B.A. LL.B. (Five Years) Sem 3 Constitutional Law I 2013 Jun Question Paper with Solutions

For full marks, cover: what "nature" asks (the kind of constitution India has, tested pair by pair); written and given by the people; a supreme Constitution, not a supreme Parliament (articles 13, 32, 226 and 245; Kesavananda, Minerva Mills); partly rigid and partly flexible; federal, unitary or both (Dr. Ambedkar on 4 November 1948; State of West Bengal, State of Rajasthan, S.R. Bommai); parliamentary, not presidential (Ram Jawaya Kapur, Shamsher Singh); a sovereign, socialist, secular, democratic republic, read through the Preamble (Berubari, Kesavananda, Indira Nehru Gandhi); a social document; a living document; a table; an assessment; a conclusion.

What the question asks

The nature of a constitution means the kind of constitution it is. Constitutions are usually classed in pairs: written or unwritten, rigid or flexible, federal or unitary, parliamentary or presidential. A further pair asks whether the constitution or the legislature is supreme. The Indian Constitution does not sit neatly on one side of most of these pairs. It borrows from several models and blends them for Indian conditions. This answer takes each test in turn, shows where India stands, and cites the decided cases.

2. Under article 13(2), a law that takes away or abridges a fundamental right is void to the extent of the contravention.
3. Under articles 32 and 226, the Supreme Court and the High Courts enforce rights and test laws against the Constitution.

India did not adopt judicial supremacy either. Parliament may amend the Constitution under article 368, even to undo the effect of a judgment. The courts may review an amendment only on the limited ground of the basic structure.

In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, thirteen judges held that the amending power is wide but cannot destroy the basic structure. In Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789, the Court held that a limited amending power is itself a basic feature. It said that the power to destroy is not a power to amend. So the Constitution, as interpreted by the courts, is supreme over every organ of the State, Parliament included.

3. Partly rigid and partly flexible

A rigid constitution needs a special procedure for amendment. A flexible one can be changed like an ordinary law. India uses three methods.

2. a division of legislative powers in the Seventh Schedule;
3. a written and supreme Constitution; and
4. an independent judiciary to decide disputes between them.

But the Union is given strong powers. It holds the residuary power (article 248) and may change State boundaries by ordinary law (article 3). Governors are appointed by the President. There is a single citizenship, and the emergency provisions can concentrate power at the Centre.

Dr. Ambedkar explained this design to the Constituent Assembly on 4 November 1948. He said that "the Draft Constitution can be both unitary as well as federal according to the requirements of time and circumstances". The courts have described it in different words over time.

1. Not truly federal. In State of West Bengal v. Union of India, AIR 1963 SC 1241, the Court held that the States are not sovereign. Parliament could therefore acquire land belonging to a State under a central law.

On 4 November 1948, Dr. Ambedkar told the Assembly that the American and Swiss systems give more stability but less responsibility. The Draft chose the parliamentary system, in which the executive answers to the legislature every day.

The courts have confirmed this.

1. In Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, the Court said that the President "has thus been made a formal or constitutional head of the executive". Real executive power is vested in the Ministers.
2. In Shamsher Singh v. State of Punjab, AIR 1974 SC 2192, the Court held that the President and the Governor act on the aid and advice of their Ministers, save in a few exceptional situations.

Unlike the British Parliament, however, the Indian Parliament works within a written and supreme Constitution.

6. A sovereign, socialist, secular, democratic republic

The Preamble declares the nature of the State.

1. Sovereign. India is free to decide its own internal and external affairs.

2. Part IV sets directive principles of social and economic justice. Article 37 makes them "fundamental in the governance of the country", though no court can enforce them.
3. Part IVA lists fundamental duties of citizens.
4. Article 17 abolishes untouchability. Articles 15(4) and 16(4) permit special provision for backward classes.

Granville Austin called Parts III and IV together "the conscience of the Constitution".

8. A living document

The Constitution grows through amendment and through interpretation. The courts have read new rights into article 21, such as the right to livelihood, to a clean environment and to privacy. In Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, nine judges held privacy to be a fundamental right. The basic structure doctrine lets the text change while its identity is kept.

The nature at a glance

Conclusion. The Indian Constitution is written, given by the people and supreme over every organ of the State. It is partly rigid and partly flexible. It is federal in structure with a strong Centre, and can work as a unitary system in an emergency. Dr. Ambedkar said so, and State of West Bengal and Bommai confirm it. It sets up a parliamentary government with a formal head, as Ram Jawaya Kapur and Shamsher Singh hold. It creates a sovereign, socialist, secular, democratic republic with a basic structure that Parliament cannot destroy. Its nature is best described as a unique blend, made for Indian conditions.