LEGAL AWARENESS-3

Law is basically recognized rules of conduct. These rules come into being from various sources and in different ways. In the Indian legal system, the rule of conduct comes from various sources including the religious diktats, customs, legislations; judicial and quasi judicial.

Salient Features of the Indian Legal System:-

1. A constitution guaranteeing the fundamental rights which override the entire law;

2.  A federal polity, thereby making the two classes of legislation- the Central and the State- with their respective powers demarcated in the constitution;

3. The recognition of the precedent or case law as a source of law.

4. The existence of the comprehensive codes on the various subjects of the lawyer’s law; such as the procedure, contracts, property, succession, crimes, commercial law, evidence, etc.

5. The adversary system of the procedure, that is, the judge does not take active part in the trial; and

6. The rule of law, preventive exercise of the arbitrary power without the express legal authority.

The Major sources of Law:-

The Indian law is derived from the three main sources:-

a. The Legislation, including the delegated legislation;

b. The case laws or the precedents, that is, the pronouncements of various courts; and

c. The customary law.

The Legislations:-

The two main legislative bodies in India are:

1. The Parliament, comprising the Lok Sabha and the Rajya Sabha.

2. The State legislatures comprising the legislative assembly and also the legislative council in some states.

The Parliament makes laws for the whole country on the subjects that are enumerated in the Union List contained in the seventh schedule of the Constitution. The State legislatures make the laws for the respective states on the subjects that are enumerated in the State list also contained in the said Seventh schedule. On certain subjects enumerated in the Concurrent list, both the Parliament and the state legislatures can make the laws. In such cases, the Parliamentary legislation generally overrides the state legislation.

The Acts and the Ordinances:

A bill passed by both the Houses of the Parliament becomes an act when assented by the President. Similarly the bill passed by the State Legislature becomes an act when assented by the Governor of the State. An ordinance is promulgated by the President for the Union (and the Governor for the State) when the circumstances requires the immediate action and the Parliament (or the State legislature) is not in session. An ordinance is, however, a temporary law and it must be replaced by an act of the Parliament (or state legislature, as the case may be) within the six weeks of the commencement of the session when the Parliament or the state legislature meets next. If an ordinance can not be replaced by an act then its validity expires and it has to be repromulgated.

The Subordinate Legislation:

Almost every act empowers an appropriate govt or authority to make the rules or orders to carry out the purpose of the act. These are called the delegated legislation. These are also known as the subordinate legislation. The reason behind the delegation of the rule making power is that the legislature can not foresee all the situations, or may not have time to provide for all the details, or may not possess the requisite expertise for setting out technical matters. A delegated legislation may be in the form of the rules, regulations, orders, notifications, schemes, by laws, etc. A delegated legislation or a  subordinate legislation can not be inconsistent with the act under which it is made (or the present law). A delegated legislation is generally required to be placed before the Parliament or the State legislature, as the case may  be, when it meets the next.

The Case laws:-

In India the doctrine of the precedent is followed. A precedent is a decided case used as an example to justify a judgment in the subsequent cases of the same type. Accordingly when a H C or a S C decides a case, it is binding not only on the parties to the proceeding, but also on all the lower courts for the future and the pending litigation on the same issue.

The applicability of the Supreme Court rulings:

A judgment of the SC is binding on all the courts and authorities in India. A SC ruling can be altered by a judgment of a larger bench of the SC or by modifying the legislation by the competent legislature.

The applicability of the High Court rulings:

A judgment of a High Court is binding on all the civil courts in that state, even if the civil judge views differently on that issue. However, a judgment of a HC is not binding on the HC and the lower courts in other states. The judgments of the HC of the other states have only the persuasive guidance but no binding authority. A HC judgment may be:

  a. Overruled by the SC;

  b. Overruled by a larger bench of the same HC;

c. Modified by a legislation of the competent legislature. If the different HC view differently on a point of law it can be settled either by a SC ruling or by a suitable modification in the legislation. Till then, the ruling of each HC shall be a good law in the respective state.

The Advantages of the Case laws:  

The legislations can not cover all the probable questions that may arise. Besides, the various provisions of a legislation may require to be elaborated or interpreted. The case laws fills these gaps.

