CONSTITUTIONAL LAW – I

Meaning and Definition:

Constitution is the supreme law of each State. It lays down rules

regarding the organisation, powers and functions of government. It also
defines the basic features of the State and the relation between the
citizens and the State. The Government can use only those powers
which the Constitution grants to it.

1.“The constitution is a legal document considered as the supreme

authoritative document of the law of a nation, which includes provisions,
rules, regulations, policies, measures, etc. which have to be interrelated
and must cope up with the national and international law.”

2. "Constitution is the collection of principles according to which the

powers of the government, the rights of the governed and the relations
between the two are adjusted.” -Woolsey

A constitution means a document having a special legal sanctity which

sets out the framework and the principal functions of the organs of the
Government of a state and declares the principles governing the
operation of those organs.

Classification of world constitutions:

Constitutions may be classified as

 Documentation :Written and unwritten

 Government system :Unitary and Federal
 Nature :Flexible or Rigid
 Leadership : Anarchy, Diarchy, Dictatorship, Monarchy, Republic
 Organization :Centre and State
 Origin :Evolved and Enacted

Written and Unwritten Constitution

Written - one which has been given definite written form at a particular
time. A written constitution means a constitution written in the form of a
book or a series of documents combined in the form of a book. It is a
consciously framed and enacted constitution. It is formulated and
adopted by a constituent assembly or a council or a legislature. It
provides for a definite design of government institutions, their
organisations, powers, functions and inter-relationships.

Unwritten - one which is entirely the product of political evolution,

consisting largely of a mass of customs, usages and judicial decisions,
and statutory enactments. An unwritten constitution is one which is
neither drafted nor enacted by a Constituent Assembly and nor even
written in the form of a book. It is a product of slow and gradual
evolution. However, an unwritten constitution is not totally unwritten.
Some of its parts are available in written forms but these do not stand
codified in the form of a legal document or a code or a book. In an
unwritten constitution, the Legislature / Parliament enjoy sovereignty to
make and unmake any law.

India has a written constitution, while Great Britain (UK/England) has

unwritten.

Unitary and Federal

A Unitary Constitution is one which sets up one Central Government and
all the powers are vested in it. The unit/provincial/State Governments
acts as subordinates to the Central Government. A typical unitary
system is governed constitutionally as one single unit, with one
constitutionally created legislature.
E.g.: Great Britain
A Federal Constitution provides for the division/distribution of powers
between Union/Central and Unit/State Governments. The Central and
the State governments work in coordination and at the same time act
independently.
e.g.: American Constitution

Indian constitution contains both features of a federal constitution and

unitary constitution. It would not be wrong to conclude that the
Constitution of India is federal in structure and unitary in spirit i.e. it is
quasi- federal in nature.

Flexible or Rigid
Flexible or elastic - A Constitution is said to be flexible if it provides for a
simple procedure for its amendment. It means, a bill proposing the
amendment is passed in each House by the simple majority of the
members present and voting and on receiving the assent of the
President or Governor, as the case may be, has the effect of amending
the Constitution. e.g.: Great Britain.
Rigid or inelastic - one which cannot be amended or altered except by
some special machinery more cumbrous than the ordinary legislative
process. A Rigid Constitution requires a special, complex and more
technical procedure for its amendment. For example, some of the
provisions in the Indian Constitution viz. 54, 55 (Election of President)
requires acceptance of majority of members in both houses and 2/3rd
majority of the members present and voting. It also requires the
ratification by not less than half of State legislatures before it is
presented for the assent of the President.

Indian Constitution strikes a balance between rigid and flexible.

Leadership (currently not in practice)

1. Monarchy: A constitutional monarchy is a form of monarchy in
which the sovereign exercises authority in accordance with a
written or unwritten constitution. A system of government in which
a monarch is guided by a constitution whereby his/her rights,
duties, and responsibilities are spelled out in written law or by
custom.
2. Anarchy: Anarchy is the condition of a society, entity, group of
people, or a single person that rejects hierarchy. A condition of
lawlessness or political disorder brought about by the absence of
governmental authority.
3. Diarchy: A form of government in which two individuals ("diarchy")
are joint heads of state. Government in which power is vested in
two rulers or authorities.
4. Dictatorship: A constitutional dictatorship is a form of
government in which dictatorial powers are exercised during an
emergency. The dictator is not absolute and the dictator's
authority remains limited by the constitution.
 5. Republic: a state in which supreme power is held by the people
and their elected representatives, and which has an elected or
nominated president rather than a monarch. It also means that
there is a constitution. The constitution limits the power of each
officeholder. Constitutional republics usually have a separation
of powers.

Organization:

Centre and state

According to Origin

Conventional or Enacted - one which is enacted by a constituent

assembly or granted by a ruler to his subjects. An Enacted Constitution
is a man-made constitution. It is duly passed after a thorough discussion
over its objectives, principles and provisions. The Constitutions of India
the USA, Japan, China and most of other states are enacted
constitutions.

Cumulative or evolved - one which is a product of growth or a long

period of development origination in customs, traditions, judicial
decisions, and others, rather than from a deliberate and formal
enactment. Its rules and principles draw binding force from the fact of
their being recognised as ancient, historical, time-tested and respected
customs and conventions. Some of these conventions get recognised by
law and hence become enforceable while others are followed because
these are supported by public opinion, their practical utility and moral
commitment in their favour. The Constitution of Great Britain presents a
key example of an evolved constitution.
Parliamentary and Presidential form of Government:

Every country in the world has its own constitution, according to which
policies are framed; government bodies and institutions function and
decisions are made. In finer terms, it is the constitution, which covers all
the aspects of the political system adopted by the country.

Definition of Parliamentary form of Government

Parliamentary form of government represents a system of democratic

governance of a country, wherein the executive branch is derived from
the legislative body, i.e. the Parliament. Here, the executive is divided
into two parts, the Head of the State, i.e. President, who is only the
nominal executive and the Head of the Government, i.e. Prime Minister,
who is the real executive.

As per this system, the political party getting the maximum number of
seats during federal elections, in the Parliament, forms the government.
The party elects a member, as a leader, who is appointed as the Prime
Minister by the President. After the appointment of the Prime Minister,
the Cabinet is formed by him, whose members should be from the
Parliament. The executive body, i.e. the Cabinet is accountable to the
legislative body, i.e. Parliament

This system is prevalent in the countries like United Kingdom, India,

Japan and Canada.

Definition of Presidential form of Government

When a country follows the Presidential form of Government, it denotes

that there is only one person as the head of the state and government,
i.e. the President. The election of the President is made directly by the
citizens of the country or sometimes by the members of the Electoral
College for a fixed period.

The President elects some ministers as the Secretary and forms a small
Cabinet, who assist in governing the country. Neither the President nor
the Secretaries are accountable to the Congress (Parliament) for their
acts.

