Presented by:VISHNU PRASAD.R,ASSISTANT PROFESSOR OF LAW,NLSIU, BANGALORE

Introduction to

Constitution of India

Scheme of Presentation• Perceptions revolving Constitution• Purposes served by Constitution• Constitution as suprema lex• Nature of the Indian Constitution- federalism that is sui generis• Constitutionalism and Constitution• Rule of Law and the Constitution• Fundamental Principles on which the Constitution is founded

– ROL, SOP, Distribution of powers, cooperative federalism, judicial independence, JR, Constitutionalism, PNJ,

• Differences between Constitutional Law and Ordinary Law• Constitution deals with many ideas, and subjects• Constitutional provisions are inspired from different sources• Sources for Interpretation of Constitution

– The text and structure of Constitution, Intention of Draftsman, Precedents,Social, Political, and Economic Developments, higher norm principles suchas human rights and constitutional conventions

CONSTITUTION OF INDIA• MEANING OF THE CONSTITUTION:

• ‘Constitution’ means a document having legal sanctity which sets out theframe work and the principal functions of the organs of the government of astate and declares the principles governing the operation of those organs.

• Constitution is the system or body of fundamental principles according towhich a nation, state or body politic is constituted and governed; it is theaction of constituting or establishing.

• Set of laws and rules setting up the machinery of the government of a stateand which defines and determines the relations between the differentinstitutions and areas of Government, the Executive, the Legislature and theJudiciary, the Regional and Local Government.

• In “Constitutional Law by Ridges, 8th Edition- 1950 page 4”, theConstitution has been defined as the scheme or arrangements by which thevarious organs of the State are regulated; it deals with the distribution andexercise of the State’s power; and rights and duties of the organs thatexercise that power…

• Every constitution represents the vision of itsfounding fathers and is based on the social,political and economic ethos, faith andaspirations of the people of their generation.

• India is democratic and republic in nature. Bybeing democratic, the fundamental exercise forthe people is to choose the framework, outlinesand the institutions by which they will begoverned. The right to choose these would be inthe hands of each generation

• Constitution is amendable.

Meaning of the Constitution [Contd..]

• T.M. Cooley on his book “ A Treatise on theConstitutional Limitations”, Indian reprint, 2005at page 2 has defined Constitution– “as the fundamental law of a State, containing the

principles upon which the Government is founded,regulating the division of sovereign powers, anddirecting to what persons each of these powers isto be confided, and the manner in which it is to beexercised. Perhaps an equally complete definitionwould be, that body of rules and maxims inaccordance with which the powers of sovereigntyare habitually exercised”.

Nature and Object• A Constitution may be written or unwritten. Most countries have

a written Constitution and it is the formal source.• Federal Structure (division of powers, both govt.s are

independent in their spheres, supremacy of constitution, written,rigid and authority of powers) and Unitary Structure- is it quasi-federal?

• Drawn from different sources.• No dual citizenship.• Flexible and rigid.• Lengthiest constitution.• Principles on which the Constitution is designed to

function:• SOP, ROL, JR, Responsible and Accountable governance, scheme

of distribution of powers, promissory obligations. Resolutionarypart indicates the nature.

Nature and Object (Contd.)

• Object and purpose of the Constitution:• The Constitution of a country seeks to establish the

fundamental organs of government and administration; laysdown their structure, composition, powers and principalfunctions; defines the inter-relationship of one organ withanother, and regulates the relationship between the citizenand the state.

Nature and Object [Contd..]• Constitution is a public law.

• In Ashok Tanwar v. State of Himachal Pradesh, AIR 2005 SC 614, (2005) 2SCC 104, the Constitution is held “as the supreme law of the land. Everyorgan in the country must act in accordance with it. No statutory provisioncan stand in the way of a constitutional provision in case of conflictbetween them.”

• A Constitution is a thing antecedent to a Government, and a Governmentor a good governance is a creature of the Constitution.

• A Documentary Constitution reflects the beliefs and political aspirationsof those who had framed it.

• A primary function of the Written Constitution is that of controlling theorgans of the Government.

Nature and Object [Contd..]• Constitution is the mechanism under which law are to be

made and not merely an act which declares what law is tobe.