The Customary Law:-

Certain customs or usage have been recognised as and treated at par with the laws. A custom means a practice which has become well rooted and is universal. For example, in family law, the customs are recognised as a law and in certain cases even modify the general rule of the law otherwise applicable. Similarly, in certain commercial transactions, business usage can take place of the law.

The Branches of the Law:-

The main branches of the law are:

a. The Public laws - concerning with the matters that affect the public as a whole. These are the constitutional law, the administrative law, taxation law, and the criminal law.

b. The Private laws - concerning with the private matters. These are the laws of the contracts, the law of the torts, laws relating to the property, inheritance, family, etc.

c. The Civil law - concerning with the remedies other than the punishment.

d. The Substantive law - concerning with the legal rights and duties.

e. The Adjective law - dealing with the process of the enforcement.

THE INDIAN JUDICIARY

The Indian judiciary can be broadly divided into:

1. The Higher judiciary consisting of the Supreme court and the High courts, and

2. The Lower judiciary consisting of the ordinary civil and the criminal courts and certain special courts.

The Governing Law:-

The higher judiciary consisting of the SC and the HC, is 

established under or is regulated by the Constitution. However, certain HC, for example, the HC of Bombay, the HC of Madras, the HC of Calcutta and the HC of Allahabad were constituted under the pre constitution enactments. These HC assume their jurisdiction, powers and authority under those enactments even today, to the extent that the same are not contrary to the constitution. The SC is entirely the creature of the constitution and also assumes the jurisdiction conferred on it under the Parliamentary legislation. As regards the lower judiciary, the Civil courts are constituted mostly under the civil courts act in force in each state whereas the criminal courts are constituted under the CrPC, 1973. These courts exercise the jurisdiction in the pursuance of powers conferred on them under a host of the Central and the State laws.

The Functions of the Supreme Court:-

The Supreme Court functions as:

1. A federal court, deciding the disputes between the Union and the States, or the States inter se,

2. A constitutional court empowered-

a. To issue the writs, orders, and the directions for the enforcement of the fundamental rights, under the art. 32 of the constitution, and

b. To exercise the appellate jurisdiction under the art. 131 of the constitution, in the judgments of the H C involving a question of the interpretation of the constitution,

c. The highest appellate court in India in the civil, criminal and taxation matters,

d. A special appellate court, when the S C grants special leave petition, of the appeal,

e. An advisory court, on the matters referred to it by the President,

f. A court having the miscellaneous jurisdiction, for example, jurisdiction to decide the election petitions in the Presidential and Vice presidential elections.

The Functions of the High Courts:-

The High courts have been conferred with the wide and multi farious jurisdiction, in order to ensure the uniformity on the questions of law within the State and to correct the serious injustices in the proceedings of the lower courts in the State. The H C functions as:

1. The highest appellate courts in the state in both the civil and the criminal matters,

2. The court of reference in respect of the taxation matters, and matters involving the validity of an act,

3. The court empowered to issue the writs for the enforcement of the fundamental rights, under the art. 226 of the Indian constitution.

4. The court of confirmation in all cases where the sessions court has passed a sentence of death,

5. A court competent to decide the election petitions,

6. A court having the miscellaneous jurisdiction under the special laws.

Besides, the H C exercises the power of the superintendence over all the courts and the judicial authorities in the state.

The Civil Courts:-

A civil court exercises the jurisdiction over a suit or other proceedings with reference to the following:-

1. The Local limits:  the local limits of a court’s jurisdiction are stated in the notification issued under the state civil court act constituting that court. The local limits are determined with reference to the sections 16 – 20 of the C P C, 1908.

2. The pecuniary limits: the pecuniary limits of a civil court is also stated in the notification as aforesaid, and are determined with reference to the valuation rules under the suits valuation act.

3. The subject matter: A court shall not entertain a suit or proceeding which is excluded from the particular court. for example, the matrimonial disputes can be redressed only in a district court or other notified court or the Family court, wherever established.