This form of government can be found in the countries like United States
of America, Russia, Brazil and Srilanka.
Key Differences between Parliamentary and Presidential form of
Government

1. The Parliamentary system of government is one in which there

exists a harmonious relationship between the legislative and
executive body, while the judiciary body works independently. As
against this, in Presidential form of government, the three organs
of the government work independently of each other.
2. In Parliamentary form of government, the executive is divided into
two parts, i.e. the Head of the State (President) and the Head of
the Government (Prime Minister). On the contrary, the President is
the chief executive of the Presidential form of Government.
3. In the Parliamentary form of government, the executive body, i.e.
the Council of Ministers is accountable to the Parliament for its
acts. Conversely, in the Presidential form of Government, there is
no such accountability, i.e. the executive body is not accountable
to the Parliament for its acts.
4. Fusion of powers exists in the Parliamentary system, whereas the
powers are separated in Presidential system.
5. In Parliamentary form, only those persons are appointed as
ministers in the executive body who are the members of
Parliament. Unlike, in Presidential form, persons other than those
working in the legislature can be appointed as secretaries.
6. In Parliamentary government, the Prime Minister has the power to
dissolve the lower house before the completion of its term. As
opposed, the President cannot dissolve the lower house, in
Presidential government.
7. The tenure of the executive is not fixed in Parliamentary
government, as in, if a no-confidence motion is passed in the
Parliament, the Council of Ministers is dismissed. Contrary to this,
the executive has a fixed term in the Presidential government.
8. The members of the cabinet possess double membership, i.e. of
legislative and executive organ of government. Contrary to this, in
the presidential form of government, the members of the cabinet
possess the membership of executive organ only.
9. When it comes to dominance, in the Parliamentary System, the
President is only the titorial head, while the real powers lie in the
hands of the Prime Minister. On the contrary, in the Presidential
System, the President has got the supreme power.
10. The Parliamentary government is more democratic,
because the executive (council of ministers) is accountable to
the legislature (Parliament). The president in presidential form
of government being not responsible or answerable to anybody
except the voters can be a precarious proposition in a
democratic form of government. When the president becomes
autocratic due to lack of any immediate check the
administration becomes irresponsible which in turn affects the
freedom of the people.
Political Structure of India

Constitution of India provides for a Parliamentary form of government.

While doing so it follows the British model of government. In fact, the
type of government that functioned in India before 1947 was very
much similar to the British model of parliamentary government.
Therefore, the members of the Constituent Assembly decided to
adopt this form of government for independent India. The Constitution
of India provides for the constitution of parliamentary government
both at the centre and the states.
Historical background and evolution of world constitution

1. 1215 AD – Magna Carta

Magna Carta is famous as a symbol of justice, fairness, and

human rights.
Magna Carta means simply ‘great charter’. A charter is a legal
document issued by the king or queen which guarantees certain
rights. This charter has over 60 clauses, covering many areas of
the nation’s life, including the right to a fair trial.
Magna Carta, which means ‘The Great Charter’, is one of the most
important documents in history as it established the principle that
everyone is subject to the law, even the king, and guarantees the
rights of individuals, the right to justice and the right to a fair trial.
Even more recently, the basic principles of the Magna Carta are
seen very clearly in the Universal Declaration of Human Rights,
penned in 1948 just after the Second World War. Today Magna
Carta has become a world-class brand, representing human
rights, democracy and free speech. Magna Carta is a world-
class brand. It stands for human rights and democracy. It stands
for trial by jury. It stands for free speech, the rule of law and
personal liberty.
 2. 14th Century – US document (constitution)

3. US Bill of Rights 16th c.

4. UK Constitution 18th c.

5. World wars, league of nations, UN, UDHR

6. Indian constitution

7. Development of 3rd generation rights

Historical evolution of Indian Constitution

I.
1. Rig Veda

2. Dharma theory
the struggle for independence was the struggle for basic
rights and civil liberties that one as a basic human being
should enjoy and the same was kept in mind, while making
The Constitution of India. Hindu law (Dharma) started too
been codified according to the changes in outlook and
lifestyles, as it was realised that ancient way should yield to
realistic approach of life. The principles of natural law
(Dharma) found its way into the constitution in the way of
fundamental rights. Dharma was codified Dharma as we all
 know was a duty based legal system but the current legal
system became a right based one. Of course, these rights
comes are not absolute that they too have certain
restrictions. Right to equality, freedom of movement and
most cherish able right to life are some of the fundamental
rights provided.

