Constitution Question and Answers, Exams of Constitutional Law

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CONSTITUTION – I

L.L.B, 1

st

sem, 1

st

year

Raghuraman.K

Raghuraman.kal@gmail.com

Contents

Questions

Q. 1 Discuss the salient features of Indian Constitution.

Constitution-12.pdf/ Q

Q. 2 What is the nature of Indian Constitution? Is it correct to say that Indian Constitution is

federal in character with unitary features?

Page 23

Or

"Constitution of India is neither purely federal nor purely unitary but is combination of both.

It is Union of Composite states of a novel type. It enshrines the principle that in spite of

federation, the national interest ought to be paramount" - Discuss this Statement.

Page 23

Q. 3 What is preamble? Discuss the meaning and importance of the Preamble.

Page 7

Or

Examine the importance of the Preamble of the Constitution and its relevance in

interpreting the provisions of Constitution.

Page 9

Q. 4 Discuss how a new state can be formed? What is the procedure for changing

boundaries of existing states under the Constitution?

Not answered

Q. 5 What do you understand by citizenship under the Constitution of India? Who are

Indian citizens under the Constitution?

Not answered

Q. 6 Describe the manner in which citizenship can be acquired and terminated under the

Citizenship Act 1955.

Page 16 / part of it.

Q. 7 What is the scope of definition of State in Article 12 of the Constitution? Does it

include judicial and incorporated bodies?

Page 21 / 2nd^ part not answered.

Q. 8 Describe briefly the general characteristic features of the fundamental rights.

Not answered

Q. 9 Writ short notes on the following doctrines :-

(A) The doctrine of Severability

Not answered

(B) The doctrine of Eclipse;

Page 15

(C) The doctrine of Waiver.

Not answered

Q. 10 What is meant by the "Rule of Law"? Discuss the principle of "equality before the law"

in the Indian Constitution and distinguish it from the "Equal protection of the law".

Page 11

Or

Q. Is making of classification contrary to the guarantee of "Right of equality" under Article

14 of the Constitution valid?

Not answered

Q. 11 What Article 14 prohibits is class legislation and not reasonable classification for the

purpose of legislation. Discuss.

Page 13

Or

"Is making of classification contrary to the guarantee of right of equality" under Article 14?

Discuss fully, suitably illustrating your answer.

Not answered

Q. 12 Can the State discriminate between citizens on the grounds of religion, caste, sex or

place of birth?

Q. 13 How the equality guaranteed by the Constitution in the matters of public employment

?

Or

In what manner is our constitution secular? Examine the Constitutional limits in which

religious freedom is avoidable to an individual in India?

Q. 28 Discuss the cultural and educational rights as guaranteed to linguistic and religious

minorities under the Constitution of India.

Q. 29 What are the provisions of the Constitution which are meant for protecting the laws

giving effect to the directive principles from being challenged as violative of the

fundamental rights?

Q. 30 Compare the writ jurisdiction of the Supreme Court with that of High Courts under the

Indian Constitution?

Q. 31 What do you understand by 'Writs'? Explain the circumstances in which various writs

can be issued.

Or

Write a short note on : (i) Habeas Corpus (ii) Mandamus (iii) Quo-Warranto (iv) Certiorari

and (v) Prohibition.

Q. 32 Discuss the nature, scope and purpose of Directive Principles of State Policy as

enumerated in Constitution.

Or

Enumerate the "Directive Principles of State Policy".

Q. 33 Examine the correlation between Fundamental Rights and Directive Principles of State

Policy.

Q. 34 What are the fundamental duties enumerated under Article 51-A of the Constitution?

What is the importance of these duties?