Besides, before exercising the jurisdiction over a suit, the court must ensure that the procedural pre requisites have been complied with.

The Criminal Courts:-

The Sessions court is the highest criminal court of the original jurisdiction. A state is divided into several divisions and there is a Sessions court for each sub divisions. A sessions court can try any offence and impose any sentence authorised by the law for a particular offence. However, the death sentence imposed by the sessions court must be confirmed by the H C in that state. Generally, a sessions court does not entertain a criminal case directly, but only on a committal made to it by the competent magistrate. However, a Sessions court can entertain directly the suits relating to the defamation of the high dignitaries of the Govt. The magistrate of the 1^st class and the 2^nd class can entertain the suits relating to the offences listed in a Schedule under the Cr P C, 1973. A Metropolitan Magistrate can try all the offences which can be tried by the 1^st class magistrate.

The Systems of the Trial:-

There are two systems of the trial:

1. The Adversary system:-

This system is based upon the principle that truth will come out by a presentation of their cases by the various adversaries. The judge does not take an active part in the trial and the most of the questioning is done by the councils for the opposite parties.

2. The Inquisitorial system:-

In this system, the judge plays a dominant role in the conduct of the trail and examination of the witnesses. It is based in the principle that it is the judge’s duty to elicit the truth, as far as possible, by his own initiative.

India follows the adversary system of the trial.

LEGAL AWARENESS-2

THE SUPREME COURT:-

The establishment, constitution, power and the position of the Supreme Court.

On the 28^th of January 1950, two days after India became a sovereign, democratic republic, the S C came into existence. The inauguration took place in the Chamber of Princes in the parliament building which also housed the Indian Parliament, consisting of the Council of States or the Rajya Sabha and the House of the People or the Lok Sabha. During the inaugural proceedings the Judges of the Federal court took their seats. In attendance were the Chief Justice of the H C of the Allahabad, Bombay, Madras, Orissa, Assam, Nagpur, Punjab, Saurashtra, Patiala and the East Punjab states Union, Mysore, Hyderabad, M P and Travancore – Cochin. Along with them was present the Attorney General for India, M C Setalvad. After its inauguration on 28^th January, 1950 the S C commenced its sittings in a part of the Parliament House. The Court moved into the present building in 1958. In all there are 15 Court rooms in the various wings of the building. The Chief Justice’s court is the largest of the courts located in the centre of the Central Wing. The original constitution envisaged a S C with a Chief Justice and 7 other puisne judges- leaving it to the Parliament to increase its no. At present, currently, the S C of India comprises the Chief Justice and 30 other puisne judges appointed by the President of India. The S C judges retire upon attaining the age of 65 years. In order to be appointed as a judge of the S C, a person must be a citizen of India, and must have been, for at least 5 years, a judge of the H C or of two or more such courts in succession, or an advocate of an H C or of two or more such courts in succession for at least 10 years or he must be in the opinion of the President, a distinguished jurist. The Constitution seeks to ensure the independence of the S C judges in various ways. A judge of the S C cannot be removed from the office except by an order of the President passed after an address in each House of the Parliament supported by a majority of the total membership of that House and by a majority of the not less than two third of the members present and voting, and presented to the President in the same sessions for such a removal on the ground of the proved misbehaviour or incapacity. The proceedings of the S C are conducted in English only. The S C rules, 1966 are framed under the Art. 145 of the Indian constitution to regulate the practice and the procedure of the S C.

The Supreme Court Registry:-

The Registry of the S C is headed by the Registrar General who is assisted in his works by the three Registrars, 4 additional registrars, 12 joint registrars, etc. Art. 146 of the Indian constitution deals with the appointments of the officers and the servants of the S C Registry.

Attorney General:-

The Attorney General for India is appointed by the President of India under the Art. 76 of the Indian constitution and holds the office during the pleasure of the President. He must be a person qualified to be appointed as a judge of the S C. It is the duty of the Attorney general for India to give the advice to the Govt of India upon such legal affairs and to perform such other duties of legal characters as may be referred or assigned to him by the president. In discharge of his duties or functions, the Attorney general is assisted by the Solicitor general and four additional solicitor generals.

