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Law of Constitution

Imp –

Art 311.

Nature of Indian Constitution.

Power position of Presedent.

Art 368 and amendment procedure.

Trade comer and intercourse.

FR. Art 14,21

Q-1 Comment on Art 12 of Constitution of India.

The constitution of India has defined the word STATE for the purpose of Part –III
and Part IV.
In STATE OF WEST BANGAL V/S SUBODH GOPAL BOSE, the SC observed that
the object of Part III is to provide protection to the rights and freedoms
guaranteed under this part by the invasion of State.
Part III and Part IV carry a theme of Human Rights, Dignity of Individual and
also of the unity and dignity of the nation.

These parts respectively as a Negative Obligation of the State and not to


Interfere with the Liberty of the Individual, and Positive Obligation of the State
to take steps for the welfare of the Individual.

Sate under Art 12 of the constitution has Four Components:

1. The Government and Parliament of India


Government means any department or institution of department; Parliament
shall consist of the President, the House of People and Council of State.
2. The Government and Legislature of each State.
State Legislatures of each State consist of the Governor, Legislative Council,
and Legislative Assembly or any of them.
3. All Local Authorities and;
It means, Municipal boards Panchayats, Body of Port Commissioner, and
other legally entitled to or entrusted by the government.
4. Other Authorities within the territory of India or under the control of
Government of India.

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The first two categories included the legislative and executive wings of the
Union and State in all their possible varieties. They are quite specific and self
explanatory.

Judicial Scrutiny

The letter two categories, particularly the last are not so specific and require
some explanation. To give a wider dimension to FR the Judiciary has
interpreted “State” in different context at different time.

Principle of Ejusdem Generis:

In University of Madras v/s Santa Bai ,the Madras High Court evolved the principle
of ejusdem generis i.e. of the like nature. It means that those authorities are covered
under the expression ‘other authorities which perform governmental or sovereign
functions.

In Ujjam Bai v/s Union of India the Supreme Court rejected the principle of
ejusdem generis .It observed that there is no common genus between the authorities
mentioned in Article 12. And by giving the reference of Art 19 (1) (g), and Art 298
which contemplated engagement of state in the performance of commercial activity,
and Art 46 promotion of education or economic interest.

In Rajasthan State Electricity Board v/s Mohan Lals it was held that to be State, it is
not necessary that the authority must be performing governmental or sovereign
functions .It should-
( i ) Be created by the Constitution of India;
(ii ) Have power to make laws;

In R.D.Shetty v/s International Airport Authority, the Court laid down five tests to
be an other authority-
( i ) Entire share capital is owned or managed by State.
( ii ) Enjoys monopoly status.
( iii ) Department of Government is transferred to Corporation.
( iv ) Functional character governmental in essence.
( v ) Deep and pervasive State control.

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( f ) Object of Authority
In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a
juristic person is State is not how it has been brought but why it has been brought.

( g ) Clearance of five tests


In Union of India v/s R.C.Jain , to be a local authority, an authority must fulfill the
following tests-
( i ) Separate legal existence.
( ii ) Function in a defined area.
( iii ) Has power to raise funds.
( iv ) Enjoys autonomy.
( v ) Entrusted by a statute with functions which are usually entrusted to municipalities.

In Prem Garg v/s Excise Commissioner H.P. the Supreme Court held that when rule
making power of judiciary is concerned, it is State.
Other jurists say that since judiciary has not been specifically mentioned in Article 12, it
is not State, therefore if the Judge or magistrates are not note State while there are
functioning as a Judiciary. But if they are also functioning as Administrator then
they will be treated as State within the meaning of Art 12. The Chief Justice of High
court shall have functions in dual role :

1. Chief Justice of High Court


2. Chief Administrative of High Court.

If any citizen aggrieved by the act of the Chief Justice , while he was function as chief
administrator of the high court then that chief justice has no remedy and he shall be
treated as a State under the Art 12.

Conclusion
The word ‘State’ under Article 12 has been interpreted by the courts as per the
changing times .It has gained wider meaning which ensures that Part-III can be applied
to a larger extent. We hope that it would continue to extent its width in coming times.

