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LLB repeated questions for academic Kslu
Typology: Summaries
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1.Define constitution? Explain the kinds of constitution. Introduction: T he basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it. A written instrument embodying the rules of a political or social organization. Definition: The Oxford English Dictionary defines a constitution as "a body of fundamental principles or established precedents according to which a state or organisation is governed". The Collins dictionary says a constitution consists of "the fundamental principles on which a state is governed, especially when considered as embodying the rights of subjects". Types of Constitution
1. Written and unwritten constitution An unwritten constitution is a type of constitution that is not contained in one single document. This type of constitution is partially written and partly oral. Like common law and customary law, an unwritten constitution grows from many years of practical experience and from the political way of the people. The British constitution is the best example of an unwritten constitution. It is not in one document, but can be found in various sources, such as statutes, conventions and judicial decisions. A written constitution is usually rigid in nature because of its cumbersome mode of amendment. Although it can actually be amended when found necessary. 2. Flexible and Rigid Constitution A flexible constitution is a constitution, which can be easily amended or changed without a cumbersome procedure. This type of constitution may be amended just like any statute, with a simple majority of vote of the members of the parliament.
On the other hand, a rigid constitution is a type of constitution, which has a cumbersome or long amendment procedures. The procedure for amending a rigid constitution is different from the procedure for enacting and amending the ordinary ordinary laws of the land. The enactment or amendment of an ordinary law is usually by simple majority vote in the relevant parliament that has authority to make or amend such law. However, the procedure for amending a rigid constitution may include a two third majority vote of members of the central government legislature, as well as a two-third majority vote in two-third of the state legislatures in such country, and sometimes ratification by the people in a referendum and so forth.
3. Unitary and Federal Constitution A unitary constitution one of the types of constitution which provides that governmental powers should be concentrated on the single central government, which does not share powers with other body in the country, but delegates powers to regional, local government and other subordinate bodies. Put in a different way, in a unitary constitution, all government powers are concentrated in the central or national government as the only source of authority from which powers emanates. A country operating a unitary system of government usually adopts a unitary constitution. The constitution though Supreme, is usually flexible and not rigid, as the government has power to amend it as maybe necessary. On the other hand, a federal system of government is an association of free states where power is constitutionally shared to the federal, state and local councils, and with each tier of government exercising its constitutionally assigned powers and functions. 4. Democratic constitution The word “ democracy ” is derived from a combination of two Greek words “ Demos ” meaning people, and “ kratia ” meaning “rule” or “ government “. Democracy is a government of the people, who participate in government either directly, or through representatives. A true democratic government must be a government made up of the generality or representatives of the people. It must also be a government formed and installed by the people.
o Nature of Indian State o Statement of its objectives o Date of its adoption History of the Preamble to Indian Constitution ▪ The ideals behind the Preamble to India’s Constitution were laid down by Jawaharlal Nehru’s Objectives Resolution, adopted by the Constituent Assembly on January 22, 1947. ▪ Although not enforceable in court, the Preamble states the objectives of the Constitution, and acts as an aid during the interpretation of Articles when language is found ambiguous. Components of Preamble ▪ It is indicated by the Preamble that the source of authority of the Constitution lies with the people of India. ▪ Preamble declares India to be a sovereign, socialist, secular and democratic republic. ▪ The objectives stated by the Preamble are to secure justice, liberty, equality to all citizens and promote fraternity to maintain unity and integrity of the nation. ▪ The date is mentioned in the preamble when it was adopted i.e. November 26, 1949. Key words in the Preamble ▪ We, the people of India: It indicates the ultimate sovereignty of the people of India. Sovereignty means the independent authority of the State, not being subject to the control of any other State or external power. ▪ Sovereign: The term means that India has its own independent authority and it is not a dominion of any other external power. In the country, the legislature has the power to make laws which are subject to certain limitations. ▪ Socialist: The term means the achievement of socialist ends through democratic means. It holds faith in a mixed economy where both private and public sectors co-exist side by side.
o It was added in the Preamble by 42nd^ Amendment, 1976. ▪ Secular: The term means that all the religions in India get equal respect, protection and support from the state. o It was incorporated in the Preamble by 42 nd^ Constitutional Amendment, 1976. ▪ Democratic: The term implies that the Constitution of India has an established form of Constitution which gets its authority from the will of the people expressed in an election. ▪ Republic: The term indicates that the head of the state is elected by the people. In India, the President of India is the elected head of the state. The factors which help in achieving this objective are: o Justice: It is necessary to maintain order in society that is promised through various provisions of Fundamental Rights and Directive Principles of State Policy provided by the Constitution of India. It comprises three elements, which is social, economic, and political.
