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CONSTITUTIONAL LAW – I
(Subject Code - LC 0601)
LL.B. – I (Sem. – II), B.A.LL.B. – III (Sem. – VI) and
B. B.A.LL.B. – III (Sem. – VI) Pattern – 2017
By
Dr. More Atul Lalasaheb
(Asso. Prof.) B.Sc. (Hons.), LL.M., Ph.D. (Law), NET (Law)
Associate Professor Ph. D. Guide, Dept. of Law,
New Law College, Member, BoS, Faculty of Law,
Ahmednagar Savitribai Phule Pune University,
Pune
CONSTITUTIONAL LAW – I
(Subject Code - LC 0601)
STUDY MATERIAL
FOR
LL.B. – I (Sem. – II), B.A.LL.B. – III (Sem. – VI) and
B. B.A.LL.B. – III (Sem. – VI) Pattern – 2017
By
Dr. More Atul Lalasaheb
(Asso. Prof.) B.Sc. (Hons.), LL.M., Ph.D. (Law), NET (Law)
Associate Professor Ph. D. Guide, Dept. of Law,
New Law College, Member, BoS, Faculty of Law,
Ahmednagar Savitribai Phule Pune University,
Pune
ADEMIC YEAR
Preface
The course of Constitutional Law – I Paper (Subject Code - LC 001) of LL.B. – I
(Sem. – II), B.A.LL.B. – IIV (Sem. – VI) and B. B.A.LL.B. – III (Sem. – VII) Pattern –
2017 is designed on the basis of recommendations of Bar Council of India and UGC,
New Delhi. I am glad to reveal that the syllabus of this paper which is framed by
Committee of BoS (Faculty of Law), SPPU, Pune, I was a member of that Committee.
The syllabus is framed with an objective to acquaint the students with the basic principles
of Constitution and Constitutionalism. The reason and justifications of the growth of
Fundamental Rights, the operation of Fundamental Rights, Directive Principles in India
and its effect is to be studies. In this context the syllabus of this paper need to be taught
with the help of appropriate judicial decisions to realize importance of this basic law of
land.
As it is said that the Constitution of India is living document hence, I am of the
view that it will be advantageous to study the content of this paper in the Social,
Economic and Political context in which the Constitution of India operates. I would like
to particularly mention about various amendments done in the Constitution of India
regarding Socialism, Secularism, Unity and Integrity of the Nation, Affirmative Actions
in the favour of SCs, STs, OBCs, Minorities and Women, Extension of Right to Know,
Dynamic application of Right to Life and Personal Liberty, effective implementation of
Directive Principles of State Policy and Fundamental Duties etc, The Apex Court also
has given positive response by laying down important rulings in this behalf. Hence, under
this study material I have discussed most of the relevant and important components
which are need to be studied in the respective Modules of the syllabus of this paper.
I would like to suggest to all law students, researcher and readers of this subject
that in order to avoid lengthiness of study material I have mentioned only those relevant
aspects which needs to be studied in each module, so you should read in detail those
aspects from the reference material which I acknowledged at the end leaf of this study
material. Really I appreciate the great work done by those authors in this subject.
I hope this study material will be useful to you, I will be happy to accept any
relevant suggestions to improve the contents of this study material.
Dr. More Atul Lalasaheb
(Asso. Prof. (Law))
INDEX
MODULE
NO.
PARTICULARS PAGE
NO.