Q-2 Doctrines’

1. Severability – (Post constitutional laws ) Art 13 (2)

Art 13 provides that Act is void which is inconsistent with the Part III of the
constitution. Art 13 is having a flexible nature; it does not make the whole Act

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

The rule of severability applies as much clause (2) as to Clause (1) of Art
13

Jia Lal v/s Delhi Administration AIR 1962

The appellant was prosecuted for an office u/s 19 (f) of the Arm Act 1878. In fact,
section 29 of this Act provides that in certain area in which the petitioner did not
obtain any license in which the petitioner was residing, it was not necessary to
obtain the said license for possession fire arm. Section 29 was challenged as
ultra virus and unconstitutional as offending Art 14 and also section 19(f) of the
Arms Act 1878 on the ground that two sections were not severable, on the
question of severability the SC held that the section 29 of the Arms Act 1878 was
ultra virus.

2. Doctrine of Eclipse (Pre Constitutional Laws) Art 13 (1)

Art 13 provides that any law which made before the commencement of
constitution must be consistent with the part III of the constitution . if any
statue is inconsistence with the provisions of part III of the constitution such
statue shall become void. At the same time such statue shall not be treat as Dead
unless it is abolish by Parliament. It will be treated as dormant or remains
eclipsed to the extent it comes under the shadow of the fundamental rights.

Regarding the doctrine of eclips few points need to be consider.

It is held to be applied only the Pre Constitutional Laws, and not to be post
constitutional laws.

Bhikaji v/s State of MP AIR 1955

The MP Government passed an Act in the year 1950 for nationalizing the motor
transport before commencement of the constitution. The statue was challenge
by the petitioner under Art 19(1)(g). The Center Govt. Amended Act 1955 on
27-4-1955 enabling the state to nationalize the motor transport. That SC held
that the statue of MP sate State nationalizing the motor transport 1950 was

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cured by the 4th Amendment Act 1955 and therefore the Doctrine of Eclipse has
been applied and the such Act is valid.

3. Doctrine of Waiver

The FR under Part III Art 12 to 35 of the constitution are conferred to every
citizen of India by the constitution. These constitutional rights are not absolute.
There are reasonable restriction impose by the constitution. The primary
objective of these FR are based on public policy. Therefore no individual can
waive off such RF rights.

Basheshr Nath v/s Income Tax commissioner AIR 1959 SC 149

In this case the petitioner whose matter had been referred to the Investigation
commissioner u/s 5(1) of the Taxation of Income Act 1947 was found to have
concealed a settlement u/s 8 A to pay Rs 3 Lakhs in monthly installments, by
way of arrears of tax and penalty. In the meanwhile the SC in another case held
that section 5(1) is ultra vires the constitution, as it was inconsistence with Art
14. So the appellant cannot his waive off his FR.

Q 3. Comment on Basic Structure of Constitution of


India.
Amendments in constitution at time become necessary to adapt to the
changing needs of national development and strength, to overcome the
difficulties which may encounter in future in working of the constitution and
to realize any popular demand for changing the political system e.g State
reorganization, provisions of ST SCs, lowering of age for voting etc.

However the amendment of constitution often been used to achieve political


purposes or to override judicial verdicts.

For providing the compatibility of Constitution with the changing society


needs , constitution maker provide the Art 368- Power of Parliament to
amend the Constitution and procedure therefor

for the purpose of amendment the provisions of constitution fall under 3


categories.

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(a) Amendment by Simple Majority.
(b) Amendment by special Majority.
(c) Amendment by special majority and rectification by states.

Sankari parsad V/s Union of India AIR 1951 SC 455

This is the case which in route the theory of Basic Structure, in this case SC
held that

• The power to amend the Constitution including the


fundamental rights is contained in the Art 368,
• And that the world Law in Art 13 includes only an
ordinary law and does not include constitutional
amendment which is made in exercise of constituent
power.

In Sajjan Singh v/s State of Punjab, SC held that the world amendment of
constitution means amendment of all the provisions of constitution.

Golak Nath V/s State of Punjab AIR 1971 SC 1643

• SC held that Parliament cannot amend the FR,


• Rejection of argument- Amendment of Constitution was a
Sovereign Power and that did not permit any implied limitation.

Keshavanand Bharti’s V/s State of kerela AIR 1973 SC 1461

This is the case which emerge the theory of Basic Structure first time.

• The Golak Nath Case was overruled in this case, and SC held that Art
368 ever before 24th Amendment contained the power as well as
procedure of amendment.
• The Parliament has a wide powers of amending the constitution
but these powers has not the unlimited nature, and does not
include the power to destroy or abrogate the “Basic feature of
constitution under article 368.