The Supreme Court Advocates:-

There are 3 categories of the Advocates who are entitled to practice the law before the S C of India:

  1.            The Senior advocates:

These are the advocates who are designated as the senior advocates by the S C of the India or by any H C. The Court can designate any advocate, with his consent, as senior advocate if in its opinion by the virtue of his ability, standing at the Bar or special knowledge or the experience in law the said advocate is deserving of such distinction. A senior advocate is not entitled to appear without an advocate on record in the S C or without a junior in any other court or the tribunal in India. He is also not entitled to accept the instructions to draw the pleadings or the affidavits.

  2.            Advocates on Record:

Only these advocates are entitled to file any matter or document before the S C. They can also file an appearance or the act for a party in the S C.

  3.            Other advocates:-

These are the advocates whose names are entered on the roll of any state bar council maintained under the Advocates Act, 1961 and they can appear and argue any matter on behalf of the party in the S C but they are not entitled to file any document or matter before the court.

Public Interest Litigation:-

The S C has started entertaining the matters in which the interest of the public at large is involved and the court can be moved by any individual or group of individuals either by filing a writ petition at the filing counter of the court or by addressing a letter to the Hon’ble the Chief Justice of India highlighting the question of the public importance for invoking this jurisdiction. Such a concept is particularly known as the Public Interest Litigation and several matters of the public importance have become the landmark cases. This concept is unique to the S C of India only and perhaps no other court in the world has been exercising this extra ordinary jurisdiction.

The Provisions of the Legal aid:-

If a person belongs to the poor section of the society having the annual income of less than rs. 18000 or belong belongs to the Schedule Cast or the Schedule Tribe, a victim of the natural calamity, is a woman or a child or a mentally ill or otherwise disabled person or an industrial workman, or is in custody including the custody in protective home, he or she is entitled to get the free legal aid from the S C Legal Aid Committee. The aid so granted by the Committee includes the cost of the preparation of the matter and all the applications connected therewith, in addition to providing an advocate for preparing and arguing the case. Any person desirous to of availing the legal service through the committee has to make an application to the secretary and hand over all the necessary documents concerning his case to it. The committee after ascertaining the eligibility of the person provides the necessary legal aid to him or her.

Amicus Curiae:-   

If a petition is received from the jail or in any other criminal matter if the accused is unrepresented then an advocate is appointed as the amicus curiae by the court to defend and argue the case of the accused. In civil matters also the court can appoint an advocate as the amicus curiae if it thinks it necessary in case of an unrepresented party; the court can also appoint the amicus curiae in any matter of the general public importance or in which the interest of the public at large is involved. As per Art. 124 of the Indian constitution, there shall be a S C of India consisting of a Chief Justice of India and, until the Parliament by law prescribes a large no. of not more than seven other judges. Now the present no. of judges is 25.

Qualifications of the President of India  

A person shall not be qualified for the appointment as the judge of the S C unless he is a citizen of India and:

  a.  Has been for at least 5 years a judge of the H C or of two or more such courts in the succession; or

  b.  Has been for at least 10 years an advocate of a H C or of two or more such courts in succession; or

  c.  Is, in the opinion of the president a distinguished jurist.

The appointment of the Acting Chief Justice:-

The Art. 126 of the Indian Constitution provides for the appointment of the acting chief justice. When the office the chief justice of India is vacant or when the Chief justice is, by the reason of absence or otherwise, unable to perform the duties of his office, the duties of his office shall be performed by such one of the other judges of the court as the President may appoint of the purpose.

The Supreme Court to be a Court of Record:-

The S C shall be a court of record and shall have all the powers of such a court including the power to punish for the contempt of itself. The S C shall sit in Delhi or in any such place, as the Chief Justice of India may with the approval of the President from time to time appoint.

The review of the Judgments or the Orders by the Supreme court:-

Subject to the provisions of any law made by the Parliament or any rules made under the Art. 145 of the Indian constitution dealing with the rules of the court, the S C shall have the power to review any judgment pronounced or the order made by it.

