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Constitutional Law-I: Lecture Notes on Fundamental Rights and the Rule of Law in India, Schemes and Mind Maps of Immigration Law

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CONSTITUTIONAL LAW-I
Date-25.07.2022, Monday, Day-1
Constitutional Law regulates relationship between government and individuals, this is public
law and other laws are private laws which regulate relationship between individuals.
It is the supreme law because all other laws have to conform to the constitution.
7th Schedule- Separation of powers- 3 lists- federal system. It gives power to other authorities
to make other laws.
3rd Schedule- Fundamental rights are central for the human development and existence.
Without these rights one cannot grow to its full potential of a human being. They are
fundamental to the human existence. Only those rights which are important to the growth of
human beings’ full potential are fundamental rights. Fundamental rights are sacrosanct to an
individual. Ex. Not everyone is going to meet with an accident and hence the tort law is not a
fundamental right. Constitutional law gives validation to all other laws and hence it is the
supreme law of the land.
12 landmark judgments have given shape to art. 12 which talks about “state”.
The study of constitutional law carries the study of landmark judgements because the text is
silent in certain aspects and hence it is dynamic and changes according to the circumstances.
The nature of Indian federation was fragile (due to partition and princely states) and in order
to have a structure of government the states have been explained in detail.
It is said that the American civil war was not fought to save the union but rather to save the
slave industry.
In India it was foreseen that chaos was to happen, and hence the constitution was written and
the federation was set up in such a way that would suit the prevalent conditions. The central
govt. has been made more powerful. In order to save the union, the centre was given powers
beforehand.
This semester will cover the framing of constitution, fundamental of the constitutions (rule of
law, separation of power, structure- parliamentary)
Parliament is not supreme over constitution in India, but the parliament is supreme in
England.
The rule of law and equality before law are different in India and UK.
Date- 26.07.2022, Wednesday, Day-3
Things to be known before learning constitutional law:
1. Constitutional and ordinary laws
2. Law of the Constitution
3. Concepts of Law
4. Landmark Judgements
5. Critical Thinking- Analysing, trying to understand the reasoning behind the
conclusion
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CONSTITUTIONAL LAW-I

Date-25.07.2022, Monday, Day- Constitutional Law regulates relationship between government and individuals, this is public law and other laws are private laws which regulate relationship between individuals. It is the supreme law because all other laws have to conform to the constitution. 7 th^ Schedule- Separation of powers- 3 lists- federal system. It gives power to other authorities to make other laws. 3 rd^ Schedule- Fundamental rights are central for the human development and existence. Without these rights one cannot grow to its full potential of a human being. They are fundamental to the human existence. Only those rights which are important to the growth of human beings’ full potential are fundamental rights. Fundamental rights are sacrosanct to an individual. Ex. Not everyone is going to meet with an accident and hence the tort law is not a fundamental right. Constitutional law gives validation to all other laws and hence it is the supreme law of the land. 12 landmark judgments have given shape to art. 12 which talks about “state”. The study of constitutional law carries the study of landmark judgements because the text is silent in certain aspects and hence it is dynamic and changes according to the circumstances. The nature of Indian federation was fragile (due to partition and princely states) and in order to have a structure of government the states have been explained in detail. It is said that the American civil war was not fought to save the union but rather to save the slave industry. In India it was foreseen that chaos was to happen, and hence the constitution was written and the federation was set up in such a way that would suit the prevalent conditions. The central govt. has been made more powerful. In order to save the union, the centre was given powers beforehand. This semester will cover the framing of constitution, fundamental of the constitutions (rule of law, separation of power, structure- parliamentary) Parliament is not supreme over constitution in India, but the parliament is supreme in England. The rule of law and equality before law are different in India and UK. Date- 26.07.2022, Wednesday, Day- Things to be known before learning constitutional law:

  1. Constitutional and ordinary laws
  2. Law of the Constitution
  3. Concepts of Law
  4. Landmark Judgements
  5. Critical Thinking- Analysing, trying to understand the reasoning behind the conclusion
  1. Fundamentals Rights- Fundamentals of writ jurisdiction -Fundamentals of writ remedies. A.12- Vertical Application of fundamental rights. Habeus corpus can also be filed against an individual and this is horizontal application. One of the aims of the framers of the constitution was to get rid of the caste system and have a classless society. Radiating Effect Theory- the constitutional values should radiate outside in such a way that they shall though light upon other ordinary laws as well. This theory started with the Luth case of the German Constitution. People in Germany don’t trust the parliament, and hence the constitution was given the most powers and hence today Germany has the world’s most powerful and strong judiciary. Date- 29. 07.2022, Friday
  2. Constitutional v other laws a. Legislative competency
  • 7 th^ schedule
  • You must have the competency to frame laws b. These laws should not conflict with Constitutional Article 13 (2) c. All ordinary laws seek validation from the constitution
  1. Law of the Constitution
  2. Concepts of law
  3. Landmark judgments a. Constitutional issues b. Contentions of the parties (petitioners and respondents) c. Majority and minority opinions
  4. Critical thinking a. Article 12 is the vertical application of FRs b. 17, 15(2), 20- horizontal application- enforceable even against other fellow citizens. c. The first case of horizontal application of FR came from the Lume case in Germany – evolved the radiating effect theory ARTICLE 370 Maharaja Hari Singh signed the Instrument of Accession which entitled India to make laws regarding-
  5. Defence
  6. Foreign affairs
  7. Communications The rest of the powers were with the State of J&K. If the union wants to make any decision for matters other than the above-mentioned topics, it needs to consult the State government. If the union wants to make any Act of the Indian Constitution applicable to the State of J&K they’ll need the concurrence of the State.
  1. Freedom of Choice
  2. Preamble
  3. Freedom of Expression
  4. Social Justice
  5. Procedure Established by law
  6. Due process of the law
  7. Individual Autonomy
  8. Equality without discrimination
  9. Recognition of identity with dignity
  10. Right to privacy There can be more, it is basically adherence to core principles of democracy. Constitutional Morality shall always override Social Morality, this can be inferred from the concept of Sabarimala Temple. In the Kesavanand Bharti case- constitutional morality of basic structure. Naaz Foundation Case- decriminalized s. 377, as it violates fundamental rights. Significance of constitutional morality:
  11. It ensures the establishment of rule of law while integrating the changing aspirations and ideals of the society.
  12. It highlights the need to preserve the trust of the people in institutions of democracy.
  13. Use the laws and the forms to impact and change the persisting social morality.
  14. Recognises plurality and diversity in the society and tries to make the individuals and communities in the society more inclusive. No where has the SC defined constitutional morality defined in any of their judgements as it keeps on changing with the time and is subjective. It shall be left to the interpretation of the judges. A good constitution is one that is in consistency with the growth and development of the nation, which supports the ideals of the progressive society. It establishes the principle of judicial supremacy over parliamentary supremacy, ex. The case of Sec. 377. Date- 02.08.2022, Tuesday CONSTITUIONAL DEVELOPMENTS IN INDIA (1600-1950)- In 1600- Queen Elizabeth she brought in a charter to establish the East India Company. The co. was established with the help of Emperor Jehangir. Later when Aurangzeb died, the Mughal empire fell weak, after which the EIC did conquest in Bengal and Bihar. EIC was granted Diwani was Emperor Shah Alam for Bengal Bihar and Odisha. EIC became richer and richer, due to which the British Parliament got interested in it as EIC has got territorial jurisdiction, and hence there was a need to pass a law that would regulate the relationship between EIC and the British Parliament. Hence several regulating acts were passed. In 1773- the Regulating Act.