• In M.Nagraj v. Union of India, (2006) 8 SCC 212, it wasopined that “the Constitution is not an ephemeral legaldocument embodying a set of legal rules for the passinghour. It sets out the principles for an expanding future andis intended to endure for ages to come and consequently tobe adapted to the various crises of human affairs”.

• Constitution being supreme all the organs and bodies owetheir existence to it. None can claim superiority over theother and each of them has to function within the fourcorners of the constitutional provisions.

Constitutionalism• In understanding constitutionalism, the nature of lex is to be understood.• Constitutionalism has three main features: limited governments, adhering to

rule of law and protection of fundamental rights. [Michel Rosenfeld,Constitutionalism, Identity, Difference, and Legitimacy: TheoreticalPerspectives, Duke University Press, 1994]

• Difference between a people's government and that of people's constitutionis to be ascertained first.

• Government happens when it is entrusted to a representative assembly.Constitution is "antecedent" to the government and it defines the authoritythat the people must commit to its government, and in so doing therebylimits it. Any exercise of authority beyond these limits by any government isan exercise of "power without right.” Therefore, in any state in which thedistinction is not actually observed between the constitution and thegovernment there is in reality no constitution, because the will of thegovernment has no check upon it, and that state is in fact a despotism.[Charles Howard Mcilwain, Constitutionalism: Ancient and Modern, firstedition, 1940, revised edition, 1947, Cornell University Press, 1958].

• if a government exercises some "power without right," it seems to be necessarily implied that the people have a corresponding right to resist.

• The role of judicial review is paramount in this regard. Principles of the Constitution stand before all acts of any government, not because they are prior to them in time, but because they are superior in character and in binding authority.

Features of Constitutionalism:• Government according to constitution, ROL, SOP, Sovereignty and

democracy, independent judiciary, JR, inviolability of individual rights, entrenched provisions, limitations on amending power.

• Is Constitutionalism antithesis to sovereignty? (N) • Such a question arises because of confusion concerning limitation of

powers and lack of sovereignty. Unlimited sovereignty rests with the people.

Need for Constitutionalism• Love has been a feature in mankind and it is the victor in all battles. It is

innate in mankind to have love for power and faith in power. Historyrecords that love and faith have contributed to human happiness andpower to human misery. Political power and Politics is nothing else butstruggle for power.

• Political power is discernible, observable, explainable and evaluable onlyby its external manifestations and realisations. Presently, the role ofsovereignty has become relegated almost exclusively to the theory ofinternational law and the practice of international relations.

• Society as a whole is a system of power-relations and Sovereignty isnothing else, and nothing less, than the legal rationalisation of power asthe irrational elements of politics.

• Power is a socio-psychological relationship operating reciprocallybetween those who hold and exercise power, called the ‘power holders’,and those to whom it is directed, called as the ‘power addressees’.

• Power is purposive.

• Political power within society denotes the exercise of effective social control of the power holders over the power addressees.

• Social control is the policy-making or policy deciding and the ability of the power holders to make the power addresses obey the policy decision.

Three seminal considerations concerning powers are: • Designation of power holder and source of that power;• Apparatus/mode of exercising of power and distribution of

powers among several power holders; and • Control of power.The last consideration is very important because unless the power is limited or controlled power can overreach itself.

• Only saints among power holders can resist the temptation of abusing it.

• Any uncontrolled power is an evil and is capable of revealing demonism of power.

• Power and Justice- Matsya Nyaya-ROL, SOP, JR, entrenched rules.

• The containment of political power by the containment of the power holders is the crux of what in political history, ancient and modern, appears as constitutionalism.

Therefore, Constitutionalism.

Difference Between

Constitutional Law and

Ordinary Law

Difference between Constitutional Law and an Ordinary Law

1) Supreme Law of the land; governs the relation between the organs/functionaries of the State, the Governments and the individuals;

1) Derived from the Supreme law of the land; generally enacted with a purpose that differs from that of the Constitution;

2) Constitution’s authority and sanction are higher than those ordinary laws;

2) Any Law must be in conformity with the Constitution;

Difference between Constitutional Law and an Ordinary Law [Contd..]

3) The supremacy of the Constitution lies mostly in its indestructible nature;

3) The validity of an Act may be questioned before the Court and if proved, such a legislation may be struck down on the ground of it being unconstitutional;

4)Constitution is the source of all legal validity and is itself valid.

