MODULE 1-12

Question 1

Constitution vs. Constitutionalism?

Answer 1

The difference between Constitution and Constitutionalism is that the Constitution is
created by the government, but the Government itself is controlled by Constitutionalism
which sets the limitation to its powers and authorities. The latter is indeed the law that
allows people and the government to follow the rules and principles set by the
constitution.
A constitution, in general, is a document that is written which has the fundamental laws
of the nation. A constitution sets the entire framework of how a government structure
must be and also vividly discusses the functionality of every element. As such, the
principles of society are set from the root level. It gives the exact norms and principles for
the government to follow.
Constitutionalism, on the other hand, is the governance system by itself that controls and
limits the powers of the government. This is the one that sets the freedom and limitations
of every individual of the nation. It includes the government as well. A government must
use its power under constitutionalism

COnstitutionalism typically includes rule of law, seperation of powers etc

Question 2

Chairman, Rly Board v Chandrima Das AIR 2000 SC 988

Answer 2

Chairman, Rly Board v Chandrima Das AIR 2000 SC 988

SLP filed against the compensation granted by Calcutta High Court for the victim, Smt. Hanuffa Khatoon, a
Bangladeshi national who was gang-raped by many including employees of the Railways in a room at Yatri Niwas at
Howrah Station of the Eastern Railway

It was argued that the Railways would not be liable to pay compensation to Smt. Hanuffa Khatoon who was a
foreigner and was not an Indian national

Held Smt. Hanuffa Khatoon , who was not the citizen of this country but came here as a citizen of Bangladesh was,
nevertheless, entitled to all the constitutional rights available to a citizen so far as “Right to Life” was concerned. She
was entitled to be treated with dignity and was also entitled to the protection of her person as guaranteed under
Article 21 of the Constitution. As a national of another country, she could not be subjected to a treatment which was
below dignity nor could she be subjected to physical violence at the hands of Govt. employees who outraged her
modesty. The right available to her under Article 21 was thus violated. Consequently, the State was under the
Constitutional liability to pay compensation to her

Question 3

is preamble part of indian constitution

Answer 3

Re Berubari Union, AIR 1960 SC 845

Held Art 368 allows for amendment of the Constitution however since the
Preamble is not a part of the Constitution therefore cannot be amended.

There is no doubt that the declaration made by the people of India in exercise of their
sovereign will in the preamble to the Constitution is, “a key to open the mind of the makers”
which may show the general purposes for which they made the several provisions in the
Constitution; but nevertheless the preamble is not a part of the Constitution,
and, as Willoughby has observed about the preamble to the American Constitution, “it has
never been regarded as the source of any substantive power conferred on the
Government of the United States, or on any of its departments. Such powers embrace only
those expressly granted in the body of the Constitution and such as may be implied from those
so granted”

Question 4

Golak Nath v. State of Punjab

Answer 4

, AIR 1967 SC 1643

on a parity of reasoning we are of opinion that the preamble cannot prohibit or control in
any way or impose any implied prohibitions or limitations on the power to amend the
Constitution contained in any Article

Question 5

Keshavananda Bharti v. State of Kerala,

Answer 5

AIR 1973 SC 1461

Preamble of our Constitution is of extreme importance and the Constitution should be
read and interpreted in the light of the grand and noble vision expressed in the Preamble.

Question 6

Excel Wear v. Union of India, AIR 1979 SC 25

Answer 6

Excel Wear is a partnership firm manufacturing garments for export. About 400 workmen were
employed in the petitioners’ factory. According to the petitioners it became almost impossible to
carry on the business. The petitioners, therefore, served a notice to Government of Maharashtra,
for previous approval of the intended closure of the undertaking The State Government refused
to accord the approval on the ground that the intended closure was prejudicial to public interest

Concept of socialism or a socialist state has undergone changes from time to time from country to country and from
thinkers to thinkers. With the rise of the philosophy of Socialism, the doctrine of State ownership has been often discussed
by political and economic thinkers. Broadly speaking, this discussion discloses a difference in approach. To the socialist,
nationalisation or State ownership is a matter of principle and its justification is the general notion of social welfare. To
the rationalist, nationalisation or State ownership is a matter of expediency dominated by considerations of economic
efficiency and increased output only production

Question 7

article 3 of constitution

Answer 7

Parliament may by law

(a) form a new State by

separation of territory from any State

or by uniting two or more States or parts of States

or by uniting any territory to a part of any State;

(b) increase the area of any State;

(c) diminish the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State:

Question 8

how is article three applied? what is the procedure?

Answer 8

A Bill for any such purpose cannot be introduced in a House of Parliament except on the
recommendation of the President.

