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CONSTITUTIONAL LAW 1
UNIT 1
1. Federal Character of IC
Nature of federalism in India
India has a federal structure with a single Constitution that applies to both the
central and state governments. This is different from the federal systems of other
countries, such as the United States, where each state possesses its own
constitution. The Indian Constitution provides the nation with an intricate nature of
law that makes it possible for states to address local matters while maintaining and
upholding national standards.

Federalism in India was adopted mainly because of India’s colonial past and the
need to embody the diversity in the nation. The Government of India Act,1935,
among other things, spearheaded federalism through provincial autonomy. The
drafting of the Indian Constitution after independence, as well as the findings of the
Constitutional framers, strived to achieve a balance between the centre and the
states. These, as a result, have enabled the limited scope of establishment of
federalism in India.

The structure of federalism in India becomes distinguished and dynamic because it

is tilted to the power-sharing nature between the centre and states. It embraces
certain features of both federal and unitary systems of governance to accommodate
the unpredicted and diverse requirements of the nation. This hybrid model of the
federal system evidenced the pluralistic nature of the Indian political and
constitutional framework. Thus, it enables India to face the problems of
administration in a large and complex ambit and develop a standard of living
through cooperative federalism.

Decentralisation of powers and the role of regional players make the centre and
states’ relationship through coalition governments or other alliances of political
parties more sustainable. While political devolution has its vices causing problems
in governance, it has also given enhanced regional political representation and
authority.

Federal features of the Indian Constitution

1. Binary Government
India has a dual government polity, which has both central government and state
government operating in a parliamentary democracy. The union government works
at the centre, and the state governments operate at a regional level. While the
central government implements laws made by the parliament, state governments
have the autonomy to make laws and policies tailored to their specific needs and
circumstances.

2. Division of Powers
The Seventh Schedule of the Constitution delineates the powers and responsibilities
of the central government and the state government through the following
comprehensive three lists:-

Union List

 The Seventh Schedule includes a list of subjects that are under the
exclusive jurisdiction of the central legislature, known as the union list. It
has a total of 97 subjects. For example – defence, foreign affairs, banking,
and railways.
State List

It includes the subjects that are responsibilities of the state legislatures. It
consists of a total of 66 subjects. For example – public health, election to
State legislative assemblies, agriculture, and local governance.
Concurrent List
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 The concurrent list consists of subjects on which both the central and state
governments have jurisdiction. It has a total of 47 subjects. For example –
forests, wild animals, marriage, and adoption.

3. Written Constitution
India has one of the largest constitutions in the world, which consists of 448 articles,
25 parts and 12 schedules. The Constitution must be written without vagueness to
clearly establish a distinction between the states’ and central powers.

4. Bicameral-legislation
In India, the legislature is bicameral. It has two houses and that are Lok Sabha and
Rajya Sabha. The upper house of the parliament which represents the states is
Rajya Sabha and the lower house of the parliament which represents the people in
general is Lok Sabha.

The constitution of India consists of federalism features such as division of power,

supreme judiciary, two set of government, bicameral-legislati on etc which clearly
shows its Federal nature. The division of power between state and central
government shows the federal nature of the India and supremacy of judiciary shows
the absolute power of the Supreme Court that its decision is supreme and binding
upon all courts. However, the powers given to the central government have more
weight in comparison to the state government.

5. Rigidity with Flexibility

The Constitution contains some relatively rigid provisions while giving the leeway to
amendment by a special majority under Article 368. It makes the provisions flexible
in rigidity.

6. Supreme judiciary:
The Supreme Court of India is regarded as the superior court of the country. The
decision of the Supreme Court is binding upon all courts and it has the power to
interpret the articles of the constitution.

Important Cases

1. In State of Rajasthan v Union of India, 1977 former chief justice Beg, called
the constitution of India as “amphibian” he further stated that if our constitution
creates a central government which is amphibian in the sense that it can be either
federal or unitary according to the need of the situation and the circumstance of the
case.

2. S.R. Bommai v Union of India : In this case the court stated that the president
should exercise his powers only after his proclamation is approved by both
houses of parliament. The power of president to dismiss a state government is
not absolute.

