preamble part i - union and its territory citizenship

PREAMBLE PART I - UNION AND ITS TERRITORY – [ 1 to 4 ] PART II – CITIZENSHIP – [ 5 to 11 ] PART III – FUNDAMENTAL RIGHTS – [ 12 to 35 ] PART IV- DIRECTIVE PRINCIPLES OF STATE POLICY – [ 36 to 51 ] PART IV A – FUNDAMENTAL DUTIES – [ 51 A ] History

1949 Nov 26th Adopted in Constituent Assembly – Signed by Dr Rajendra Prasad 1950 Jan 26th commencement of Constitution BR Kapur v State of T N

(Legal Sanctity, sets framework and principles functions of the organs of Gov) State WB v Committee for Protection of Democratic Rights

(Living Organic document, cannot static must grow with the nation) Classification of Constitution

• Written and Un Written

• Unitary and Federal

• Flexible and RigidIndian constitution is written and Quasi Federal

• We adopt Bill of Rights, Federal system, Judicial Review and constitutional Supremacy from =US Constitution

• Parliamentary democracy from = British constitutionSalient Features for Indian Constitution ( WLAQ PF DF A SJB)

1. Written Constitution2. Lengthiest Constitution

a. 395 Article, Divided in to 22 Parts, 8 Schedulesb. At present nearly about 500 articles (although the last numbered article is 395)c. Its divided in to 25 article and 12 schedule

3. A sovereign, Socialistic, Secular, Democratic, Republica. Socialist and Secular was added in 1976 42nd Amendment

4. Quasi Federal5. Parliamentary Democracy and Cabinet Form of Government6. Fundamental Rights7. Directive principle of State Policy8. Fundamental Duties

a. 51A – Eleven fundamental duties in 88th amendment 20029. Adult Suffrage10. Single Citizenship11. Judicial Review and Independence of Judiciary12. Both rigid and Flexible

Federal or Unitary or Quasi-Federal Essential Features of Federal [ DSW RAD]

1. Distribution of Powers2. Supremacy of constitution3. Written constitution4. Rigidity5. Authority of Court

Three organs of State (Judiciary, Executive, Legislature) 6. Dual Policy

Character defines “it’s Not truly Federal” 1. Appointment of Governors

of 11 Constitution I- semester 1 Kerala University 2017-2020

Read Anil K Nair Book, Before Reading This Short Notes ullaskrishnan.com/llb

2. President Veto Power to Veto State Law ( Art 200 & 288(2)- Kerala Education Bill 3. Parliament power to form and alter new state or its boundaries of existing state (Art 3) 4. Emergency Provision Art 352 State WB v Union of India(constitution Is not truly federal) Ganga Ram Moolchanani v State of Rajasthan ( its basically federal in form)

Preamble [ Justice , Liberty, Equality ] – Can be amended ( Art 368) Re Berubari Case 1960- laid down Principle regarding the preamble [Territory , To Pakistan] Kaesavanantha Bharathi v State of kerala 1973 [ Fundamental Right Case]

• Preamble is the part of constitution

• Read constitution in the light of the grand and noble vision expressed in the Preamble

Excel Weaver v Union of India 1979- Explains the important of word Socialist 42nd Amendment added SECULAR and SOCIALIST– No specific religion for a State Democracy

• Direct

• Indirect (Voting and Representative) Union and Territory [ 1-4] Babulala v State of Bombay( Union has its major rights , state can only give suggestions )

Re Berubari Case 1960- laid down Principle regarding the preamble [Territory , To Pakistan] Pradeep Chaudhary v Union of India ( Haridhwar to delete from Uthranghat)

Raj Ram Pal V Hon Speker of Lok Sabha ( India is an Indestructable Union of destructible states)

Citizenship [ 5- 11]

Kinds of Citizenship

• Dual ( USA) o Federal o Citizenship of State

• Single 5 to 8 – Deals with citizenship at the commencement of constitution 9- to 11- Deals with mode of acquisition of loss of citizenship

Citizen at the time of commencement classified as

• Citizen by domicile ( permanent house ) [ Art 5] Moammad Raza V State of Bombay ( Iran for Pilgrimage ,have no domicile in india)

• Citizen Migrated from Pakistan [ Art 6 ] o Before ( 19-7-1948) o After 19-7-1948

• Person Migrated to Pakistan [ Art 7] ( March 1 1947)

• Citizenship of Indians Abroad [ Art 8] Acquisition of Citizenship under the Act Citizenship Act 1955 ( Power given by Art 11)

1. By Birth 2. By Descent 3. By Registration 4. By naturalisation 5. By incorporation of territory



Termination of Citizenship

• By Renunciation

• By Termination / Acquisition

• By Deprivation Company or Corporation is a Citizen ?