The law declared by the Supreme Court to be binding on all courts:-

The law declared by the S C shall be binding on all the courts within the territory of India. The enforcement of the decrees and the orders of the S C and orders as to the discovery, etc. The S C in the exercise of its jurisdiction may pass such decree or make such orders as is necessary for doing the complete justice in any cause or the matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such a manner as may be prescribed by or under any law made by the Parliament and, until the provision in that behalf is so made, in such manner as the president may by order prescribe.

The jurisdiction of the Supreme Court:-

The original jurisdiction of the Supreme Court: The S C shall have the original jurisdiction to the exclusion of any other court in any of the following types of the dispute:

  a.  The disputes between the Govt of India and one or more states; or

  b.  The disputes between the Govt of India and any state on one side and one or more states on the other; or

  c.  The disputes between two or more states.

It will resolve the dispute that involves any question, whether of law or fact, on which the existence or extent of a legal right depends. In addition, Art. 32 of the Indian Constitution gives an extensive original jurisdiction to the S C in regard to the enforcement of the Fundamental Rights. It is empowered to issue the directions, orders or writs, including the writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition to enforce them. The S C has been conferred with the power to direct transfer of any civil or criminal case from one state H C to another state H C or from a court subordinate to another state H C.

The appellate jurisdiction of the Supreme Court in appeals from the High Courts in certain cases: An appeal shall lie to the S C from any judgment, decree or final order of a H C in the territory of India whether in a civil, criminal or other proceedings if the H C certifies under the art. 134 A that the cases involve a subsequential question of law as to the interpretation of the Constitution.

The appellate jurisdiction of the Supreme Court in appeals from the High Court in regard to civil matters: An appeal shall lie to the S C from any judgment, decree or final order in a civil proceeding of a H C in the territory of India if the H C certifies under the art. 134 A:

  a.  That the case involves a substantial question of law of general importance; and

  b.  That in the opinion of the H C the said question needs to be directed by the S C.

The appellate jurisdiction of the Supreme Court in regard to criminal matters:  An appeal shall lie to the S C from any judgment final order or sentence in a criminal proceedings of a H C in the territory of India if the H C:

  a.  Has on appeal reversed an order of acquittal of an accused person and sentences him to death; or

  b.  Has withdrawn for trail before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or

  c.  Certificates under the art. 134 A that the cases are a fit one for the appeal to the S C.

The advisory jurisdiction of the Supreme Court: The S C has special advisory jurisdiction in matters which may specially be referred to it by the president of India under the art. 143 of the Constitution.

LEGAL AWARENESS-1

Law, Courts and the Constitution:

India has one of the oldest legal systems in the world. India’s commitment to the law is created in the Constitution which constituted India into a Sovereign, Democratic Republic, containing a federal system with the Parliamentary form of the Govt in the Union and the States, an independent judiciary, guaranteed Fundamental Rights and the Directive Principles of The State policy containing the objective which though not enforceable in law are fundamental to the governance of the nation.

The main Sources of Law:-

The fountain source of the laws in India is the Constitution which, in turn, gives due recognition to the statutes or the legislation, the case laws or the precedent and the customary law consistent with its dispensations. 

The statutes are enacted by the Parliament, the State legislatures and the Union Territory Legislatures. The statutes are the most potent and sovereign source of the law making. It is the only source which has all the powers of enacting the law, repealing the old laws and modifying the current laws.

The case laws are the statements of the law found in a judicial decision of a superior court. These are also called the judge made laws. The decisions of the Supreme Courts are binding on all the courts within the territory of India. Article 141 of the Indian Constitution declares that the decisions given by the S C shall be binding on all the courts within the territory of India. Similarly the decisions of the H C are binding over all the courts below it within its jurisdiction.

As India is a land of diversities, the local customs and the conventions which are not against the statute, morality, etc. are to a limited extent also recognised and taken into account by the courts while administering the justice in certain spheres. The customs means the certain rules of action that is voluntarily and uniformly followed and observed by the people of the generation from the time immemorial. It should be actionable reasonable, observed as a right, immemorial antiquity, continuity, peaceable certainty, consistency with the other customs, should not contradict any laws.

