Constitutional Law of India

Constitutional law of India : Probable questions and answers. 

Q1) who is a citizen? How citizenship maybe acquired through domicile? 15 marks

Ans : citizenship is a process by which the state under the constitution confers certain rights , civil and political on a person. In other words a person who enjoys full civil and political rights.

There are two types of citizenship:

1)      Dual: Citizenship of the federation and another citizenship of the state. : eg America.

2)      Single citizenship : one citizenship for the whole country. Eg: India.

Articles 5 to 8 deal with citizenship at the commencement of the constitution.

Art 9 to 11 deal with modes of acquisition and loss of citizenship.

How citizenship can be acquired through domicile:

Citizenship by domicile ( art 5)

Domicile means s a permanent home or a place where a person resides with the intention of permanently remaining there.

The following conditions have to be satisfied to acquire citizenship through domicile:

1)      At the time of the commencement of the constitution he must have his domicile in the territory of India.

2)      He must fulfill any of the following conditions: a) he was born in India or b) either of his parents was born in India or c) he must have been ordinarily resident in the territory of India for not less than five years immediately before the commencement of the constitution.

Domicile in India is considered an essential requirement for acquiring the status of Indian citizenship.

Two elements are necessary for the existence of domicile

1)      domicile of a particular kind

2)      An intention of a particular kind.

The residence need not be continuous but it must be indefinite, not purely fleeing. The intention must be permanent intention to reside for ever in the country where the residence has been taken up. Domicile is not the same thing as residence. Mere residence in a place is not sufficient; it must be accompanied by the intention to make it his permanent home.

Case laws: Mohammad raza vs state of Bombay, The appellant came to India in 1938. He went on a pilgrimage to Iraq in 1945. He was registered a foreigner and several times his stay in India was extended. In 1957 his request to extend the stay period was refused. He appealed saying he must be regarded as a citizen under article 5. But it was dismissed. The court held that though he was original resident he did not acquire Indian citizenship because he did not have a domicile in India. His application for extending his stay in India made from time to time forfeited this conclusion. The domicile of choice continues until the former domicile has been resumed or another has been acquired

Q2) Define state. Explain the tests to determine which other authorities can be included in the definition.

Ans: State is defined under article 12 of the Indian constitution for the purpose of protection promotion and enforcement of fundamental rights as provided in the part III of the constitution. Under art 36 the same definition is used for DPSP unless otherwise provided under part IV. It does not apply to part XIV or other parts.

The word state includes the following:

1)      Union government and union legislature.

2)      State government and state legislature.

3)      Local authorities and other authorities within the territory of India and under the control of the government of India.

Local authority refers to local self government.

It can mean municipal committee, mining settlement boards, panchayats or other authorities legally entrusted by the government to manage or control local funds.

Other authorities: what all it includes.

1) Interpreted first time in shantha bai Vs University of madras. Here the question was whether the university comes under the definition of state. It was held that though Madras University was state aided it was a body corporate and does not come within the ambit of state. It was also held that only bodies exercising government or sovereign function are the test for state. But this was rejected in ujjambai vs state of UP and held that sales tax officer comes under the definition of state.

2) Statutory bodies: statutory bodies are those created by a statute and some of them are LIC ONGC IFC. In Rajasthan vs mohanlal it was held that all authorities created by statute on which power is conferred upon by law comes within meaning of state under art 12.

3) Agency/ instrumentality of the state:  If a body that is an agency or instrumentality of the state and it is a body corporate registered under the companies act 1956 but it is not a statutory body it still comes within meaning of state under art 12.

Case law for this is Ramanadayaram shetty vs International airport authority.

The following are the tests to determine if a body is an agency or instrumentality of the state:

1)      Financial resources of the state are the chief funding source.

2)      Deep and pervasive state control.

3)      Functional character is governmental in nature.

4)      If a department is transferred from government to corporations.

5)      Monopoly status is enjoyed and is conferred upon by the state or state protected.

Above test are only illustrative and not exhaustive.

Q3) what is double jeopardy? Explain. – 5 marks

Ans: Double jeopardy means double punishment. Here it refers to being punished twice for the same offence. No person can be punished twice for the same offence.