UNIT I

Q. Define constitutionalism

The judgement in the case I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors , defines constitutionalism as

―a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based.‖

1. These democratic principles include the protection of fundamental rights.
2. The power of the parliament to amend the constitution is limited by the constitution. Hence the parliament cannot exercise this limited power to grant itself an unlimited power
3. Constitutionalism recognises the need for government but insists upon limitations being placed upon governmental powers.
4. Constitutionalism envisages checks and balances and putting the powers of legislature and executive under some restraints and not making them uncontrolled and arbitrary.
5. Unlimited powers jeopardize freedom of the people.
6. If the Constitution confers unrestrained power on either the legislature or the executive, it might lead to an authoritarian, oppressive government.
7. Constitutionalism is the antithesis of arbitrary powers, the antithesis of Constitutionalism is despotism, and in essence connotes limited government or a limitation on government

Therefore, in order to preserve the basic freedoms of the individual, and to maintain his personality and dignity, the Constitution needs to be permeated with ‗constitutionalism‘; it should have some in-built restrictions on the powers conferred by it on governmental organs.

Indian constitution has several provisions to protect the constitutionality of the Indian constitution

1. Protection of basic structure of the constitution

In the Kesavananda Bharati v. State of Kerala held that the Parliament under the Indian Constitution is not supreme, in that it cannot change the basic structure of the constitution.

2. No powers for legislature to amend fundamental rights

In Golak Nath vs State of Punjab , the Supreme Court overruled its earlier decision. The Supreme Court held that the Parliament has no power to amend Part III of the constitution as the fundamental rights are transcendental and immutable

3. The power of judicial review

Q. Define preamble of the Constitution? OR Define values enshrined in the

Constitution

The importance and utility of the Preamble has been pointed out in several decisions of the Supreme Court of India. Though, by itself, it is not enforceable in Court of Law and does not constitute an operative part of the Indian constitution, yet it serves several important purposes

The Preamble to a written Constitution states the objects which the constitution seeks to establish and promote and also aids the legal interpretation of the Constitution where the language is found to be ambiguous .The Preamble to our Constitution serves two purposes

(a) It indicates the source from which the constitution derives its authority i.e the people of India (b) It also states the objects which the constitution seeks to establish and promote (c) It also contains the enacting clause, which brings the Constitution into force.

The preamble of Constitution of India proclaims India as a ‗ Sovereign, Socialist, Secular, Democratic Republic, and to secure for all its citizens, Justice, Liberty, Equality and Fraternity.

Sovereign : The term ‗sovereign ‗implies that India is internally supreme and externally free. State authority of India is supreme over all men and all associations within India‘s territorial boundary. This is India‘s internal sovereignty. Externally India is free from all external controls.

Socialist : The terms socialist and secular were added to the preamble by 42nd amendment in 1976.What was implicit in the Constitution until then became explicit. India‘s association with socialism began in the early fifties at the Avadi Congress. Glaring disparity in income distribution induced the government to control the commanding heights of the economy in the interest of suffering masses.

Secular : India is a ‗Secular State‘ does not mean that India is non-religious or irreligious, or anti religious, but simply that the State in itself is not religious and embodies the ancient Indian principle of ―Sarva Dharma Sama bhava‖, meaning thereby that the State shall not discriminate against the citizens in any way on the basis of religion.

Democratic : India‘s aim is to build up not only a democratic political system but also a democratic social system. In the matter of political organization, India has opted for representative democracy. This implies that government power shall be vested in the popularly elected representatives of the people. In India popular elections give legitimacy to our rulers.

Republic : A system is republican where no office of the state is held on the basis of hereditary prescriptive rights. In India every office of the state from the highest to the lowest is open to every citizen. Any citizen may occupy any office on the basis of merit.

Thus, headship of the state is not hereditary as in England, nor is it based on military power as in dictatorial regimes.

The Preamble states that the objectives to be secured to every citizen are –

(i) Justice-social, economic and political.

1. Political justice in India is guaranteed by universal adult suffrage without any sort of qualification.
2. Social justice is ensured by abolishing any title of honor (Art. 18) and un- touchability (Art 17),
3. Economic justice is guaranteed primarily through the Directive Principles

(ii) Liberty-of thought, expression, belief, faith and worship.

Liberty confers on every person

1. the freedom of conscience and
2. the right freely to profess , practice and propagate religion

(iii)Equality-of status, opportunity;

1. Removing discriminations between citizens, has two aspects, negative and positive;
2. Equality may be achieved to some extent by removing inequality.