3. Buddhist Philosophy
4. Kautilya’s Arthashastra
5. Ashokan’s Policy

II. Medieval India

1. Chola’s rule
2. Muslim rule
III. British era
. 1600: The British came to India as traders.
II. 1765: After the British defeated the Mughal emperor Shah Alam at
Battle of Buxar in 1764, he granted Diwani rights – rights over revenue
and civil justice of Bengal, Bihar and Orissa.
III. 1858: Direct responsibility i.e. Crown Rule.
IV. 1947: Fall of crown.
V. With Independence came the need of a Constitution. MN Roy
suggested for a constituent Assembly in 1934.
This historical background can be studied under two broad heads: The
Company Rule (1773 – 1858) and The Crown Rule (1858 – 1947).
The Company Rule (1773 – 1858):
The company rule is the rule of East India Company which involved few
acts which are as follows:
a) Regulating Act of 1773: a landmark act in Indian History which has
constitutional importance as it laid the foundations of central
administration in India, direct access of the East India Company in India
and recognized the political and administrative functions of the
Company. The features of the act are:
 It designated the Governor of Bengal as the Governor–General of
Bengal and created an Executive Council of four members to assist
him. The first such Governor – General was Lord Warren Hastings.
 Governors of Bombay and Madras were made subordinate to
governor- general of Bengal.
 Establishment of Supreme Court at Calcutta in 1774 comprising one
chief justice and three other judges.
 Court of Directors was asked to report on its revenue, civil and military
affairs in India.
b) Pitt’s India Act of 1784: In order to rectify defects of 1773 act, the
then prime minister of England William Pitt introduced this act in 1784.
This act gained importance because for the first time, the company’s
territories were called the British possessions and also the British
Government was given supreme control over company’s affairs and its
administration in India. Its features are:
 Distinguished commercial and political affairs of the company.
 Evolution of double government
 Introduction of "Board of Control" for political affairs of the company
while "Court of directors" was in charge of commercial affairs.
 Empowering the board of control to supervise and direct all operations
of civil and military revenues of the British possessions.
c) Charter Acts of 1833 and 1853: These acts were the final steps
towards centralization in British India. Their features are:
 Governor General of Bengal was made the Governor General of India
and vested in him all civil and military powers. Lord William Bentinck
was the first governor general of India.
 It deprived the governor of Bombay and Madras of their legislative
powers. The governor general of India was given exclusive legislative
powers for the entire British India.
 Introduction of Indian legislative council which came to known as mini
parliament.
 The laws made under the previous acts were called as regulations
and laws made under this act were called as Acts.
 It ended the activities of the east India Company as a commercial
body, which became a purely administrative body.
 An attempt was made to introduce open competition for civil servants
which was initially rejected by court of directors but later repealed.
 Indians were also given a chance to be part of Indian legislative
Council.
The Crown Rule (1858 -1947):
The crown rule is the direct ruling of the British crown and involved few
acts which are as follows:
 a) Indian Councils Acts of 1861, 1892 and 1909: were enacted to
seek cooperation of India in Indian administration after sepoy mutiny of
1857.
1861 Act: an important landmark in the constitutional and political history
of India. Its features are:
 Indians were involved in law-making process. For this purpose,
viceroy nominated the Raja of Benaras, the Maharaja of Patiala and
Sir Dinkar Rao.
 Decentralization of legislative powers.
 Establishment of new legislative councils in Bengal, NWFP and
Punjab in 1862, 1866 and 1897 respectively.
 Introduction of portfolio system.
 It empowered the Viceroy to issue ordinances without the concurrence
of the legislative council during an emergency. The life of such an
ordinance was six months.
1892 Act: this act made a limited and indirect provision for the use of
election in filling up some of the non-official seats both in central and
provisional legislative councils. It increased the number of additional non
official members in the central and provincial legislative councils.
 Power of discussing budget to legislative councils.
 It provided for the nomination of some non-official members of the
central legislative council by the viceroy on the recommendation of the
provincial legislative councils and that of the provincial legislative
councils by the governors on the recommendations of the district
boards, municipalities, universities, trade associations, zamindars and
chambers.
1909 Act: (also known as Morley – Minto Reforms as Morley was the
then secretary of state for India and Minto was the then viceroy of India)
its features are:
 Increase in number of members in legislative councils.
 Members of legislative councils were made to ask questions and
resolutions on budget.
 It provided a provision for Indians to join in executive councils.
Satyendra Prasad Sinha became first Indian to join the Viceroy’s
executive Council. He was appointed by law member.
 Introduction of communal representation. Minto is known as father of
communal electorate.
 By this act, Indian council acts came to an end.
B) Government of India Acts of 1858, 1919 and 1935:
 1858 Act: was enacted in the wake of Revolt of 1857 sepoy mutiny and
was also known as "Act for the Good Government of India". This act
abolished East India Company and transferred powers to the British
crown. Its features are:
 Designation of governor general of India was changed as Viceroy of
India who was the direct representative of the British crown in
India. Lord Canning was the first Viceroy of India.
 Abolition of double government.
 It introduced a new office, "Secretary of State" for complete authority
and control over Indian administration. The secretary of state was a
member of the British cabinet and was responsible to the British
parliament. He was assisted by a 15 member council in India.
1919 Act: (also known as Montagu – Chelmsford Reforms as Montague
was secretary of state and Chelmsford was the Viceroy of India at that
time):
On August 20, 1917 the British Government declared for the first time
that its objective was the gradual introduction of responsible government
in India. The government of India Act of 1919 was thus enacted which
came into force in 1921. Its features are:
 Relaxation of central control over the provinces by demarcating and
separating the central and provincial subjects.
 It further divided the provincial subjects into two parts – transferred
(Which were administered by governor by the aid of ministers who
were responsible to legislative council) and reserved (which were to
be administered by the governor and his executive council without
being responsible to the legislative council).
 Introduction of diarchy, Bicameralism, direct elections and
establishment of central public service commission in 1926.
 Franchise was granted to a limited people on basis of property, tax
and education.
 Separation of central budget from provisional budget.
 Appointment of statutory commission.
1935 Act: It is a lengthy and detailed document having 321 sections and
10 schedules. Most of the today’s constitution has drawn
its features from this. Its features are:
 It provided for the establishment of All India Federation. The former
names- transferred and reserved subjects were changed as federal
and provincial lists and concurrent list is an addendum.
 Abolition of Diarchy and introduced provincial autonomy.
 Abolition of Council of India.
 Establishment of RBI, federal court, Provincial PSUs and Joint PSUs.
 Extension of bicameralism, communal representation and franchise.
c) Indian Independence Act of 1947: On February 20, 1947, the then
British prime minister Clement Atlee declared that the British rule in India
would end by June 30, 1948. Its features are:
 End of the British rule.
 Partition of India and Pakistan.
 Abolition of Viceroy and appointed a governor general for both India
and Pakistan.
 Empowering of Constitution for both the nations.
In addition to above there are few more provisions but have been an
extension of earlier mentioned laws/acts.

Before 1947, India was divided into two main entities – The British India
which consisted of 11 provinces and the Princely states ruled by Indian
princes under subsidiary alliance policy. The two entities merged
together to form the Indian Union, but many of the legacy systems in
British India is followed even now. The historical underpinnings and
evolution of the India Constitution can be traced to many regulations and
acts passed before Indian Independence.

Indian System of Administration

Indian democracy is a Parliamentary form of democracy where the

executive is responsible to the Parliament. The Parliament has two
houses – Loksabha and Rajyasabha. Also, the type of governance is
Federal, i.e. there is separate executive and legislature at Centre and
States. We also have self-governance at local government levels. All
these systems owe their legacy to the British administration. Let us see
the historical background of Indian Constitution and its development
through years.

Regulating Act of 1773

 The first step was taken by the British Parliament to control and
regulate the affairs of the East India Company in India.
 It designated the Governor of Bengal (Fort William) as
the Governor-General (of Bengal).
 Warren Hastings became the first Governor-General of Bengal.
 Executive Council of the Governor-General was established (Four
members). There was no separate legislative council.
 It subordinated the Governors of Bombay and Madras to the
Governor-General of Bengal.
 The Supreme Court was established at Fort William (Calcutta) as the
Apex Court in 1774.
 It prohibited servants of the company from engaging in any private
trade or accepting bribes from the natives.
 Court of Directors (the governing body of the company) should report
its revenue.
Pitt’s India Act of 1784

 Distinguished between commercial and political functions of the

company.
 Court of Directors for Commercial functions and Board of Control for
political affairs.
 Reduced the strength of the Governor General’s council to three
members.
 Placed the Indian affairs under the direct control of the British
Government.
 The company’s territories in India were called “the British possession
in India”.
 Governor’s councils were established in Madras and Bombay.
Charter Act of 1813

 The Company’s monopoly over Indian trade terminated; Trade with

India open to all British subjects.
Charter Act of 1833

 Governor-General (of Bengal) became as the Governor-General of

India.
 First Governor-General of India was Lord William Bentick.
 This was the final step towards centralization in the British India.
 Beginning of a Central legislature for India as the act also took away
legislative powers of Bombay and Madras provinces.
 The Act ended the activities of the East India Company as a
commercial body and it became a purely administrative body.
Charter Act of 1853

 The legislative and executive functions of the Governor-

General’s Council were separated.
 6 members in Central legislative council. Four out of six members
were appointed by the provisional governments of Madras, Bombay,
Bengal and Agra.
 It introduced a system of open competition as the basis for the
recruitment of civil servants of the Company (Indian Civil Service
opened for all).
Government of India Act of 1858

 The rule of Company was replaced by the rule of the Crown in India.
 The powers of the British Crown were to be exercised by the
Secretary of State for India
 He was assisted by the Council of India, having 15 members
 He was vested with complete authority and control over the Indian
administration through the Viceroy as his agent
 The Governor-General was made the Viceroy of India.
 Lord Canning was the first Viceroy of India.
 Abolished Board of Control and Court of Directors.
Indian Councils Act of 1861

 It introduced for the first time Indian representation in the institutions

like Viceroy’s executive legislative council (non-official). 3 Indians
entered Legislative council.
 Legislative councils were established in Centre and provinces.
 It provided that the Viceroy’s Executive Council should have some
Indians as the non-official members while transacting the legislative
businesses.
 It accorded statutory recognition to the portfolio system.
 Initiated the process of decentralisation by restoring the legislative
powers to the Bombay and the Madras Provinces.
India Council Act of 1892

 Introduced indirect elections (nomination).