Case laws: maqbool hussain vs state of Mumbai. Here the accused was caught by the customs for bringing in gold without declaration from a foreign country. The authorities seized the gold under the sea customs act and he was also charged under the foreign exchange management act .Here the prosecution under FEMA did not amount to double jeopardy as the act done under sea customs act was not a judicial order of a court.

Q4) Indian constitution in neither unitary nor federal but is a mix of both, discuss. 15 marks.
 

Following are the essentials of a federal constitution:

1)      Distribution of powers.

2)      Supremacy of the constitution.

3)      A written constitution.

4)      Rigidity.

5)      Authority of courts.

Indian constitution possesses all of the above but it modifies the federal principle in the following:

1)      Appointment of governors.

2)      Parliament’s power to legislate in national interest.

3)      Parliament’s power to form new states and alter boundaries of existing states.

4)      Emergency provisions.

Thus we can say that the above modification provide for unitary state features also, we can conclude saying Indian constitution is a mix of both.

Q5) No person shall be deprived of his life or personal liberty except according to procedure established by law. Discuss with a leading case. 15 marks.
 

Ans: The right to life and liberty is a fundamental right and includes the following:

1)      Right to privacy.

2)      Right to education.

3)      Right to clean water and air.

4)      Right to livelihood.

5)      Right to die is not a fundamental right.

All of the above are rights which cannot be taken away except under a procedure established by law.

Maneka Gandhi case gives us a new dimension on this aspect.

Maneka Gandhi vs union of India.

The meaning and content of words personal liberty came up for consideration to the Supreme Court. In this case the SC gave the widest possible interpretation to personal liberty.

Facts of the case: The petitioners passport was impounded by central government the act authorized the central government to do so if it was in the general public interest.  The government of India declined to give reasons for the action in the name of public interest. The petitioner challenged this on the basis that there was no hearing given to seize the passport nor was there any reason given by the government. However the government disclosed in affidavit that the petitioner’s presence may be needed in connection with proceedings of a commission of inquiry.

The attorney general filed a statement that the petitioner could make a representation in respect of impounding the passport that the rep would be dealt with expeditiously in accordance with law. The sc also held that the govt was not justified in withholding the reasons for impounding the passport from the petitioner.

It was held that the procedure thus est. by the act for impounding a passport is in conformity with the requirement of art 21 and is not violative of that article.

Following conditions have to be fulfilled before a person is deprived of his property.

1)      There must be a valid law.

2)      There law must provide a procedure.

3)      The procedure must be just, fair and reasonable.

4)      The law must satisfy the requirement of art 14 and 17 that is it must be reasonable.

Q6) can preamble be amended under article 368? Answer with the aid of a decided case.
 

The preamble can be amended or not under article 368 can be understood with the following landmark case.

Keshavananda bharati vs state of kerala :

Facts of the case : In that case attorney general argued that by virtue of amending power in article 368 even preamble can be amended. It was said that since preamble was a part of the constitution it could be amended like any other provision of the constitution. The petitioners how ever contended that the amending power in article 368 is limited. The preamble creates implied limitation on the power of amendment. The preamble contains basic elements of our constitution. Amending power cannot be used to destroy these basic features. It was argued on the basis that preamble is not part of constitution. The Supreme Court held that preamble is a part of our constitution . On the question whether preamble can be amended or not it was held that preamble is part of our constitution it can be amended subject to this condition that basic features present in preamble cannot be changed. It was held that these basic features are our edifice of our constitution and that if these features are amended the whole system will collapse. No one can suggest these words are ambiguous in any manner. The amending power cannot result in the constitution being changed in such a way that it ceases to be a sovereign democratic republic. It would only wreck the constitution.

Q7) A magistrate issues an order authorizing investigating officer to take specimen handwriting and fingerprints of Mr. x an accused against his willingness. X challenges the order stating that it violates his Fundamental right under article 20(3) . Decide.

In state vs m Krishna Mohan the SC has held that taking of specimen handwriting and fingerprint from accused is not prohibited under article 20(3) as being witness against himself.