I Making of the Constitution
- Demand for a Constitution framed by a Constituent Assembly
- The Cripps’ offer of 1942
- The Wavell Plan of 1945
- The Cabinet Mission Plan, 1946
- The Mountbatten Plan, 1947
- The Indian Independence Act, 1947
- Constituent Assembly in India and framing of the Constitution: a) Formation of the Constituent Assembly of India b) The issues before the Constituent Assembly c) Passing of the Constitution d) Dr. Ambedkar’s warning and anxiety about the working of the Constitution e) Date of Commencement of the Constitution
II
Basic Concepts, Preamble, Territory of India and
Citizenship
Basic Concepts under the Constitutional Law :
- Concepts of Constitutional Law and Constitutionalism
- Forms and characters of various models of Constitution
- Salient features of the Constitution of India Preamble to the Constitution of India :
- Meaning of the Preamble
- Object, Purpose and Scope of the Preamble
- Contents of the Preamble
- Utility of Preamble in interpretation of the Constitution
- Whether Preamble is part of the Constitution? Union and its Territory (Articles 1 to 4) : Citizenship of India :
- Constitutional Provisions (Articles 5 to 11) : a) Importance of Citizenship under the Constitution of India b) Citizens by Domicile c) Citizens by Migration d) Citizens by Registration e) Termination of Citizenship f) Dual Citizenship
- The Citizenship Act, 1955 : a) Introduction, Objects and Reasons of the Act b) Citizenship by Birth c) Citizenship by Descent d) Citizenship by Registration e) Citizenship by Naturalisation f) Citizenship by Incorporation of territory g) Cessation of Citizenship h) Deprivation of Citizenship
VI Right to Freedom II (Articles 20 to 22)
- Protection in Respect of Conviction for offences - a) Protection against Ex-post Facto Law b) Guarantee against Double Jeopardy c) Privilege against Self-Incrimination
- Protection of Right to Life and Personal Liberty - a) A. K. Gopalan to Maneka Gandhi b) Relationship between Articles 19, 21 and 22 c) Due Process of Law d) Extended view in post Maneka Gandhi period
- Right to Education - Evolution and Importance
- Protection against Arrest and Detention - a) Protection against Arrest b) Protection against Preventive Detention c) Laws Authorising Preventive Detention
VII Right against Exploitation (Articles 23 and 24)
- Traffic in Human Beings
- Begar and Similar forms of Forced Labours
- Compulsory Services for Public Purpose
- Prohibition of Employment of Children
VIII Right to Freedom of Religion (Articles 25 to 28)
- Concept of Secularism
- Freedom of Conscience and right to Profess or Practice and Propagate religion
- Freedom of Religion of Religious Denomination
- Freedom from Paying of Taxes for Promotion of any Religion
- Annual Payment to certain Devasworm Funds (Article 290A)
- Prohibition of Religious Instructions in Educational Institutions
IX Cultural and Educational Rights (Articles 29 to 30)
- Concept of Minority
- Protection of Interest of Minorities
- Right of a Minority to Establish Educational Institution
- Regulation of Minority Educational Institution
X Right to Constitutional Remedies (Articles 32 to 35)
- Enforcement of Fundamental Rights
- Procedure in Enforcement of Fundamental Rights
- Power to issue Writs, Directions or Orders – Types of Writs
- Comparison between Article 32 and Article 226
- Public Interest Litigation
- Fundamental Rights during Emergency
- Power of Parliament to Modify Fundamental Rights with respect to some Forces
- Fundamental Rights during operation of Martial Law
- Legislation to give effect to Fundamental Rights
XI
Directive Principles of State Policy (Articles 36 to 51) and
Fundamental Duties (Article 51A)
- Nature and Importance of Directive Principles
- Inter-relationship between Fundamental Rights and Directive Principles.
- Directive Principles of State Policy
- Fundamental Duties – Nature and Importance
XII Amendment of the Constitution (Article 368)
- Power and Procedure of Amendment
- Amendment / Change by Simple Majority
- Amendment by Special Majority
- Amendment by Special Majority with Ratification by Majority of States
- Amendment of Fundamental Rights
- Basic Structure Doctrine
BIBILIOGRAPHY OF REFERENCE MATERIAL
help of peaceful and constitutional means. The adoption of the famous Motilal Nehru resolution in 1924 and 1925 on the National Demand was a historic event inasmuch as the Central Legislature had, for the first time, lent its support to the growing demand that the future constitution of India should be framed by Indians themselves. In November 1927, when the Simon Commission was appointed without any Indians represented on it, an all-party meeting held at Allahabad said that apart from being virtual negation of the "National Demand", it amounted to 'a "deliberate insult to the people of India" for, not only did it "definitely assign to them a position of inferiority" but also denied to them "the right to participate in the determination of the constitution of their own country". Earlier on 17 May 1927, at the Bombay Session of the Congress, Motilal Nehru had moved a resolution calling upon the Congress Working Committee to frame a constitution for India in consultation with the elected members of the Central and Provincial Legislatures and leaders of political parties. Adopted by an overwhelming majority with amendments, it was this resolution on the Swaraj constitution which was later amplified and reiterated by Jawaharlal Nehru in a resolution passed by the Madras Session of the Congress on 28 December 1927. An All- Parties Conference organized at Bombay on 19 May 1928 appointed a committee, under the chairmanship of Motilal Nehru "to determine the principles of the constitution of India". The report of the Committee (submitted on 10 August