4) Any other law must derive validity from a higher legal source which ultimately is the Constitution.

Understanding of the Constitution• Fundamental law that is antecedent to the government• Defines, confers, distributes, rationalizes and limits the powers among

various power holders- basic framework, living document• Contains fundamental principles of governance (ROL, SOP, nature,

goals and means of achieving the goals)• Constitutional conventions• Sources of constitution• International law and the Constitution• Precedents – Miles Kington says- a trick that has been previously tried.

Doctrines• Amendments• Emergency

Understanding and interpretation of the Constitution

• Preamble- resolve ambivalence/uncertainty and ambiguity• Definition and Interpretation clauses- Arts.366, 12, 13,• Interpretation Clause – 367, 264 and GCA 1897• rules of interpretation• ut res magis valeat quam pereat• Presumption as to constitutionality• None of the words and expressions are without force• Role of CAD, opinion of jurists and members of CA, foreign judgments• Not just as found in bare constitution• Parts III & IV means, supplementary-complementary and to be construed harmoniously• Powers and functions• Mandatory and directory provisions – shall/may/when different meaning?• M-22 (4), (5), 62, 299 (1)• D-75 (4), 99, 124 (6), 148 (2)• How judges decide constitutional cases?- according to law, facts, circumstances, PNJ,

precedents, socio-economic changes.• reasoning given by advocates, knowledge, intelligence, experience and exposure of judges to

have impact on decisions- Variable in nature

Information you

must Have

INTRODUCTIONINSIGHT INTO LAW, COMPETENCE TO MAKE LAWS, LEGISLATIVE PROCESS AND FORMS OF LAWS.

• MEANING OF LAW• COMPETENCE OF THE LEGISLATURE- Art. 245, 246, 248, 249, 250, 253, 3, 32 (3), 309, etc.• COMPETENCE OF THE EXECUTIVE TO MAKE LAWS-

Executive power-Art. 53 and 154, Art. 73 and 162, Art. 123, 213, and 357, etc.

• COMPETENCE OF THE JUDICIARY TO MAKE RULES- Art. 140 and 145 and also vide laws made by the Legislature

• LEGISLATIVE PROCEDURE• PARLIAMENT- 107, 109 and 110, 117, 51(C) and 253• STATE LEGISLATURE- 196, 198 and 207.

FORMS OF LAWS-– Statute, Ordinance. Rule, Regulation, Circular, Notification, Bye-Law, perpetual and

temporary laws and provisions, etc.LANGUAGE OF LAW- PRINCIPLES

INTRODUCTION Contd.

COMMENCEMENT, REPEAL AND REVIVAL OF STATUTES.• Sec. 3 (13) of the GCA 1897- Commencement of the Act refers to the day

on which the Act comes into force.• Sec. 5 of GCA states that unless provided otherwise, an Act of Parliament

comes into force on the day it receives the Presidential Assent and isconstrued as coming into force immediately on the expiration of the daypreceding the commencement.

Ex. 25th Jan, b/w 25th and 26th (midnight)• State Acts comes into force on the day when the Assent of the

Governor/President, as the case may be, obtained. When it was firstpublished on the Gazette of the State.

• Importance of Notification• Courts Power-

Repeal of Statutes• Art. 368 (1) Notwithstanding anything in this Constitution, Parliament may

in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article

• Abrogation of an existing law by a legislative Act.• Express Repeal- “is/are hereby repealed” or “shall cease to have effect”• Implied Repeal• Partial or complete Repeal• Consequences of Repeal

• No law ever made on the subject• No commencement of proceedings and no continuation

of the proceedings [St. of Rajasthan v. Mangilal Pindwal AIR 1996 SC 2181]

• Repeal of the Act/Enactment does not render the Act/Enactment dead for all the purposes.- Saving Clauses

Consequences of Repeal; and Revival of Statutes

• Sec. 24 of GCA-• Appointments, notification, order, scheme, rule, bye-law issued

u/repealed Act continues to be in existence insofar as it isconsistent with re-enacted Act or are deemed to be under thecorresponding provision of the new statute. Exception- Savingclause and temporary statute.

• If convicted the convict can’t be released before he serves the sentence

Revival of Statutes• Meaning of revival and procedure- express….