Constitutional Law interview questions for civil judge

Ans. Constitution is a living and organic document. Those who said that society’s changing mode must interpret the words and expressions used in the constitution, rather than giving them a fixed meaning.

Q. What is the difference between Constitution and Constitutional Law?

Ans. Constitution is the will of the people and Constitutional law is a fundamental law.

Q.What is Constitutionalism?

Ans. Constitutionalism implies a government that distributes and limits power through a system of laws that the rules must obey.

Q. What is Socialism?

Ans. Socialism is an economic and social theory that seeks to maximize wealth and opportunity for all people through public ownership and control of industries. This is a political philosophy in which social and economic things are dominant.

Q. What do you mean by sovereign?

Ans. Sovereign means self-governing independent and permanent authority especially in a nation or other governmental unit.

Q. Do you agree that our Constitution is based upon federal structure?

Ans. Our Constitution is based upon both federal and unitary structures. It is quasi-federal.

Q. What is the difference between federalism and Cooperative federalism?

Ans. Federalism is a way of organizing a nation so that two or more levels of government have formal authority over people.

In cooperative federalism, both the Centre and the State actively enjoy mingled responsibilities in terms of powers, policy, costs, administration, and more.

Q. What is the Rule of Law?

Ans. Rule of law means rule according to law or rule under the law. Government decisions are made based on the principle of the rule of law.

Q. Why Directive Principle of State Policy (DPSP) is not enforceable?

Ans. Article 37 of the constitution declares that the DPSP shall not be enforceable by any court. The prime intention of the Constituent Assembly was that Directive Principles are superfluous and mere guidelines or pious principles or instructions. Therefore, DPSP is not enforceable.

Q. What is your opinion regarding the reservation policy?

Ans. In one way, it is an extraordinary tool for the upliftment of lower societies, in another, it curtails the growth of the nation by way of ignoring excellent people to success.

Q. What is your opinion regarding the exclusion of a creamy layer of SC/ST from the reservation?

Ans. Policy makers take this necessary step because they believe that reservation is not needed for individuals classified as creamy layers. It is parallel to the philosophy behind reservation.

Q. What is the difference between reservation and affirmative action?

Ans. In affirmative action the deprives are raised to the level of competence.

In reservation, the desired platform accommodates a reduction in the level of competence.

Q. Is Preamble a part of the Constitution?

Ans. Yes, the preamble is a part of the Constitution.

Q. What is Catch up the rule?

Ans. On 1 October 1995, a two-judge Bench of the Court pronounced in Union of India v Virpal Singh Chauhan28 (“Virpal Singh”) that the state has the authority to provide that a candidate belonging to the SC or ST, even if promoted earlier based on reservation and the application of the roster, would be entitled to seniority over a senior belonging to the general category in the feeder cadre.

However, a senior belonging to the general category who is promoted to a higher post subsequently would regain seniority over the reserved candidate who was promoted earlier. This rule came to be known as the catch-up rule. The two-judge Bench directed that the above principle would be followed with effect from the date in the judgment in Sabharwal.

Catch up rule was negated by the 85th Amendment 2001 in terms of reservation in promotion. In the case of Jagdish Lal v. State of Haryana AIR 1993 SC, it was held that when reserved candidates had been promoted earlier to a general candidate their seniority in the new cadre would rank from the date of their joining on promotion.

Q. Whether Narco-analysis and Brain- mapping tests are constitutional?

Ans. According to the Apex Court decision in Selvi vs. the State of Karnataka, it is unconstitutional if it is done without the consent of the accused. The evidence found through this mode is a confession before the Police officer.

Q. What do you mean by the procedure established by law under Article 21 of the Constitution?

Ans. It means that a law that is duly enacted by the legislative or the concerned body is valid if it has followed the correct procedure.

Q. What is the difference between prohibition and certiorari writ?

Ans. The main difference between the two writs is that the writ of prohibition is issued when a subordinate court undertakes a matter outside its jurisdiction. In such cases, when the writ is issued, the court must halt its proceedings even if a case is still pending. On the other hand, the writ of certiorari is issued when a subordinate court has already rendered a decision beyond its judicial power. In this scenario, once the writ of certiorari is issued, the court must transfer the case files and all related documents to the higher court. In certain situations, a petition for both writs can also be filed.

