Notes on 2nd Handout/WBCS Mains/Indian Constitution

Anuradha Basu

Overview of the Handout

1. Provision of Citizenship.
2. Nature and Importance of Fundamental Rights, Important Cases of Supreme Court on
Fundamental Rights.
3. Directive Principles of State Policy & Fundamental Duties.
4. Right to Education Act, Right to Information Act

1. Provision of Citizenship:-
Important concepts regarding Citizenship:

A. NPR – National Population Register is a register of usual residents of the country.

B. CAA – Citizenship Amendment Act. It is not Constitutional Amendment. The Citizenship Act
(passed in 1955) has been amended 9 times in so far :
1957,1960,1985,1986,1992,2003,2005,2015,2019.
C. D-Voter – Doubtful voters are those persons who are identified during electoral roll revision as
D Voters due to lack of proper citizenship credentials.
D. Commonwealth Citizenship – Every person who is born in Commonwealth country, by virtue of
that citizenship enjoys the status of commonwealth citizenship of India. The citizenship act 1955
provided for the commonwealth citizenship but the provision has been repealed by the
citizenship amendment act 2003.
[Commonwealth of Nations means an association comprising the United Kingdom, its
dependencies and many former British colonies that are now sovereign states, including
Canada, Australia, India and many African countries.]
E. ILLEGAL MIGRANTS –Illegal migrants are those who enter into another country without valid
travel documents, identity credentials or enter with valid documents but stay in the country
beyond the specified period.

Difference between NPR & CENSUS

The NPR is a register of usual residents of the country. It is being prepared at the local
(village/sub-town), subdistrict, district, state and national level under provisions of the
Citizenship Act, 1955 and the Citizenship (Registration of Citizens and Issue of National Identity
Cards) Rules, 2003.
The census is the basis for reviewing the country's progress in the past decade, monitoring the ongoing
schemes of the government and plan for the future.

The census provides detailed and authentic information on demography, economic activity, literacy and
education, housing and household amenities, urbanization, fertility and mortality, scheduled castes and
scheduled tribes, language, religion, migration, disability besides others.

2. Nature and Importance of Fundamental Rights :-

Notes on some important articles –

✓ Article 12: Definition of State includes the following –

• Executive and Legislative Organs of the Union.
• Executive and Legislative Organs of States.
• Local bodies such as Panchayats, Municipal Corporations, improvement trusts, pollution
boards etc.
• Government corporations and companies.

✓ Article 13: It has been incorporated into the constitution to prevent any attempt by
legislature to reduce the scope of fundamental rights either through pre constitutional
or post constitutional ordinary laws.

Article 13(1): It deals with pre – constitutional laws. Any law passed before the
commencement of Constitution, which violates a fundamental right, is void or dead to the extent of
violation.

Article 13(2): It deals with post-constitutional laws. Any law passed after the commencement
of constitution, which violates a fundamental right, is void or dead to the extent of violation.

Supreme Court has applied Doctrine of Eclipse under Article 13. According to it, a law which violates
fundamental right is a dormant or sleeping law but not a dead law. When the inconsistency between the
fundamental right and the law is resolved, either by amendment in the constitution or change in law,
the law becomes active.

Doctrine of Severability - The doctrine of severability means that when some particular provision of a
statute offends or is against a constitutional limitation, but that provision is severable from the rest of
the statute, only that offending provision will be declared void by the Court and not the entire statute.

✓ Article 14: Exception Note – No Civil proceedings can be initiated against President or
Governor without giving prior notice of two months.
✓ Article 15(1): The state shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, and place of birth or any of them.
 ✓ Article 19(1)(a): Right to freedom of speech and expression
It is subject to various limitations as par Article 19(2) on grounds of:
1. Sovereignty and integrity of state.
2. Security of state
3. Friendly relations with foreign states
4. Public order
5. Morality or decency
6. Contempt of court
7. Defamation
8. Incitation for an offence
✓ Article 22(4): No law providing for Preventive Detention shall authorize the detention
of a person for a longer period than 3 months.
✓ Article 32: Writs
Name of the Writ Can be issued Against Cannot be issued Against

1. Habeas Corpus Public authorities, private If the detention is lawful.

individuals.

