others
  Vs Partha Sarathi Sen Roy and Others, Civil
  Appeal Jurisdiction, Civil Appeal No. 419-426 OF
  2004, Supreme Court of India judgement dated
  February 20, 2013

49
Fundamental Rights

• The Fundamental Rights, embodied in Part III of
  the Constitution, guarantee civil rights to all
  Indians, and prevent the State from encroaching
  on individual liberty while simultaneously
  placing upon it an obligation to protect the
  citizens' rights from encroachment by society.
  Seven fundamental rights were originally provided
  by the Constitution  right to equality, right to
  freedom, right against exploitation, right to
  freedom of religion, cultural and educational
  rights, right to property and right to
  constitutional remedies. However, the right to
  property was removed from Part III of the
  Constitution by the 44th Amendment in 1978.

50
The purpose of the Fundamental Rights is to
preserve individual liberty and democratic
principles based on equality of all members of
society. They act as limitations on the powers of
the legislature and executive, under Article
13,and in case of any violation of these rights
the Supreme Court of India and the High Courts of
the states have the power to declare such
legislative or executive action as
unconstitutional and void. These rights are
largely enforceable against the State, which as
per the wide definition provided in Article 12,
includes not only the legislative and executive
wings of the federal and state governments, but
also local administrative authorities and other
agencies and institutions which discharge public
functions or are of a governmental character.
However, there are certain rights  such as those
in Articles 15, 17, 18, 23, 24  that are also
available against private individuals. Further,
certain Fundamental Rights  including those
under Articles 14, 20, 21, 25  apply to persons
of any nationality upon Indian soil, while
others  such as those under Articles 15, 16, 19,
30  are applicable only to citizens of India
51
Kesavananda Bharati v. State of Kerala case in
1973
The Fundamental Rights are not absolute and are
subject to reasonable restrictions as necessary
for the protection of public interest. In the
Kesavananda Bharati v. State of Kerala case in
1973,the Supreme Court, overruling a previous
decision of 1967, held that the Fundamental
Rights could be amended, subject to judicial
review in case such an amendment violated
the basic structure of the Constitution. The
Fundamental Rights can be enhanced, removed or
otherwise altered through aconstitutional
amendment, passed by a two-thirds majority of
each House of Parliament. The imposition of
a state of emergency may lead to a temporary
suspension any of the Fundamental Rights,
excluding Articles 20 and 21, by order of the
President. The President may, by order, suspend
the right to constitutional remedies as well,
thereby barring citizens from approaching the
Supreme Court for the enforcement of any of the
Fundamental Rights, except Articles 20 and 21,
during the period of the emergency. Parliament
may also restrict the application of the
Fundamental Rights to members of the Indian Armed
Forces and the police, in order to ensure proper
discharge of their duties and the maintenance of
discipline, by a law made under Article 33
52
2 Fundamental Rights 2.1 Right to
Equality 2.2 Right to Freedom 2.3 Right against
Exploitation 2.4 Right to Freedom of
Religion 2.5 Cultural and Educational
Rights 2.6 Right to Constitutional Remedies
53
Right to Equality

• The Right to Equality is one of the chief
  guarantees of the Constitution. It is embodied in
  Articles 1416, which collectively encompass the
  general principles of equality before law and
  non-discrimination, Articles 1718 which
  collectively further the philosophy of social
  equality. Article 14 guarantees equality before
  law as well as equal protection of the law to all
  persons within the territory of India. This
  includes the equal subjection of all persons to
  the authority of law, as well as equal treatment
  of persons in similar circumstances. The latter
  permits the State to classify persons for
  legitimate purposes, provided there is a
  reasonable basis for the same, meaning that the
  classification is required to be non-arbitrary,
  based on a method of intelligible differentiation
  among those sought to be classified, as well as
  have a rational relation to the object sought to
  be achieved by the classification.

54
PROTECTIVE DISCRIMINITION AND SOCIAL JUSTICE

• Article 15 prohibits discrimination on the
  grounds only of religion, race, caste, sex, place
  of birth, or any of them. This right can be
  enforced against the State as well as private
  individuals, with regard to free access to places
  of public entertainment or places of public
  resort maintained partly or wholly out of State
  funds. However, the State is not precluded from
  making special provisions for women and children
  or any socially and educationally backward
  classes of citizens, including the Scheduled
  Castes and Scheduled Tribes. This exception has
  been provided since the classes of people
  mentioned therein are considered deprived and in
  need of special protection. Article 16
  guarantees equality of opportunity in matters of
  public employment and prevents the State from
  discriminating against anyone in matters of
  employment on the grounds only of religion, race,
  caste, sex, descent, place of birth, place of
  residence or any of them. It creates exceptions
  for the implementation of measures of affirmative
  action for the benefit of any backward class of
  citizens in order to ensure adequate
  representation in public service, as well as
  reservation of an office of any religious
  institution for a person professing that
  particular religion

55
The practice of untouchability has been declared
an offence punishable by law under Article 17,
and the Protection of Civil Rights Act, 1955 has
been enacted by the Parliament to further this
objective. Article 18 prohibits the State from
conferring any titles other than military or
academic distinctions, and the citizens of India
cannot accept titles from a foreign state. Thus,
Indian aristocratic titles and titles of nobility
conferred by the British have been abolished.
However, awards such as the Bharat Ratna have
been held to be valid by the Supreme Court on the
ground that they are merely decorations and
cannot be used by the recipient as a title.
56
UNIT-III