(iv) fraternity as an ideal - to ensure the dignity of the individual and unity of the nation

Fraternity is not an independent ideal but a resultant of the successful realization of important ideals listed earlier. The fraternity which the Preamble seeks to profess is not confined within the bounds of the national territory

(b) that Preamble is not a source of power nor a source of limitations or prohibitions; (c) the Preamble has a significant role to play in the interpretation of statutes, also in the interpretation of provisions of the Constitution.

The Supreme Court has held that Preamble is the part of the constitution and it can be

amended but, Parliament cannot amend the basic features of the preamble.

Q. Federal character of the Indian constitution

Introduction

Constitutions are either federal or unitary. Unitary Constitutions centralize power

and provinces are subordinate to the Central Government. In a federal Constitution,

there is division of powers between State and Federal Governments and both are

independent in their own spheres. There is difference of opinion as to the nature of

Indian constitution. One view is that it is quasi- federal and contains more unitary

features than federal. The other view is that it is a federal constitution with some

novel features adopting itself to national emergencies.

Meaning

―Federation‖ means that the Union and the Units are co-equal. The Union and the

Units are sovereign in their respective sphere. The Union is sovereign in the

Central Sphere, and the States are sovereign in the State sphere.

Essential elements of Federalism

A federal constitution has the following characteristics

1. Distribution of powers – Federalism means distribution of powers between

State and Centre. For matters requiring national unity, and uniform policy among

units, authority is entrusted to the Union, while matters of local concern are left to

the States.

2. Supremacy of Constitution – A federal state derives its existence from the

Constitution. The Constitution in a federal state constitutes the supreme power of

the land. Every executive, legislative, judicial power is subordinate to the

Constitution.

3. A Written constitution – A federal constitution must be a written constitution,

as the foundation of federalism are complicated contracts. The supremacy of the

Constitution cannot be maintained, if they are not reduced into writing.

4. Rigidity – A natural corollary of written constitution is its rigidity. The

procedure to amend rigid Constitutions is very complicated and difficult. It means

that the power of amending the Constitution should not remain exclusively with

the Central or State Government.

5. Authority of Courts – Since the very nature of federalism requires division of

powers between the State and Federal governments, an independent and impartial

authority above and beyond the ordinary bodies is required, namely the judiciary.

The judiciary has the final power to interpret the Constitution and guard the

entrenched provisions of the Constitution.

with the policies of the Central government or the ideology of ruling party.

This cannot be the reason behind the Central government to sack the

Governor and would be considered as arbitrary or mala fide.

2) Single and uniform citizenship - The Constitution of India has established

a Single and Uniform Citizenship for the whole of the country. In a federal

State like the United States of America there is dual citizenship where a

citizen firstly owes allegiance to the States and secondly to the union. But in

case of India though it is a Federal State there is single citizenship. It implies

that all Indian citizens owe allegiance to the Indian Union

3) Parliaments power to legislate in national interest – The Centre has the

power to make laws under the State List under in certain cases. Under

Article 249 which says that if Rajya Sabha passes a resolution with 2/3rd

majority that the Parliament should make law with respect to a particular

entry in List II with respect to a particular State. Then the Parliament makes

law and that law remains in force for 1 and 1/2 years i.e. the law will cease

to have affect 6 months after the resolution comes to an end because the

resolution remains in force for 1 year. The Centre can also make law if there

is a request or consent by 2 or 3 States and such law can be subsequently

adopted by other States.

4) Parliaments power to make new States and alter boundaries of existing

States. – Article 2 and 3 of the Constitution, give the power to the Parliament

to redraw the political map of India; to create and abolish the states, change

the boundaries of the States or even change their names and this can be

achieved by simple legislation by way of simple majority in the Parliament

and the Constitution only provides for consultation by the Centre of the

concerned State. For eg – when Andhra Pradesh was divided recently into

Telangana, Andhra Pradesh Assembly had passed a resolution opposing the

step irrespective of that the Central Government went on with the

separation.