No, State Trading Corp v Commercial Tax Officer ( not a citizen so cannot claim Fundamental Rights, It’s a juristic person)

----------------------------------------------------------------------------------------------------- Fundamental Rights [ 12- 35 ] [ EFE RER]

Magna Carta – First written document for Fundamental Rights of citizen France – Declaration of Rights of Man and Citizen Americans were first to give constitutional status to fundamental rights

A K Gopalan v State of Madras ( SC said that Right to Life, freedom of speech and expression should be regarded as inviolable under all conditions) Maneka Ganhi v Union of India ( dignity of individual, and to develop his personality to full extend ) State WB v Committee for Protection of Democratic Rights

(Any Law violates, or impact Fundamental rights are void ab initio) 44 amendment abolishes Art 31, Right to Property as fundamental rights Definition State [ Art 12 ]

University of Madras v Santa Bai , Madras High Court (ejusdem generis , university is not a state) Ujjammabai v State of UP , SC rejected ejusdem generis of above case and cannot use ejusdem generis for “other authorities”

Electricity Board v Mohanlal , SC

Umesh v V N Singh, Patna High court, University is also a state Sukhdev Singh v Bhagathram , SC, ONGC is state RD Shetty International Airport Authority , SC, State if a body is an agency or instrumentality of government

A R Anthulay v R S Nayak, Seven Judges , SC, Judiciary is also a State Zee Films ltd v BCCI , SC, Not a state. Judicial Review [ Art 13 ]

Kaesavanantha Bharathi v State of Kerala 1973 [ Fundamental Right Case] Law classified in to

• Pre - Constitutional

• Post - Constitutional

Pre- Constitution Law Keshava Madhav Menon V State of Bombay ( Pamphlet 1949, 1931 Press Act, Proceedings in 1949)

Doctrine of Severability Motor General Traders v State of AP

Doctrine of Eclipse and Pre- Constitution Law State of Gujarat v Sri Ambica Mills



Post- Constitution Law – Doctrine of Eclipse ( Not applied) State of Gujarat v Sri Ambica Mills

Doctrine of Waiver Basheer Nath v Income Tax Commissioner Law and Law in Force Dwaraka Nath v State of Bihar

Right To Equality [ 14 to 18 ] Like should be considered alike

Reasonable classification is permitted

• Intelligible differentia

• Rational nexes ( relation) to object Mithu v State of Punjab ( 302 and 303) Deepak Sibal v Punjab University ( LLB Evening , Privat and Govt/ Semi Govt, its violation) Ajay Hasia V Khalid Mujib ( Exam Oral and Written 66% and 33% , Which was not valid and unconstitutional) Air India v Nargesh Meerza ( Pregnancy and retirement extended, its violation)

Mewa Ram v AII Medical science ( different pay for doctor )

National Legal Service Authority NLSA v Union of India (Trans Gender as Third Gender ) Taxation law and Article 14 ( its not violation) Western India Theatre v Contonment Board Venkateswara Theatre v State of Andhra Pradesh Indian Express News paper v Union India Article 15- Prohibition of discrimination based on religion ,caste, place of birth, race and sex.

D P Joshi v State of WB ( capitation fees, non Madhya Bharat residence, not violation) Women Reservation Dattatraya v State Backward Class

State of madras v Champakam Dorairajan ( medical seat , violation basend on cast, 15(4) was added and amendment ) Balaji v State of Mysore ( more than 68% is not good, below 50% and its violates) Indra Sawhney v Union India ( Mandal commission case, 50% backward can be classified o sub class)

Periakaruppan v State of Tamil Nadu (Once backward will not be considered backward always ) K S Jayasree v State of Kerala ( consider poverty and caste , 10,000 annual income)



Article 16 – Equality of Opportunity in public Employment Reservation of Residence

Narasimha Rao v State of AP ( violation and the , 1957 public Employment act unconstitutional)

Reservation of Backward class Devadason v Union of India ( carry forward rule, violation)

Indra Sawhney v Union India ( Mandal commission case, 50% backward can be classified o sub class, creamy layer in backward class should be filtered out) 81st amendment