 Enlarged the size of the legislative councils.
 Enlarged the functions of the Legislative Councils and gave them the
power of discussing the Budget and addressing questions to the
Executive.
Indian Councils Act of 1909

1. This Act is also known as the Morley- Minto Reforms.

2. Direct elections to legislative councils; first attempt at introducing a
representative and popular element.
3. It changed the name of the Central Legislative Council to the
Imperial Legislative Council.
4. The member of Central Legislative Council was increased to 60 from
16.
5. Introduced a system of communal representation for Muslims by
accepting the concept of ‘separate electorate’.
6. Indians for the first time in Viceroys executive council.
(Satyendra Prasad Sinha, as the law member)
Government of India Act of 1919

 This Act is also known as the Montague-Chelmsford Reforms.

 The Central subjects were demarcated and separated from those of
the Provincial subjects.
 The scheme of dual governance, ‘Diarchy’, was introduced in the
Provincial subjects.
 Under diarchy system, the provincial subjects were divided into two
parts – transferred and reserved. On reserved subjects, Governor
was not responsible to the Legislative council.
 The Act introduced, for the first time, bicameralism at centre.
 Legislative Assembly with 140 members and Legislative
council with 60 members.
 Direct elections.
 The Act also required that the three of the six members of the
Viceroy’s Executive Council (other than Commander-in-Chief) were
to be Indians.
 Provided for the establishment of Public Service Commission.
Government of India Act of 1935

 The Act provided for the establishment of an All-India Federation

consisting of the Provinces and the Princely States as units, though
the envisaged federation never came into being.
 Three Lists: The Act divided the powers between the Centre and the
units into items of three lists, namely the Federal List, the Provincial
List and the Concurrent List.
 The Federal List for the Centre consisted of 59 items, the Provincial
List for the provinces consisted of 54 items and the Concurrent
List for both consisted of 36 items
 The residuary powers were vested with the Governor-General.
 The Act abolished the Diarchy in the Provinces and introduced
‘Provincial Autonomy’.
 It provided for the adoption of Diarchy at the Centre.
 Introduced bicameralism in 6 out of 11 Provinces.
 These six Provinces were Assam, Bengal, Bombay, Bihar, Madras
and the United Province.
 Provided for the establishment of Federal Court.
 Abolished the Council of India.
Indian Independence Act of 1947

 It declared India as an Independent and Sovereign State.

 Established responsible Governments at both the Centre and the
Provinces.
 Designated the Viceroy India and the provincial Governors as the
Constitutional (normal heads).
 It assigned dual functions (Constituent and Legislative) to the
Constituent Assembly and declared this dominion legislature as
a sovereign body.
Points to be noted

 Laws made before Charter Act of 1833 were called Regulations and
those made after are called Acts.
 Lord Warren Hastings created the office of District Collector in 1772,
but judicial powers were separated from District collector later by
Cornwallis.
 From the powerful authorities of unchecked executives, the Indian
administration developed into a responsible government answerable
to the legislature and people.
 The development of portfolio system and budget points to the
separation of power.
 Lord Mayo’s resolution on financial decentralization visualized the
development of local self-government institutions in India (1870).
 1882: Lord Ripon’s resolution was hailed as the ‘Magna Carta’ of
local self-government. He is regarded as the ‘Father of local self-
government in India’.
 1921: Railway Budget was separated from the General Budget.
 From 1773 to 1858, the British tried for the centralization of power. It
was from the 1861 Councils act they shifted towards devolution of
power with provinces.
 1833 Charter act was the most important act before the act of 1909.
 Till 1947, the Government of India functioned under the provisions of
the 1919 Act only. The provisions of 1935 Act relating to
Federation and Diarchy were never implemented.
 The Executive Council provided by the 1919 Act continued to advise
the Viceroy till 1947. The modern executive (Council of Ministers)
owes its legacy to the executive council.
 The Legislative Council and Assembly developed into Rajyasabha
and Loksabha after independence.

Sources of Indian constitution

1. Foreign sources:

UK

US

Canada

Australia

Ireland

France

Russia

South Africa

Germany

2. Nehru committee report

3.1935 GOI Act

4. Ideologies of National Leaders

5. History of India
Framing of the Indian Constitution

The Constitution of India was framed by a Constituent Assembly set up

under the Cabinet Mission Plan of 1946. The Assembly met for the first
time on December 9, 1946. The Assembly constituted a Drafting
Committee, under the chairmanship of Dr.B.R.Ambedkar, to frame a
constitution for India. The Assembly consisted of 389 members
representing provinces (292), states (93), the Chief Commissioner
Provinces (3) and Baluchistan (1). Indian Constitution was adopted on
November 26, 1949 and it came into effect on January 26, 1950. It is the
longest written Constitution in the world containing 395 Articles, 22 Parts
and 12 Schedules.

 The Assembly held its first meeting on December 9, 1946, and

elected Dr. Sachhidanand Sinha, the oldest member of the
Assembly as the Provisional President. On December 11, 1946,
the Assembly elected Dr Rajendra Prasad as its permanent
Chairman.
 The strength of the Assembly was reduced to 299 (229
representing the provinces and 70 representing the states) as the
League chose to boycott the Constituent Assembly, pressing its
demand for Pakistan with a separate constitution. The Socialists
too were initially unwilling to join, for they believed the Constituent
Assembly was a creation of the British, and therefore incapable of
being truly autonomous.
 The Constituent Assembly set up 13 committees for framing the
constitution. On the basis of the reports of these committees, a
draft of the Constitution was prepared by a seven-member Drafting
Committee (constituted on 29th august, 1947) under the
Chairmanship of Dr B R Ambedkar.