• RIGHT TO FREEDOM
• RIGHT TO FREEDOM OF RELIGION PROTICTION OF
  MINORTIES , CULTURAL AND EDUCATIONAL RIGHT

57
Right to Freedom

• The Right to Freedom is covered in Articles
  1922, with the view of guaranteeing individual
  rights that were considered vital by the framers
  of the Constitution, and these Articles also
  include certain restrictions that may be imposed
  by the State on individual liberty under
  specified conditions. Article 19 guarantees six
  freedoms in the nature of civil rights, which are
  available only to citizens of India. These
  include the freedom of speech and
  expression, freedom of assembly, freedom of
  association without arms, freedom of
  movement throughout the territory of India,
  freedom to reside and settle in any part of the
  country of India and the freedom to practise any
  profession. All these freedoms are subject to
  reasonable restrictions that may imposed on them
  by the State, listed under Article 19 itself. The
  grounds for imposing these restrictions vary
  according to the freedom sought to be restricted,
  and include national security, public order,
  decency and morality, contempt of court,
  incitement to offences, and defamation. The State
  is also empowered, in the interests of the
  general public to nationalise any trade, industry
  or service to the exclusion of the citizens.

58
The constitution of India does not specifically
mention the freedom of press. Freedom of press is
implied from the Article 19(1)(a) of the
Constitution. Thus the press is subject to the
restrictions that are provided under the Article
19(2) of the Constitution. Before Independence,
there was no constitutional or statutory
provision to protect the freedom of press. As
observed by the Privy Council in Channing Arnold
v. King Emperor The freedom of the journalist
is an ordinary part of the freedom of the subject
and to whatever length, the subject in general
may go, so also may the journalist, but apart
from statute his privilege is no other and no
higher. The range of his assertions, his
criticisms or his comments is as wide as, and no
wider than that of any other subject. The
Preamble of the Indian Constitution ensures to
all its citizens the liberty of
expression. Freedom of the press has been
included as part of freedom of speech and
expression under the Article 19 of the UDHR. The
heart of the Article 19 says Everyone has the
right to freedom of opinion and expression, this
right includes freedom to hold opinions without
interference and to seek, receive and impart
information and ideas through any media and
regardless of frontiers.
59
In Romesh Thapar v. State of Madras, Patanjali
Shastri, CJ observed Freedom of speech and of
the press lay at the foundation of all democratic
organisations, for without free political
discussion no public education, so essential for
the proper functioning of the process of popular
government, is possible. The Supreme Court
observed in Union of India v. Assn. for
Democratic Reforms Onesided information,
disinformation, misinformation and
non-information, all equally create an uninformed
citizenry which makes democracy a farce. Freedom
of speech and expression includes right to impart
and receive information which includes freedom to
hold opinions. In Indian Express v. Union of
India it has been held that the press plays a
very significant role in the democratic
machinery. The courts have duty to uphold the
freedom of press and invalidate all laws and
administrative actions that abridge that freedom.
Freedom of press has three essential elements.
They are1. freedom of access to all sources of
information, 2. freedom of publication, and 3.
freedom of circulation.
60
In India, the press has not been able to practise
its freedom to express the popular views.
In Sakal Papers Ltd. v. Union of India, the Daily
Newspapers (Price and Page) Order, 1960, which
fixed the number of pages and size which a
newspaper could publish at a price was held to be
violative of freedom of press and not a
reasonable restriction under the Article 19(2).
Similarly, in Bennett Coleman and Co. v. Union of
India, the validity of the Newsprint Control
Order, which fixed the maximum number of pages,
was struck down by the Supreme Court of India
holding it to be violative of provision of
Article 19(1)(a) and not to be reasonable
restriction under Article 19(2). The Court struck
down the rebuttal of the Government that it would
help small newspapers to grow. In Romesh Thapar
v. State of Madras (1950 SCR 594, 607 AIR 1950
SC 124), entry and circulation of the English
journal "Cross Road", printed and published in
Bombay, was banned by the Government of Madras.
The same was held to be violative of the freedom
of speech and expression, as without liberty of
circulation, publication would be of little
value. In Prabha Dutt v. Union of India ((1982)
1 SCC 1 AIR 1982 SC 6.), the Supreme Court
directed the Superintendent of Tihar Jail to
allow representatives of a few newspapers to
interview Ranga and Billa, the death sentence
convicts, as they wanted to be interviewed.
61
Restrictions Under Indian law, the freedom of
speech and of the press do not confer an absolute
right to express one's thoughts freely. Clause
(2) of Article 19 of the Indian constitution
enables the legislature to impose certain
restrictions on free speech under following
heads I. security of the State, II. friendly
relations with foreign States, III. public
order, IV. decency and morality, V. contempt of
court, VI. defamation, VII. incitement to an
offence, and VIII. sovereignty and integrity of
India.
62
Right to Freedom of Religion
The Right to Freedom of Religion, covered in
Articles 2528, provides religious freedom to all
citizens and ensures a secular state in India.
According to the Constitution, there is no
official State religion, and the State is
required to treat all religions impartially and
neutrally Article 25 guarantees all persons
the freedom of conscience and the right to
preach, practice and propagate any religion of
their choice. This right is, however, subject to
public order, morality and health, and the power
of the State to take measures for social welfare
and reform.  The right to propagate, however,
does not include the right to convert another
individual, since it would amount to an
infringement of the other's right to freedom of
conscience.  Article 26 guarantees all religious
denominations and sects, subject to public order,
morality and health, to manage their own affairs
in matters of religion, set up institutions of
their own for charitable or religious purposes,
and own, acquire and manage property in
accordance with law. 
63
These provisions do not derogate from the State's
power to acquire property belonging to a
religious denomination. The State is also
empowered to regulate any economic, political or
other secular activity associated with religious
practice. Article 27 guarantees that no person
can be compelled to pay taxes for the promotion
of any particular religion or religious
institution. Article 28 prohibits religious
instruction in a wholly State-funded educational
institution, and educational institutions
receiving aid from the State cannot compel any of
their members to receive religious inst