The main features of the Indian Constitution:-

  1.            Judiciary:-

One of the unique features of the Indian Constitution is the Judiciary, as it has generally provided for a single integrated system of the Courts to administer both the Union and the State laws. At the apex of the entire judicial system, exists the Supreme Court of India below which is the High Courts in each State or the group of States. Below the High Court lies a hierarchy of the Subordinate Courts. Panchayat Courts also function in some States under the various names like theNyay Panchayat, Panchayat Adalat, Gram Kachheri, etc. to decide the civil and the criminal disputes of the petty and the local nature.

Each state is divided into the judicial districts presided over by a District and Sessions Judge, which is the principal civil court of the original jurisdiction and can try all the offences including those punishable with death. The Sessions Judge is the highest judicial authority in a district. Below him, there are Courts of the civil jurisdiction, known in different States as the Munsiffs, sub judge, civil judges and the like. Similarly the criminal judiciary comprises the chief judicial magistrates and the judicial magistrates of the 1^st class and the 2^nd class.

  2.            The largest constitution:-

The Indian constitution is the world’s largest constitution. It consists of about 448 articles, 25 parts, 12 schedules and more than 100 amendments. It is a very detailed constitution and had borrowed several features from the other constitutions.

  3.            The written constitution:-

The Indian constitution is a wholly written document which incorporates the constitutional law of India. It took 2 years, 11 months and 18 days to write and enact the Constitution. The constitutions of the U K and Israel are the examples of the unwritten constitution.

  4.            The preamble of the Constitution:-

The preamble to the Constitution of India is a well drafted document which states the philosophy of the constitution. It declares India to be a sovereign, socialist, secular, democratic, republic and a welfare state committed to secure injustice, liberty and equality for the people. Preamble is the key to the Constitution.

  5.            Sovereign, secular, socialist, democratic, republic:-

Sovereign as it does not recognise the legal supremacy of the other country over India. India is the fully independent and is no more dependent upon any outside the authority.

 Secular as India gives no special status to any religion. There is no such thing as a national religion of India. The Indian secularism guarantees the equal freedom to all religions. The constitution grants the Right to religious freedom to all citizens.  

Socialist as it incorporates the philosophy of socialism which aims at the elimination of the inequality in the income and status and the standards of the life. It considers every citizens equal before of the law.

Democratic as the constitution of the India provides for a democratic system. It denotes a form of govt which secures the power from the will of the people by electing the representatives by the universal franchise. The authority of the govt rests upon the sovereignty of the people. The person elect their own govt. India is the world’s largest working democracy.  

Republic as the head of the state is not a hereditary monarch. India has an elected head of the state, who wields the power for a fixed term of 5 years. The President of the India is the Chief Executive Head elected by the people’s representatives.

  6.            Parliamentary form of the Govt:-

The constitution of India provides for a parliamentary system of the govt at the centre as well as in every State of the Union. The president of India is the Constitutional head of the state with the nominal powers. The Union Council of the Ministers headed by the P M is the real executive. For all its policies and decisions the council of the ministers is collectively responsible before the Lok Sabha. The members of the Lok Sabha are elected for the period of 5 years. The Upper House or the Rajya Sabha members are elected indirectly.

  7.            Fundamental Rights:-   

The Indian constitution under its Part 3 [Article 12 – 35] grants and guarantees the fundamental rights to its citizens. The fundamental rights are 6 in no. Among these, the equality before the law and the equal protection of the law [Art. 14]; freedom of the speech, etc. [Art. 19]; the right to life and the personal liberty [Art. 21] are of the great importance and are described as the ‘Golden Triangle’. The fundamental rights are the prohibitions against the state. The state cannot make a law which takes away or abridges any of the rights of the citizens guaranteed in the Constitution.

  8.            The Directive Principles:-

The Part 4 of the constitution dealing with the D P S P provides one of the most striking features of the Indian Constitution. These are the instructions to the state for securing the socio economic developmental objectives through its policies. These are to be implemented by both the Union for the States. Unlike the fundamental rights, these rights are not justifiable, that is, they cannot be enforced in the court of law. These are to be kept in the mind by the legislature while preparing the law. The aim of part 4 of the constitution is to secure and strengthen the socio economic democracy in India.