If the Bill affects the area, name or boundaries of a State, then before recommending its
consideration to Parliament, the President has to refer the same to the State Legislature
concerned for expressing its views on it within such time as he may fix

The purpose of the provision is to give an opportunity to the State Legislature concerned to express its
views on the proposals contained in the Bill.

Parliament is in no way bound by these views.

Question 9

Babu Lal Parate v. State of Bombay

Answer 9

If once a Bill has been referred to the State Legislature, it can later be amended by Parliament and no fresh reference to the State
Legislature is required to ascertain its views on the proposed amendments

A Bill introduced in the House of the People on the report of the States Reorganisation Commission and as
recommended by the President under the proviso to Art. 3 of the Constitution, contained a proposal for
the formation of three separate units, viz.,

Union territory of Bombay,

Maharashtra, including Marathawada and Vidarbha and

Gujrat, including Saurashtra and kutch.

This Bill was referred by the President to the State Legislatures concerned and their views were obtained.

The joint Select Committee of the House of the People (Lok Sabha) and the Council of States (Rajya
Sabha) considered the Bill and made its report.

Subsequently, Parliament amended some of the clauses and passed the Bill which came to be known as the
States Reorganisation Act, 1956.
The petition , out of which the present appeal has arisen, was filed by the appellant
under Art. 226 of the Constitution in the High Court of Bombay.
His contention was that the said Act was passed in contravention of the provisions of Art. 3 of the Constitution, since the Legislature of Bombay had not been given an opportunity of expressing its views on the formation of the composite State. The
High Court dismissed the petition.

Supreme Court affirmed the High Court’s decision-

Question 10

In Re: The Berubari Union and Exchange of Enclaves Reference,

(hypothetical)

Answer 10

To settle certain boundary disputes, India had agreed to transfer some territory to Pakistan.

A question referred to the Supreme Court by the President for advice under Art. 143 was whether
Parliament could cede Indian territory to a foreign country by making a law under Art. 3, or was an
amendment of the Constitution under Art. 368 necessary

The Supreme Court held that Art. 3, broadly stated, “deals with the internal adjustment inter se of the
territories of the constituent States of the Indian Union”.

The authority of Parliament “to diminish the area of any State” envisages taking out a part of the area of a
State and adding it to another State; the area diminished from one State must continue to be a part of
India and it “does not contemplate cession of national territory in favour of a foreign country”.
Thus, Indian territory can be ceded to a foreign country only by enacting a formal amendment of the
Constitution under Art. 368 to modify the First Schedule to the Constitution.

Question 11

Maganbhai Ishwarbhai Patel etc. Vs. Union of India

Answer 11

Maganbhai Ishwarbhai Patel etc. Vs. Union of India (UOI) and Anr. AIR 1969 SC
783

Hostilities broke out between India and Pakistan on a boundary dispute in Kutch.

The matter was then referred by both countries to a tribunal for arbitration.

The question arose whether the award of the tribunal could be implemented by an
executive act, or was a constitutional amendment necessary?

The Supreme Court ruled that it could be done by executive action as it involved no
cession of territory, but amounted only to demarcation of the boundary line on the
surface of the earth.

A constitutional amendment is necessary in a case where de jure and de facto Indian
territory is ceded to a foreign country.

Question 13

R.C. Poudyal v. Union of India, AIR 1993 SC 1804

Answer 13

Dealt with the backdrop of Merger of Sikkim with India and on the conferment of full-fledged statehood
on Sikkim within the Indian Union,
The enactment of Art. 371F for this purpose was challenged raising two crucial questions

Can a seat be reserved in the State Legislature for a representative of a group of religious institutions to be elected by them and can seats be reserved in favour of a particular tribe far in excess of its population in the State?

Art. 371F was challenged on the ground that it was inconsistent with the basic features of the
Constitution, viz., equality and secularism.

The Court by a majority upheld these provisions in the light of historical, cultural and political
background of Sikkim.

Question 14

article 5 of consti

Answer 14

Under Art. 5, every person having domicile in India at the
commencement of the Constitution, and fulfilling any of the following
conditions, is a citizen of India, viz,:

(a) he was born in India; or

(b) either of whose parents was born in India; or

(c) who has been ordinarily resident in India for not less than five years immediately
preceding the commencement of the Constitution.

Question 15

Pradeep Jain v. Union of India

Answer 15

The question
which arose for consideration was whether, consistently with the
constitutional values, admissions to a medical college or any other institution of higher
learning situate in a State could be confined to those who had their ‘domicile’ within
the State or who were resident within the State for a specified number of years
or can any reservation in admissions be made for them so as to give them precedence
over those who do
not possess ‘domicile’ or residential qualification within the State,
irrespective of merit.

