Constitutional law important solved questions DAVV
1. Important features of the Preamble
Liberty The word liberty includes freedom or liberty of thought, expression, belief, faith, and worship.
it does not mean the absence of domination or restraint. It is a positive concept regarding the rights of the citizen. The judiciary safeguards these in the fundamental liberties of citizens by making fundamental rights justiciable, and non-encroachable, and guaranteeing them to every citizen of India.
Equality The term equality connotes equal status and opportunity to every person.
Fraternity Lastly, the term fraternity aims to maintain the unity and integrity of the nation along with a pledge to protect the dignity of every individual.
Case laws
Berubari case vs Unknown (1960)
Judgement: The preamble is not part of the constitution
Keshvananda Bharti v. State of Kerala
In this case, The Supreme Court overturned its earlier decision and held that the Preamble is a part of the Constitution and can be amended under Article 368 of the Constitution.
In the case of L.I.C. Of India & Anr v. Consumer Education & Research (1995), the Supreme Court reiterated that the preamble is a part of the Constitution.
Unitary vs federal system
In a unitary Constitution the powers of the Government are centralised in one government viz, the Central Government. The provinces are subordinate to the Centre. In a federal Constitution, on the other hand, there is a division of powers between the Federal and the State Governments and both are independent in their own spheres
Federal features of the constitution
Distribution of Powers—The distribution of powers is an essential feature of federalism. Federalism means the distribution of the powers of the State among a number of co-ordinate bodies each originating in and controlled by the Constitution. Mentioned in 7th schedule which contains 3 lists Union list 1 state list 2 and concurrent list 3
Supremacy of Constitution —A federal State derives its existence from the Constitution, power, executive, legislative or judicial whether it belongs to the nation or to the individual State is subordinate to and controlled by the Constitution
Rigid and written constitution Every federal state has a written and rigid constitution. The setup of a federal state is complex and it will be impossible for a country to run without written rules. India contains the world's lengthiest constitution. And if we talk about rigidity in a rigid constitution the process of amendment is quite difficult.
Independence of judiciary As we know in a federal setup the powers are divided between the central and the state level so to maintain the division of power an independent and impartial body is required. This independent body is the court or the judiciary. In India, the supreme court is the highest court of law and it is empowered to even strike down laws and amendments that are unconstitutional.
Non-federal or unitary features of a constitution
Strong Centre
It is said that the power is divided between the centre and the states. However, this division of power is not uniform and is heavily in favour of the centre. The division of power is unequal. The Union list has a greater number of subjects in comparison with the state list. The most important subjects have been listed in the central list. Even in the concurrent list, the centre has the overriding power.
Single Constitution
India has a single constitution that governs both the centre and the states. Both the states and the centre are expected to perform with this single framework.
Destructible States
States in the country have no geographic sovereignty. The centre has the authority to change the area, boundary, and the name of any state.
Emergency
In case of an emergency as contained in Part XVIII of the constitution, when an emergency is proclaimed, the centre becomes all-powerful, and the states go in total control of the centre.
Single Citizenship
There is only one citizenship for the entire nation. The Indian constitution deals with the subject of citizenship in Articles 5 and 11 under part 2.
Governor Appointment
The Governor is appointed by the President, and he is expected to function as the agent of the centre. It is through the Governor that the centre exercises its power in the states.
One Election Commission
The election commission conducts elections both at the centre and the states. However, the commission is constituted by the President. States have no role in the constitution of the Election Commission.
Integrated Judiciary
Integrated Judiciary means that any ruling made by a higher court is binding on the lower courts. Hence, it is obvious that the supreme court incorporates all the courts in the country from Gram Panchayats to State High Courts.
Integrated Audit Machinery
The Comptroller and Auditor General of India has the authority not only to audit the central government but also all the states through the officers of Indian Audit and Accounts Services.
Veto of State Bills
The State Governor has the power to hold certain Bills of the State for a review by the President. The President has the right to refuse to sign the bill both the first time and the second. Therefore, the President has the absolute veto power over the state legislatures.