- was later to become famous as the Nehru Report. It was the first attempt by Indians to frame a full-fledged constitution for their country and has been described by Coupland as "not only an answer to the challenge that Indian nationalism was unconstructive" but "frankest attempt yet made by Indians to face squarely the difficulties of communalism". The Report embodied not only the perspective of the contemporary nationalist opinion but also an outline of a draft constitution for India. The latter was based on the principle of Dominion Status with full responsible government on the parliamentary pattern. It asserted the principle that sovereignty belongs to the Indian people, laid down a set of fundamental rights and provided for a federal system with maximum autonomy granted to the units but residuary powers vesting in the Central Government and joint electorates for elections to the Federal Lower House and the Provincial
Legislatures with reservation of seats for minorities in certain cases for a limited period. It would be seen that the broad parliamentary system with a government responsible to Parliament, a chapter of justiciable fundamental rights and rights of minorities envisaged in the Nehru Report in 1928 were very largely embodied in the constitution of independent India that was adopted 21 years later, on 26 November 1949. The White Paper issued after the third Round Table Conference outlined the British government's proposal for constitutional reforms in India. The Joint Parliamentary Committee which examined these proposals observed that "a specific grant of constituent power to authorities in India is not at the moment a practicable proposition". In June 1934, the Congress Working Committee declared that the only satisfactory alternative to the White Paper was a constitution drawn up by a constituent assembly elected on the basis of adult suffrage. This was the first time that a definite demand for a constituent assembly was formally put forward. The Working Committee of the All India Congress Committee at its meeting held at Patna on 5-7 December 1934 adopted a resolution rejecting the scheme of Indian constitutional Reforms as recommended in the Report of the Joint Parliamentary Committee (1933-34) and reiterated the view that the only satisfactory alternative to the scheme was a constitution drawn up by a constituent assembly. The failure of the Simon Commission and the Round Table Conference which led to the enactment of the Government of India Act, 1935 to satisfy Indian aspirations accentuated the demand for a constituent assembly of the people of India. The Congress adopted a resolution at its Lucknow Session in April 1936 in which it declared that no constitution imposed by an outside authority shall be acceptable to India; it has to be one framed by an Indian constituent assembly elected by the people of India on adult franchise. Since the Congress had contested elections to the Provincial Legislatures on the issues of total rejection of the Act of 1935 and the demand for a, constituent assembly, following a decisive victory it adopted at Delhi on 18 March 1937 a resolution asserting the electorate's approval of the demand for a constituent assembly. It desired to frame "a constitution based on national independence, through the medium of a constituent assembly elected by adult franchise". This demand was firmly reiterated by the All India National Convention of Congress Legislators held
roughly in the ratio of one Member to a million and the seats allocated to the Provinces be divided among the principal communities, classified for this purpose as Sikhs, Muslims and General (all except Sikhs and Muslims), on the basis of their numerical strength. The representatives of each community were to be chosen by members of that community in the Provincial assembly and voting was to be by the method of proportional representation with single transferable vote. The number of Members allotted to the Indian States was also to be fixed on the same basis of population as adopted for British India, but the method of their selection was to be settled later by consultation. The strength of the constitution-making body was to be 389. Of these 296 representatives were to be from British India, (292 representatives drawn from the eleven Governors' Provinces of British India and a representative each from the four Chief Commissioners' Provinces of Delhi, Ajmer-Merwara, Coorg and British Baluchistan) and 93 representatives from the Indian States. The Cabinet Mission recommended a basic framework for the constitution and laid down in some detail the procedure to be followed by the constitution-making body. Elections for the 296 seats assigned to the British Indian Provinces were completed by July-August 1946. The Congress won 208 seats including all the General seats except nine and the Muslim League 73 seats, that is, all but five of the seats allotted to Muslims. The party-wise break-up of the assembly's British Indian membership was as follows: Congress 208 Muslim League 73 Unionist 1 Unionist Muslim 1 Unionist Scheduled Castes 1 Krishak Praja 1 Scheduled Castes Federation 1 Sikh (Non-Congress) 1 Communist 1 Independents 8 296 With the partition and independence of the country, on 14 - 15 August 1947, the Constituent Assembly of India could be said to have become free from the fetters of the Cabinet Mission Plan. It became a fully sovereign body and the successor to the British Parliament's plenary authority and power in the country. Moreover, following the acceptance of the Plan of 3 June, the members of the Muslim League .party from the Indian Dominion also took their seats in the assembly. The representatives of some of the Indian states had already entered the Assembly
