Constituttional Law Unit 2 Constitutional Law Complete Notes

Constitutional Law I Unit 1

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Constitutional Law I Unit 1

Definition of Constitution

Constitution means a document having a special legal sanctity which sets out the frame-work and the principal functions of the organs of the Government of a State and declares the principles governing the operation of those organs.

The term constitutional law has been defined by many writers. Hibbert defines Constitutional Law as “the body of rules governing the relation between the sovereign and his subjects and the different parts of the sovereign body”.

According to Dicey: “Constitutional law includes all rules which directly or indirectly affect the distribution or exercise of the sovereign power of the State. Hence it includes all rules which define the members of the sovereign power; all rules which regulate the relation of such members to each other or which determine the mode in which the sovereign power or the members thereof exercise their authority”.

Constitution Law Unit 1 Constitution Law Complete Notes Definition of Constitution

Classification of Constitution

State can be either unitary or Composite. A unitary state in one which is not made up of territorial divisions which are states them selves. The Central Government is all-powerful; such states can make a constitutional law applicable to such government only.

A composite state is one which is itself an aggregate or group of constituent states. Composite states are also three in kinds those are imperial, federal or confederal to which there exists central governments. The constitutions also can be prepared as per the pattern of the governments are formed.

Constitution Law Unit 1 Constitution Law Complete Notes Classification of Constitution

Sources of Constitution

The framers of the Indian Constitution framed, the most important chapter of the Fundamental Rights on the model of the American Constitution, and adopted the parliamentary system of government from the United Kingdom; they have taken the idea of the directive principles of state policy from the Constitution of Ireland, and added elaborate provisions relating to Emergency in the light of the Constitution of the German Reich and the Government of India act, 1935.

Constitution Law Unit 1 Constitution Law Complete Notes Sources of Constitution

Constitutional Conventions

The first meeting of the Assembly was held on 9th December, 1946 as the sovereign Constituent Assembly for India. On December 11, Dr.Rajendra Prasad was elected its permanent Chairman. It was held in an atmosphere of uncertainty, because the Muslim League boycotted the Assembly.

In spite of this, the Assembly made a substantial progress and adopted and ‘Objective Resolution’ which later became the Preamble of the Constitution. It appointed various Committees to deal with different aspects of the Constitution. The report of the Committees formed the basis on which the first draft of the constitution was prepared. On August 29, 1947, a Drafting Committee of 7 members was set up under the Chairmanship of Dr.Ambedkar.

Salient Features of The Indian Constitution

1. The lengthiest Constitution in the World:

The Indian Constitution is the lengthiest and the most detailed of all the written Constitutions of the world. While the American Constitution originally consisted of only 7 Articles, the Australian Constitution 128 Articles, the Canadian Constitution 147 Articles, the Indian Constitution originally consisted of 395 Articles divided into 22 Parts and 8 Schedules, at present, the though still, the last numbered Article is 395 and the last numbered part is 22, yet the actual articles are 460 in number and 25 parts at present and the Schedules at present are 12 in number.

Since 1950 Articles have been repealed and several Articles have been added to the Constitution.

This extraordinary bulk of the Constitution is due to several reasons:-

(1) The framers of the Indian Constitution have gained experience from the working of all the known constitutions of the world. They were aware of the difficulties faced in the working of these constitutions. This was the reason that they sought to incorporate good provisions of those constitutions in order to avoid defects and loopholes that might come in future in the working of the Indian Constitution.

The framers of the Indian Constitution framed, the most important chapter of the Fundamental Rights on the model of the American Constitution, and adopted the parliamentary system of government from the United Kingdom; they have taken the idea of the directive principles of state policy from the Constitution of Ireland, and added elaborate provisions relating to Emergency in the light of the Constitution of the German Reich and the Government of India act, 1935.

(2) The Indian Constitution lays down the structure not only of the Central Government but also of the States. The American Constitution leaves the states to draw up their own constitutions.

(3) The vastnesses of the country and peculiar problems relating to the language have added to the bulk of the constitution.

Establishment of a Sovereign, Socialist, Secular, Democratic Republic:

The Preamble of the Constitution declares that India to be a Sovereign, Socialist, Secular, Democratic Republic. The word ‘Sovereign’ emphasizes that India is no more dependent upon any outside authority. It means that both internally and externally India is sovereign.

The term ‘Socialist’ has been inserted in the Preamble by the Constitution 42nd Amendment act, 1976. The word ‘Socialism’ is used in democratic as well as socialistic Constitutions.