Financial Dependence of States
In a federal structure, the states must be financially independent so that they have the utmost autonomy. In India, however, the states depend on the centre for their funds and all development. The States in India have few revenue avenues but have immense expenditure requirements. This creates a financial dependence on the centre.
1. Sovereign - Sovereignty means that India has political freedom from external rule, that is independence from any external entity exercising control over the territory of India.
India is not a dominion of any external power. It means the independent authority of the state
Sovereign externally - independence of the state against other states and internally - free from internal dictatorships / autocratic rule.
In India, laws are made by the legislature, elected representatives by the people subject to powers under Art 368 of the constitution
In the case of Synthetic & Chemicals Ltd. v. the State of Uttar Pradesh (1989), the Supreme Court decided that the word ‘sovereign’ means that the state has the authority to control everything within the restrictions given by the Constitution.
2. Secular - incorporated in the Preamble by the 42nd Constitutional Amendment, 1976
The Constitution states that India as a secular state has no official religion
The state provides full freedom to the people to practise any religion of their choice. The state treats all religions equally, with equal respect and can not discriminate between them. The state has no right to interfere with the people's choice of religion, faith or idol of worship.
In the case of S.R. Bommai v. Union of India (1994), the nine-judge bench of Apex Courts found the concept of secularism as the basic feature of the Constitution.
In the case of Bal Patil v. Union of India (2005), the Court held that all religions and religious groups must be treated equally and with equal respect. India is a secular state where people have the right to choose their religion. But the state will have no specific religion.
In the case of M.P. Gopalakrishnan Nair v. the State of Kerala (2005), the Court stated that the secular state is different from an atheist society, which means the state allows every religion and disrespects none.
Important Components of Secularism are:
It means a political-economic system that provides social, economic, and political justice. However private enterprises are not abolished but co-exist with certain state-driven enterprises necessary for public welfare. The term socialist denotes democratic socialism.
Justice
India is not a dominion of any external power. It means the independent authority of the state
Sovereign externally - independence of the state against other states and internally - free from internal dictatorships / autocratic rule.
In India, laws are made by the legislature, elected representatives by the people subject to powers under Art 368 of the constitution
In the case of Synthetic & Chemicals Ltd. v. the State of Uttar Pradesh (1989), the Supreme Court decided that the word ‘sovereign’ means that the state has the authority to control everything within the restrictions given by the Constitution.
2. Secular - incorporated in the Preamble by the 42nd Constitutional Amendment, 1976
The Constitution states that India as a secular state has no official religion
The state provides full freedom to the people to practise any religion of their choice. The state treats all religions equally, with equal respect and can not discriminate between them. The state has no right to interfere with the people's choice of religion, faith or idol of worship.
In the case of S.R. Bommai v. Union of India (1994), the nine-judge bench of Apex Courts found the concept of secularism as the basic feature of the Constitution.
In the case of Bal Patil v. Union of India (2005), the Court held that all religions and religious groups must be treated equally and with equal respect. India is a secular state where people have the right to choose their religion. But the state will have no specific religion.
In the case of M.P. Gopalakrishnan Nair v. the State of Kerala (2005), the Court stated that the secular state is different from an atheist society, which means the state allows every religion and disrespects none.
Important Components of Secularism are:
- The right to equality is guaranteed by Article 14 of the Constitution.
- Discrimination on any grounds such as religion, caste, etc is prohibited by Article 15 and 16 of the Constitution.
- Articles 19 and 21 of the Constitution discuss all the freedoms of the citizens, including freedom of speech and expression.
- Article 24 to Article 28 cover the rights related to practising religion.
- Article 44 of the Constitution abandoned the fundamental duty of the state to enact uniform civil laws treating all citizens as equal.
It means a political-economic system that provides social, economic, and political justice. However private enterprises are not abolished but co-exist with certain state-driven enterprises necessary for public welfare. The term socialist denotes democratic socialism.
- In the case of Excel Wear v. Union of India (1978), the Supreme Court found that with the addition of the word socialist, a portal was opened to learn the judgments in favour of nationalisation and state ownership of the industry. However the principle of socialism and social justice can not ignore the interest of a different section of the society, majorly the private owners.