Pitts EIC Act -to supervise the British territorial possessions of EIC. 1793, 1813, 1833- several regulating acts were passed. 1833 onwards many more acts were passed to regulate and share power between parliament and EIC. After the Govt. of India 1858 the Indians lost all the powers to the British Crown. Indian Council Act, 1861- deals with the internal administration of India. Indian High Courts Act, 1861- 3 HCs created in Calcutta, Bombay and Madras. Other Indian Council Acts passed in 1874 and 1892. Montague-Chelmsford Reforms- Edwin Montague was Secretary for State of India and member of House of Lords and Lord Chelmsford was the viceroy of India, these reforms were brought in through Govt. of India act, 1919, the aim was to bring a progressive realisation of govt. in India, and to make India an integral part of British empire. Govt. of India Act, 1935 brought in the powers of the governor’s provinces. Basically, It was division of power. The governor was given the sole power to make the laws on particular subjects only. These subjects were called as transfer subjects. The other subjects were reserved subjects upon which the governor could make law with consultation. In the instrument of accession, it was mentioned that certain matters of national importance will only be dealt by the Central Govt. The princely states then were under the suzerainty of the British Crown and did not directly come against it, and hence not all laws were applicable to them. In the instrument of accession- Item no. 1 to 47 the power was with the parliament to make the law. Due to this the princely states did not accede to this and hence this govt. of India act. 1935 was in a way not enacted as the princely stated did not adhere to this instrument of accession. Cabinet Mission Plan- as the govt. of India act 1935 could not fulfil the aspirations, in 1942 the queen brought in the cabinet mission plan, that was a proposal for the future set up of India. It was not successful because there was this Quit India movement. The aim of this movement was to:

  1. To end the British Rule
  2. to create independent India
  3. to create provisional govt. for free India
  4. to make India ally of UN 1945- when labour party came to power 1946- another cabinet mission was sent, which said that there shall be a constituent assembly of 381 members which composed of members both from British territories and princely states. It was said that the central would have powers for defence, finance, and foreign affairs.

The draft order was completed on 7th^ Oct. 1949. Component of the preamble: A)

  1. Source of authority of the constitution which lies with the people.
  2. The preamble declares India as a sovereign socialist secular and democratic republic
  3. the objective is to secure justice liberty and equality to all citizen
  4. and promote fraternity to
  5. maintain unity and integrity of the nation B)
    1. ‘We the people of India’ indicates that the ultimate sovereignty (independent authority of the state which is not subjected to any external power) lies with the people.
    2. The word socialist - mixed economy.
    3. Secular - all religions are treated and protected equally, don’t have a state religion.
    4. Democratic - India has established its own form of constitution and it gets it authority from the will of the people in the form of election.
    5. Republic - the head of state is elected by the people. In India it is indirectly elected by the people. It is the representatives elect the head of the state. Objectives of the Indian Constitution:
  6. Supreme Law of Land
  7. Helps to maintain integrity in society
  8. To promote unity amongst the citizens to build a large nation.
  9. Promote harmony Justice- social justice, economic justice, political justice (free and fair right to participate in political opportunities) Equality - No particular section of society will have special privileges, equal opportunities to everyone. Liberty- freedom to choose their own way of life, political views, behaviour. Fraternity - Feeling or spirit of brotherhood and emotional attachment to the country. It helps to promote dignity and unity in the country. All of these words are related to each other. No one can prevail without the other. Status of the preamble today: Beruberi case. Kesavanand Bharti case- said that preamble is a part of the constitution. It is basic structure. 1995- Union govt. v. LIC- preamble is an integral part of the constitution, but it is not directly enforceable in any part of law.

Amendment of the preamble- Secular, Socialist and integrity was included- but the basic structure cannot be disturbed Art. 394- Art. 5, 6, 7, 8, 9, 60 ,384, 367, 379, and 394 came into force on 26th^ Nov. 1949. Words like liberty, equality are taken from the French Revolution. Salient features of Constitution:

  1. Written Constitution
  2. Rigidity and Flexibility
  3. Federal Polity
  4. Parliamentary democracy
  5. Fundamental rights and duties
  6. DPSP
  7. Single Integrated judiciary system
  8. Independence of the Judiciary
  9. Single Citizenship
  10. Universal Adult Franchise
  11. Emergency Provisions Date- 05.08.2022, Friday 17 th^ March 1947- B. N. Rao decided that India will follow a parliamentary form of govt. 7 th^ June 1945- Joint meeting of the constitutional committee and the provisional constitutional committees. Federal system will be followed to suit the geographical set up. Theory of Parliamentary Democracy-
  • Elected Representatives
  • System of parties
  • Cabinet that guides the parliament
  • Idea of Representation Parliamentary democracy
  • Effective representation of electorate
  • Relationship between organs of govt.
  • Executive- effective leadership
  • Limits arbitrary use of power. Art. 74 and 74 for parliament and A.163 and 164 for the state legislatures. Outstanding features of a parliamentary system of govt.:
  1. No strict separation of powers- fusion of legislature and executive
  2. Executive > President of India- aided by council of Ministers, > Prime Minister- heads the cabinet
  1. It provides a constant training ground for statemen who can carry on a peaceful contest for the leadership of the electorate Demerits
  2. The principle of separation of power is ignored completely.
  3. The system is mainly based on the party system.
  4. The independence of executive is destroyed as the ministers are distracted from their duties. According to the Sri Lankan prime minister, In parliamentary system- Stability is ensured, there is efficiency, and a coordinate policy can be better achieved. Why india choose a parliamentary system of govt.?
  • Ultimate source of sovereignty- people of India
  • Paramount place of individualism under the Constitution
  • Demarcation between state and society- holf social fabric together, power to bring about social change and reform, social welfare, secularism, new social order based on justice.
  • Periodical elections based on universal adult franchise
  • State accomplish goals of a welfare state
  • Justifiable fundamental rights
  • Rule of law- formulation of an independent judiciary
  • Judiciary- protects supremacy of constitution and citizens rights
  • Federal political framework -as the constitution contributes

PRESIDENTIAL Executive is independent from legislature Feature:

  1. Real head of the state is the real executive
  2. There is separation of power- the executive is not responsible to the legislature, the executive cannot dissolve the legislature and the judiciary is independent
  3. There is a principle of checks and balances
  4. There is a superior position of the president.
  5. There is a political homogeneity, it is not necessary for all the members to be from the same party. Merits:
  6. Stable govt. which brings efficiency
  7. Doctrine of separation of powers, so can check on despotism and ensure the citizens rights and liberties are not encroached
  8. Suitable in emergency, the president can take faster decisions.
  9. The govt. is usually by able men, the president can generally make appointment by portfolios despite of the party.

Demerits

  1. There may be autocratic and he can solely take a decision.
  2. The president may veto and the bill may not be passed fast.
  3. The checks and balances are antithetical to economic planning
  4. The rigidity of the constitution is also criticised because flexibility is needed to cope with the changing circumstances
  5. These is less chances of enactment of a good law because there is less harmony between the executive and the legislature. Date- 08.08.2022, Monday SEPARATION OF POWERS Plays an essential role in a democratic setup, the purpose of it is to avoid overlapping of powers, and to avoid having too many powers in the hand of one person as it would lead to arbitrary use of power and curbing liberty. Baron De Montesquieu- in 1748 he proposed the theory of separation of powers. If legislature and executive powers are in the hand of one person it would result in the curbing of liberty, arbitrariness, corruption.
  • Legislature
  • Executive
  • Judiciary
  1. To safeguard the liberty of the citizens and to guard them against tyranny. ‘
  2. To have checks and balances to avoid arbitrary and excessive use of powers that would curb the liberty of the citizens. UK and Indian Separation of power- UK- has three organs. The executive is the crown and govt. headed by PM. The legislature is the crown, house of commons and house of lords, the judiciary is of judges in the different court. The functions and roles of all these are similar to that of India. The problems that happened in 2004 led to the changes in 2005 according to which the legislature was separated from the judiciary. Separation of powers is different from the doctrine of devolution of power or distribution of powers. Separation of power is at horizontal level; in the distribution it is not done equally it is in vertical form and is applicable to a unitary system of govt. which is followed in UK. In US the laws have clear demarcation of powers, which is not in UK as UK does not have a written constitution. In 2005 in UK the Constitutional Reform Act was passed. It separated the judiciary from the legislature. The lord chancellor has no role to play in the Judiciary now. The lords sitting the Supreme Court has no place in the Executive or Legislature now. Rai Sahib Ram Jawaya v. State of Punjab , 1955, SC 5 Judge Constitutional Bench-

