1
“ Law Master’s Publication”
“Introduction”
Prof. Santosh D. Bhosale
CONSTITUTION-I
(..1..)
INTRODUCTION TO THE CONSTITUTIONAL LAW
QUESTION BANK
Q.1. Explain the salient features of the Indian Constitution fully
Q.2. What is the Constitution?
Q.3. Discuss the salient features of the Indian Constitution
SHORT NOTES
1. Making of the Indian Constitution
2. What is Constitution?
3. Historical Background of the Constitution
TABLE OF CONTENT
'CONSTITUTIONALISM'......................................................................................................... 2
1) What is Constitution?-........................................................................................................... 2
Unitary and Federal Constitution:-.................................................................................... 4
Lengthiest Constitution in the world:-................................................................................ 6
Parliamentary Democracy and Cabinet form of government:- ......................................... 6
Preamble:-........................................................................................................................... 7
2
“ Law Master’s Publication”
“Introduction”
Prof. Santosh D. Bhosale
I] MEANING OF 'CONSTITUTION', 'CONSTITUTIONAL LAW'
AND 'CONSTITUTIONALISM'.
1)
What is Constitution?-
The Constitution is a fundamental law of the land; it has special legal
sanctity in the State (Country or Nation). It lays down the provisions relating to the
distribution of powers between three organs of the Government (Viz. The
Executive, the Legislature, and the Judiciary). These powers are further divided
into the Union (i.e., Central) and the Regional (i.e., State) Governments. The
Constitution sets out the framework, principal functions, and limitations of the
above three organs of the Government. It governs the operations of these organs.
Therefore the Constitution is the public law (i.e., the law concerning the
Government).
2) 'Constitutional Law' means: -
Constitutional law is related to the State. "State" is defined as "an
independent political entity, occupying a definite territory, having its own
population, Government and Sovereignty". Although British India had definite
territory, population and even Government, it lacked sovereignty.
The "State" is incorporated through the social contract to perform two
3
“ Law Master’s Publication”
“Introduction”
Prof. Santosh D. Bhosale
essential functions:-
i) to protect its citizens from external aggression and
ii) to maintain law and order within the State.
Since these functions are like 'Police', the State performing these functions
is called 'Police State; however, today's State does not restrict itself to 'police
functions' but looks after the welfare of the people; hence, it is described as a
'Welfare State. Modern Welfare State has to take care of the health of its nationals
(by establishing Civil Hospitals), provide food (through rationing shops), give
education (through State-aided schools), provide justice to poor litigants (through
free legal aid and pauper applications), provide jobs, help people in situations of
natural calamities, etc. Thus, today's 'welfare State' performs many-fold functions.
However, The State is a legal entity created by the fiction of law. to perform
the abovementioned functions. It has no brain, hands, or legs like a natural human.
Hence, natural human beings are required as an agency for its functioning.
However, all citizens in a State cannot combine and operate all the time to achieve
the desired goals. Hence, few of us act as agents of the State by joining as
Legislature, Executives, or Judicial officers.
The state's powers are divided into three organs: legislative (i.e.,
Lawmaking), Executive (i.e., execution of law), and Judiciary (i.e., interpretation
of law). In Monarchy, these powers were concentrated in one hand of the King.
However, in a democracy, these powers are divided. Therefore, in democracy
,
Constitutional law is needed.
Constitutional law means those "rules, which set out the structure of the
principal organs of the government (i.e., Legislative, Executive, and Judiciary)
regulate their relationships with each other and with the citizens, and determine
powers, functions, and limitations on these organs.".
i)
According to Salmond: -
"Constitutional Law is (as the name implies) a body of those legal rules
which determine the Constitution of the State.."
ii)
According to Dicey: -
"Constitutional Law includes all rules which directly or indirectly affect the
distribution or the exercise of the sovereign power in the State".
Constitutional law consists of both legal rules and conventions (i.e., usages).
Conventions play a more significant role in unwritten Constitutions (like England).
However, legal rules play an essential role in written constitutions like those in
4
“ Law Master’s Publication”
“Introduction”
Prof. Santosh D. Bhosale
India.
3) 'Constitutionalism':-
The term ‘Constitutionalism’ implies "supremacy of the Constitution." It means that
the Constitution should not merely confer powers on the various organs of the government
but also restrict those powers. In other words, the term Constitution recognises the need for
government in the State and insists on limiting governmental powers. Therefore, with the
Constitution, there must be Constitutionalism like India and unlike Pakistan.