- In the case of D.S. Nakara v. Union of India (1982), the Court held that “the basic purpose of socialism is to provide a decent standard of life to the people living in the country and to protect them from the day they are born till the day they die”.
- In the case of Mohan Lal v. District Magistrate of Rai Bareilly (1992) , the Court stated that Democracy is a philosophical topic related to politics where the people elect their representatives to form a government, where the basic principle is to treat the minority the same way people treat the majority. Every citizen is equal before the law in the democratic form of government.
- In the case of Union of India v. Association of Democratic Reforms (2002), the Court states that the basic requirement of a successful democracy is awareness of the people. A democratic form of Government can not survive without fair elections as fair elections are the soul of democracy. Democracy also improves the way of life by protecting human dignity, equality, and the rule of law
Justice
- Social Justice – Social justice means that the Constitution wants to create a society without discrimination on any grounds like caste, creed, gender, religion, etc. Where people have equal social status by helping the less privileged people. The Constitution tries to eliminate all the exploitations which harm equality in society.
- Economic Justice – Economic Justice means no discrimination can be caused by people on the basis of their wealth, income, and economic status. It means wealth must be distributed on the basis of their work, not with any other reason. Every person must be paid equally for an equal position and all people must get opportunities to earn for their living.
- Political Justice – Political Justice means all people have an equal, free and fair right without any discrimination to participate in political opportunities. It means everyone has equal rights to access political offices and have equal participation in the processes of government.
Liberty The word liberty includes freedom or liberty of thought, expression, belief, faith, and worship.
it does not mean the absence of domination or restraint. It is a positive concept regarding the rights of the citizen. The judiciary safeguards these in the fundamental liberties of citizens by making fundamental rights justiciable, and non-encroachable, and guaranteeing them to every citizen of India.
Equality The term equality connotes equal status and opportunity to every person.
Fraternity Lastly, the term fraternity aims to maintain the unity and integrity of the nation along with a pledge to protect the dignity of every individual.
Case laws
Berubari case vs Unknown (1960)
Judgement: The preamble is not part of the constitution
Keshvananda Bharti v. State of Kerala
In this case, The Supreme Court overturned its earlier decision and held that the Preamble is a part of the Constitution and can be amended under Article 368 of the Constitution.
In the case of L.I.C. Of India & Anr v. Consumer Education & Research (1995), the Supreme Court reiterated that the preamble is a part of the Constitution.
2. Nature of Indian Constitution: Federalism vs Union
Article 1(1) of the Constitution of India declares India as a Union of states. According to the Constitution India is the Union of states because the states are indestructible parts of the country. States have no right to secede from India.Unitary vs federal system
In a unitary Constitution the powers of the Government are centralised in one government viz, the Central Government. The provinces are subordinate to the Centre. In a federal Constitution, on the other hand, there is a division of powers between the Federal and the State Governments and both are independent in their own spheres
Federal features of the constitution
Distribution of Powers—The distribution of powers is an essential feature of federalism. Federalism means the distribution of the powers of the State among a number of co-ordinate bodies each originating in and controlled by the Constitution. Mentioned in 7th schedule which contains 3 lists Union list 1 state list 2 and concurrent list 3
Supremacy of Constitution —A federal State derives its existence from the Constitution, power, executive, legislative or judicial whether it belongs to the nation or to the individual State is subordinate to and controlled by the Constitution
Rigid and written constitution Every federal state has a written and rigid constitution. The setup of a federal state is complex and it will be impossible for a country to run without written rules. India contains the world's lengthiest constitution. And if we talk about rigidity in a rigid constitution the process of amendment is quite difficult.
Independence of judiciary As we know in a federal setup the powers are divided between the central and the state level so to maintain the division of power an independent and impartial body is required. This independent body is the court or the judiciary. In India, the supreme court is the highest court of law and it is empowered to even strike down laws and amendments that are unconstitutional.
Non-federal or unitary features of a constitution
Strong Centre
It is said that the power is divided between the centre and the states. However, this division of power is not uniform and is heavily in favour of the centre. The division of power is unequal. The Union list has a greater number of subjects in comparison with the state list. The most important subjects have been listed in the central list. Even in the concurrent list, the centre has the overriding power.
