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JIGL – Questions & Answers (Part 2) CS Executive

Question 1.

The preamble to the Constitution of India sets out the aims and aspirations of the people of India. Comment. [Dec 2007 (4 Marks)]

Or

The true place of a preamble in a statute was at one time the subject of conflicting decisions. Is such an opinion still prevailing? Discuss, citing case law.

[December 2012 (6 Marks)]

Answer:

The preamble says briefly the objects, purposes intended to be served by the statute. The preamble to the Constitution sets out the aims and aspirations c j of the people of India. It is a part of the Constitution. The preamble declares India to be a Sovereign, Socialist, Secular, Democratic Republic and secures to all its citizens Justice, Liberty, Equality, and Fraternity.

It is declared that the § Constitution has been given by the people to themselves, thereby affirming the f republican character of the polity and the sovereignty of the people. The polity assured to the people of India by the Constitution is described in the preamble as a Sovereign, Socialist, Secular, and Democratic Republic.

Significance of the Preamble to the Constitution of India

We, the people: The phrase “we, the people “has been taken from the Constitution of the USA. This means, the Constitution of India has been framed and enacted by the people of India the power to make the Constitution had been achieved by the people of India with great efforts. It was not derived by any external force.

The principle “Government of the People, by the People and for the people ” can be seen in the Preamble.

Democratic: Ours is a democratic country. Every citizen of India, who is aged 18 years and above is entitled to vote, irrespective of his caste, religion, race, sex, economic position. From the village level to parliament level, there will be elections meant for 5 years. While democracy failed in our surrounding countries, it is very much successful in our country.

Secular: Secularism is the structure of our Constitution. Our government respects all religions. It does not uplift or degrade any particular religion.

The State has no religion itself. While our surrounding countries have adopted particular religions; India has not adopted any religion.

Example: Pakistan (Islam), Bangladesh (Islam), Nepal (Hinduism), Sri Lanka (Buddhism), Burma (Buddhism), etc.

Justice: The Preamble intends that justice must be given to every citizen irrespective of poverty, richness, caste, religion, sex, power, political power. There are several examples that our country adheres to this principle very strongly. The Supreme Court decision in Indira Gandhi. RajNarain shows that the Prime Minister and ordinary citizens are equal. Similarly, R V. Narasimha Rao is being prosecuted for the allegations of bribery, forgery, etc. It shows the independent judiciary in India.

Question 2.

“Constitution of India establishes a federation with strong centralizing tendency”. Discuss. [June 2004 (8 Marks)]

Or

“Constitution of India is basically federal with strong unitary features.” Discuss. [June 2010 (8 Marks)]

Answer:

The Constitution of India is basically federal but with certain unitary features. The majority of the Supreme Court judges in Kesavananda Bharati v. the State of Kerala were of the view that the federal features form the basic structure of the Indian Constitution.

However, there is some controversy as to whether the Indian Constitution establishes a federal system or it stipulates a unitary form of Government with some basic federal features. To decide whether our Constitution is federal, unitary, or quasi-federal, one has to consider the con¬tents of our Constitution. Thus, to decide whether our constitution is federal or unitary, it will be better to have look over these systems and constitution.

The federal system has the following essential characteristics:

Dual government – one at the center and one each for the States

Distribution of powers between Central and State Government

Supremacy of the constitution

Written constitution

Not easy to amend the constitution

Authority of Courts

The political system introduced by our Constitution possesses all the aforesaid essentials of a federal polity as both the Union and the State Governments and their respective organs derive their authority from the Constitution and it is not competent for the States to secede from the Union.

There is a division of legislative and executive powers between the Union and the State Governments. Lastly, the Supreme Court stands at the head of our judiciary to guard against the violation of the constitutional provisions. The Supreme Court decides disputes between the Union and the States, or the States inter and interprets finally the provisions of the Constitution.

However, the Indian Constitution does not follow strictly the pure federal system. If we look from another side, our constitution is mainly central and the Central Government has a large sphere of action and thus plays a more dominant role than the states.