Plato- “when law is subject to some other authority and has none of its own the collapse of the state in my view is not far off, but if the law is the master of the govt. and govt. its slaves then the situation is full of promise and men can enjoy all the blessings that the gods shower on the state.” Aristotle- “the law should govern and those who are in power should be restrained by the law.” Rule of law, French definition of principle of legality which is la Principe legalie, means the government shall be based on principle of law. A govt. that adheres to the constitutional supremacy is govt. based on good governance. Its foundation is based on the recognition that the govt. and the governed must be equal before the law and the govt. must also acknowledge that their powers are limited by law and there cannot be any arbitrary exercise of power. Fundamental ideals of Rule of Law:

  • equality before law
  • equal treatment between the govt. and governed
  • independence of the judiciary
  • transparency, consistency and accountability in the administration of the law
  • notions of equity, justice and fairness it originated in England by Sir Edward Coke- No man is above the law and all are subject to the jurisdiction of the ordinary courts of the law, irrespective of their ranks and position, no person must be subject to arbitrary treatment of the govt. Sir Edward Coke said that king is also under God and Law. His ideas were later improved by A. D. Dicey 1855- according to him the principles of Rule of Law were:
  • Supremacy of the law- no wide discretionary powers to the govt.- every act of the govt. should be controlled by the law or else it will lead to arbitrariness- something that cannot be changed easily and shall be rooted in moral principles.
  • Equality before law- equal subjection of all classes to the ordinary law of the land administered by ordinary law course.
  • Predominance of legal spirit- general principles of the constitution is the result of judicial decisions which determines the rights of the persons is the dominance of legal spirit. Rule of Law also signifies that no one is to deprived of their life and liberty by administrative actions. Administrative authority must act in accordance with law and not arbitrary and laws also cannot be unconstitutional and abusive, judicial control of administrative actions, judicial supremacy. Due process of law is also rule of law- law and order- observance of principles of natural justice- elimination of discretionary powers- preference for judges and ordinary course of law- judicial review of administrative actions.

In Indian constitution rule of law is also found in the preamble as part of justice, equality and liberty. Also in case of violation there can be a remedy sought. Art. 226 and 32 are a part of it. Art. 13(2), Art. 14- rule of law. Govt. must work within framework of recognised rules and principles which restrict discretionary powers. Delhi Declaration- 1959- confirmed in lagos- Rule of law is an essential element of constitutional law in law- implies that functions of the govt.---------- (find it in delhi declaration) Kesavanand Bharti v. State of Kerala- SC observed that Rule of Law is one of the most imp doctrine of Basic Structure of the constitution Indira Nehru Gandhi v. Raj Narain Maneka Gandhi v.UOI Benani v. Kerala electricity board Yashwantrao v. Balasaheb Patil (refer to legal services india notes, Blog ipleaders, public health notes.com) FEDERAL CONSTITUTION CITIZENSHIP CAA 2019 FUNDAMENTAL OF THE WRIT JURISDICTION Date- 16.08.2022, Tuesday FEDERALISM- James Wilson defined the term Federalism, according to him the following three features are important: Feature-

  • There must be provision for more than one level of govt. to act simultaneously on the same territory and for the same citizens.
  • Each govt. must have its own authority and sphere of power though they may overlap.
  • Neither level of govt. can abolish the other. American Federalism: Pre-federalism (1775- 1789). 1776- Declaration of Independence 1777- Articles of Confederation were written. Gave idea to a continental congress. League of states formed and accepted these articles of confederation. But there were certain loopholes in these Articles. As it limited that power of the national govt., the power regarding taxes were with the state and the army, defences, war was with the national govt. there was no executive

Calhoun’s Theory- the state is empowered to nullify a centre’s law. Prigg v. Pennsylvania- Fugitive slave act was passed by federal govt. that supported slavery. So if any slave eloped from southern state and move to northern slave were to be caught by police and returned to owner. Pennsylvania was one such state that passed law against slavery. One slave ran to Pennsylvania. The court said that the fugitive state act is the supreme law over the law of the state according to Art. 6. 1850- Federal govt. passed again the fugitive state act. As they were afraid that there would be a disintegration of the union as there was tension between northern and southern states over the laws upon slavery. The civil war addressed two central issues:

  • What is the role of federal govt.?
  • What is the nature of the union? To avoid conflict between laws of central and state, the Indian constitution has Art. 254. Date- 17.08.2022, Wednesday AMERICAN FEDERALISM Dual Federalism Dred Scoff v. Sandford 60 US 393 (1857)- Dred Scoff is a slave from Africa and was purchased in the state of Missouri. The owner of Dred Scoff migrated to another state where slavery was illegal, after which they came back to Missouri, there was a Missouri agreement, where it compromised with other states that have recognised the fact that slavery is illegal. Dred scoff filed a case, stating that as he was taken in a state where the slavery was illegal, he shall be set free. An appeal was made by dred scoff in the supreme court, where it dismissed the case on the basis that slaves in America do not have a locus standi as they are a property. By this time the 14th^ amendment had not come in place as it was not ratified by all states. It was 9 judge benches. 5 majority and 4 dissenting. Dual Federalism: Phase II: 1865-1901: the continental congress starting passing too many laws one of which was Sherman Antitrust Act, 1890. There was also Inter-state congress commission act, 1887. The Sherman Antitrust Act stated, the federal govt. could take action against trust act that were made by the states, as it was disturbing the commerce laws. The states were not happy with this. The second act interstate commerce commission act, regulated the rail and road industry as some of the states were taking control over it, which led to a disturbance in the smooth flowing of commerce, and hence this act was brought. After the civil war there were amendment: 12th^ amendment- separate electoral college for the election of president and vice president 13 th^ amendment- abolition of slavery 14 th^ amendment- citizenship to black slaves also talks about equal protection clause. These three amendments regulate economy, business and civil rights.

Slaughter House Cases- 83- US- 36 (1873)- there were a no. of cases clubbed. In the state of Luciana passed a law that would improve sanitary conditions, and there were many slaughter houses and they used to throw the waste in the river leading to cholera. The law passed said that the slaughter houses would be transformed into one single slaughter house. Butches’ association stated that it violated their privilege and immunity clause. So this law was challenged in the state and hence it was in favour of state. Appeal was filed in the SC. The state is trying to monopolise the business, but has not followed the due process of law. The court said that the privilege and immunity clause was only made for the black slaves who move from one state to another and are then discriminated. Bradwell v. Illinois 83 US 130 (1872)- The govt. passed law that said the females with law degree cannot practice at bar. The SC dismissed the case stating that the civil rights in the constitution do not apply to the states. Plessy v. Ferguson 162 US 537 (1896)- In the state of New Orleans passed the law separate cars act. Whites and the black could not use the same compartment in the trains. A mixed white and black person went and sat in the 1st^ class meant for white, he was arrested, the court said that the law is not violative, as there is no discrimination, both have been given the same opportunity. Appeal was filed in the SC. The doctrine of separate but equal treatment was evolved. John Marshall in his dissenting opinion said that the constitution is colour blind. The majority opinion was still the same that the law is constitutional. Brown v. Board of Education of Topeka, Kansas 347 US 843 (1954)- States stated passing laws that separated things for blacks and white at the same time giving both of them opportunity. Schools were also separated. Brown wanted to send his daughter to school and the nearest school was a white school, the black school was very far, the white school dismissed the application. He filed case; the court dismissed. The SC finally said the laws actually violate the equal protection law brought in by the 14th^ amendment. Overruled the doctrine of separate but equal. It was a big change which overrules Plessy v. Fergusson. Co-operative Federalism- 1901- 1960: greater cooperation state and the central govt. especially during the great depression, where the help of states was needed. The 16th Amendment, gave powers to the federal govt. to tax income of all citizens, this collected tax was then distributed to all the states. The federal govt. started giving grant-in-aid system. President Woodrow Wilson brought this amendment. 1960-1965- Creative Federalism- expanded the role of national govt. to remove poverty or eliminate hunger, more funds were given to state Contemporary Federalism- 1965-2000: New Federalism- more revenue sharing- 8 federal purposes- this was just the first phase, the second phase had the concept of state community, phase three- house republican contract with America- help states in America. New your v. US - Law passed by federal govt.- low level radio active waste policy amendment act, 1985- the radio active waste was dumped in the river- the federal govt. wanted the states to cooperate- so the govt. gave sites to the states to dump this waste. The court upheld this federal law 1995- US v. Locus - federal govt. passed law- drug free school law act, 1990- within 1000 metres of any school, university, if weapon is found it is a federal crime- states challenged the