The argument of the State Governments that word ‘domicile’ in the Rules of some
of the State Governments prescribing domiciliary requirement for admission to medical
colleges situated within their territories, is used not in its technical legal sense but in a
popular sense as meaning residence and is intended to convey the idea of intention to
reside permanently or indefinitely was accepted

The Supreme Court dismissed the notion of State domicile. The Court asserted that there is
only one domicile, namely domicile in India.

Art. 5 recognises only one domicile, namely, “domicile in the territory of India”.

The Court emphasized that the Indian Federation has not emerged as a result of a compact
of sovereign States and so it is “not a federal State in the traditional sense of that term”

Question 16

article 6

Answer 16

an immigrant from Pakistan became a citizen of India if he, or either of his parents, or any of his
grandparents, was born in India (as it was prior to the Independence), and, in addition, fulfilled either of the following two
conditions:
in case he migrated to India before July 19, 1948, he had been ordinarily resident in India since the date of
his migration;
(2) in case he migrated on or after July 19, 1948, he had been registered as a citizen of India

A person could be so registered only if he:

Makes an application to an officer appointed in that behalf by the Government of the Dominion of India

had been resident in India for at least six months preceding the date of his application for registration
Such Migration must have happened before the commencement of the Constitution

Question 17

citizens by registraton

Answer 17

according to article 8 a person who or ether parent or grandparent
was born in India (before independence) but who is ordinarily residing in any country outside
India and Pakistan,

may register himself as a citizen of India with the diplomatic or consular representative of India
in the country of residence

By way of an application made by him therefore to such diplomatic or consular representative

This provision confers Indian citizenship on a person who prima facie has no domicile in India and it
seeks to cover the overseas Indians who may want to acquire Indian citizenship

Question 18

termination of citizenship

Answer 18

Under Art. 7, a citizen of India by domicile (Art. 5), or by migration (Art.
6), ceases to be citizen if he has migrated to Pakistan after March 1,
1947

If, however, after migration to Pakistan, he has returned to India under a
permit of resettlement, or permanent return, he can register himself as a
citizen of India in the same manner as a person migrating from Pakistan
after July 19, 1948

Under Art. 9, no person can be a citizen of India under Arts. 5, 6 and 8, if
he has voluntarily acquired the citizenship of a foreign country

Question 19

citizenship act 1955

Answer 19

The Act provides for five ways for acquiring Indian citizenship, viz.,

birth;
(b) descent;
(c) registration;
(d) naturalisation and
(e) incorporation of some territory into India

Question 20

deprivation of citizenship

Answer 20

Under S. 10, citizens of India by naturalisation, marriage, registration, domicile
and residence may be deprived of citizenship by an order of the Central
Government, if it is satisfied that—

the registration or naturalisation was obtained by means of fraud, false
representation or concealment of any material fact or,

he has shown himself by act or speech, to be disloyal or disaffected towards
the Indian Constitution; or,

during a war in which India may be engaged he has unlawfully traded or
communicated with the enemy;

within five years of his registration or naturalisation, he has been sentenced
to imprisonment for not less than two years; or,

he has been ordinarily resident out of India for seven years continuously.

Question 21

wjhat are some major amendments in citizenship

Answer 21

1986 : Removal of jus soli, need either parent to also be born

2003: Introduction of jus sanguinis, stricter rules, not just the person’s birth
but both parents also indian citizen / one parent indian citizen and the
other is not an illegal migrant

2015 : new scheme of Overseas Citizen of India introduced, merger of
Persons of Indian origin and OCI

2019: Proposal to permit members of 6 communities: Hindus, Sikhs,
Buddhists, Jains, Parsis and Christians from Pakistan, Bangladesh and
Afghanistan to continue living if they entered before Dec 31, 2014.

Reduces requirement of naturalisation from11 years to 5 years

Question 22

Assam Sanmilita Mahasangha v Union of India

Answer 22

In 1971, Bangladesh gained independence from Pakistan. The liberation war led to a massive
influx of migrants to India until 1983. In 1983, the Parliament enacted the Illegal Migrants
(Determination by Tribunal) Act (IMDT Act). The IMDT Act laid down the procedure to detect
illegal immigrants from Bangladesh and expel them from Assam. This Act was applicable to only
Assam, while the Foreigners Act, 1946 was applicable to all other states.