 The draft Constitution was published in January, 1948 and people

were given eight months. After the draft was discussed by the
people, the press, the provincial assemblies and the Constituent
Assembly in the light of the suggestions received, the same was
finally adopted on November, 26, 1949, and was signed by the
President of the Assembly. As many as 7,635 amendments were
proposed and 2,473 were actually discussed. Thus, it took the
Constituent Assembly 2 years, 11 months and 18 days to complete
the task. The Constituent Assembly held 11 sessions.
 Before the framing of the constitution started, an Objectives
Resolution (the resolution that defined the aims of the Assembly)
was moved by Nehru on 13 December 1946. This resolution
enshrined the aspirations and values behind the Constitution
making. On the basis of the Objectives Resolution, India’s
Constitution gave institutional expression to the fundamental
commitments: equality, liberty, democracy, sovereignty and a
cosmopolitan identity. This was unanimously adopted on 22
January 1947.
 The Constitution of India was not an original document. The
framers of the Constitution freely borrowed the good features of
other constitutions. However, while adopting those features, they
made necessary modification for its suitability to the Indian
conditions and avoided their defects. The Constitutions which
exercised profound influence on the Indian Constitution were that
of UK, USA, Ireland, Canada etc.
 Above all, the Government of India Act, 1935, exercised great
influence of the Indian Constitution. The federal scheme, office of
Governor, powers of federal judiciary, etc., were drawn from this
Act. In short, the Indian Constitution incorporated the best features
of several existing constitutions.

 The New Constitution of India was adopted by the Constituent

Assembly on 26th November, 1949 and signed by the President,
Dr. Rajendra Prasad. 15 Articles (5,6,7,8,9,60,324,366,367,372,
380, 388, 391,392 and 393) came into force at once.
 The remaining provisions of the Constitution came into force
on 26th January, 1950 which is the date of the commencement of
the Constitution.
 On January 26, 1950, the Indian Government also adopted
Sarnath, the Lion Capital of Ashoka with the wheel, bull, and horse
as the national emblem of India.
 The design of the National Flag was adopted by the Constituent
Assembly of India on 22 July 1947.
 The national calendar based on the Saka Era, with Chaitra as its
first month and a normal year of 365 days was adopted from 22
March 1957
 National anthem Jana-gana-mana, composed originally in Bengali
by Rabindranath Tagore, was adopted in its Hindi version by the
Constituent Assembly as the National Anthem of India on
24January 1950. It was first sung on 27 December 1911 at the
Calcutta Session of the Indian National Congress.
 Preamble of the Constitution

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into
a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to
all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

And to promote among them all

FRATERNITY assuring the dignity of the individual and the [unity and integrity of the
Nation];

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do

HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The Preamble contains the aim and objectives of the Indian Republic and
enshrines the whole philosophy and legislative intent of the Indian
Constitution of India to be a welfare State in a nutshell. No reading of any
Constitution can be complete without reading Preamble. It acts as a theme
around which a legislation revolves. The Preamble is a law of paramount nature of our
country.
It can be referred to as the preface which highlights the essence of the entire constitution. It was
adopted on 26th November 1949 by the constituent assembly of India. The American constitution
was the first to begin with a preamble and many countries like India have adopted the same.

Historical background:

The Preamble to Indian constitution is based on “Objective Resolution” of Nehru. Jawaharlal Nehru
introduced an objective resolution on December 13, 1947 and it was adopted by Constituent assembly
on 22 January 1947. The drafting committee of the assembly in formulating the Preamble in the light
of “Objective Resolution” felt that the Preamble should be restricted to defining the essential features
of the new state and its basic socio-political objectives and that the other matters dealt with Resolution
could be more appropriately provided for in the substantive parts of the Constitution. The committee
adopted the expression ‘Sovereign Democratic Republic’ in place of ‘Sovereign Independent
Republic’ as used in the “Objective Resolution,” for it thought the independence was implied in the
word Sovereign. The committee added the word Fraternity which was not present in the Objective
Resolution. “The committee felt that the need for fraternal concord and goodwill in India was never
greater than now and that this particular aim of the new Constitution should be emphasized by special
mention in the Preamble.”[ii] In other respect the committee tried to embody in the Preamble “the
spirit and, as far as possible, the language of “Objective Resolution.”

1. It’s based on the objective resolution moved by Nehru in the CA on 13 th

December 1947
2. On 26th Nov 1949 the constitution was signed and passed by the CA and this is
the same date which is mentioned in the preamble as the date on which we have
adopted, enacted and given to ourselves the constitution.
3. The preamble was enacted after the entire constitution was already enacted.

The Preamble is an embodiment of the principles in the objective resolution

adopted by the Constituent Assembly in 1947.

In Kesavananda Bharati[x] case the Supreme Court attached much importance to the
preamble. In this case, the main question before the Supreme Court related to the scope of
amending power of the Union Parliament under Article 368 of the Constitution of India.

In Berubari Union case [viii] the Supreme Court held that the preamble had never been
regarded as the source of any substantive power conferred on the government or on any of its
departments.

Clauses:

Preamble gives the idea about the following:

 Authoritative clause: The source of the Constitution, power derived from the people
of India;
  Government clause: Nature of Indian State. Form of government and structure of
administrative body;
 Objective clause: A statement of its objectives. Aims sought to be achieved or criteria
to fulfil to achieve a welfare state;
 Adoption/ Enactment clause: The date of its adoption brings it into existence and
states the date of adoption of the constitution.


The Preamble: A part of the Constitution or not

The debated topic as to Preamble whether part of Constitution or not was
decided in two leading cases:

Berubari Case [6]

 Berubari Case on the Constitution of India on the implementation of the Indo-Pak

agreement relating to Berubari union and exchange of enclaves came up for
consideration by a bench consisting of eight judges.
 The Court held that Preamble to the Constitution is “a key to open the mind of the
framers of the Constitution” but it is not a part of the Constitution.

Kesavananda Bharati case [7]

This case has created a history. A bench of 13 judges had assembled and sat
in its original jurisdiction hearing the writ petition. It was held in this case
that:

1. The Preamble is the part of the Constitution

2. The Preamble acts as a guiding lamp to interpret the legislative intent of statutes as
well as interpretation of the Constitution of India.
Can Preamble be amended?
The Constitution of India can be amended without disturbing the basic
structure of the Constitution. As it has been held in Kesavananda Bharati
case that the Preamble is the part of the Constitution, it means that the
Preamble of the Constitution can be amended.

Though till date, it has been amended only once during the period of
Emergency in 1976. This amendment is popularly known as The Constitution
(Forty-second) Amendment Act, 1976 commonly known as the 42nd
Amendment, 1976. This amendment resulted in an addition of certain
principles to enhance the objectivity and ideology of the Preamble, viz,

1. Socialist;
2. Secular; and
3. Integrity.

In brief, yes, the Preamble to the Constitution of India can be

amended.

Significance of preamble:

Preamble of the Indian Constitution is considered as the backbone of The

Constitution of India as it contains the basic features of it.

Importance of preamble can be explained in following points:-

1. It explains the role of The Constitution i.e. “We the people of India”.
2. It explains the people of India.
3. It helps in interpretation the Constitution.
4. It explains the aim and aspiration of, to secure justice, equality, etc.
5. It also explains the idea of justice, liberty, etc.
6. It also explains resolutions and promises.
In Re Beru Bari case (AIR 1960), preamble was not considered as the part of the
constitution as it only gave object and purpose to the Constitution.

But in case Kesavananda Bharti vs. State of Kerala (AIR 1973), preamble was
considered as the part of the Constitution as the preamble contains entire
constitution in a nutshell.