Art. 226 (1)- It can be used for any other purpose as well To issue writ, orders and directions. HC- fundamental rights and legal rights The judgement if one HC is not binding on the other HC the reason for this is that every state has got its different state law and hence the judgement of one won't be binding on others. Art. 32- Art. 14 - 34 are those that can get violated and against which a writ can be filed under art. 31 which is also called enabling article. Art. 15 and its clauses are called as enabling provisions as they enable the govt. to do something. Art. 15(2) and 17, 23 and 24 are exceptions for non-applicability if art. 12, and hence reservation is also not a FR Indian medical college v. UOI The principle of res judicata does not apply to habeas corpus because life and liberty is of utmost importance Date- 26.08.2022, Friday Concept of CITIZENSHIP under the Indian constitution Law What is citizenship?

  • Signifies relationship between the individual and state
  • Citizens owe allegiance to the state. They enjoy all civil + political rights whereas aliens don’t
  • Idea of exclusion – excludes non-citizens In citizenship- there are l2 well known principles:
  1. Jus- Soli: confers citizenship on the basis of place of Birth
  2. Jus-Sanguinis- gives recognition on the basis of blood ties Motilal Nehru committee (1928)
  • in favour of Jus-Soli
  • racial ideas of Jus-Sanguinis- rejected by constituent assembly Constitutional provisions- (Art. 5-11)
  • Union list- exclusive jurisdiction of parliament
  • Constitution don’t define citizenship
  • Enforced on 26th^ November 1949 Article 5- on commencement of constitution
  • Domiciled + born in india
  • Domiciled + born in India – parents born in India
  • Ordinary resident for more than 5 yrs- apply for citizenship Article 6- migration from Pakistan two India
  • Before 19. 07. 1949 + parents or grandparents born in India
  • After 19.07.1949- register for citizenship Article 7- Migrants to Pakistan
  • Migrated after 1. 03. 1947 – subsequently returned two India on resettlement permits. Article 8- Persons of Indian Origin residing out of India
  • Parents or grandparents- born in India
  • Register with the Indian Embassy Article 9- Voluntarily acquires citizenship of a foreign country – loses citizenship of India Article 10- All Indians are subjected to the law made by the parliament on citizenship Article 11- Parliament is empowered to make law on acquisition + termination of citizenship ACTS + AMENDMENT: Acquisition of citizenship- birth, descent, registration + naturalization
  • BIRTH- After 26. 01.1950 before 1.7. Born- 1.7.1987 – 2.12.2004- either parent are citizens of India at time of birth. Born- 3.12.2004- after both parents- Indian citizens at time of birth or at least one is Indian but if the other shall or be an illegal immigrant then the person will not be an Indian Citizen
  • BY REGISTRATION- Person of Indian Origin- resident of India- 7 years Person of Indian Origin- resident of any country outside India Named to an Indian Citizen + resident in India- 7 yrs. Minor Children of persons of Indian Citizen
  • BY DESCENT- Born outside of India- after 26. 01.1950 if father is an Indian citizen Born outside – after 10.12.1992- before 3.12.2004- either parent – Indian citizen Born outside India- after 3.12. Minor- not foreign citizen + registered birth- at Indian Embassy (within 1 year)
  • BY NATURALIZATION- Ordinarily resident of India for 12 years. AMENDMENT
  1. 1986- prior to this the principle of jus soli was used.
  2. 2003
  3. 2005- infiltration of Bangladeshis
  4. 2015
  5. 2019