For instance, if a subordinate court receives a matter that falls outside its judicial power, they must immediately cease proceedings upon receiving a prohibition order from the high court. However, if the petitioner fails to approach the court seeking a writ of prohibition, they still can seek a writ of certiorari. In such a case, if a decision has been rendered by the subordinate court, the writ of certiorari will revoke the court’s verdict, and it will transfer the matter to the high court or the supreme court.

Q. What is the difference between the pardoning power of the President and the Governor?

Ans. Article 72 of the constitution of India provides the pardoning power of the President. Article 161 of the constitution provides the pardoning power of the Governor.

The Governor has no power to grant pardonin any case where a person has been sentenced to death.

If a state law prescribes for death sentence the power to grant a pardon shall be with the president. The governor has no power in respect of punishment by a Court-martial.

Q. What is the doctrine of pith and substance?

Ans. If the question arises of determining whether a particular law relates to a particular subject then the court looks to the substance of the matter. This is called the doctrine of Pith and Substance.

What is the doctrine of colourable legislation?

Ans. This is a doctrine of legislative accountability and the Parliamentary system. According to this doctrine, something has been done indirectly which cannot be done directly.

Q. What is territorial nexus?

Ans. The power to make extra-territorialoperations is enjoyed by the parliament only. If a state makes such types of laws that becomes ultra vires.

If certain acts thereexists a nexus between the state and object then such object is called territorial nexus and such law passed by the state is valid.

Q. What is the decision of the Ashok Kumar Thakur case?

Ans. In this case, the Supreme Court of India upheld that from Government funded institutions creamy layer has been excluded.

Q. What is the procedure for the appointment of Judges in the Supreme Court and High Court?

Ans. Under Article 124 of the Constitution of India. Every judge of the Supreme Court of Indiashall be appointed by the President of India. President must take the opinion of the Chief Justice of India.

Article 217 of the Constitution of India states that a Judge of a High Court is appointed by the President of India.

The appointment shall be made with the consultation of the chief justice of India. The chief justice must consult with collegiums consisting of the Chief Justice of India and two senior-most judges of the Supreme Court of India.

Q. Which Article of the Constitution provides for a subordinate Court?

Ans. Article 233 to 237 provides the provisions regarding subordinate court.

Q. Is the Judiciary encroaching in the field of the executive?

Ans. The main tension between the judiciary an executive is maintaining the balance of power between the Judiciary and Legislative the judicial review involves a vindication of the legality of administrative decisions. The judiciary works like a watchdog role. So, it cannot be said that Judiciary is encroaching onthe field of the executive.

Q. What is the doctrine of eclipse?

Ans. According to this doctrine, the law which is inconsistent with a fundamental right becomes inoperative from the date of the commencement of the Constitution whether it is post-constitutional or pre-constitutional.

Q. What is the effect of I.R. Coelho’s Judgment on the IXth Schedule of the Constitution?

Ans. In this case, the question has been raised whether putting a law found by a court to abrogate or abridge a fundamental right in the Ninth Schedule saves it.

The court held that Parliament has the power to amend Part III, but if the amending law invalidates the basic structure, it becomes invalid.

Q. Give your view on the recent amendment giving reservations in private Educational Institutions.

Ans. In the case of TMA Pai Foundation v. State of Karnataka (2002) or P.A Inamdar v. State of Maharashtra 2005 AIR (SC), it was held that reservation cannot be enforced on private unaided educational institutions. To overcome it 93rd Constitution Amendment was brought in 2003 and Article 15(5) was added.

Q. Give your views on the reservation in India as provided by the Constitution of India?

In the Indra Sawhney Case of 1992, the Supreme Court while upholding the 27 percent quota for backward classes, struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes.

Supreme Court in the same case also upheld the principle that the combined reservation beneficiaries should not exceed 50 percent of India’s population.

The concept of the ‘creamy layer’ also gained currency through this judgment and provision that reservation for backward classes should be confined to initial appointments only and not extend to promotions.

