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Constitutional law Notes, Study notes of Constitutional Law

Guru Gobind Singh Indraprastha UniversityConstitutional Law

Unit 1 of Costitutional Law of India

Typology: Study notes

2021/2022

Available from 01/13/2022

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UNIT 1
CONSTITUTION & ITS IMPORTANCE
1. Constitution is the basic governing set of principles & it lays down the essential rules
of governance.
2. It can be compares with the “Grund Norm” concept as given by Kelson.
3. Walter Bagehot, “constitution is the set of principles in the Indian society & in no
circumstances, the constitution can be violated”.
4. 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.
5. 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”.
6. 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”.
7. Constitutional law includes articles, conventions and judicial decisions.
CLASSIFICATION:
1. State can be either unitary or federal
2. A unitary state is one which is not made up of territorial divisions, here the Central
Government is all-powerful, the states have lesser autonomy.
3. In federal systems there is an intermediate level of governmental authority between the
central and the local. And the State local government has considerable autonomy.
THE FRAMING OF THE NEW CONSTITUTION
1. The constituent Assembly come into being in November, 1946. It was not a sovereign body
at the beginning as it was brought about by the British Government. Its authority was limited.
It was to work within the framework of the cabinet Mission scheme.
2. According to the terms of the Indian Independence Act, 1947, it become a sovereign body. It
was free to frame any constitution it pleases.
3. Dr. Sachchidananda shinha was the first president of constituent Assembly.
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UNIT 1

CONSTITUTION & ITS IMPORTANCE

  1. Constitution is the basic governing set of principles & it lays down the essential rules of governance.
  2. It can be compares with the “Grund Norm” concept as given by Kelson.
  3. Walter Bagehot, “constitution is the set of principles in the Indian society & in no circumstances, the constitution can be violated”.
  4. 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.
  5. 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”.
  6. 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”.
  7. Constitutional law includes articles, conventions and judicial decisions. CLASSIFICATION:
  8. State can be either unitary or federal
  9. A unitary state is one which is not made up of territorial divisions, here the Central Government is all-powerful, the states have lesser autonomy.
  10. In federal systems there is an intermediate level of governmental authority between the central and the local. And the State local government has considerable autonomy. THE FRAMING OF THE NEW CONSTITUTION
  11. The constituent Assembly come into being in November, 1946. It was not a sovereign body at the beginning as it was brought about by the British Government. Its authority was limited. It was to work within the framework of the cabinet Mission scheme.
  12. According to the terms of the Indian Independence Act, 1947, it become a sovereign body. It was free to frame any constitution it pleases.
  13. Dr. Sachchidananda shinha was the first president of constituent Assembly.
  1. Dr. Rajender Prasad was elected its permanent chairman.
  2. On August 29, 1947, a Drafting committee of 7 members was set up under the Chairmanship of Dr. Ambedkar.
  3. The new constitution of India was adopted by the constituent Assembly on 26th^ November, 1949 and signed by the president, Dr. Rajender Prasad, Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 372, 380, 388, 391, 392 and 393 came into force at once. The remaining provisions of the constitution came into force on 26 th^ January, 1950, which is the date of the commencement of this constitution.
  4. India constitution is the lengthiest (396 pages) and the most detailed of all the written constitution of the world nations. It originally consisted of 395 Articles divided into 22 parts and 8 Schedules. Now, it is divided into 26 parts and 12 Schedules. SOURCES OF INDIAN CONSTITUTION S.NO. FEATURE BORROWED SOURCE 1 Parliamentary System, Bicameralism, Single Citizenship, Rule of law & Law Making procedure

U.K

2 Preamble, Independence of Judicial review, Removal of judges, Fundamental Right president as Executive head & vice-president as Ex- officio chairman of Rajya Sabha

U.S.A

3 Federal system with strong centre, Division of power, Residuary power with centre Advisory jurisdiction of the supreme court & Appointment of the Governor canada 4 Directive principles, Election of president & NOMINATION OF 12 MEMBER OF Rajya Sabha Irish Republic 5 Emergency Germany 6 Concurrent list Australia 7 Amendment to constitution & Election to Rajya sabha South Africa 8 Fundamental Duties U.S.S.R 9 Federal Scheme, office of Governor & power of Federal judiciary Govt. of India Act, 19

Union of India (1994) SC 1) the supreme court has held that “Secularism is the basic feature of the constitution”.

  1. Single citizenship for whole India.
  2. Fundamental Duties :- The constitution (42nd^ Amendment) Act, 1976 has introduced a code of ten “Fundamental Duties” for citizens.
  3. Supremacy of the constitution: Constitution is the supreme document & it embodies the essential principles of government & governance & the entire society is based upon these essential principles. These principles are the essential values upon which the Indian society is based. IS INDIAN CONSTITUTION FEDERAL? The Nature of the Indian constitution
  4. Indian constitution is federal and American constitution is more federal. The view of the framers of the constitution is that the Indian constitution is a Federal Constitution. According to Dr. Ambedkar, although the centre has been given power to override the provinces (states) nonetheless, is a Federal constitution.
  5. The American Constitution is universally regarded as an example of federal constitution. It establishes dual polity or dual form of government, i.e the Federal and the state Government. The powers of both the Central and the state Government are divided and both are independent in their own spheres. The existence of co-ordinate authorities Independent of each other is the gist of the federal principle.
  6. Prof Where has coined a phrase quasi-federation and according to him Indian constitution is quasi-federal. Prof. where appears to feel that the American Constitution is truly of federal type
  7. According to Jennins, the Indian constitution is mainly federal with unique safeguards for enforcing national unity and growth.
  8. The Indian constitution possesses all the essential characteristics of a federal constitution
  9. According to V. G Ramchandaran, Indian constitution is federal and America is more federal in the outline of the constitution. Essential Characteristics of a Federal constitution :- A Federal constitution usually has the following essential characteristics
  1. Distribution of powers between centre & states.
  2. Supremacy of constitution.
  3. A written constitution
  4. Rigidity: A constitution of a country is the supreme law of the land has to be rigid. In a written constitution the procedure of amendment is very complicated and difficult. A constitution is considered to be a permanent document. It is the supremacy law of the land. This supremacy of the constitution can only be maintained if the method of amendment is rigid.
  5. Authority of Court: in a federal state the legal supremacy of the constitution is essential for the existence of the federal system. The judicial has. In a federal polity, the final power to interpret the constitution and guard the entrenched provisions of the constitution. Modifications of the federal principle:-
  6. Appointment of Governors: Governors of the states are appointed by the president Governor is only the constitution head the state who shall normally act on the advice of his Ministers.
  7. Parliament’s power to legislate in the national interest: Under Act. 249 parliament is empowered to make laws with respect to every matter enumerated in the state List the Rajya Sabha passes a resolution by 2/3rd^ majority it is necessary in the national interest.
  8. Parliament’s power to from new states and alter boundaries of existing states: The parliament of India may form new states; it may increase or diminish the area of any state and if may alter the boundaries or name of any state (ART.3).
  9. Emergency provisions: When the proclamation of emergency is made under Art. 352, the normal distribution of power between the centre and states undergo a vital change. Parliament is empowered to make laws with respect to any matter enumerated in the state List. The Centre is repowered to give direction to any state as to manner in which the state’s executive power is to be exercised. Under Art. 356, if the president is satisfied that government of a state cannot be carried on in accordance with the provisions of the constitution he can dismiss the state ministry and dissolve the Legislature and assume all the function of the state.