Unitary Character:

The President of India is the constitutional head. He is the executive of Union. Appointments of Governors are made by him.

Appointment and transfer of the Chief Justice and Judges of the High Court are made by the president.

Parliament has supreme rights in legislative matters.

Parliament has the power to make a law of State Lists under special circumstances.

Central Government has the power to issue directions to State Government.

States are dependent on the center for aid as their financial resources are inadequate.

Judicial view: The question as to whether the Indian Constitution has a federal form of Government or a unitary constitution with some federal features came up in various cases before the Supreme Court. But in most cases, the observations have been made in a particular context and have to be understood accordingly. The question rests mostly on value judgment ie. on one’s own philosophy.

Thus, the Constitution of India is federal but with striking unitary features.

Question 3.

To what extent does the Indian Constitution differ from the federal system of other countries? [Dec 2014 (8 Marks)]

Answer:

The Constitution of India is basically federal but with certain unitary features. The majority of the Supreme Court judges in Kesavananda Bharati v. the State of Kerala were of the view that the federal features form the basic structure of the Indian Constitution.

The federal system has the following essential characteristics:

Dual government – one at the center and one each for the States

Distribution of powers between Central and State Government

Supremacy of the constitution

Written constitution

Not easy to amend the constitution

Authority of Courts

The political system introduced by our Constitution possesses all the aforesaid essentials of a federal polity as both the Union and the State Governments and their respective organs derive their authority from the Constitution and it is not competent for the States to secede from the Union.

There is a division of legislative and executive powers between the Union and the State Governments. Lastly, the Supreme Court stands at the head of our judiciary to guard against the violation of the constitutional provisions. The Supreme Court decides disputes between the Union and the States, or the States inter and interprets finally the provisions of the Constitution.

However, the Indian constitution does not follow strictly the pure federal system, j If we look from another side, our constitution is mainly central and the Central Government has a large sphere of action and thus plays a more dominant role | than the states.

Question 4.

What do you understand by the expression ‘State’ under Part-III of the Constitution of India? Expiate with the help of decided case law on the point. [Dec 2011 (6 Marks)]

Answer:

State [Article 12]: The term ‘State’ includes:

(a) Government and Parliament of India;

(b) Government and legislature of each state;

(c) All local and other authorities:

within the territory of India

under the control of the Government of India.

Important case laws:

The expression ‘local authorities ‘refers to authorities like Municipalities, District Boards, Panchayat, Port Trust, Mining, Settlement Boards, etc. [Rashid Ahmed v. M B. Kairana]

The expression ‘other authorities’ includes all authorities created by Constitution or statute. It is not necessary that such authorities should be engaged in performing governmental or sovereign functions. [Electricity Board, Rajasthan v. Mohan Lai]

The expression ‘other authorities ’ includes all those bodies which are acting as agencies or instrumentalities of the government. [R. D. Shetty v. International Airport Authorities]

It has been held that the university is an authority. [the University of Madras v. Shanta Bai]

President is ‘State’ when making an order under Article 359. [Haroobhai v. the State of Gujarat]

Question 5.

Discuss the test laid down by the Supreme Court of India to determine the entity of “State”, whether it Is ‘instrumentality or agency of State’. [Dec 2018 (5 Marks)]

Answer:

In Ajay Hasia v. Khalid Mujib, the Supreme Court has enunciated the following test for determining whether an entity is an instrumentality or agency of the State:

Share Capital: If the entire share capital of the Corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of the Government

Financial Assistance: Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation it would afford some indication of the corporation being impregnated with government character.

Monopoly Status: Whether the corporation enjoys a monopoly status that is conferred or protected by the State.

State control: The existence of deep and pervasive State control may afford an indication that the corporation is a State agency or an instrumentality.

Functions: If the functions of the corporation are of public importance and closely related to government functions, it would be a relevant factor in classifying a corporation as an instrumentally or agency of government.