o Through the Berubari case , the Court stated that ‘Preamble is the key to open the mind of the makers’ but it can not be considered as part of the Constitution. Therefore it is not enforceable in a court of law. ▪ Kesavananda Bharati Case: In this case , for the first time, a bench of 13 judges was assembled to hear a writ petition. The Court held that: o The Preamble of the Constitution will now be considered as part of the Constitution. o The Preamble is not the supreme power or source of any restriction or prohibition but it plays an important role in the interpretation of statutes and provisions of the Constitution. o So, it can be concluded that preamble is part of the introductory part of the Constitution. ▪ In the 1995 case of Union Government Vs LIC of India also, the Supreme Court has once again held that Preamble is the integral part of the Constitution but is not directly enforceable in a court of justice in India. 3.Is the preamble is a part of the constitution explain? Amendment of the Preamble 42 nd^ Amendment Act, 1976: After the judgment of the Kesavanand Bharati case, it was accepted that the preamble is part of the Constitution. o As a part of the Constitution, preamble can be amended under Article 368 of the Constitution, but the basic structure of the preamble can not be amended. o As of now, the preamble is only amended once through the 42 nd^ Amendment Act, 1976. The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through 42nd^ Amendment Act, 1976.
o ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’. o ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’. The preamble being part of the Constitution is discussed several times in the Supreme Court. It can be understood by reading the following two cases. o Berubari Case: It was used as a reference under Article 143(1) of the Constitution which was on the implementation of the Indo-Pakistan Agreement related to the Berubari Union and in exchanging the enclaves which were decided for consideration by the bench consisting of eight judges. o Through the Berubari case , the Court stated that ‘Preamble is the key to open the mind of the makers’ but it can not be considered as part of the Constitution. Therefore it is not enforceable in a court of law. ▪ Kesavananda Bharati Case: In this case , for the first time, a bench of 13 judges was assembled to hear a writ petition. The Court held that: o The Preamble of the Constitution will now be considered as part of the Constitution. o The Preamble is not the supreme power or source of any restriction or prohibition but it plays an important role in the interpretation of statutes and provisions of the Constitution. o So, it can be concluded that preamble is part of the introductory part of the Constitution. In the 1995 case of Union Government Vs LIC of India also, the Supreme Court has once again held that Preamble is the integral part of the Constitution but is not directly enforceable in a court of justice in India. 4.Write a note on constitutionalism.
India has several salient features that distinguish it from constitution of other countries Some of its salient features are mentioned below: Lengthiest written constitution
Democratic system
4. By Registration 5. By Naturalization 1. By Birth 1. If a person is born in the territory of India, he shall be a citizen of India. 2. A person born on or after 26 January 1950 but before 1 July 1987, irrespective of the citizenship of parents. It is called jus soli (right of soil). 3. A person born on or after 1 July 1987 but before 3 December 2004. Either of the parents of the person born should be a citizen of India at the time of birth. It is called jus sanguins (right of blood or descent). Citizenship is granted to a person on the basis of the Indian nationality of any of the parents, immaterial of the fact that at which place the child took birth. 4. A person born on or after 3 December 2004. Both the parents of the child born should be a citizen of India at the time of birth. 5. A person shall not acquire citizenship of India if any of his parents is envoy (foreign diplomat) or enemy alien or an illegal immigrant. 2. By Acquisition or Incorporation of Territory 1. If any territory or state becomes part of India, then the central government shall declare it as part of the Union of India by issuing official Gazette.
2. Many territories such as Goa, Sikkim, Puducherry, Daman and Diu became part of India, and their population became citizens of India. 3. By Descent 1. If a person is born outside India on or after 26 January 1950, but before 10 December 1992 will be considered as a citizen of India. But subject to the fact that his father must be a citizen of India at the time of birth. 2. If a person born on or after 10 December 1992 but before 3 December 2004, either of the parent (mother or father) must be having citizenship of India. After the Citizenship Amendment Act, 2003, the government passed an order stating that a child born shall not be Indian merely because of his descent. The government mandated compulsory registration within one year of birth. Its time can be extended by the government as per requirement. 4. By Registration 1. If a person is of Indian origin, who was ordinarily a resident of India for seven years before making an application for registration. 2. If a person is married to a person of Indian citizenship and is ordinarily residing in India for seven years before making the application for registration. 3. If a person is minor and parents are a citizen of India.