BASICS

• CONSTITUTION• CONSTITUTIONAL LAW• CONSTITUTIONALISM

INTRODUCTION

• Constitution is the law of the land.

• Constitution is a thing antecedent to a government .

• Constitution is not the act of the government but the governed.

Salient Features of the

Constitution of India

1. LENGTHIEST CONSTITUTION IN THE WORLD

American Constitution – 7 ArticlesAustralian Constitution - 128 Articles

Canadian Constitution – 147 Articles• Consequences of the Constitution being

detailed– No scope for judicial interpretation of the

federal powers at the expense of the State power

– Less scope for application of the ‘residuary power’

2. The Constitution is Written

• (a) A written constitution means limited Government.

• (b) Provides the organic or fundamental law, with reference to which the validity of the laws enacted by the Legislature is to be tested.

• (c) The Judiciary is usually called ‘the guardian of the Constitution’.

3. Preamble

• Constitution (Forty-Second Amendment) Act, 1976

• In re Berubari case• Keshvananda Bharati Case

4. Unique Blend Of Flexibility & Rigidity

Sr. No

Flexible Rigid

1. Ordinary Procedure Special Procedure2. Unlimited Authority of

ParliamentLimitation upon Parliament –outside-Greater Law- Constitution

3 Legislative Power- 245 Constituent Power- Article 368Golaknath Case- 24th Amendment, Keshavanand Case

4 Const. Prov.- Article 4, 169,239A(2)Para 7 of 5th Schedule, Para 21 of 6th Schedule

Const. Provisions- Article 368(2)

4. Unique Blend Of Flexibility & Rigidity

• Amendment by Simple majority• Amendment by special majority• By special majority and Ratification by

states.

• Is their any limitation on the amending power of the Parliament ?

• Doctrine of Basic structure-Limitation on Amending Power

5. Fundamental Rights (Part III)• Definition of ‘State’ (Article 12) ‘Other Authorities’• Definition of ‘law’ (Article 13)

– Judicial Review– Doctrine of Eclipse– Doctrine of Severability

• Classification of Fundamental Rights• 1) Right to equality (Article 14 to 18)• 2) Right to freedom (Article 19 to 22)• 3) Right against exploitation (Article 23-24)• 4) Right to freedom of religion (Article 25 to 28)• 5) Cultural & Educational Rights (Articles 29-30)• 6) Right to constitutional remedies (Article 32-

35)

• Reasonable Restrictions

6. Directive Principle of State policy• Not Enforceable

• Fundamental in the Governance of the Country.

• Fundamental Rights vs. DPSP- Who is SUPERIOR

• Many directive Principles given the status of Fundamental Rights

• Article 31C- Inserted by 25th Constitution Amendment, 1951

7. Independent Judiciary• Appointment

• Removal

• No discussion in Parliament with respect to the conduct of any judge. (Article 121,211)

• Once appointed, their privileges, rights and allowances cannot be altered to their disadvantage.

The Judicial Appointment Commission Bill, 2013The Constitution (One Hundred & Twentieth

Amendment) Bill, 2013

8. Combination of the Presidential and Parliamentary systems of Government

USA UK IndiaLegislature

CongressSenate & HOR

ParliamentCrownHOLHOC

ParliamentPresidentLSRS

Executive President COM headed by PM

COM headed by PM

In US real executive head is President.

In UK real executive head is COM

In India, Constitutional Head is President but real executive head is the COM headed by PM.

President cannot act without the advice of COM. COM is collectively responsible to the Lower House.

8. Combination of the Presidential and Parliamentary systems of Government

Followed the British model (reason we were accustomed to this)

Essence of Parliamentary form of government is itsresponsibility to the legislature

President Constitutional Head. Real executive powers is vested in the council

of ministers whose head is the Prime minister Council of ministers (executive) collectively

responsible to the Lok Sabha (Lower House) Members of Lok Sabha elected directly by the

people.

8. A Federation with Strong Centralizing Tendency

UnitaryQuasi- federal

Federal

9. A Secular State • A secular state has no religion of its own.• Treat all religions equally.• Preamble –to secure to all it’s citizens

“liberty of belief, faith and worship”.• Article 25 to 28 gives concrete shape to this

concept of constitution.

10. Single Citizenship

• No state citizenship

11. Fundamental Duties

• Added by Constitution (42nd Amendment) Act,1976

• Originally 10 fundamental duties• Constitutional (86th Amendment) Act,

2002 added a new clause (k)

12. Socialist State

• The word “socialist” was not there originally in the Preamble.

• Added by 42nd Amendment

13.DRAWN FROM DIFFERENT SOURCES

British ConstitutionParliamentary form of government

The idea of single citizenship The idea of the Rule of law

Institution of Speaker and his role Lawmaking procedure

United States Constitution Fundamental Rights, which is similar to the United States Bill of Rights

Federal structure of government Power of Judicial Review and independence of the judiciary

Irish ConstitutionDirective principles of state policy

Features of the Indian Constitution borrowed from other Constitutions

French ConstitutionIdeals of Liberty, Equality and Fraternity Canadian ConstitutionA quasi-federal form of government (a federal system with a strong central government) The idea of Residual Powers Australian ConstitutionThe idea of the Concurrent list Freedom of trade and commerce within the country and between the states Soviet ConstitutionThe Planning Commission and Five-Year PlansFundamental Duties

Features of the Indian Constitution borrowed from other Constitutions