Department of government: If a department of government is transferred to a corporation, it would be a strong factor supporting an inference of the corporation being an instrumentality or agency of government.

Question 6.

What do you mean by the doctrine of waiver of rights under the Constitution of India? [Dec 2009 (4 Marks)]

Answer:

The doctrine of waiver of rights is based on the premise that a person is his best judgment and that he has the liberty to waive the enjoyment of such rights as are conferred on him by the State. However, the person must have the knowledge of his rights and that the waiver should be voluntary.

The doctrine was discussed in Basheshar Nath v. Income Tax Commissioner, where the majority expressed their view against the waiver of fundamental rights. It was held that it was not open to citizens to waive any of the fundamental rights.

Question 7.

Discuss In brief the doctrine of severability. [June 2013 (8 Marks)]

Answer:

Laws inconsistent with or in derogation of the fundamental rights [Article 13]:

All laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III (Fundamental Rights), shall, to the extent of such inconsistency, be void.

1. The State shall not make any law which takes away or abridges the rights conferred by Part II and any law made in contravention of this clause shall, to the extent of the contravention, be void.

2. One thing to be noted in Article 13 is that it is not the entire law that is affected by the provisions in Part HI, but the law becomes invalid only to the extent to which it is inconsistent with the Fundamental Rights. So only that part of the law will be declared invalid which is inconsistent, and the rest of the law will stand.

However, on this point a clarification has been made by the Courts that an invalid part of the law shall be severed and declared invalid if really it is severable, ie., if after separating the invalid part the valid part is capable of giving effect to the legislature’s intent, then only it will survive, otherwise the Court shall declare the entire law as invalid. This is known as the rule of severability.

3. The doctrine has been applied invariably to cases where it has been found possible to separate the invalid part from the valid part of an Act. Article 13 only says that any law which is inconsistent with the fundamental rights is void “to the extent of inconsistency” and this has been interpreted to imply that it is not necessary to strike down the whole Act as invalid if only a part is invalid and that part can survive independently.

In A.K. Gopalan v. the State of Madras, the j ‘ Supreme Court ruled that where an Act was partly invalid, if the valid portion § was severable from the rest, the valid portion would be maintained, provided j| that it was sufficient to carry out the purpose of the Act.

Question 8.

What is the scope of Article 14 of the Constitution of India? To what extent is It correct to say that Article 14 forbids class legislation, but does not forbid classification? [June 2012(8 Marks)]

Answer:

Equality before the law [Article 14]: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

The expression ‘equality before the 1aw is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favor of any individual.

Equality before the law means that amongst equals the law should be equal.

That means like should be treated alike and among unequal same laws shall not be applicable.

Interpreting the scope of the Article, the Supreme Court of India held that:

Equal protection means equal protection under equal circumstances.

The State can make a reasonable classification for purposes of legislation.

The presumption of reasonableness is in favor of the legislation.

The burden of proof is on those who challenge the legislation.

Legislative Classification: A right conferred on persons that they shall not be denied equal protection of the laws does not mean the protection of the same laws for all. It is here that the doctrine of classification steps in and gives content and significance to the guarantee of the equal protection of the laws.

To separate persons similarly situated from those who are not, legislative classification or distinction is made carefully between persons who are and who are not similarly situated. The Supreme Court in a number of cases has upheld the view that Article 14 does not rule out classification for purposes of legislation. Article 14 does not forbid classification or differentiation which rests upon reasonable grounds of distinction.

The Supreme Court in State of Bihar v. Bihar State ‘Plus-2 ’ lectures Associations, held that now it is well settled and cannot be disputed that Article 14 of the Constitution guarantees equality before the law and confers equal protection of laws. It prohibits the state from denying persons or class of persons equal treatment; provided they are equals and are similarly situated. It, however, does not forbid classification. In other words, what Article 14 prohibits is discrimination and not classification if otherwise, such classification is legal, valid, and reasonable.