Basic Structure Theory-

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Ac to Sikri , CJ, the basic structure was build on the basic foundation i.e.
the freedom and dignity of the individual, the feature of BS T are:

a. Supremacy of Constitution.
b. Republican and Democratic form of Government and
sovereign of the country.
c. Secular and federal character of Constitution and
d. Separation of power between Legislature, executive and
Judiciary.

Ac to Shelat and Grover, J.J also included :

a. Fundamental Right
b. Directive Principle.

Indira Gandhi V/s Raj Narain AIR 1975 SC 2299

In this case 39th Amendment 1975 was passed by parliament for validating
with retrospective effect the election of PM Indira Gandhi which was
declared invalid by Allahabad High Court on the ground of having committed
corrupt practice. Anew article 329 A has been added that provided that
the election of a person who hold the office of PM can be challenged
only before such a body or forum as may be established by Parliament
by law and not in court.

The SC in this case enhance the list of Basic Structure which was emergence
in Keshavanand Bharti’s Case :

a. Sovereign democratic republic status


b. Equality of status and opportunity of an
individual
c. Secularism and freedom of conscience and
religion
d. 'government of laws and not of men' i.e. the rule
of law

Minerva Mills V/s Union of India AIR 1980 SC 1789

Struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment,
on the ground that these clauses destroyed the essential feature of the basic

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structure of the constitution. It was ruled by court that a limited amending
power itself is a basic feature of the Constitution

L. Chandra Kumar case

"That the power of judicial review over legislative action vested in the High Courts
under Article 226 and in the Supreme Court under Article 32 of the Constitution is an
integral and essential feature of the Constitution, constituting part of its basic
structure".

Conclusion
Now we can say, there is no hard and fast rule for basic feature of the Constitution.
Different judge keep different views regarding to theory of basis structure. No law can
be enacted or amended in a manner that violates the spirit of the preamble.

Q- 4 Equality before Law and equal protection of law explain both the term under
Art 14

Art 14 Declares “the State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.

Thus Art 14 used the two expression “equality before the Law” and “equal protection of
the law”

As such this right was considered generally a negative right of an individual not to be
discriminate in access to public offices or places or in public matter generally. It did not
take account of existing inequalities arising even from the public policies with that kind
of undertaking of the right to equality.

This first expression equality before the law, is a somewhat negative concept which
is said to be have taken from English common law, is a declaration of equality of all
person within the territory of India, implying there by the absence of any special
privilege in favor of any individual. Ever person whatever be his rank or position is
subject to the jurisdiction of the ordinary court. Prof. Dicey, explain the concept of
equality as it operated in England said “ with us every official from the PM down to a
constable or collector of taxes is under the same responsibility for every act done
without any legal justification as any other citizen.

The second expression the equal protection of the law which is rather a corollary of
the first and is to be taken from US, it is a more positive concept implying equality or
treatment in equal circumstances.

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These two expression under this article to make the concept of equal treatment a
binding principle of State action . The word Law in the former expression is used in a
generic sense a philosophical sense, whereas the word Laws in the latter expression
denotes specific laws. It has not explained this statement any further, but it means that
equality for all is the law or standard norm of the land.

Equal protection of the laws is now being read as a positive obligation on the State to
ensure equal protection of the Laws by bringing in necessary social and economic
changes so that every one may enjoy equal protection of the laws and nobody is denied
such protections.

Underlying Principle

As no human being are equal in all respect the same treatment to them in every respect
would result in unequal treatment. For example the same treatment to a child as to an
adult or to a physically challenge or healthy person, will result in unequal treatment.

Therefore the underlying principle of equality is: not the uniformity of treatment to
all in all respect, but rather equal must be treated equally while unequal must be
treated differently.

But this does not mean the unequal treatment for all, while the later Article of this part (
Part III) especially Art 15 and 16, equality not only prohibited unequal treatment but it
also demands equal treatment. Therefore state must not only treat people unequally
but it must also take positive steps to remove existing inequalities, especially those
inequalities which treat human being less then human being.

Test of Valid Classification

This article forbids the legislature classification, but it does not forbid reasonable
classification of person, objects and transactions by the legislature for the
purpose of achieving specific ends. And differentia must have a rational relation
to the object sought to be achieved by the Act.

There must be an nexus between the basis of classification and the object of the
Act which makes the classification.

In Kedar Nath Bajoria V/s State of WB

It said

The equal protection of the Laws guaranteed by the Article 14 of the Constitution does
not mean that all the Laws must be general in character and universal in
application and that the State is no longer to have the power of distinguishing and
classifying persons or things for the purpose of legislation.