5) Emergency provisions – The Constitution envisages 3 types of emergency

a. Emergency caused by war ( Article 352)

b. Emergency caused by failure of constitutional machinery in States (

Art 356)

c. Financial emergency ( Article 360)

Under Article 356, the President can dismiss the State Ministry and dissolve

the Legislature and assume all functions of the State. Thus the normal

distribution of power between State and Central government is completely

suspended.

However, many of the above provisions are only emergency provisions which

come into operation, when specific contingencies arise, and therefore do not

modify or destroy the federal nature of the Indian Constitution. And in similar

emergency like scenarios, the other federal Constitutions in other parts of the world

also acted more unitary than federal. So, Indian Constitution is no less federal than

other countries. There are centralizing evidences in every federation. Indian

federalism is designed on practical considerations, rather than going by strict

theory of federal character.

In short, Indian Constitution is a combination of both federal and unitary features.

It is mainly federal with unique safeguards to enforce national unity and growth.

change of residence within India. A minor or married person does not have the legal capacity to make a change of domicile. Therefore, a minor carries the domicile of his father and a married woman gets the domicile of her husband.

Every person having domicile in India at the commencement of the constitution and fulfilling the following condition is the citizen of India.

**1. He was born in India

2. Either his parents was born in India.**

Who has been ordinarily resident in India for not less than 5 years immediately preceding the commencement of the Constitution.

ii. Citizen Migrated from Pakistan - (Article 6)

At the time of independence of India there was large scale Migration of people from Pakistan to India. And special provisions are made for them under Article 6.

In July 1948, a permit system was introduced for migration. So, the citizenship rules are classified into

1. Those who migrated before the permit system became effective
2. Those who migrated after the permit system became effective

Who migrated before July 1948 :

**1. He was born in India, or

2. Either of his parents was born in India. Or
3. Either his grandparents was born in India**
4. He should have resided in India since the date of migration

Who migrated after July 1948

**1. He was born in India, or

2. Either of his parents was born in India. Or
3. Either his grandparents was born in India**
4. has been resident in India for at least 6 months preceding the date of his application for registration
5. has submitted application for registration to the appointed officer
6. is registered as a citizen as per the registration system

iii. Citizen Migrated to Pakistan - (Article 7)

The Article 7 refers to two clauses

1. People who migrated to Pakistan after 1st^ March 1947. Such persons would not citizens of India, even if they fall within Article 5 or 6

2. People who migrated to Pakistan after 1st^ March 1947, but re-migrated to India, would become citizens of India if a. He was born in India, or b. Either of his parents was born in India. Or c. Either his grandparents was born in India d. He had returned to India under a permit for resettlement. e. has been resident in India for at least 6 months preceding 26-1- f. has submitted application for registration to the appointed officer g. is registered as a citizen as per the registration system

iv. Citizen by registration - (Article 8)

A Person –

**1. who was born in India

2. either of whose parents was born in India, or
3. any of whose grandparents was born in India before independence,**
4. has registered himself as a citizen of India with the diplomatic or consular representative of India in the country of Residence.
5. Has not voluntarily acquired citizenship of any foreign state. 2. Citizenship and under the citizenship Act 1955 -

Parliament, in exercise of the powers given to it under article 11 of the Constitution, has passed the Citizenship Act, 1955, making provisions for acquisition and termination of citizenship after the commencement of the Constitution. The Act provides for the acquisition of Indian citizenship after the commencement of the Constitution in 5 ways. Examples - Birth, Descent, registration, naturalization and incorporation of territory.

i. Citizenship by Birth -

A person born in India on or after 26 January 1950, is a citizen of India by birth except when -

1. His father possesses diplomatic immunity and is not a citizen Indian citizen, or
2. His father is an enemy alien and he is born at the place under any occupation.

ii. Citizenship by Descent -

A person born outside India on after 26 January 1950, is citizen of India by descent, if

1. Parents declare that the minor does not hold passport of another country and his birth is registered at an Indian consulate, or
2. His father is at the time of his birth on service under Government of India.or
3. If his father was a citizen of India by birth at the time of his birth or if either of his parents were a citizen of India, depending on his date of birth