Though, by itself, it is not enforceable in Court of Law, the Preamble to a written Constitution states
the objects which the constitution seeks to establish and promote and also aids the legal interpretation
of the Constitution where the language is found to be ambiguous
 It indicates the source from which the constitution derives its authority:
(b) it also states the objects which the constitution seeks to establish and promote.

Scope of the Preamble:

 Sovereign

In Synthetics & Chemicals Ltd. v. State of Uttar Pradesh [1],

Honourable Supreme Court observed that the word “sovereign” means that
State has the power to legislate on any subject in conformity with
constitutional limitations. It means supreme or independence. There are two
kinds of sovereignty, viz, internally and externally sovereign. Being internally
sovereign refers to having a free government which is directly elected by the
people which make laws that govern the people. Externally sovereign means
free from the control of any foreign power or compliances. All the people are
free in their limit to do their work in their own opinion. A
country cannot have its own Constitution if it is not sovereign.

 Socialist

The word “socialist” was added to the Preamble by the 42nd Amendment,
1976 during the Emergency. The socialist character of the Indian Constitution
is emphasized in the Preamble, which spells out the aspiration of the people
to secure to all its citizens social, economic and political justice. It implies
social and economic equality. Having the standards of being socially equal
means the absence of inequity on the grounds of caste, creed, sex, colour,
religion or language. It means everyone has equal status and has equal
access to the opportunities. Economic stability means that equal distribution
of wealth which leads to a decent standard of living for all.

 Secular
The word “secular” was added to the Preamble by the 42nd Amendment,
1976 during the Emergency. The Constitution of India stands for a secular
State, i.e., The State has no official religion. The concept of Secularism
expands its horizons to give full opportunity to profess, practice and
propagate the religion of their choice. The Constitution along with providing
the guarantee to person’s freedom of choice of his religion and conscience
also ensures freedom that has no religion and restrains the State from
making any discrimination on grounds of religion.

Most important components of secularism are as under:

 Equality is incorporated in Article 14;

 Prohibition against discrimination on the ground of religion, caste, etc., is incorporated
in Article 15 and Article 16;
 Freedom of speech and expression and all other important freedoms of all the citizens
are conferred under Article 19 and Article 21;
 Right to practice religion is conferred under Article 25 to 28;
 Fundamental duty of the State to enact uniform civil laws treating all the citizens as
equal is imposed by Article 44;
 Sentiment of the majority of the people towards the cow and against its slaughter was
incorporated in Article 48

In S.R. Bommai v. Union of India [2], Hon’ble Supreme Court held that
Secularism is the basic feature of the Constitution.

The concept of secularism to put it, in a nutshell, is that the “State” will have
no religion observed in BAL Patil v. Union of India [3].

It was held in M.P. Gopalakrishnan Nair v. State of Kerala [4] that being
a secular State does not mean having an atheist society.

 Democratic
The word democratic is derived from the Greek word ‘demos’ which means
‘people’ and ‘kratos’ which means ‘authority’. The opening lines of the
Preamble “We, the people of India” and the concluding lines “give to
ourselves this Constitution” portrays the democratic spirit involved in the
Constitution. The people of India elect their governments at all levels, i.e.,
Union, State and local by a system of “one man one vote”.

 Republic

The word republic is derived from res publica, which means public property
or commonwealth. A republic means a form of government in which the head
of the state is an elected person and not a hereditary monarch like the king
or the queen in Great Britain. Being republic means the vesting of the
political sovereignty in the people and election of the head of the state is
done by the people of the nation for a fixed term. In the broad sense, the
word republic refers to a government in which no one holds the public power
as a proprietary right.

Four Objectives of Indian State

The objectivity of the Preamble can be derived from the four keywords
mentioned therein, i.e., JUSTICE, LIBERTY, EQUALITY and FRATERNITY.

Justice

The term “justice” signifies three distinct types of justice, viz, social, political
and economic which is guaranteed through Fundamental Rights and Directive
Principles of State Policy enshrined under Part III and Part IV respectively
of The Constitution of India, 1949.

Social Justice means the abolition of discrimination on the basis of sex,

colour, creed, race or religion. It means the abolition of untouchability. It
also includes improvement in the condition of backward classes, i.e.,
Scheduled Caste, Scheduled Tribes and Other Backward Classes.
Economic Justice herein mentioned refers to the elimination of glaring
inequalities of wealth, income and property. A combination of social justice
and economic justice is what known as ‘distributive justice’.

Political Justice implies that all citizens should have equal political rights,
equal access to all political offices and equal voice in the government.

 Equality

A right without the sanction from the authority has no meaning. Such a right
cannot be enjoyed by of the members of the community. The legislative
intent of the makers of the Constitution was to ensure equality of status and
opportunity for all and to provide a basis for ultimately establishing an
egalitarian society. Equality of status and opportunity as enshrined in the
Preamble is secured to all firstly, by abolition of all kinds of distinctions and
biases by the State between citizens on the grounds of religion, race, caste,
sex and secondly, by equal access to open public places, by abolishing
untouchability and titles, by securing equality for opportunity in the
employment sector or appointment to any office under the State.

 Liberty

Liberty is the most cherished possession of a man. The Preamble of the

Constitution professes to secure the liberty of thought, expression, belief,
faith and worship. These freedoms are guaranteed through Fundamental
Rights enshrined in Part III of The Constitution of India, 1949. Liberty is the
power of doing what is allowed by law. The constitutional law of the country
has fully guaranteed liberty through its mechanisms, judiciary and
established rules of justifiability. Liberty does not mean ‘license’ to do what
one likes and has to be enjoyed within the limitations mentioned in the
Constitution itself. In short, the liberty conceived by the Preamble is not
absolute.

 Fraternity
The expression “unity and integrity of the Nation” has been substituted
by 42nd Amendment, 1976 to the Preamble of the Constitution. Fraternity
means the sense of brotherhood. It is a feeling that all people are children of
the same soil, the same motherland. Brotherhood is a particular kind of
relationship irrespective of gender and generation. In a country like India, it
is necessary to prioritize the expression of the unity and integrity that can be
preserved only by a spirit of brotherhood. India has single citizenship and
every citizen should feel that he is Indian first irrespective of another basis.

Dignity of the individual: It means that the constitution not only ensures
material betterment but also recognizes the personality of each individual as
sacred. Dignity of individual in a nation is the dignity of the nation itself

Unity and integrity of the Nation: Embraces both psychological and territorial
dimensions of National integration. The Union means indestructible nature.
This sentence aims at overcoming hindrances to national integration like
communalism, regionalism, casteism, linguism and secessionism.
Union and its territories
Part I of Indian Constitution is titled The Union and its Territory. It includes articles from 1- 4.
Part I is a compilation of laws pertaining to the constitution of India as a country and the union of
states that it is made of. This part of the constitution contains the law in the establishment,
renaming, merging or altering the borders of the states. Articles under Part I were invoked
when West Bengal was renamed, and for formation of relatively new states such as Jharkhand,
Chhattisgarh or Telengana.

Article 1: Name and territory of the Union

(1) India, that is Bharat, shall be a Union of States.