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In E.P Yoyappa v/s State of TN

Propounded a new approach to Article 14 in the following words:

Equality is a dynamic concept with many aspects and dimensions and it is cannot be
cribbed, cabined and confined within traditional and doctrinaire limits. For a positive
point of view equality is antithetic to arbitrariness.

In Maneka Gandhi v/s Union of India

Article 14 strikes at arbitrariness in state action and ensure fairness and equality of
treatment, the principle of reasonableness, which logically as well as philosophically is
an essential element of equality or non arbitrariness pervades Article 14 like a brooding
omnipresence.

Amendment in Constitution- Art 368 and Art 13

Shankari Prasad V/s Union of India

Sajjan Singh V/s State of Rajashthan

Golaknath V/s State of Punjab

24th Amendment

Theory of Basic Structure (Keshvanad Bharti V/s State of kerala)

42ed Amendment

Minarva Mills V/s Union of India

In Shankari Prasad V/s UOI- The court held that the word “LAW” in clause 2 of Art 13
did not include the law made by the Parliament of India under Art 368. The word “LAW”
in Art 13 must be taken to mean Rules or Regulations make in exercise of constitutional
power and therefore Art 13(2) did not affect amendment make under Art 368.

Means Art 368 superseded the Art 13.


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Sajjan Singh v/s State of Rajashtan- in this case the SC also uphold the decision which
has been made in Shankari Prasad V/s UOI.

Golaknath v/s Sate of Punjab- Court held that Art 13(2), the definitions of Law which
has been interrelated by Art 13(2), it is justifiable and it should be law.

This is the first time when court check the power of Parliament to Amend the
constitution which has been given by Art 368 of Constitution of India, and applied the
Doctrine of prospective Over Ruling. SC over ruled its decision in the aforesaid cases
and held that the word “LAW” in Art 13(2), includes every branch of law, whether it is
statutory or constitutional amend mend.

And it is necessary Art 368 r/w Art 13(2).

24th Amendments- to intact his amending power and to show its supremacy made the
24th amendments in the constitution and add the word- Power- in art 386 – which is

Power & Procedure. And add a new clause 4 in Art 13 –which provide that- nothing
in this Art shall apply to any amendment to this art made under Art 368.

Keshvanad Bharti V/s State of Kerala- Sc propound the theory of basic structure.

42ed Amendment – Add the clause 4 and 5 in Art 368.

Minarva Mills V/s UOI- Doctrine of basic structure, that it is the illustrative list
and not the exhaustive list. And Clause 4 & 5 of Art 368 declared void.

Q- The preamble of constitution sets out the main objectives, which the
constitution makers wanted to achieve. Discuss this statement. Can preamble be
amended under Art 368 of the constitution? (2009) (2008).

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Preamble useful to interpretation the constitution.

The principle generally sets the ideas and goal of constitution maker which then
intended to achieve through that constitution. In Golaknath v.s State of Punjab court
held that- the Preamble contained in nutshell the idea and aspiration of the
constitution.

In Berubari Union and Exchange of Enclaves- it was held that - the constitution is
the key to open the mind of the constitution makers. And it is not the part of the
constitution.

Preamble also a legitimate aid in the interpretation of the constitution.

In Keshvanad Bharti v.s State of Kerala it was held that-

Constitution is extremely important and it should be read and interpretive in the


light of the grand and noble vision of preamble. And preamble is the part of the
constitution.

The purpose serve by preamble.

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:

JUSCTICE, social, economic, 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 individual and the unity of the nation.

It indicate the following purpose-

1. Source of constitution.- the source of the constitution is the people of India


which denote form the word in the preamble – We the People of India no
subordinate or external source of power other than people of India.
2. Enacting clause -which brings into force the constitution- having solemnly

resolved India Into- which shows the enactment clause of constitution.

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3. Right and freedom of the people, type of Government and polity- to secure
every citizen justice, liberty, and equality and fraternity right. And there would
be sovereign, socialist and democratic ( head of the State is elected, direct and
indirect democracy.)nature of government.

Objective of Preamble-

JUSCTICE, social, economic, 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 individual and the unity of the nation

Amendment of Preamble- controversy in this point, some are agree and other are not
agree. But the evidence shows that it can be amended which has been shown in 42ed
Amendment of Constitution which add –Secularism, Socialism, and integrity.

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