In 1985, the Assam Accord was signed between the Government and leaders of the Assam
agitation, to end years of rioting and protests against the massive migration. Section 6A of
the Citizenship Act, 1955 – introduced in 1985 – was the legislative enactment of the Assam
Accord. It classified ‘illegal’ immigrants of Indian origin who came into Assam from Bangladesh
into three groups:

those who came into the state before 1966;

those who came into the state between 1966 and 25th March, 1971 (the official date of the
commencement of the Bangladesh War); and
those who came into the state post 25th March,1971.

The petitioners argue that there is no rational basis for having separate cutoff dates for regularising illegal
migrants who enter Assam as opposed to the rest of the country.

Question 23

Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233

Answer 23

Alleged that the respondent is a citizen of Italy and has not renounced the same without stating
on what facts or material the petitioner has drawn that inference. It is alleged that the
respondent was at the material time under acknowledgement of allegiance and adherence to
Italy, a foreign State, which is a disqualification within the meaning of Article 102 of the
Constitution.

The petition then alleges that the respondent did not reside in India for a period of 12 months
immediately before her having applied for citizenship by registration on 7th April, 1983 which
was granted to her on 30th April, 1983. However, the petition itself alleges that the respondent
came to India from Italy some time after the year 1971 and was in India in the year 1977, 1980
and 1983

In both the election petitions there are averments made touching the contents of
respondents application filed for grant of certificate of citizenship so as to point out
alleged infirmities in the application and the proceedings taken thereon but without
disclosing any basis for making such averments. None of the petitioners states to have
inspected or seen the file nor discloses the source of knowledge for making such
averments

Question 25

University of Madras v Shanta Bai

Answer 25

In 1949 a new college called the Mahatma Gandhi Memorial College was founded in the town of Udipi
and affiliated to the University of Madras.

While granting affiliation, the Syndicate gave permission for the admission of only 10 girl students in the
Junior Intermediate class as a temporary measure for that year and directed that in future no women
students should be admitted without the special sanction of the syndicate.

On 24-7-1951, the petitioner Shantha Bai applied for admission to the Intermediate course in this college,
but her application was refused by the Principal on the ground that girl students would not be admitted.

Thereupon, she filed the petition out of which the present appeal arises for the issue of a writ of
mandamus against the Principal of the College to admit her to the Intermediate course.

The first respondent to this application was the University of Madras and the second, the Principal of the
college

The question is whether the University can be held to be “local or other authority” as defined in Article 12
to have a claim of violation of Article 15 against it

Held: The University of Madras is a body corporate created by Madras Act VII of 1923. It is not charged
with the execution of any Governmental functions; Its purpose is purely to promote education. Though
Section 44 of the Act provides for financial contribution by the local Government, the University is
authorized to raise its own funds of income from fees, endowments and the like. It is a State-aided
institution, but it is not maintained by the State.

The Court leaned on the distinction between State-maintained universities and State-aided
universities adopted in several decisions pronounced by the State Courts in America.

Question 26

Rajasthan State Electricity Board v. Mohanlal, AIR 1967 SC 1857

Answer 26

The Rajasthan State Electricity Board was a corporate body that had been constituted
under an Act (the Electricity Supply Act, 1948), for the purposes of supplying
electricity within the State of Rajasthan

The Supreme Court ruled that a State electricity board, set up by a statute, having some
commercial functions to discharge, would be an ‘authority’ under Art. 12.

The Court emphasized that it is not material that some of the powers conferred on the
concerned authority are of commercial nature.

This is because under Art. 298, the government is empowered to carry on any trade or
commerce.

Thus, the Court observed: “The circumstance that the Board under the Electricity
Supply Act is required to carry on some activities of the nature of trade or
commerce does not, therefore give any indication that the ‘Board’ must be
excluded from the scope of the word ‘state’ is used in Art. 12.”

Question 27

Sukhdev v. Bhagatram, AIR 1975 SC 1331

Answer 27

Three statutory bodies, viz., Life Insurance Corporation, Oil and Natural Gas
Commission and the Finance Corporation, established under the Life Insurance
Corporation Act, 1956, Oil and Natural Gas Commission Act, 1959 and the Industrial
Finance Corporation Act, 1948 were held to be “authorities” and, thus, fall within the
term ‘state’ in Art. 12

Court perused multiple provisions in the above stated statutes and came to a
conclusion that many provisions indicated at each stage that the creation,
composition of membership, the functions and powers, the financial powers,
the audit of accounts, the returns, the capital, the borrowing powers, the
dissolution of the Commission and acquisition of and for the purpose of the
company and the powers of entry are all authority and agency of the Central
Government

These corporations do have independent personalities in the eyes of the law, but that
does not mean that “they are not subject to the control of the government or that they
are not instrumentalities of the government

Question 28

Ramanna D.Shetty v. International Airport Authority,