2. Mandamus Public officials, corporation, A private individual or

inferior court, tribunal, body, President of India,
government etc. state Governors, CJI etc.

3. Prohibition Judicial, Quasi Judicial Administrative authorities,

bodies(lower court, tribunal) legislative bodies, private
individuals or bodies etc.

4. Certiorari Judicial, quasi judicial Legislative bodies, private

authorities, administrative individuals or bodies etc.
authorities.

5. Quo Warranto A substantive public office of a It cannot be issued in cases

permanent character created of ministerial office or
by statute or by the private office.
constitution.

Exceptions to Fundamental Rights

There are two kinds of exceptions to fundamental rights:

1. Specific Exceptions: These exceptions are given within the fundamental right
itself. For instance, there are various exceptions to freedom of speech and
expression such as sovereignty of India, Security of India etc.
 2. General Exceptions: These exceptions can be placed under Article 31B, Article 33,
and Article 34 etc.

Article 31B: Certain laws placed under 9th schedule of the constitution of India are applicable even if
these laws violate fundamental rights. Presently 9th schedule consists of 284 laws mainly deal with land
reforms etc. A controversial law which prescribes 69% reservation in Tamil Nadu is also placed under
schedule 9. 69% reservation is more than the 50% limit prescribed by Supreme Court. Since colonial
times, 69% reservation is applicable in Tamil Nadu. It should be noted that 9th schedule is non justiciable
in nature.

Article 33: Parliament by law can prevent or amend the application of any fundamental right to security
forces. Consequently, Parliament has passed Army Act, Navy Act etc, under which right to form
associations [Article 19(1) (c)] is denied to security forces. Also, Parliament has denied Right to Strike to
security forces.

Article 34: It provides for restriction on Fundamental Rights, while Martial law (military rule) is in force.
Thus fundamental rights can be curtailed in those areas where martial law is in force.

Landmark Supreme Court Cases regarding Fundamental Rights

Cases(Year) Articles Related Judgments

1. Govind vs. State of Article 21 Right to Privacy as an integral part of Article 21.
Madhya Pradesh
(1975)

2. Unni Krishnan, J.P. vs. Article 21 Right to free education up to 14 years of age.
State of Andhra
Pradesh(1993)

3. Ramlila Maidan Case Article 21 Right to Sleep as an integral part of Article 21.
(2012)
4. Francis Coralie Mullin Article 21 Right to live with human dignity & Right of prisoner to
vs. Administrator, have necessities of life as integral part of Article 21.
Union Territory of
Delhi (1981)

5. Olga Tellis vs. Article 21 Right to Shelter is an integral part of Article 21.
Bombay Municipal
Corporation (1985).
Popularly known as
Pavement Dwellers
Case.

6. Indian Young Lawyers Article 14 & 15 Entry of women to Sabarimala temple was allowed.
Association vs. State
of Kerala (2018).
Popularly known as
Sabarimala Case

7. Shayara bano vs. Article 14 It declared ‘Tripple Talaq’as Unconstitutional.

Union of India (2017)

8. National Legal Article 14 & 21 It declared Transgender as ‘Third Gender’ and held
Services Authority vs. that fundamental rights granted under Part III of the
Union of India (2014) Constitution are equally applicable to them.

Cases(Year) Articles Related Judgments

9. Aruna Ramchandra Article 21 It held that active euthanasia and assisted death are not
Shanbaug vs. union permissible and hence, continue to be illegal, whereas
of India (2011) passive euthanasia is permissible with certain
conditions, safeguards and procedures laid down by the
court.
 10. Indra Sawhney vs. Article 16 It upheld the validity of the executive order which
Union of India provided 27% reservation of jobs to the OBCs under the
(1992). Popularly Provision of Article 16(4) , with certain conditions like
known as Mandal exclusion of creamy layer, maximum reservation should
Case. not exceed 50% etc.

11. Minerva Mills vs. Article 31 C & 368 In case of conflict between fundamental rights and
Union of India dpsp, fundamental rights will prevail. However, it held
(1980) the limited power of Parliament to amend the
Constitution, judicial review, harmony of fundamental
rights& dpsp as basic features of the constitution.