on 28 April 1947. By 15 August. most of the States were represented in the Assembly and the remaining States also sent their representatives in due course. The Constituent Assembly thus became a body, it was believed, fully representative of the states and provinces in India and fully sovereign of all extema1 authority. It could abrogate or alter any law made by the British Parliament applying to India, including the Indian Independence Act itself. The 'Constituent Assembly duly opened on the appointed day Monday, the ninth day of December, 1946 at eleven in the morning. The historic Objectives Resolution was moved in the Constituent Assembly by Nehru, on 13 December 1946, after it had been in session for some days. The beautifully worded draft of the Objectives Resolution cast the horoscope, so to say, of the Sovereign Democratic Republic that India was to be. The resolution envisaged a federal polity with the residuary powers vesting in the autonomous units and sovereignty belonging to the people. "Justice, social, economic and political; Equality of status, of opportunity and before the law; Freedom of thought, expression, belief, faith, worship, vocation, association and I, action" were to be guaranteed to all the people along with "adequate safeguards" to "minorities, backward and tribal areas and depressed and other backward classes". Thus, the Resolution gave to the Assembly its guiding principles and the philosophy that was to permeate its tasks of constitution making. It was finally adopted by the Assembly on 22 January 1947 and later took the form of the Preamble to the Constitution. Framing the Constitution The assembly appointed a number of committees to deal with different aspects of the problem of framing the constitution. These included the Union Constitution Committee, Union Powers Committee, Committees on Fundamental Rights, Minorities, etc. Some of these Committees were headed by either Nehru or Patel to whom the President of the assembly gave the credit for working out the fundamentals of the constitution. The Committees worked hard and in a businesslike manner and produced valuable reports. Between the third and the sixth sessions, the Assembly considered the reports of committees on Fundamental Rights, on Union Constitution, on Union Powers, on Provincial Constitution, on Minorities and on Scheduled Areas and Scheduled Tribes. Recommendations of the other Committees were later considered by the
am sure, on an inadequate study of the constitution. As to the accusation that the Draft Constitution has produced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a constitution. On 4th Nov. 1948 Dr. B. R. Ambedkar introduced draft constitution before the assembly.^1 Mr. President: I think we shall now proceed with the discussion. I call upon the Honourable Dr. Ambedkar to move his motion. The Honourable Dr. B. R. Ambedkar (Bombay: General):Mr. President, Sir, I introduce the Draft Constitution as settled by the Drafting Committee and move that it be taken into consideration. The Drafting Committee was appointed by a Resolution passed by the Constituent Assembly on August 29, 1947. The Drafting Committee was in effect charged with the duty of preparing a Constitution in accordance with the decisions of the Constituent Assembly on the reports made by the various Committees appointed by it such as the Union Powers (^1). Motion re draft Constitution moved by Dr. B. R. Ambedkar, Chairman of Drafting Committee on 4th Nov. 1948 Committee, the Union Constitution Committee, the Provincial Constitution Committee and the Advisory Committee on Fundamental Rights, Minorities, Tribal Areas, etc. The Constituent Assembly had also directed that in certain matters the provisions contained in the Government of India Act, 1935 should be followed. Except on points which are referred to in my letter of the 21st February 1948 in which I have referred to the departures made and alternatives suggested by the Drafting Committee, I hope the Drafting Committee will be found to have faithfully carried out the directions given to it. The Draft Constitution as it has emerged from the Drafting Committee is a formidable document. It contains 315Articles and 8 Schedules. It must be admitted that the Constitution of no country could be found to be so bulky as the Draft Constitution. It would be difficult for those who have not been through it to realize its salient and special features. The Draft Constitution has been before the public for eight months. During this long time friends, critics and adversaries have had more than sufficient time to express their reactions to the provisions contained in it. I daresay some of them are based on misunderstanding and inadequate understanding of the Articles. But there the criticisms are and they have to be answered.