PG Institute of Medical Research v Faculty Association ( no reservation for single seat) Article 17- Abolition of untouchability

People Union for democratic Rights v Union India ( Asiaad project worker case, available for private individuals and state should take necessary steps to apply these fundamental rights) State of Karnataka v Appa Balan Ingale and others ( well water)

Article 18 – Abolition of Titles Balaji Raghavan v Union of India ( Bharat Ratna, padma shri was not titles , not violation) -------------------------------------------------------------- Article 19 to 22 - Right to Freedom

Six Freedom of Citizen ( 19 [1]) a) Freedom of Speech and Expression b) Freedom to assemble peaceful without arms c) Freedom to association or union or co-operative society d) Freedom to Move friendly throughout the territory of India e) Freedom to reside and stay in any part of India f) Right to acquire and dispose of property ( 44 Amendment 1978 Strike out) g) Freedom to practice any profession, trade, business or occupation

Discuss the Scope of Freedom of Speech and Expression Kameshwar Sigh v State of Bihar ( Picket, Demonstration on street, not violation, if its not violent and disorderly) K A Abbas v Union of India ( censorship movie , not violation) Maneka Gandhi v Union of India ( passport ,freedom of speech and expression) Bijoe Emmanual v State of Kerala ( National Anthem case , standing, not singing, not violation) Secretary Ministry of Information Broadcasting v CAB ( cricket Asso Bengal)- No monopoly electronic media) CPM (M) V Bharat Kumar and others ( Bandh, un constitutional) Union of India v Naveen Jindal ( Can use National Flag on his premise) PUCL v Union of India ( strike down 33B of RP Act- Candidate should mention his Education, asset etc for election contesting)



Freedom of Press – Article 19 [1] – not expressly mentioned, but its in this group Brij Bhushan v State of Delhi -( Scrutiny of publication, Delhi commissioner, violation) Virendra V State of Punjab ( Burning issue, view of newspaper, not violation)

R Rajagopal v State Tamil Nadu ( Auto Shankar, Convicted for murder, public record, not violation)

State v Charita ( no right to interview an undertrial prisoner in jail, violation) Restriction on Freedom of Speech

By Article 19(1) guarantees to all citizen the freedom of speech and expression. By virtue of Article 19(2) the state can impose reasonable restrictions to this freedom on the following ground

• In the interest of the sovereignty and integrity of India

• In the interest of security of state

• In the interest of friendly relations with foreign states

• In the interest of public order, decency or morality

• In relations to contempt of court o Civil

▪ Wilful breach of any judgement, decree, direction, order, writ o Criminal

▪ Scandalise or lower or tends to authority of any court ▪ Interfere the judicial proceedings ▪ Obstruct administration of Justice

• Defamation

• Incitement to an offence

Freedom of Assembly and its Restriction ( CPC 144) Police Act 1861 – allow direction and route for the assembly, sec 30 mentioned about prior license. Sec 151 IPC – its an offence if not disperse after lawful command

Freedom to Form Association Unions and Co-Operative Societies O K A Nair v Union of India (civil employee union , military, violation they are military staff) Freedom of Movement and Restriction

N B Khare v State of Delhi ( move away from Delhi, not violation, reasonable restriction ) Freedom of Residence and Restriction

N B Khare v State of Delhi ( move away from Delhi, not violation, reasonable restriction, three months )

Freedom of Profession Occupation Trade and Business and its Restriction ( 19[g]) Hathising Mfg Co v Union of India – Right to carry business, but not have absolute right to close, if its affect public. Excel Wear v Union India ( industrial dispute act 1947, 25O-Permission close, 25R-penanlt closing, not reasonable restriction, struck down SC) Kerala SMT Fed v Kerala TBO Association (Trawling, fish wealth, a reasonable rest , not violation) Sodan Singh v New Delhi Muncipal Committee ( Poor hawkers business on street pavement, cannot be removed fully, not clear violation state should allocate some measurement to conduct business, it’s a legitimate mode of earning livelihood) TM A Pai Foundation case v State of Karnataka (establishment of running educational institute comes under this section even if it not generating profit, educational institution guaranteed under this section)



Professional and Technical Qualification State can by law prescribe professional or technical qualification necessary for any business or profession. Etc like Advocate Act, Medical Act, CA Act etc

Principle of Proportionality Article 19 [2-6] are not absolute.. however restriction can be imposed, restriction applied by administrative section can be tested by applying this Principle.