Recently, the Constitutional (103rd Amendment) Act of 2019 has provided 10% reservation in government jobs and educational institutions for the “economically backward” in the unreserved category.

The Act amends Articles 15 and 16 of the Constitution by adding clauses empowering the government to provide reservation on the basis of economic backwardness.

This 10% economic reservation is over and above the 50% reservation cap.

Constitutional Provisions Governing Reservation in India

Part XVI deals with the reservation of SC and ST in Central and State legislatures.

Articles 15(4) and 16(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST.

The Constitution was amended by the Constitution (77th Amendment) Act, 1995, and a new clause (4A) was inserted in Article 16 to enable the government to provide reservation in promotion.

Later, clause (4A) was modified by the Constitution (85th Amendment) Act, 2001 to provide consequential seniority to SC and ST candidates promoted by giving reservation.

Constitutional 81st Amendment Act, 2000 inserted Article 16 (4 B) which enables the state to fill the unfilled vacancies of a year which are reserved for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on a total number of vacancies of that year.

Article 330 and 332 provides for specific representation through the reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively.

Article 243D provides reservation of seats for SCs and STs in every Panchayat.

Article 233T provides reservation of seats for SCs and STs in every Municipality.

Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration consistently with the maintenance of efficacy of the administration.

Judicial Scrutiny of Reservation

The State of Madras v. Smt.ChampakamDorairajan (1951) case was the first major verdict of the Supreme Court on the issue of Reservation.The case led to the First Amendment in the Constitution.

The Supreme Court in the case pointed out that while in the case of employment under the State, Article 16(4) provides for reservations in favor of the backward class of citizens, no such provision was made in Article 15.

Pursuant to the Supreme Court’s order in the case the Parliament amended Article 15 by inserting Clause (4).

In the Indra Sawhney v. Union of India (1992) case the court examined the scope and extent of Article 16(4).

The Court has said that the creamy layer of OBCs should be excluded from the list of beneficiaries of reservation, there should not be reservation in promotions, and total reserved quota should not exceed 50%.

The Parliament responded by enacting the 77th Constitutional Amendment Act which introduced Article 16(4A).

The Article confers power on the state to reserve seats in favor of SC and ST in promotions in Public Services if the communities are not adequately represented in public employment.

The Supreme Court in M. Nagaraj v. Union of India 2006 case while upholding the constitutional validity of Art 16(4A) held that any such reservation policy in order to be constitutionally valid shall satisfy the following three constitutional requirements:

The SC and ST communities should be socially and educationally backward.

The SC and ST communities are not adequately represented in public employment.

Such reservation policy shall not affect the overall efficiency in the administration.

In Jarnail Singh vs LachhmiNarain Gupta case of 2018, Supreme Court holds that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes.

The Court held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in the promotion to SC/ST individuals who belong to the creamy layer of their community.

In May 2019 the Supreme Court upheld the Karnataka law that allows reservations in promotions for SCs and STs with consequential seniority.

Why is reservation needed?

To correct the historical injustice faced by backward castes in the country.

To provide a level playing field for the backward section as they can not compete with those who have had access to resources and means for centuries.

To ensure adequate representation of backward classes in the services under the State.

For the advancement of backward classes.

To ensure equality as the basis of meritocracy i.e all people must be brought to the same level before judging them on the basis of merit.

Argument Against Reservation

Reservation in state services led to divisions and enmity among government employees, vitiating the atmosphere at the workplace.

Eradication, not perpetuation of caste was the objective of the reservation policy but Caste Based Reservation only perpetuates the notion of caste in society.

Reservation was introduced to ensure that the historically underprivileged communities were given equal access to resources but irrespective of the economic progress they continue to remain socially disadvantaged.

Reservation destroys self-respect, so much so that competition is no longer on to determine the best but the most backward.

Reservations are the biggest enemy of meritocracy which is the foundation of many progressive countries.

It has become a tool to meet narrow political ends by invoking class loyalties and primordial identities.

The dominant and elite class within the backward castes has appropriated the benefits of reservation and the most marginalized within the backward castes have remained marginalized.