Test of valid classification: Since a distinction is to be made for the purpose of enacting legislation, it must pass the classical test enunciated by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar.

Permissible classification must satisfy two conditions, namely:

It must be founded on an intelligible differentia that distinguishes persons or things that are grouped together from others left out of the group.

The differentia must have a rational nexus with the object sought to be achieved by the statute in question.

The classification may be founded on different bases, such as geographical, or according to objects or occupation or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. A legal and valid classification may be based on educational qualifications.

A law based on a permissible classification fulfills the guarantee of the equal protection of the laws and is valid. On the other hand, if it is based on an impermissible classification it violates that guarantee and is void.

Reiterating the test of reasonable classification, the Supreme Court in Dharam Dutt. Union of India held that laying down of intelligible differentia does not, however, mean that the legislative classification should be scientifically perfect or logically complete.

Question 9.

“Article 14 of the Constitution of India does not rule out classification for purposes of legislation; what it requires is a valid classification for the same.” Explain. [Dec 2013 (8 Marks)]

Answer:

Legislative Classification: A right conferred on persons that they shall not be denied equal protection of the laws does not mean the protection of the same laws for all. It is here that the doctrine of classification steps in and gives content and significance to the guarantee of the equal protection of the laws.

To separate persons similarly situated from those who are not, legislative classification or distinction is made carefully between persons who are and who are not similarly situated. The Supreme Court in a number of cases has upheld the view that Article 14 does not rule out classification for purposes of legislation. Article 14 does not forbid classification or differentiation which rests upon reasonable grounds of distinction.

The Supreme Court in State of Bihar v. Bihar State ‘Plus-2 ’ lectures Associations, held that now it is well settled and cannot be disputed that Article 14 of the Constitution guarantees equality before the law and confers equal protection of laws.

It prohibits the state from denying persons or class of persons equal treatment; provided they are equals and are similarly situated. It, however, does not forbid classification. In other words, what Article 14 prohibits is discrimination and not classification if otherwise, such classification is legal, valid, and reasonable.

Test of valid classification: Since a distinction is to be made for the purpose of enacting legislation, it must pass the classical test enunciated by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar.

Permissible classification must satisfy two conditions, namely:

It must be founded on an intelligible differentia that distinguishes persons or things that are grouped together from others left out of the group.

The differentia must have a rational nexus with the object sought to be achieved by the statute in question.

The classification may be founded on a different basis, such as geographical, or according to objects or occupation or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. A legal and valid classification may be based on educational qualifications.

A law based on a permissible classification fulfills the guarantee of the equal protection of the laws and is valid. On the other hand, if it is based on an impermissible classification it violates that guarantee and is void.

Reiterating the test of reasonable classification, the Supreme Court in Dharam Dutt. Union of India held that laying down of intelligible differentia does not, however, mean that the legislative classification should be scientifically perfect or logically complete.

Question 10.

Article 14 of the Constitution of India says that the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Explain it. Refer to the relevant Judgments. [June 2019 (8 Marks)]

Answer:

Equality before the law [Article 14]: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

“Equality before the law” is an expression of English Common Law while “equal protection of laws” owes its origin to the American Constitution.

The expression ‘equality before the law’ is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favor of any individual.

Equality before the law means that amongst equals the law should be equal. That means like should be treated alike and among unequal same laws shall not be applicable.

Both the phrases aim to establish what is called the “equality to status and of opportunity” as embodied in the Preamble of the Constitution. While equality before the law is a somewhat negative concept implying the absence of any special privilege in favor of any individual and the equal subjection of all classes to the ordinary law, equal protection of laws is a more positive concept employing equality of treatment under equal circumstances.

Thus, Article 14 stands for the establishment of a situation under which there is the complete absence of any arbitrary discrimination by the laws themselves or in their administration.

Interpreting the scope of the Article, the Supreme Court of India held that:

Equal protection means equal protection under equal circumstances.

The State can make a reasonable classification for purposes of legislation.