II]
CLASSIFICATION OF CONSTITUTIONS:-
Constitutions may be classified as follows-
1)
Written and Unwritten Constitution:-
The Constitution of a country may be written or unwritten. A written
Constitution is written down in the form of a document, e.g., the Indian
Constitution, the Constitution of the USA, Canada, Australia, etc. A Constitution
is said to be unwritten when it is not embodied into one comprehensive document
but carried through usages (conventions) and precedent of courts, E.g., the
Constitution of the United Kingdom (i.e. England), Northern Ireland, etc. In the
unwritten Constitution, the legislature enjoys sovereignty to make or repeal any
law. In a State with an unwritten constitution, parliament gets supremacy, whereas
in a country with a written constitution, the constitution is treated as Supreme.
3)
Unitary and Federal Constitution:-
The unitary constitution is one that sets up one central government (i.e., a
union government), and all powers are vested in it. Either there are no provincial
governments, or if there are provincial governments, they (i.e. State governments)
act as subordinate to the Central (or Union) Government, E.g., the Constitution of
Britain, Srilanka, Singapore, etc. In some countries, there are no provincial
governments.
On the contrary, a Federal Constitution is one wherein there is a union and
provinces (States), and the Constitution provides for the equal distribution of
powers between central and State Governments. Thus, no government is
subordinate to the other but is at an equal level and cooperates with each other,
e.g., the Constitution of the U.S.A, Canada, Austria, Malaysia, Germany, India,
etc.
4)
Flexible or Rigid:-
A Constitution is said to be 'flexible' if it requires a simple majority for its
amendments. A 'simple majority of the members' means "members who are
5
“ Law Master’s Publication”
“Introduction”
Prof. Santosh D. Bhosale
present in the House and voting."
A rigid Constitution requires a special, complicated, and more technical
procedure for its amendment. For example, the Indian Constitution provides for
the amendment of specific provisions. Under Art. 54, 55 (Election of President)
requires acceptance by a majority of members in each House of the Parliament and
2/3rd members present and voting. In addition, it requires ratification by not less
than half of the State Legislatures before it is presented for the assent of the
President.
III]
MAKING UP OF THE INDIAN CONSTITUTION:-
The demand for an independent India and the making of the Constitution
for India were ancient. In 1922, Mahatma Gandhi and in 1938, Pandit Nehru
demanded the independence of India and the making of the Indian Constitution
(without outside interference) by the Constituent Assembly elected on the basis of
adult franchise. An irruption of the Second World War forced the British
government to accept the demands of Indians. So, in 1942, the British government
sent Sir. Stafford Cripps, popularly known as the 'Cabinet Mission Plan' (a member
or cabinet) with a draft proposal for framing the Constitution for India through the
elected Constituent Assembly of the Indian people. However, that Assembly was
to act under the limitations Stated in the Cabinet Mission Plan. However, according
to the plan, the Constituent Assembly came into existence in November 1946. The
Provincial Assembly elected its members by indirect election. The Assembly first
met on 9th Dec.1946. However, it was not a sovereign body because it was to work
under the direction of the British Government. The Muslim League opposed the
first sitting of the Assembly on the issue of a separate 'Pakistan'. Eventually, the
British Parliament passed the 'Independence of India Act,' making India
independent. It divided India into communal lines and made two independent
dominions 'India' and 'Pakistan'. The Constituent Assembly reassembled on 14th
August 1947 as a sovereign Constituent Assembly for the Dominion of India.
Dr Rajendra Prasad headed the Constituent Assembly as president; Dr
B. R. Ambedkar headed the Drafting Committee as Chairman. The Constituent
Assembly prepared the Constitution of India after thoroughly examining various
other Constitutions, like the constitutions of America, England, Australia, Canada,
etc. The Indian Constitution came into force on 26th January 1950. Therefore, we
6
“ Law Master’s Publication”
“Introduction”
Prof. Santosh D. Bhosale
have celebrated "Republic Day" since then.
IV]
SALIENT FEATURES OF THE INDIAN CONSTITUTION:-
Salient features of the Indian Constitution can be deduced as follows:
1)
Lengthiest Constitution in the world:-
The Indian Constitution is the longest and most detailed Constitution in the
world. It currently contains 470 Articles and 12 schedules.
2)
Democratic System of Government:-
The Constitution of India declares in its preamble that 'India is a Democratic
State and its citizens have the right to elect the government of their choice, through
voting. Accordingly, the citizens of India can elect their representatives to the State
Legislature and Parliament, as well as at the local level like Grampanchayat,
Municipal Corporations, etc.