The term ’Secularism’ means a State which has no religion of its own as recognized religion of state. It treats all religions equally. In a secular State the State regulates the relation between man and man. It is not concerned with the relation of man and God.

The term ‘Democratic’ indicates that the Constitution has established a form of Government which gets its authority from the will of the people. The rulers are elected by the people and are responsible to them. Justice, Liberty, Equality and Fraternity which are essential characteristics of a democracy are declared in the preamble of the Constitution as the very objectives of the Constitution.

The Preamble to the Constitution declares that the Constitution of India is adopted and enacted by the people of India and they are the ultimate master of the Republic. Thus the real power is in hands of the people of India, both in the Union and in the States.

The term ‘Republic’ signifies that there shall be an elected head of the State who will be the chief executive head. The President of India, unlike the British King, is not a hereditary monarch but an elected person chosen for a limited period. It is an essential ingredient of a Republic.

2. Parliamentary Form of Government:

The Constitution of India establishes a parliamentary form of Government both at the Centre and the States. The framers of the Constitution preferred the parliamentary system of government mainly for two reasons—(1) the system was already in existence in India and people were well acquainted with it, (2) it provides for accountability of ministers to the Legislature.

3. Unique Blend of Rigidity and Flexibility:

It has been the nature of the amending process itself in federations which had led political scientists to classify federal Constitution as rigid. A rigid Constitution is one which requires a special method of amendment of any of its provisions while in flexible Constitution any of its provisions can be amended by ordinary legislative process. A written Constitution is generally said to be rigid. The Indian Constitution, though written, is sufficiently flexible.

4. Fundamental Rights:

These rights are 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 part III of the Constitution. If it passes such a law it may be declared unconstitutional by the courts. But mere declaration of certain Fundamental Rights will be of no use if there is no machinery for their enforcement.

5. Directive Principles of State Policy:

The directive Principles of State Policy contained in part IV of the Constitution set out the aims and objectives to be taken up by the States in the governance of the country.

6. A Federation with Strong Centralizing Tendency:

The most remarkable feature of the Indian Constitution is that being a federal Constitution it acquires a unitary character during the time of emergency. During the proclamation of emergency the normal distribution of powers between the centre and the States undergoes a vital change.

The Union Parliament is empowered to legislate on any subjects mentioned in State List. The Central Government is empowered to give directions to States as to the manner in which it should exercise its executive powers.

7. Adult Suffrage:

The old system of communal electorates has been abolished and the uniform adult suffrage system has been adopted. Under the Indian Constitution every man and woman above 18 years of age has been given the right to elect representatives for the legislature.

The adoption of the universal Adult Suffrage without any qualification either of sex, property, taxation, or the like is a bold experiment in India, having regard to the vast extent of the country and its population, with an overwhelming illiteracy. This suffrage is wider than all the democratic countries which have given right to vote to their people.

8. An Independent Judiciary:

Mere enumeration of a number of fundamental rights in a Constitution without any provision for their proper safeguards will not serve any useful purpose. Indeed, the very existence of a right depends upon the remedy for its enforcement. Unless there is remedy there is no right, goes a famous maxim.

For this purpose an independent and impartial judiciary with a power of judicial review has been established under the Constitution of India. It is the custodian of the rights of citizens. Besides, in a federal Constitution it plays another significant role of determining the limits of power of the Centre and States.

9. A Secular State:

A Secular State has no religion of its own as recognized religion of State. It treats all religions equally.

10. Single Citizenship:

Though the Constitution of India is federal and provides for dual polity i.e., Centre and States, but it provides for a single citizenship for the whole of India. Every Indian is the citizen of India and enjoys the same rights of citizenship no matter in what State he resides.

11. Fundamental Duties:

The Fundamental Duties are indeed to serve as a constant reminder to every citizen that while the Constitution has specifically conferred on them certain Fundamental Rights, it also requires the citizens to observe certain basic norms of democratic behaviors.

Constitution Law Unit 1 Constitution Law Complete Notes Salient Features of The Indian Constitution

Rule of Law

Adjustment of law to the social needs is a continuing process. Law must always be responsive to the social development. This continuing process requires watchful legislature and alert judiciary.

However, certain care and caution regarding the adjustment of law to social change should be observed. “The increasing use of device of legislation in modem societies and the general orientation of nearly all start and elites in favor of change and popular elections in democratic countries as also the decreasingly conservative attitudes of the lawmen including judges, provide rather simple ways of adjusting the law to social change.