Constitutional Protection of Accused Person Art 20

• Ex Post Facto law (20 [1])

• Double Jeopardy

• Self-Incrimination

Ex Post Facto law – Criminal law , cannot retrospective/ Civil law applicable Kedar Nath v State of West Bengal ( Punishment enhanced, violtion)

T Baral v henry An Hoe ( Liable for reduced punishment, imprisonment →Three months)

Double Jeopardy – nemo debet bis vexari 20 [2] – man should not be put twice in peril for the same offence

• Person must be accused of an offence

• Prosecution must have taken place in court or judicial tribunal

• Accused must have been prosecuted and punished in the previous proceedings

Maqbool Hussain v State of Bombay ( customs act, FERA, hi claim FERA is violation, but court said that confiscation under customs act was not punishment and prosecution, so claim will not withstand ) Venkataraman v Union of India ( Enquiry did not amount to prosecution and punishment, public service enquiry Act, IPC bribery ) Self Incrimination 20[3] MP Sharma v Satish Chandhra ( Finger print, hair etc is violation) Kathi Kalu Ogad v State of Bombay ( not violation) Parshadi v State of UP ( Murder evidence, Evidence Act sec 27)

Nandani Sthpathy v PL Pani ( CM Orissa, prosecuted under sec 179 IPC for refusing answer, SC held that accused need not answer )

V S Kuttan Pilla v Ram Krishna ( document seizure , not violation) Yusufali v State of Maharashtra ( not violation, tape recorder without his knowledge) Selvi v State of Karnataka ( Narcho analysis, BEAP test, violation)

Protection of Life & Personal Liberty Art 21 Maneka Gandhi v Union of India 1978 person can be deprived of his life and personal liberty only if two conditions are satisfied ( audi altrem partem)

• There must be a law

• That law must prescribe a just, fair, reasonable procedure Personal Liberty AK Gopalan V State of Madras Right to Life Different Shades and Colour

People Union for Democratic Rights v Union of India ( Asiad project, min wages, violation, right to live with human dignity)

Olga Tellis v Bomba Muncipal Corporation ( pavement dwellers case, right to livelihood) Chameli singh v State of UP ( Dalit housing colony, right to shelter) R Rajagopal v Tamil Nadu ( Auto Shankar, right to privacy) Kirloskar v Employee state insurance corporation ( right to health)



Gain Kaur v State of Punjab ( does not include right to die ) Suk Das v Union Teriritory of Arunachal Pradesh ( free legal aid) Hussainara Khatoon v Home Sec State of Bihar ( speedy trial )

Triveni Ben v State of Gujarat ( delay, death sentence to life imprisonment) Mohini jain v State of Maharastra ( right to education) DK Base v State of Bengal ( guidelines for arrest)

• Name tag

• Memo of arrest

• Inform to friends

• Notify by police in 8-12 hours

• Diary entry

• Hospital check MC Metha v Union India ( oleium gas company, right to live in pollution free environment) Murali s Deora v Union of india ( public smoking) Vaishak v State of Rajasthan (women work place , culture, sexual harassment, dignity) Compensation for Violation fo Fundamental Rights Bhim Sing v Jammu and Kashmir ( MLA Arrest, 50,000) Police Commi Delhi v People Union of Democratic rights ( 75,000, beaten after wookr, non-payment)

Right to Education Mohini Jain v Karnataka Unnikrishnan v State of AP Article 22- Protection against Arrest and Detention in certain cases

• Arrested under ordinary law o DK Basu v State of West Bengal

• Arrested under preventive detention law o MISA, TADA, POTA, NISA

Article 23-24- Right against Exploitation

• Forced labour o People Union for Democratic Rights v Union of India

• Compulsory service o Dulal Samanta v DH Howrah ( military or social service)

Art 25-28 - Right to Freedom of Religion Mohd Haniff Quareshi v State of Bihar ( cow slaughter, violation, bakrid , mohammeded religion) Acharya Jagadhishwaran v Commissioner of Delhi - Ananda Marga Case ( Thanda Dance, carrying lethal weapon, skull , its violation) Satya Ranjan v State of Orissa ( not right to convert, violation) Freedom to manage Religious Affair Bramachari Sidheswa Shai v State of WB ( is a Hindu religious denomination, entitled to claim)