Reservation has become the mechanism of exclusion rather than inclusion as many upper-caste poor are also facing discrimination and injustice which breeds frustration in society.

Reasons Behind Increasing Demands for Reservation

Reservation is increasingly seen as a remedy for the adverse effects of ill-thought-out development policies.

In developed states like Haryana, Gujarat, and Maharashtra, in spite of their economies being relatively better, three things have been worrying the people: Acute agrarian distress, Stagnation in employment growth and Distortions in the development trajectory.

Against this backdrop, for governments, it is easier to talk of reservation than to make a course correction. Increasing reservation demands among upper castes also arose from the fear of losing privilege and the inability to cope with change

Upper castes have begun to feel disadvantaged especially in the context of government jobs as they don’t get similar advantages asthe backward classes.

Suggestion

The reservation benefits should flow to the vast majority of underprivileged children from deprived castes; not to a few privileged children with a caste tag.

High ranks officials families, high-income professionals, and others above a certain income should not get the reservation benefits, especially in government jobs.

Fair and practical ways to help needy people from each community through reservation is possible and necessary.

The process of the reservation should filter the truly economically deprived individuals and bring them all to justice

Revolutionary changes in the education system at the grass-roots level is the need of the hour.

There is also a need for awareness generation because, while the unreserved segments keep opposing the provision, the neediest sections from within the reserved segments are hardly aware of how to benefit from the provision or even whether such provisions exist.

The radical solutions like excluding the entire creamy layer among all castes from the reservation and developing their capabilities instead of offering them reservations for admission to higher education or jobs on a platter.

Way Forward

Reservation is fair, as far as it provides appropriate positive discrimination for the benefit of the downtrodden and economically backward sections of society.

When meritocracy tends to harm society and ensures privileges to some at the cost of others for narrow political ends, we should do away with it as soon as possible.

The communities excluded from reservations harbor animosity and prejudice against the castes included in the reservation category.

When more people aspire for backwardness rather than forwardness, the country itself stagnates.

We should not pollute meritocracy by injecting relaxation of entry barriers; instead, we should encourage it by offering financial aid to the underprivileged.

A strong political will is indispensable to find an equilibrium between justice for the backward, equity for the forwards, and efficiency for the entire system.

Q. Right to education though is provided in Art. 21A but it has not been given effect. Can we ask for a mandamus to enforce this?

Ans. Yes, In this case, Mandamus lies because this writ tells the sleeping authority to wake up and perform its public duty as it is a fundamental right.

Q. How do you say that India is a secular country?

Ans. India has been declared a secular state by its written Constitution and India does not have it’s own religion like middle eastern countries.

Q. Is Government bound to give compensation if it acquires your property for public purpose?

Ans. A property right is a legal right. This is not a fundamental right. Hence a person cannot move to Supreme Court for the enforcement of this right. In the case of Jilubhai v. State of Gujrat AIR 1995 SC it was held that no one has the right to compensation if his property has been acquired by the Government.

Q. How many kinds of writs are there in Indian Constitution and what have we achieved by providing this under fundamental rights?

Ans. There are five kinds of writs

i. Habeas corpus

ii. Mandamus

iii. Prohibition

iv. Quo warranto

v. Certiorari

The provision regarding writs has been enshrined in fundamental right. So that the person may approach SC under Article 32 of the constitution upon violation of any fundamental rights.

Q. Whether the Right to strike is fundamental right?

Ans. The strike is an expression of laborers to show their grievances and demands for adequate labor conditions.

In the case of TK Rangrajan v. Government of Tamil Nadu and others. It was held that strike is a not a fundamental, legal, or moral right.

Q. On which Article of the Constitution the case of S. Rangarajan vs. State of Tamil Nadu is based?

Ans. Act 19(1)(a) of the Constitution.

Q. Can mandamus be demanded for the enforcement of DPSP? Are they enforceable?

Ans. No, this is not enforceable.

Q. What is the role of the Indian President?

Ans. Article 53 of the India constitution lays down that the executive power of the union shall be vested in President. The President of India has absolute Veto power. This is the power to say no to a bill passed by both houses of parliament. Such a bill never becomes an Act.

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