3)
Parliamentary Democracy and Cabinet form of government-
The significant feature of the Indian Constitution is the Parliamentary
Democracy and Cabinet form of government. In Parliamentary Democracy, the
government gets power from the people's will. The President of India is the
Constitutional head.The real executive power is vested in the Council of Ministers,
headed by the Prime minister. The Council of Ministers is collectively responsible.
to the Lower House (i.e., the Lok Sabha). Therefore, such a Government is called
a "responsible Government."
4)
Quasi Federal:-
The country's constitution may be Unitary or Federal. In a Unitary
Constitution, the powers (i.e., Legislative, Executive, and Judicial) are centralised
in the Union Government, and if Provincial Governments exist, they are
subordinate to the central government. The Constitutions of Britain, Sri Lanka,
Singapore, etc., are good examples of Unitary Constitutions.
In the Federal Constitution, powers are distributed among the Centre and
State Governments, and both act as sovereign in their sphere. No Government is
subordinate to the other, e.g., the Constitution of the U.S.A, Canada, Austria,
Malaysia, Germany, etc. However, the Indian Constitution satisfies both Unitary
and Federal features. Hence, it is termed "Quasi-Federal."
5)
Rigidity and Flexibility:-
A rigid Constitution is one whose provisions cannot be amended easily. It
requires a special method for amendment. The Flexible Constitution is one of the
provisions that a simple legislative process can amend. Art. 368 of the Indian
Constitution confers power on the Parliament to amend the provisions of the
7
“ Law Master’s Publication”
“Introduction”
Prof. Santosh D. Bhosale
Constitution in three ways, namely- (1) by Simple Majority, (2) by Special
Majority and (3) by Ratification by States. Hence, the Constitution of India is a
unique blend of rigidity and flexibility.
6)
Preamble:-
independent and not subject to external authority. The word 'Socialist' denotes a
form of state ownership of the means of production and distribution. The term
'Secularism' means "a state, which has no religion of its own as recognised religion
of the state, i.e., the state treats all religions equally; it does not sponsor any
religion. Finally, the term 'Republic' signifies that the citizens of the State elect the
Chief Executive Head by voting.
7)
Fundamental Rights:-
Part III of the Indian Constitution consists of Art.12 to 35. These articles
provide for fundamental rights. "Fundamental rights" are the basic human rights
and freedoms essential for the survival of a human being. These are also called
"inalienable rights" among these rights, Art 14 (Equality), Art. 19 (Right to
Freedom), and Art. 21 (Right to life and personal liberty) are of immense
importance.
8)
Directive Principles:-
The Directive Principles of State Policy (in Part IV from Art.36 to 51) of the
Indian Constitution sets out the aims and objectives to be achieved by the State in
future. Thus, the Indian Constitution establishes the concept of a welfare State.
9)
Part IV A, i.e. Art. 51A contains "fundamental duties." It is a Code of ten
Fundamental Duties for citizens. These duties require citizens to observe certain
basic norms of democratic conduct and behaviour.
10)
Adult Suffrage:-
Under the Indian Constitution, every man and woman above 18 years of age
(adult suffrage) has the right to elect representatives for the legislature; it is called
"Adult Suffrage". Adopting the universal Adult Suffrage rule without any
condition regarding sex, caste, property, taxation, etc., is a bold and successful
1
Inserted by Constitution ( 42nd Amendment ) Act, 1976.
2
Supra. Note 1.
3
Inserted by 42nd Amendment Act. 1976.
8
“ Law Master’s Publication”
“Introduction”
Prof. Santosh D. Bhosale
experiment in India.
11)
Independent Judiciary:-
An independent and impartial judiciary with the power of judicial review
has been established under the Constitution of India to protect fundamental rights
and interpret the Constitution. The judiciary also determines the limits on the
powers of the Centre and the States. According to Art. 124, the President appoints
the Supreme Court and High Court judges. But they are not subject to any
authority's control. Further, Art. 32 and 226 confer on the Supreme Court and High
Courts, respectively, the power of judicial review to examine the Constitutional
validity of a law passed by the Parliament or State Legislatures.
12)
Single Citizenship:-
Though the Constitution of India is Federal and provides for dual polities
(i.e., Centre and State), it provides for single citizenship of India, unlike the
American Constitution, which provides for dual Citizenship, i.e., the citizenship of
America as well as of a particular State.
*****