Right of Minorities to Establish and manage Educational Institution

• Religious

• Linguistic St Xaviers College v State of Gujarat ( Gujarat university, but independent in university proceedings ) Mark Netto v Govt of Kerala ( Boys school, admission for new Girls Student Christian , not violation )



Article 32 -Right to Constitutional Remedies - ubi jus ibi remedium – Where there is a right there is a remedy High court – Article 226

• Certiorari

• Mandamus

• Quo warranto

• Habeas Corpus

• Prohibition Res Judicata – if a matter in issue is heard and finally decided by a competent court a second suit on the very same cause of action or matter in issue is barred. M S Sharma v Sinha – same court once taken will not be allowed for appeal

Daryao v State MP – 226 filed and decided ( on merit) will not be once again applied in SC under 32 AR Choudhari v Union of India ( if dismissed in HC not on merit then its maintainable in SC) Metal Corporation v Union of india ( 32 dismissed cannot appeal in 226) Lallubhai Jogibhai v Union of India ( 226 dismissed can apply move fresh 32 only for Habeas Corpus)

Locus Standi – needed for public Interest litigation – no need for habeas Corpus This not compulsory for Quo Waranto also

SQP Gupta and others v President of India and others (Judge transfer case) public Interest litigation People of Union of Democratic Rights v Union of India ( Asian games, worker, child below 14) MC Mehta V State of Tamil Nadu ( Child labour, match factory)

Murali S Deora v Union of India (smoking) B Singh v Union of India ( Public Litigation, take care, not used for any personal benefit) Habeas Corpus

Kanu sanyal v District Magistrate Darjeeling - Note necessary to produce body, court will issue nisi ( preliminary order) show legal detention , if not justifiable then issue order

Manadamus- public duty

East India commercials Co v Collector of Customs (cannot against government to enforce an obligation arising out of contract)

Certiorary – after proceedings , for cure Murali v Returning Officer ( cannot issues against legislature )

Prabhodh Varma v State of UP (office not to do any action, its not declaring an act or ordinance unconstitutional)

Prohibition – only against judicial or quasi judicial authorities- issued before proceedings , prevention

Hari Vishnu Kamath v Ahmad Ishaque ( issued when an inferior court takes decision which it has no jurisdiction)

Quo Warranto- Lakhanpal v A N Ray (ANR appointed as chief justice, but the other three resign when the writ was considered)



Special Leave to appeal Art 136 Lawyers Paradise

Directive Principle of State policy [ 36 – 51] – Ireland Is to achieve a social and economic democracy in the country Classification of Directive principles

• Social and Economic Charter

• Social Security Charter

• Community Welfare charter In the section from 36 to 51 the most important were

1. Social justice Art 38 2. Equal pay for Equal Work Art 39

a. Randhir Singh v Union of India 3. Equal Justice and Free legal Aid Art 39A

a. State Bank v N S Money 4. Uniform Civil Code Art 44

a. Sarala Mudgal v Unioin of India ( Bigamy , 494 IPC) Relationship Between Fundamental and Directive Principles

Fundamental – Individual Right Directive Principles – Social Rights First View – Fundamental Prevails over Directive

• State of Madras v Champakan Dorairajan Second View- Directive Prevails over Fundamental

• Mohd Hanif Quareshi v State of Bihar ( slaughter of cow) Third View- Balance (Harmony) between both

• Kerala Education Bill

• Unnikrishnan v State of AP

Fundamental Rights Directive PSP

Negative in Nature Positive in Nature

Justiciable Non-Justiciable

Aim in establishing Political democracy Aim in establishing socio-economic democracy

No need for Legislation for implementing Need for legislation for implementing

Individual based Community based

Binding on SC Supreme Court is not Bound

Legally Enforceable Not legally enforceable

Essential Rights of citizen Guidelines for making law or policy

Fundamental Duties – Art 51 A – 42 Amendment 1976

1. Abide by the constitution and respect its deal and institution 2. Respect national flag and national anthem 3. Cherish and follow the noble ideals which inspired our national struggle and freedom 4. Uphold the sovereignty, unity and integrity of India 5. Defend the country and render national service when called upon to do 6. Promote harmony in religious, regional, sectional and linguistic diversities 7. Renounce practices derogatory to a woman



8. Preserve or value rich heritage of our culture 9. Natural resources protection 10. Develop Scientific temper, humanism and sprint of inquiry and reform 11. Safeguard public property 12. Work for nation 13. Child education



preamble part i - union and its territory citizenship

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