(2) The States and the territories thereof shall be as specified in the First Schedule.
(3) The territory of India shall comprise –
(a) the territories of the States;
(b) the Union territories specified in the First Schedule; and
(c) such other territories as may be acquired.

Article 2: Admission or establishment of new States

Parliament may by law admit into the Union, or establish, new States on such terms and
conditions as it thinks fit.
Article 2a: Sikkim to be associated with the Union
{…}

Article 3: Formation of new States and alteration of areas, boundaries or names of existing States

Parliament may by law –

(a) form a new State by separation of territory from any State or by uniting two or more States or
parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State:
Provided that no Bill for the purpose shall be introduced in either House of Parliament except on
the recommendation of the President and unless, where the proposal contained in the Bill affects
the area, boundaries or name of any of the States, the Bill has been referred by the President to
the Legislature of that State for expressing its views thereon within such period as may be
specified in the reference or within such further period as the President may allow and the period
so specified or allowed has expired.

Explanation I: In this article, in clauses (a) to (e), “State” includes a Union territory, but in the
proviso, “State” does not include a Union territory.
Explanation II: The power conferred on Parliament by clause (a) includes the power to form a
new State or Union territory by uniting a part of any other State or Union territory to any other
State of Union territory.
Article 4: Laws made under articles 2 and 3 to provide for the amendment of the First and the
Fourth Schedule and supplemental, incidental and consequential matters

(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of
the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of
the law and may also contain such supplemental, incidental and consequential provisions
(including provisions as to representation in Parliament and in the Legislature or Legislatures of
the State or States affected by such law) as Parliament may deem necessary.
(2) No such law as aforesaid shall be deemed to be in amendment of this Constitution for the
purposes of article 368.

Info-bits related to Part I: The Union and the territory (Articles 1- 4)

1. Article under which Sikkim was made part of Indian Union: Article 2a.
2. Article under which Telengana was made part of Indian Union: Article 3.
3. Article 3 original provisions were amended by Constitution (Fifth Amendment) Act, 1955
on 24 December 1955.
4. Nowhere under Part I, is it mentioned that India is a federal state. It rather uses the phrase
“Union of States”.
5.
Territorial Waters vs. International Waters

The territorial waters and the exclusive economic zones shall also become part of the states
or union territories in the absence of any listing of them separately in Schedule 1 and 4 of the
constitution.

6. An economic zone (EEZ) is a sea zone prescribed by the United Nations Convention on the
Law of the Sea over which a state has special rights over the exploration and use
of marine resources, including energy production from water and wind. It stretches from the
baseline out to 200 nautical miles (370 km) from its coast.
7. The difference between the territorial sea and the exclusive economic zone is that the first
confers full sovereignty over the waters, whereas the second is merely a “sovereign right”
which refers to the coastal state’s rights below the surface of the sea. The surface waters, as
can be seen in the map, are international waters.
8. The constitution (40th amendment) act, 1976, substituted a new Article 297 so as to vest in
Union of India all lands, minerals, and other things of value underlying the ocean within the
territorial waters or continental shelf or exclusive economic zone of India.
9. The territorial waters, continental shelf, exclusive economic zone and other maritime zones
act, 1976 was enacted by the Indian government to notify the sovereign rights on these areas
for dealings with other countries.
10. However, it is not clear whether states are debarred from imposing taxes or royalty on the
minerals extracted from the territorial waters and the exclusive economic zone (which are
still under states jurisdiction) as per serial no. 50 of state list in seventh schedule of the
constitution.
11. For creation or destruction of a state the permission from the concerned state is not
mandatory under Indian Constitution. But the bill has to refer to the concerned state
legislature for expressing its views.
12. Prior recommendation of the President of India is necessary for the state creation/renaming
bill. (Article 3). No such provision is mandatory under Article 2 (new states).
 Part-II : Citizenship [Article 5 to 11]

1) With respect to India, there are two types of people in the country : Citizen and Alien.

Alien can be further of sub-categorized into : Friendly alien and Enemy alien.

Note :

Citizen :

 These are full members of Indian state and owe allegiance (faithfulness) to it.
 Enjoy all civil and political rights.

Aliens :

 Citizens of some other state.

 Do not enjoy all civil and political rights.

Friendly aliens :

 Citizens of those countries with which India has cordial relations.

Enemy Aliens :

 Citizens of those countries with which India is at war.

 Enjoy lesser rights than friendly aliens.
 Don't enjoy protection under Article 22 i.e., against arrest and detention.

3) Along with Fundamental Rights granted by Indian constitution to the citizens of India, there
are few fundamental duties to be followed by the citizens as mentioned in Article-51A of the
constitution.

4) Constitution of India doesn't contain any permanent or elaborate provisions with respect to
Citizenship and has granted Parliament the responsibility to enact a law for it under Article-11.

5) Constitution only deals with identifying the persons who would become citizens of India at the
commencement of the constitution (i.e 26th Jan, 1950 ).

 Constitution does not provide for the mode of acquisition and termination of citizenship.

 It does not deal with the problem of acquisition or loss of citizenship after 26th Jan, 1950.

 To deal with this problem, Parliament has enacted Citizenship Act, 1955which has been
amended five times so far : 1986, 1992, 2003, 2005 and 2015.

6) Who would have become the citizens of India at the commencement of Constitution(i,e
since 26th Jan, 1950) ?

As per Constitution, there are 4 types of persons who became citizens of India at the
commencement of the constitution (i.e 26th Jan, 1950)
i) Article-5 :
Person who had his permanent house(domicile) in India and fulfilled either of the three
conditions :

 He was born in India, OR

 Either of his parents were born in India, OR
 He has been ordinarily resident in India for 5 years immediately before the
commencement of the constitution (i.e 26th Jan, 1950)

ii) Article-6 :
Person who migrated from Pakistan to India and he or either of his parents or any of his
grandparents were born in undivided India and fulfilled either of the two conditions :

a) Migrated before 19th July, 1948:

Person has been ordinarily resident in India since the date of his migration.

b) Migrated on or after 19th July, 1948:

Person had been registered as a citizen of India only if he had been resident in India for atleast 6
months before applying for registration.

 Registration was done by a government official appointed for the purpose.

Note : On 19th July, 1948 a permit system was introduced for migration.

iii) Article-7 :
Person who migrated from India to Pakistan after 1st March, 1947 but, later returned back to
India for resettlement.

He should fulfill following condition to become a citizen of India :

 The person had to be resident in India for atleast 6 months before applying for citizenship
registration.

iv) Article-8 :
A person who himself or either of his parents or either of his grandparents were born in undivided
India but, person is ordinarily residing outside India shall become citizen of India if:

 He is registered as a citizen of India by the diplomatic or consular representative of India

in the country in which the person is residing,

 Registration can be done before or after the commencement of the constitution.

Article-8 covers overseas Indians (Person born in India but residing outside India)who would
like to acquire Indian citizenship.