Single Constitution
India has a single constitution that governs both the centre and the states. Both the states and the centre are expected to perform with this single framework.
Destructible States
States in the country have no geographic sovereignty. The centre has the authority to change the area, boundary, and the name of any state.
Emergency
In case of an emergency as contained in Part XVIII of the constitution, when an emergency is proclaimed, the centre becomes all-powerful, and the states go in total control of the centre.
Single Citizenship
There is only one citizenship for the entire nation. The Indian constitution deals with the subject of citizenship in Articles 5 and 11 under part 2.
Governor Appointment
The Governor is appointed by the President, and he is expected to function as the agent of the centre. It is through the Governor that the centre exercises its power in the states.
One Election Commission
The election commission conducts elections both at the centre and the states. However, the commission is constituted by the President. States have no role in the constitution of the Election Commission.
Integrated Judiciary
Integrated Judiciary means that any ruling made by a higher court is binding on the lower courts. Hence, it is obvious that the supreme court incorporates all the courts in the country from Gram Panchayats to State High Courts.
Integrated Audit Machinery
The Comptroller and Auditor General of India has the authority not only to audit the central government but also all the states through the officers of Indian Audit and Accounts Services.
Veto of State Bills
The State Governor has the power to hold certain Bills of the State for a review by the President. The President has the right to refuse to sign the bill both the first time and the second. Therefore, the President has the absolute veto power over the state legislatures.
Financial Dependence of States
In a federal structure, the states must be financially independent so that they have the utmost autonomy. In India, however, the states depend on the centre for their funds and all development. The States in India have few revenue avenues but have immense expenditure requirements. This creates a financial dependence on the centre.
- In the case of Shamsher Singh Vs Union of India, the court held that the system of quasi-federalism was accepted thereby rejecting the substance of the Presidential style of executive. The court reiterated Ambedkar’s statement of the Constitution being both unitary and federal when the time and circumstances required so.
- In the case of S.R. Bommai Vs the Union of India, it was opined by Justice Ahmadi that the essence of a federation is the presence of distribution of power between the Center and State. Nonetheless, the absence of the terms federal or federation and the presence of unitary features can make us conclude that our Constitution is more quasi-federal than federal or unitary. The same was also understood in the case of Sat Pal Vs State of Punjab.
- In the State of W.B. Vs Union of India, the court held that decentralizing of power was essentially to allow smooth governance in a large country and hence contained centralizing features. Through its judgement, the court pointed out the nature of the Constitution as being quasi-federal. It can clearly be seen that the courts have similar views with regard to the nature of Our Constitution.
- This not only applies to the Supreme Court but the High courts of various States as well. In the cases of R.Kannan Vs the Government of India and A.P Transco Vs Sri Gowri Sankar Cable Industries, the court had reiterated the nature of Our Constitution, in a similar manner to that of the Supreme Court.
- 10 duties inserted through the 42nd constitutional amendment in 1976
- one fundamental duty added by the 86th Constitutional Amendment Act 2002
- Dealt in Article 51A under Part-IV A of the Indian Constitution
- abide by the constitution
- Follow the ideals of the freedom struggle
- Protect the sovereignty & integrity of India
- Defend the country and render national services when called upon
- Developing the spirit of common brotherhood
- Preserve the composite culture of the country
- Preserve natural environment
- Develop scientific temper and humanity
- Safeguard public property and avoid violence
- Strive for excellence in all spheres of life.
- Duty of all parents/guardians to send their children in the age group of 6-14 years to school.
4. directive principles of state policy
2. Right to freedom (Articles 19–22)
3. Right against exploitation (Articles 23–24)
4. Right to freedom of religion (Articles 25–28)
5. Cultural and educational rights (Articles 29–30)
6. Right to constitutional remedies (Article 32)
- Directive Principles of State Policy (DPSP) are certain guidelines enshrined in Articles 36-51 which are contained in Part IV
- borrowed from Irish Constitution
- Promulgate socio-economic justice.
- Code of conduct for three branches of governance namely Legislative, Executive and Judiciary.