The presumption of reasonableness is in favor of the legislation.

The burden of proof is on those who challenge the legislation. Explaining the scope of reasonable classification, the Court held that “even one corporation or a group of persons can be taken to be a class by itself for the purpose of legislation provided there is sufficient basis or reason for it. The onus of proving that there were also other companies similarly situated and this company alone has been discriminated against, was on the petitioner”.

Article 14 prevents discriminatory practices only by the State and not by individuals. For instance, if a private employer like the owner of a private business concern discriminates in choosing his employees or treats his employees unequally, the person discriminated against will have no judicial remedy.

A remarkable example of the application of the principle of equality under the Constitution is the decision of the Constitution Bench of the Supreme Court in R. K. Garg v. Union of India. The legislation under attack was the Special Bearer Bonds (Immunities and Exemptions) Act, 1981. It permitted investment of black money in the purchase of these Bonds without any questions being asked as to how this money came into the possession.

In public interest litigation, it was contended that Article 14 had been violated because honest taxpayers were adversely discriminated against by the Act, which legalized evasion. But the Supreme Court rejected the challenge, taking note of the magnitude of the problem of black money which had brought into being a parallel economy.

In Air India v. Nergesh Meerza & Others, the Air India crew running the flights consisting of Pilots, FPs, and In-flights Pursers, on the one hand, the Air Hostesses, Check Air Hostesses, Additional Air Hostesses and Chief Air Hostesses on the other hand. The modes of appointment, service conditions were different for Pilots and Air Hostesses. The posts of Air Hostesses were purely reserved for young, attractive, and unmarried ladies from the ages 18 to 25 years. An Air Hostess should retire from the service on her attaining the age of 30 years or when she would get married whichever is earlier.

However, for the male crew, the retirement age was prescribed as 58 years and there was no restriction on marriage. Air Hostesses filed their grievances. The Supreme Court gave the judgment in favor of the Air Hostesses opining that too much gender discrimination was shown by the Air India Corporation.

Question 11.

Preferential treatment to certain persons belonging to backward classes in the form of reservation in education and jobs as provided in Articles 15(4) & 16(4) of the Constiiilbn of India is a means of ensuring the canon of equality enshrined in the preamble of the Constitution of India. Evaluate the statement. [Dec 2006 (8 Marks)]

Answer:

Prohibition of discrimination [Article 15]: This article prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.

Further, no citizen shall be subjected to any disability, restriction, or condition with regard to:

(a) Access to shops, public restaurants, hotels, and places of public entertainment; or

(b) The use of wells, tanks, bathing ghats, roads,s and places of public resort, maintained wholly or partially out of State funds or dedicated to the use of the general public.

Exception: The State can make special provisions for women and children. The State can make special provision for the advancement of:

Socially and educationally backward classes of citizens

Scheduled casts and

Scheduled tribes

Protective discrimination: In the eye of the law, there is no discrimination between man or woman. So, for a post of a clerk or Prime Minister man or woman are a competent person. There is no discrimination between them. But in fact, a man is physically stronger than a woman.

Therefore, keeping the weak physical position of the woman and children, the State is authorized by Article 15(3) to make any special provisions for their benefit. It is called ‘protective discrimination. Similarly for the advancement of the educationally and socially backward classes of people SC’s and ST’s the State is empowered to make special provisions protecting them under Article 15(4).

Question 12.

Akshay was denied public employment on the ground of place of birth. Discuss the remedy available to Akshay under the provisions of the Constitution of India. [Dec 2002 (5 Marks)]

Answer:

If someone is denied public employment on grounds of his caste, religion, or place of birth, he can use Article 16 of the Constitution for opposing such action. Article 16 guarantees to all citizens equality of opportunity in matters relating to the employment or appointment of office under the State. It also prohibits discrimination against a citizen on the grounds of religion race caste, sex descent, place of birth, or residence. Hence, Akshay can use the protection of this article and seek redressal.

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