3. Haryana v State of Punjab : In State of Haryana v State of Punjab the term

semi-federal was used for India and in Shamsher singh v State of Punjab the
constitution was called more unitary than federal.

2. Definition of Citizenship
Citizenship refers to the legal status and membership of an individual in a particular
country or nation, entitling them to certain rights, privileges, and responsibilities. It
is a formal recognition by a country’s government that an individual is a member of
the state and is entitled to protection and benefits under its laws and Constitution.
Citizenship typically entails rights such as the right to vote, the right to work and
reside in the country, access to social services, and protection under the country’s
legal system. At the same time, citizenship also carries responsibilities, such as
obeying the country’s laws, paying taxes, and participating in civic duties.
The Citizenship Act, 1955
Citizenship in India is regulated by the Citizenship Act, 1955, which outlines the
provisions, procedures, and requirements for acquiring, retaining, and renouncing
Indian citizenship. Indian citizenship is based on a combination of birth, descent,
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registration, naturalization, and incorporation of territory, as well as other special

provisions.
What are the methods of acquiring citizenship in India?
There are five primary methods of acquiring citizenship in India, including birth,
registration, descent, naturalization, and incorporation of territory, each with its
own set of provisions and procedures.
I. Citizenship by Birth (Section 3 of the Citizenship Act, 1955)
One of the primary methods of acquiring citizenship in India is through birth. The
Citizenship Act, 1955 grants citizenship to individuals who are born in India, subject
to certain conditions. The provisions for acquiring citizenship by birth are as follows:
Birth in India: Any person born in India on or after January 26, 1950, but before
July 1, 1987, is considered an Indian citizen by birth, irrespective of the nationality
of their parents.

Birth in India to Indian Parents: A person born in India on or after July 1, 1987, is
considered an Indian citizen by birth if either of their parents is a citizen of India at
the time of their birth.
Birth in India to Unknown Parents: If a person is found abandoned in India and
their parentage is not known, they are considered Indian citizens by birth.
II. Citizenship by Registration (Section 5 of the Citizenship Act, 1955)
To be eligible for Indian citizenship, an individual must meet certain criteria. Firstly,
they must have been an ordinary resident of India for at least seven years prior to
their application. Additionally, they may qualify if they are a resident of undivided
India and are married to an Indian citizen.
In addition to these categories, minor children of Indian citizens, individuals of full
age and capacity with at least one Indian parent, and those registered as overseas
citizens of India are also eligible to register as Indian citizens.
III. Citizenship by Descent (Section 4 of the Citizenship Act, 1955)
Citizenship by descent is another method through which individuals can acquire
Indian citizenship.
As per the citizenship laws of India, a person’s citizenship status depends on various
factors, including their date of birth and the citizenship status of their parents. If an
individual was born on or after January 26, 1950, but before December 10, 1992,
outside of India, they are considered a citizen of India if their father held Indian
citizenship at the time of their birth. This means that the father’s citizenship status
determines the child’s citizenship in this case.
However, for individuals born outside of India after December 10, 1992, a different
set of rules apply. According to the amended citizenship laws, an individual is
considered a citizen of India if either their mother or father held Indian citizenship at
the time of their birth. This update recognises the equal status of mothers in
determining the citizenship of their children born abroad.
IV. Citizenship by Naturalization (Section 6 of the Citizenship Act, 1955)
Another method of acquiring citizenship is by naturalization is a legal process
through which an individual who is not born in a particular country can acquire
citizenship of that country. In the context of India, citizenship by naturalization is
governed by the Citizenship Act, 1955, which outlines the procedures and
requirements for foreigners to become Indian citizens.
To be eligible for citizenship by naturalization in India, an individual must have
resided in India for at least 12 years continuously prior to the date of application.
They must also have resided in India for a total of 14 years within the 20 years
immediately preceding the date of application.
Additionally, the individual must possess good character, have a sound mind, and
be proficient in Hindi or any other language specified in the Eighth Schedule of the
Indian Constitution.
V. Citizenship by Incorporation of Territory (Section 7 of the Citizenship
Act, 1955)
Citizenship by incorporation of the territory is a legal concept that pertains to the
acquisition of citizenship when a territory is incorporated into a sovereign state or
country. This typically occurs when a previously separate territory becomes an
integral part of a nation through annexation, merger, or other means.
In the context of India, citizenship by incorporation of territory is governed by the
Citizenship Act, 1955, which outlines the conditions and procedures for individuals
residing in territories that are incorporated into India to become Indian citizens.
According to the Citizenship Act, individuals who were born in a territory that
subsequently becomes a part of India, or who have been residing in that territory
for a specified period of time, may be eligible for Indian citizenship by incorporation
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of territory. The Act specifies the conditions and requirements that need to be met,
including provisions related to the date of incorporation, duration of residence, and
other relevant factors.
Conclusion
Acquiring citizenship in India can be achieved through various methods, including
birth, registration, descent, naturalization, and incorporation of territory. Each
method has its own set of provisions, procedures, and requirements, as outlined in
the Citizenship Act, 1955. It is essential for individuals seeking Indian citizenship to
understand the relevant provisions and follow the prescribed procedures to ensure
a smooth and lawful acquisition of citizenship.