- Non-justiciable in nature
- Aim of Welfare of People
- Aid in the policy formation
- Supplement Fundamental Rights
- Not backed with legal sanction
The court of law interpreted the nature in the following judgments:
- Champakam Dorairajan v. the State of Madras (1951) - The Supreme Court stated that the DPSP are subsidiary to Fundamental Rights and in case of a conflict Fundamental Rights will prevail.
- Golaknath v. the State of Punjab (1967) - The Supreme Court held that Fundamental Rights cannot be amended by any act of parliament even for the implementation of DPSP.
- Kesavananda Bharati v the State of Kerala (1973) - Provision of article 31C, which provided immunity to laws giving effect to DPSP was declared null and void.
- Unni Krishnan v. State of A.P. (1993) - Fundamental Rights and DPSP are supplementary and complementary to each other
42nd Amendment Act,1976
- Article 39: To secure opportunities for healthy development of children
- Article 39A: To provide free legal aid to the poor.
- Article 43A: To take steps to ensure participation of workers in management of Industries.
- Article 48A: To protect and improve the environment.
44th Amendment Act,1978
- Article 38: to minimize inequalities in income, status, facilities and opportunities.
86th Amendment Act, 2002
- The substance of Article 45 was changed and Article 21A included the right to elementary education as a fundamental right.
97th Amendment Act, 2011
- The concept of cooperative societies was added under Article 43B
Socialist Principles
- Article 38 – The state shall strive to promote social order by ensuring social, economic and political justice and eradicating the inequalities in income, status, facilities and opportunities.
- Article 39 – The state shall direct policy towards securing:
- Adequate means of livelihood to all the citizens equally.
- Distribution of ownership and control of material resources for common good.
- No concentration of wealth
- Equal pay for equal work
- Protection of health and strength of worker
- Development of children in healthy manner and avoid exploitation of the children
- Article 39A - The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
- Article 41 – The state shall endeavor to secure the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement.
- Article 42 – The state shall endeavor to establish humane conditions of work and maternity relief.
- Article 43 – The state shall endeavor to secure living wages and ensure a decent standard of life for all its citizens.
- Article 43A – The state shall strive to protect the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry.
- Article 47 – The state shall endeavor to promote public health, raise the level of nutrition and standard of living of people.
Gandhian Principles
- Article 40 – The state shall endeavor to take steps to organize village panchayat as units of Local Self Government.
- Article 43 – The state shall strive to promote the cottage industry on an individual and cooperative basis.
- Article 43B - To promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies.
- Article 46 - The State shall promote the educational and economic interests of the weaker sections of the people particularly that of the Scheduled Castes (SCs), Scheduled Tribes (STs) and other weaker sections.
- Article 47 - The State shall opt measures improve public health and prohibit consumption of intoxicating drinks and drugs that are injurious to health.
- Article 48 – The state shall restrict the slaughter of cows, calves, and other milch and draught cattle and improve their breeds.
Liberal and Intellectual Principle
- Article 44 - The state shall strive to establish for the citizens a Uniform Civil Code throughout the territory of India.
- Article 45 - The state shall endeavor to provide early childhood care and education for all children until they reach the age of six years.
- Article 48 - The state shall endeavor to organize agriculture and animal husbandry on modern and scientific lines.
- Article 48A - The state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.
- Article 49 - The State shall protect every monument or place of artistic or historic interest.
- Article 50 - The State shall take steps to separate the judiciary from the executive in the public services of the State.
- Article 51 - It declares that to establish international peace and security the State shall endeavor to:
- Maintain just and honourable relations with the nations.
- Foster respect for international law and treaty obligations.
- Encourage settlement of international disputes by arbitration.
5. Fundamental Rights- originated from France’s Declaration of Bill of Rights of Man, England’s Bill of Rights, the Development of the Irish Constitution, as well as, the United States of America’s Bill of Rights
6 fundamental rights
2. Right to freedom (Articles 19–22)
3. Right against exploitation (Articles 23–24)
4. Right to freedom of religion (Articles 25–28)
5. Cultural and educational rights (Articles 29–30)
6. Right to constitutional remedies (Article 32)