  9.            The Fundamental Duties:-    

Originally, the constitution does not contain any fundamental duties. Later certain fundamental duties of the citizens of India have been introduced in the constitution of India by the constitutional [42^nd amendment] Act, 1976. These are provided in the part 4 – A, Article 51 – A of the constitution. These are some duties that the citizens are bound to do.

  10.        Universal Adult Franchise:-

Another feature of the Indian Constitution is that it provides for the universal adult franchise. All the men and women above the age of 18 have been giving the right to elect the representatives for the legislature. All the registered voters enjoy the right to vote in the elections. The adoption of the universal adult franchise without any qualification either of the sex, the property, the taxation, the race, the religion, or the like is a unique one. 

  11.        The Single Citizenship:-

The citizen is one who, as a member of a nation or the state, owes the allegiance to any may claim the reciprocal protection from its govt. He/she is a natural person living in a country. Unlike the USA there is only a single citizenship in India. Every Indian is the citizen of India and enjoys the same right of the citizenship no matter in what state he resides. They are entitled to the equal rights and freedoms and the equal protection of the state.

  12.        The Emergency Provisions:-  

The Indian constitution contains the special provisions for dealing with the emergencies. It recognises the 3 types of the possible emergencies:

a.  National emergencies [Art. 352] :- is the emergency resulting from the war or the external aggression or the threat of the external aggression against India or from the armed rebellion within India or any of its part.

b.  State emergencies [Art. 356] :- is the emergency resulting from the failure of the constitutional machinery in any state or some states.

c.  Financial emergencies [Art. 360] :- is the emergency resulting from the threat to financial stability of the nation.

The president of India has been empowered to take the appropriate steps for dealing with these emergencies. These are called the emergency powers of the president.

  13.        Partly rigid and partly flexible:-  

The constitution of India is neither rigid nor flexible. Article 368 of the Constitution confers the power on the Parliament to amend the provisions of the constitution in three ways, which are as follows:-

a.  The simple majority;

b.  The special majority; and

c.  The special majority with the ratification of the state.

Some of its provisions can be amended in a difficult way while others can be amended very easily. Certain provisions which are ultra vires can be amended without affecting the basic structure of the constitution. Hence it is both rigid and flexible.

  14.        Both unitary and federal:-

The Indian constitution is both unitary and federal. The Indian constitution has the characteristics of both the unitary and the federal constitutions. Thus the powers are distributed among the union or the central govt as well as the state govt. The constitution acquires the unitary character during the emergencies.

  15.        The Constitutional Remedies:-

The Indian constitution provides for the constitutional remedies to all the people. Under the Art. 226 of the Indian constitution, it provides the constitutional remedies available for the citizens from the H C. And in the Art. 32 of the Indian constitution, it provides the constitutional remedies available for the citizens from the S C. When the rights of the citizens are violated, they can seek the remedies from the H C as well as the S C, which are collectively known as the constitutional remedies. The constitutional remedies are in the form of writs. A writ is an order. There are 5 writs in total. These are as follows: habeas corpus; mandamus; certiorari; quo warranto and finally prohibition.

·       Habeas corpus: - The writ of habeas corpus is used when there is an illegal detention of a person in the H C under Art. 226 and in the S C under Art. 32 of the Indian constitution.

·       Mandamus: - The writ of mandamus is the issue of a command from the H C and the S C, which is directed against the State or the authority mentioned. The performance of a particular duty results from the official duty or by the operation of the law, may be defined as the writ of mandamus.

·       Certiorari: - The writ of certiorari means to quash the order. This writ is issued to correct the error of the jurisdiction committed by an inferior court or the tribunal in the course of their judicial acts.

·       Quo warranto: - The term means “by what authority”. This writ is issued so as to commence an action for the purpose of recovering of an office of franchise from the person or authority that is in possession of the same without the valid title to the office and/or usurping the same.

·       Prohibition: - The term means “to stop or to prevent”. This writ is preventive in nature. It is issued to prevent the commission of the future act.