Modes of acquiring citizenship

In India, there are three modes of acquiring citizenship. The list includes domicile,
migration, and registration.
1)By Domicile:
A Place that an individual calls his permanent home is pertained to as a domicile. By
Article 5 of the Indian Constitution, a person who has a permanent residence in
India at the time of the beginning of the Constitution is said to be a citizen of India.
2)By Migration:
An enormous population of people migrated from Pakistan to India, at the time of
independence. The Constitution of India has made provisions for this category but
under certain circumstances and conditions. Those should be fulfilled, before being
fully able to attain the citizenship of India.
3)By Registration:
The third and last in the modes of acquiring citizenship is by the method of
registration. This is mentioned in Article 8 of the Indian Constitution, where a person
can become a citizen after registering himself/herself with a diplomatic
representative of India in the country of his residence. It is possible, only if the
person is born in India or his parents/grandparents have their birthplace in India.

9. Termination of citizenship.

(1)Any citizen of India who by naturalisation, registration or otherwise voluntarily

acquires, or has at any time between the 26th January, 1950 and the
commencement of this Act, voluntarily acquired, the citizenship of another country
shall, upon such acquisition or, as the case may be, such commencement, cease to
be a citizen of India:Provided that nothing in this sub-section shall apply to a citizen
of India who, during any war in which India may be engaged, voluntarily acquires
the citizenship of another country, until the Central Government otherwise directs:

Any citizen of India who by naturalisation, registration otherwise voluntarily

acquires, or has at any time between the 26th January, 1950 and the
commencement of this Act, voluntarily acquired, the citizenship of another country
shall, upon such acquisition or, as the case may be, such commencement, cease to
be a citizen of India:

Provided that nothing in this sub-section shall apply to a citizen of India who, during
any war in which India may be engaged, voluntarily acquires the citizenship of
another country, until the Central Government otherwise directs.

(2)If any question arises as to whether, when or how any [citizen of

India] [Substituted by Act 6 of 2004, Section 9, for " person" (w.e.f. 3.12.2004).] has
acquired the citizenship of another country, it shall be determined by such
authority, in such manner, and having regard to such rules of evidence, as may be
prescribed in this behalf.
If any question arises as to whether, when or how any citizen of India has acquired
the citizenship of another country, it shall be determined by such authority, in such
manner, and having regard to such rules of evidence, as may be prescribed in this
behalf.

.3. Constitutionalism
The Constitution is a document that contains rules regarding the structure of the
government of a country and the governance of the country. The government is
bound to follow the Constitution during its reign as ruling power and cannot violate
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it. The limitations on the government through these rules and regulations slowly
add up to the concept of Constitutionalism.
Constitutionalism basically means that the nature of the government should be
limited in nature and that its powers should not be arbitrary in nature. As in a
democracy, the people have the supreme power and not the ruling power, the
concept of constitutionalism advocates that a government should not override the
supreme law of the land i.e. the Constitution. In other terms, constitutionalism says
that the Constitution of a country should have restrictions laid down in it to prevent
the freedom of the citizens of the country, and to make sure the government does
not go beyond its authority.