For both these reasons it is necessary that on a motion for consideration I should draw your attention to the special features of the Constitution and also meet the criticism that has been leveled against it. Before I proceed to do so I would like to place on the table of the House Reports of three Committees appointed by the Constituent Assembly (1) Report of the Committee on Chief Commissioners’ Provinces^ (2) Report of the Expert Committee on Financial Relations between the Union and the States,^ and (3) Report of the Advisory Committee on Tribal Areas, which came too late to be considered by that Assembly though copies of them have been circulated to Members of the Assembly. As these reports and there commendations made therein have been considered by the Drafting Committee it is only proper that the House should formally be placed in possession of them. Turning to the main question. A student of Constitutional Law if a copy of a Constitution is placed in his hands is sure to ask two questions. Firstly what is the form of Government that is envisaged in the Constitution; and secondly what is the form of the Constitution? For these are the two crucial matters which every Constitution has . (^) Appendix A . Appendix B . (^) Appendix C (1 to 3). to deal with. I will begin with the first of the two questions. In the Draft Constitution there is placed at the head of the Indian Union a functionary who is called the President of the Union. The title of this functionary reminds one of the President of the United States. But beyond identity of names there is nothing in common between the form of Government prevalent in America and the form of Government proposed under the Draft Constitution. The American form of Government is called the Presidential system of Government. What the Draft Constitution proposes is the Parliamentary system. The two are fundamentally different. Under the Presidential system of America, the President is the Chief head of the Executive. The administration is vested in him. Under the Draft Constitution the President occupies the same position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation's decisions are made known. Under the American Constitution the President has under him Secretaries in charge of different Departments. In like manner the President of the Indian
differs from a non-Parliamentary system in as much as the former is more responsible than the latter but they also differ as to the time and agency for assessment of their responsibility. Under the non-Parliamentary system, such as the one that exists in the U.S.A. the assessment of the responsibility of the Executive is periodic. It is done by the Electorate. In England, where the Parliamentary system prevails, the assessment of responsibility of the Executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, Resolutions, No-confidence motions, Adjournment motions and Debates on Addresses. Periodic assessment is done by the Electorate at the time of the election which may take place every five years or earlier. The Daily assessment of responsibility which is not available under the American system is it is felt far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of Executive has preferred more responsibility to more stability. So far I have explained the form of Government under the Draft Constitution. I will now turn to the other question, namely, the form of the Constitution. Two principal forms of the Constitution are known to history - one is called Unitary and the other Federal. The two essential characteristics ofA Unitary Constitution are :(1) the supremacy of the Central Polity and (2) the absence of subsidiary Sovereign polities. Contrariwise, a Federal Constitution is marked: (1) by the existence of a Central polity and subsidiary polities side by side, and (2) by each being sovereign in the field assigned to it. In other words. Federation means the establishment of a Dual Polity. The Draft Constitution is, Federal Constitution inasmuch as it establishes what may be called a Dual Polity. This Dual Polity under the proposed Constitution will consist of the Union at the Centre and the States at the periphery each endowed with sovereign powers to be exercised in the fieldassigned to them respectively by the Constitution. This dual polity resembles the American Constitution. The American polity is also a dual polity, one of it is known as the Federal Government and the other States which correspond respectively to the Union Government and the States Government of the Draft Constitution. Under the American Constitution the Federal Government is not a mere league of the States nor is the States administrative units or agencies of the Federal Government. In the same way the Indian Constitution proposed in the Draft Constitution is not a league of States nor are the States administrative units or agencies of the Union Government. Here, however, the similarities between the Indian and the
American Constitution come to an end. The differences that distinguish them are more fundamental and glaring than the similarities between the two. The points of difference between the American Federation and the Indian Federation are mainly two. In the U.S.A. this dual polity is followed by a dual citizenship. In the U.S.A. there is a citizenship of the U.S.A. But there is also a citizenship of the State. No doubt the rigours of this double citizenship are much assuaged by the fourteenth amendment to the Constitution of the United States which prohibits the States from taking away the rights, privileges and immunities of the citizen of the United States. At the same time, as pointed out by Mr. William Anderson, in certain political matters, including the right to vote and to hold public office, States may and do discriminate in favour of their own citizens. This favoritism goes even farther in many cases. Thus to obtain employment in the service of a State or local Government one is in most places required to the be a local resident or citizen. Similarly in the licensing of persons for the practice of such public professions as law and medicine, residence or citizenship in the State is frequently required; and in business where public regulation must necessarily be strict, as in the sale of liquor, and of stocks and bonds, similar requirements have been upheld. Each State has also certain rights in its own domain that it holds for the special advantage of its own citizens. Thus wild game and fish in a sense belong to the State. It is customary for the States to charge higher hunting and fishing license fees to non-residents than to its own citizens. The States also charge non-residents higher tuition in State Colleges and Universities, and permit only residents to be admitted to their hospitals and asylums except in emergencies. In short, there are a number of rights that a State can grant to its own citizens or residents that it may and does legally deny to non-residents, or grant to non-residents only on more difficult terms than those imposed nonresidents. These advantages, given to the citizen in his own State, constitute the special rights of State citizenship. Taken all together, they amount to a considerable difference in rights between citizens and non-citizens of the State. The transient and the temporary sojourner is everywhere under some special handicaps. The proposed Indian Constitution is a dual polity withal single citizenship. There is only one citizenship for the whole of India. It is Indian citizenship. There is no State citizenship. Every Indian has the same rights of citizenship, no matter in what State he resides.