12. Maneka Gandhi vs. Article 21 The right to life under article 21 includes all those
Union Of India aspects of life which go to make a man’s life
(1978) meaningful, complete and work living, Further, the right
to live is not merely confined to physical existence but
it includes within its ambit the right to live with human
dignity . The term procedure established by law should
be fair and reasonable.

13. I.C.Golaknath vs. Article 13 & 368 It held that the amending power under Article 368
State of Punjab cannot be used to abridge or take away fundamental
(1967) rights guaranteed in part III of the Constitution.

14. Shankari Prasad vs. Article 13 & 368 It held that the Parliament’s amending power under
Union of India Article 368 also includes the power to amend the
(1951) fundamental rights guaranteed in Part III of the
Constitution.

15. Ramesh Thappar Article 19 It held that the freedom of speech and expression
vs. State of Madras under Article 19(1) (a) includes freedom of propagation
(1950). Popularly of ideas and that freedom is ensured by the freedom of
known as the Cross circulation.
Roads Case.

3..Directive Principles of State Policy & Fundamental Duties :-

Features of DPSP:
 1. DPSP are not legally enforceable.
2. DPSP are enjoyed by society at large and hence are collective rights of people.
3. DPSP are in the nature of directions to state. State is expected to adhere DPSP in POLICY
formulation.
4. DPSP reflects the ideals of a welfare state.
5. It symbolizes social and economic democracy because these aim for social and economic
equality in our society.

Note: In case of conflict between fundamental rights and dpsp; fundamental rights prevail but
to give effect to dpsp under Art. 39(b) and Art. 39(c), fundamental rights under Art. 14 & 19 can
be violated.

Problems in implementation of DPSP:

1. Economic Factors – lack of financial resources!

2. Social Factors – Gender Inequality, Poverty, illiteracy etc.

Fundamental Duties: 2 committees related to it. Swaran Singh Committee(1976), Verma

Committee(1999).

4.. Right to Education Act, Right to Information Act:-

Right to Education Act:

The Right of children to Free and Compulsory Education Act came into force from April 1, 2010. This was
a historic day for the people of India as from this day the right to education will be accorded the same
legal status as the right to life as provided by Article 21A of the Indian Constitution. Every child in the
age group of 6-14 years will be provided 8 years of elementary education in an age appropriate
classroom in the vicinity of his/her neighborhood.

The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to
provide free and compulsory education of all children in the age group of six to fourteen years as a
Fundamental Right in such a manner as the State may, by law, determine. The Right of Children to Free
and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged
under Article 21-A, means that every child has a right to full time elementary education of satisfactory
and equitable quality in a formal school which satisfies certain essential norms and standards.

Article 21-A and the RTE Act came into effect on 1 April 2010. The title of the RTE Act incorporates the
words ‘free and compulsory’. ‘Free education’ means that no child, other than a child who has been
admitted by his or her parents to a school which is not supported by the appropriate Government, shall
be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and
completing elementary education. ‘Compulsory education’ casts an obligation on the appropriate
Government and local authorities to provide and ensure admission, attendance and completion of
elementary education by all children in the 6-14 age group. With this, India has moved forward to a
rights based framework that casts a legal obligation on the Central and State Governments to
implement this fundamental child right as enshrined in the Article 21A of the Constitution, in accordance
with the provisions of the RTE Act.

Right to Information Act:

Right to Information (RTI) is an act of the Parliament of India which sets out the rules and procedures
regarding citizens' right to information. It replaced the former Freedom of Information Act, 2002. Under
the provisions of RTI Act, any citizen of India may request information from a "public authority" (a body
of Government or "instrumentality of State") which is required to reply expeditiously or within thirty
days. In case of matter involving a petitioner's life and liberty, the information has to be provided within
48 hours. The Act also requires every public authority to computerize their records for wide
dissemination and to proactively certain categories of information so that the citizens need minimum
recourse to request for information formally.

This law was passed by Parliament on 15 June 2005 and came fully into force on 12 October 2005.

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