Importance of Constitutionalism
Constitutionalism is the basic structure on which the governance of a country or
state strictly depends. Its importance cannot be ignored in any aspect. Some key
points are mentioned below:
 It is a set of norms that prevents the state from abusing its power
 It ensures that the people have liberty and get justice which is crucial for a
democratic country such as India
 It ensures proper governance within the country or state as it puts restrictions on
the overuse of state power, thereby protecting the rights of the democracy
 It helps in the better development and welfare in the developing countries as it
denotes equal rights for all
 It ensures that the state is based on specific rules and guidelines, which states
every person has the right to human dignity

Elements of Constitutionalism
It implies the following elements which characterise the Constitution in India.
 Sovereignty

It initiates that the government is free from any bias from any particular authority.
In short, it ensures the government is of the people, by the people, for the people.
 Supremacy of the Constitution and Rule of Law

It denotes the country is run through rules, not authority or powers. No one can
decide the governance except the laws and regulations which have been already
stated.
 Political Democracy

In a democracy, individual rights and equality should be protected. It declares equal

rights to all the individuals within the country.
 Representative-limited Government

It declares the representatives are selected through a proper election process by

the people. They elect representatives for their welfare, so they should be
accountable and answerable to the general public for their actions.
 Separation of Power

It divides the whole power into three branches, i.e., Executive, Legislative, and
Judiciary. This helps keep checks and balances in each area separately and in a
better way.
 Civilian Control of the Military Force

It denotes that the Civilian government should control the Military force in such a
way that the Military cannot have any way to interfere in the democratic decision-
making process of the country.
 Police Governed by Law and Judicial Control

It ensures the Police power should be judged by the Law and Judicial control. Police
have no right to harm the dignity of the people.
 An Independent Judiciary

The independence of the Judiciary system ensures the freedom of the democratic
power in India. It means that the government is free to run the country if the laws
support it.
Besides the concept of the Constitution, there is also the all-important concept of
‘Constitutionalism’. Modern political thought draws a distinction between
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‘Constitutionalism’ and ‘Constitution’. A country may have the ‘Constitution’ but not
necessarily ‘Constitutionalism’. For example, a country with a dictatorship, where
the dictator’s word is law, can be said to have a ‘Constitution’ but not
‘Constitutionalism’. The underlying difference between the two concepts is that a
Constitution ought not merely to confer powers on the various organs of the
government, but also seek to restrain those powers. Constitutionalism recognises
the need for government but insists upon limitations being placed upon
governmental powers. Constitutionalism envisages checks and balances and putting
the powers of the legislature and
the executive under some restraints and not making them uncontrolled and
arbitrary. Unlimited powers jeopardise freedom of the people. As has been well said:
power corrupts and absolute power corrupts absolutely. If the Constitution confers
unrestrained power on either the legislature or the executive, it might lead to an
authoritarian, oppressive government. Therefore, to preserve the basic freedoms of
the individual, and to maintain his dignity and personality, the Constitution should
be permeated with ‘Constitutionalism’; it should have some in-built restrictions on
the powers conferred by it on governmental organs. ‘Constitutionalism’ connotes in
essence limited government or a limitation on government. Constitutionalism is the
antithesis of arbitrary powers. ‘Constitutionalism’ recognises the need for
government with powers but at the same time insists that limitations be placed on
those powers. The antithesis of
Constitutionalism is despotism. Unlimited power may lead to an authoritarian,
oppressive, government which jeopardises the freedoms of the people. Only when
the Constitution of a country seeks to decentralise power instead of concentrating it
at one point, and also imposes other restraints and limitations thereon, does a
country have not only ‘constitution’ but also ‘constitutionalism’. ‘Constitutions
spring from a belief in limited government’. According to SCHWARTZ, in the U.S.A.,
the word Constitution means “a written organic instrument, under which
governmental powers are both conferred and circumscribed”. He emphasizes that
“this stress upon grant and limitation of authority is fundamental”.

A written Constitution, independent judiciary with powers of judicial review, the

doctrine of rule of law and separation of powers, free elections to legislature,
accountable and transparent democratic government, Fundamental Rights of the
people, federalism, decentralisation of power are some of the principles and norms
which promote Constitutionalism in a country.