7) Other constitutional provisions for citizenship are :

a) Article-9 :
If a person voluntarily acquires citizenship of some other foreign country, he shall be deprived
(forfeit) of the right of Indian citizenship.
Acquires Before commencement of Constitution : Dealt by Constitution
Acquires on or After commencement of Constitution : Dealt by Citizenship Act, 1955 enacted by
the Parliament.

b) Article-10 :
Every person who is or deemed(considered) to be a citizen of India as in Article 5 to 10, shall
continue to be a citizen of India until subjected to the provisions of any law enacted by the
Parliament.

c) Article-11 :
The powers to make any law on the matters of acquiring or terminating the citizenship of a person
and other matters of citizenship are vested in the Parliament as provided by the constitution.

8) Citizenship Act, 1955

Enacted by Parliament to deal with the provisions related to acquisition or termination of

citizenship and other matters of citizenship after the commencement of the constitution.

As per the act, there are 5 ways to acquire citizenship of India :

a) By Birth,
b) By Descent,
c) By Registration
d) By Naturalisation
e) By Incorporation of Territory

As per the act, there are 3 ways to terminate the citizenship:

a) By Renunciation
b) By Termination
c) By Deprivation

9) Ways to acquire citizenship of India :

a) By Birth :

A person can be citizen of India by birth only if :

i) Person is born in India on or after 26th Jan, 1950 and before 1st July, 1987.

OR

ii) Person is born in India on or after 1st July, 1987 but before 3rd Dec, 2004 is considered citizen
of India :

 if either of his parents is a citizen of India at the time of his birth.

OR

iii) Person born in India after 3rd Dec, 2004 are considered citizen of India if :

 Both of his parents are citizens of India OR

  One of his grandparents is a citizen of India and other is not an illegal migrant at the time
of their birth.

Note : The children of foreign diplomats posted in India and enemy aliens cannot acquire Indian
citizenship by Birth.

b) By Descent :

Person born outside India can become citizen of India by descent if :

i ) If Born on or after 26th Jan, 1950 but before 10th Dec, 1992 can become citizen of India by
descent if:

 Person's Father was a citizen of India at the time of his birth. (Note : Not Mother)

ii) If Born on or after 10th Dec, 1992 but before 3rd Dec, 2004 can become citizen of India by
descent if:

 Either of his parents is a citizen of India at the time of his birth.

iii) If Born on or after 3rd Dec, 2004 can become citizen of India by descent if:

 His birth is registered at Indian consulate within 1 year of the date of birth.

OR

 His birth is registered with the Indian consulate by the permission of Central government
at the expiry of the said period.

Note : At the time of registration of birth with the Indian consulate, parents of the child have to
take an undertaking that child does not hold the passport of another country.

c) By Registration :

People who can be registered as citizen of India by the Central government should not be illegal
migrant and belong to one of the following categories:

i) A person of Indian origin who is ordinarily resident in India for 7 years before making an
application for registration.

ii) A person of Indian origin who is ordinarily resident in any country or place outside India.

iii) A person who is married to a citizen of India and is ordinarily resident in India for 7 years
before making an application for registration.

iv) Minor children of persons who are citizens of India.

v) A person (of full age and capacity) whose parents are registered as citizens of India.

vi) A person (of full age and capacity), who himself or either of his parents, was earlier citizen of
independent India and are has been residing in India for 1 year immediately before making an
application for registration.
vii) A person (of full age and capacity), who is registered as an Overseas citizen of India for 5
years and has been residing in India for 1 year immediately before making an application for
registration.

**All persons belonging to this category must an oath of allegiance(faithfulness) before they are
registered as citizens of India.

NOTE :
Who is ordinarily resident of India ?

 Person who has resided in India for atleast full 12 months before making an application
for registration and,

 Person has resided in India during 8 years immediately preceding the said 12 months
duration for a period of atleast 6 years.

Person of Indian Origin (PIO) :

A person is said to be Person of Indian Origin if :

 He himself or either of his parents, was born in undivided India or in such other territory
which became part of India after 15th August, 1947.

d) By Naturalization :

A certificate of naturalization can be accorded to any person by the Central Government if he is

not an illegal migrant and possess following qualifications :

i) He is of good character.

ii) He has an adequate knowledge of a language specified in the 8th Schedule of the Constitution.

iii) He is not a citizen of any country where Indian citizens are prevented from becoming citizens
by Naturalization.

iv) Takes an undertaking to renounce his citizenship of the other country if his application for
Indian citizenship is accepted.

v) He has resided in India or has been in the service of a government in India (or partly both), for
a period of 12 months applying for the naturalization certificate.

vi) During 14 years immediately preceding the said 12 months, he should have resided in India
or been in the service of a government in India (or partly both), for period amounting in the
aggregate to atleast 11 years.

vii) If certificate of naturalization is granted to him,:

 he intends to reside in India or

 to enter into, or continue in, service :
 i) under a Government in India or
ii) under an international organization of
which India is a member or
iii) under a society, company or body of
persons established in India.
Note :

i) Every person granted certification of naturalization must take an oath of allegiance to the
Constitution of India

ii) Government of India can waive all or any of the above conditions for naturalization, if a
person has rendered distinguished service in science, art, literature, philosophy, world peace or
human progress.

iii) In India, both citizen by Birth and Naturalization is eligible for the office of President but in
USA only citizen by birth are eligible for the post and citizens by Naturalization are not eligible
for the post of President.

e) By Incorporation of Territory :

If any foreign territory becomes part of Indian territory, then Government of India specifies the
citizens of those foreign territory as the citizen of India.

 Such person becomes citizen of India from the date notified by the Government of India.

Example : Pondicherry
Government of India issued Citizenship (Pondicherry) Order, 1962 when Pondicherry (French
colony) became part of India.

10) Ways to Lose Citizenship of India :

a) Renunciation :

i) If a person voluntarily gives up citizenship of India then upon registering the declaration of
renunciation, the person ceases to be a citizen of India.

ii) Minor child of the person who has renounced Indian citizenship looses his citizenship.
However, when child turns 18, he may resume his Indian citizenship.

iii) If renunciation is made during a war in which India is engaged, Central government may
withheld the registration.

b) Termination :

i) If a person voluntarily acquires citizenship of some other country then his citizenship is
automatically terminated.
ii) This provision does not apply during war in which India is engaged.

c) Deprivation :

i) Compulsory termination by the Central government.

ii) Done under following cases :

 Citizen has acquired Indian citizenship by fraud,

 Citizen has been disloyal to the Constitution of India,

 Citizen has unlawfully communicated or traded with the enemy during a war,

 Citizen with 5 years of registration or naturalization, has been imprisoned in any county
for 2 years,

 Citizen has been ordinarily resident out of India for 7 years continuously.

11) Single Citizenship

i) Indian constitution provides for Single citizenship i.e Indian citizenship.

ii) There is no separate State citizenship.

iii) States having dual citizenship : USA, Switzerland.

States having single citizenship : India, Canada

iv) All citizens enjoy same political and civil rights all over the country without any
discrimination, irrespective of the state in which they are born or reside.

v) It helps to instigate feeling fraternity and unity among the citizens of India and help to build an
integrated nation.