The problem today, as one writer sees it, is not as much of preventing lag of law behind social needs and development as of preserving legal security which is endangered by rapid changes in the law. “This is the interesting problem of the lag of society after changes in the law, which is a more novel problem, both from the theoretical and the practical point of view”. “The problem one has to grapple with today appears to be one arising out of the tension between the ideology of rule of law and the need for recognition of law as a means of social action.

Law shapes various social institutions, which in turn have direct impact on society, i.e., compulsory education system, prohibition of polygamy etc. It has indirect impact on social change as where a new patent law calls forth inventions and further changes in technological institutions. Law may set up new public bodies and an authority, which is turn bring about significant social and economic changes”

The guarantee of equality before the law is an aspect of what Dicey calls the rule of law in England. It means that no man is above the law and that every person, whatever be his rank. Dicey gave three meanings of the Rule of Law those are: 1) Absence of Arbitrary power or Supremacy of the, 2) Equality before the law, and, 3) The Constitution is the result of the ordinary law of the land.

The first and the second aspects apply to Indian system but the third aspect of the Dicey’s rule of law does not apply to Indian system as the source of rights of individuals is the Constitution of India. The rule of law imposes a duty upon the State to take special measure to prevent and punish brutality by police methodology to a federal Government. The supreme Constitution is essential if The Indian Constitution possesses all the essential characteristics of a federal Constitution.

The Constitution establishes a dual polity, a system of double Government with the Central Government at one level and the State Government at the other. There is a division of powers between the central and the State Government

Rule of Law under Constitution of India:

Dicey’s rule of law has been adopted and incorporated in the Constitution of India. The Preamble itself enunciates the ideals of Justice, Liberty and Equality. In part III of the Constitution these concepts are enshrined as Fundamental Rights and are made enforceable. The Constitution is supreme and all the three organs of the Government, namely, Legislature, Executive and Judiciary are subordinate to and have to act in consonance with the Constitution.

The doctrine of judicial review is embodied in the Constitution and the subjects can approach High Courts and the Supreme Court for the enforcement of Fundamental Rights guaranteed under the Constitution. If the executive or the Government abuses the power vested in it or if the action is mala fide, the same can be quashed by the ordinary courts of law.
Modern concept of Rule law:

Davis has given seven principal meanings of the term ‘Rule of Law’ :-(1) Law and order; (2) Fixed rules; (3) Elimination of discretion; (4) Due process of law or fairness; (5) Natural law or observance of the principles of natural justice; (6) Preference for judges and ordinary courts of law to executive authorities and administrative tribunals; and (7) Judicial review of administrative actions.

Separation of Powers:

(a) Meaning:

It is generally accepted that there are three main categories of governmental functions—(i) Legislative, (ii) Executive, and (iii) Judiciary. According to the theory of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and be exercised by three separate organs of the government. Thus, the Legislature cannot exercise executive or judicial power; the Executive cannot exercise legislative or judicial power and the Judiciary cannot exercise legislative or executive power of the Government.

(b) Historical Background:

The doctrine of separation of powers has emerged in several forms at different periods. Its origin is traceable to Plato and Aristotle. In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine systematically, scientifically and clearly in his book ‘Esprit des Lois’ (The Spirit of the Laws), published in the year 1748.

(c) Montesquieu Doctrine:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty if the judicial power be not separated from the legislative and the executive. Where it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Where it joined with the executive power, the judge might behave with violence and oppression.

Miserable indeed would be the case, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions and that of judging the crimes or differences of individuals.”

(d) Effect of the Doctrine:

The doctrine of separation of powers as propounded by Montesquieu had tremendous impact on the development of administrative law and functioning of Governments. It was appreciated by English and American jurists and accepted by politicians.

(e) Importance of the Doctrine:

On the whole, the doctrine of Separation of powers in the strict sense is undesirable and impracticable and, therefore, it is not fully accepted in any country. Nevertheless, its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of enormous powers of the executive. The object of the doctrine is to have “a Government of law rather than of official will or whim”.

Montesquieu great point was that if the total power of Government is divided among autonomous organs, one will act as a check upon the other and in the check liberty can survive. Again almost all the jurists accept one feature of this doctrine that the judiciary must be independent of and separate from the remaining two organs of the Government, viz., Legislature and Executive.

The most important aspect of the doctrine of separation of powers is judicial independence from administrative discretion. “There is no liberty, if the judicial power be not separated from the legislative and executive.” The judiciary is beyond comparison the weakest of the three departments of power.

It has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. There is no liberty, if the judicial power be not separated from the legislative and the executive.

Constituttional Law Unit 1 Constitutional Law Complete Notes Rule of Law

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