Term constitutional law is broader than the term constitution. It comprises constitution, relevant statutory law, judicial decisions and conventions. That means constitutional law is a branch of law which deals with the constitution, power and functions of various organs of government, the relationship between these organs, the relationship between people and government. Constitutional law is a fundamental law on which the validity of other laws to be tested.
“A constitution is a document having special legal sanity which sets out the framework and the principal functions of the organs of government of a nation and declares the principle governing the operation of those organs”.
Constitution and Constitutionalism
A country may have constitutional law but not necessarily constitutionalism. Example: A country with a dictatorship can be called to have a constitution, not constitutionalism, The idea of constitutionalism is not new. Many philosophers like Paine, Locke Grotius, Aquinas and Rousseau have promoted this.
The difference between these two concepts is that a constitution not merely confers power on various organs of government but also seeks to restrain those powers. Constitutionalism recognizes the need for the government but insists upon limitation being placed upon governmental powers. Although limited powers jeopardize freedom of the people, power corrupts and absolute power corrupts absolutely. If the constitution confers unrestrained power on either the legislature or executive it may lead to an authoritarian, oppressive government.
Therefore to the basic freedom of individual and to maintain his dignity and personality the constitution should be permeated with constitutionalism that means it should have some inbuilt restrictions on the powers conferred by it on government organs.
Some of the principles and norms which promote constitutionalism in a country are –
- A written constitution
- Independent judiciary with powers of judicial review
- Rules of law
- Separation of powers
- Free election to the legislature
- Accountable and transparent democracy
- Fundamental rights of citizens
Special features of the constitution
- Written and built the constitution
The constitution is a written and built constitution it was enacted on 26th November 1949 (on law day) and enforce on 26th January 1950. The constitution of J&K was enacted offer 7 year is on 26th January 1957.
- Largest constitution in the world
The Indian constitution is the largest constitution of the world, it consists of 395 Article divided into 22 parts and 8 schedules. Now it has 12 schedules which were inserted by later amendments.
The main aim of the constitution is to establish a welfare state which ensures social economic and political justice. Besides this, the constitution contains a description of the Directive principle of state policy and the fundamental duties of a citizen.
By 42th Amendment Act part IV (A) fundamental duties were inserted (it is also known as the mini constitution)
The preamble describes the object rules and theme Indian constitution. The preamble of a constitution declares Indian to be a sovereign, socialist, secular and democratic republic. In the preamble, the amendment had been done in 1976.
- In Re Berubari union case – In this case, it was held that preamble is the key to know the mind of the makers of the constitution.
- Keshvanand Bharti v/s state of Kerala AIR 1973 SCI 467 – In this case, it was held that amendments can be done in the constitution as well as preamble but the basic structure should not be disturbed.
- Union of India v/s Naveen Jindal 2004(2) SCC 510 – it was held that the beauty of the Indian constitution is that the entire structure of the country is based thereupon and it is the very pillar upon which the democracy of India stands.
- The Indian constitution has adopted various concepts from the constitution of other countries.
- U.S.A – written constitution, fundamental right, judicial review, the president as head of states.
- U.K.- a parliamentary form of government, Bicameralism, speaker’s powers.
- Singles citizenship, privileges to the legislature
- AUSTRALIA- concurrent list. Centre state relations.
- CANADA- Federalism, residuary power
- USSR- Fundamental duties, 5-year plan (non-constitutional feature])
- GERMANY- Emergency provisions
- IRELAND-.Directive principle of states policy
- SOUTH AFRICA- Power of constitutional amendment
- Fundamental duties
- The constitution 42nd Amendment act, 1976 has introduced 10 fundamental duties for a citizen.
- By 86th Amendment act, 11th fundamental duty was inserted in Article 51 A(K) i.e. Right to education up to (6-14) yrs Age.
- The fundamental duties are indeed to serve as a constant reminder to every citizen that while the constitution has conferred on them certain fundamental right.
- Directive Principle Of States Policy (DPSP)
The D.P of state policy contained part IV (from article 36 to 51) of the constitution. DPSC set out the aims and objectives to be taken by the states in the governance of the country.
- Adult Franchise
The old system of the communal electorate has been abolished and uniform adult suffrage had been adopted.
- The adoption of universal adult suffrage (article 326) is a bold experiment in India.
- Rights to vote is not a fundamental right but a legal right.
- According to 61st amendment now age to cast vote is 18 years
- Secular States
Secular means developing, understanding and respect towards different religion. A secular state has no religion of its own as a recognized religion of the state. Article 25 to 28 of the constitution give concrete shape to the concept of secularism freedom of religion is not absolute freedom, but subject to the regulatory power of the state:
CASE- S.R Bommai v/s Union of India- secularism is a basic feature of the constitutions
- Single Citizenship
Though the constitution of India is federal and provides for dual polity i.e. centre and states, it provides single citizenship for the whole of India. There is no state citizenship every Indian is the citizens of India and enjoys the same right of citizenship.
- An Independent Judiciary
The mere enumeration of fundamental rights in a constitution without any provision for their proper safeguards, will not any useful purpose. Independent and impartial judiciary with powers of judicial review has been established under the constitution of India. It is the custodian of the rights of a citizen.
Nature Of Constitution
Every country has its own constitution within the scope of which a country is governed by the peoples. Without constitution one cannot imagine an organized society, constitutional law and order in a country. The constitution of any country may be federal or unitary.
- Federal Constitution: It establishes dual polity or dual form of government federal and states government. The power of both the central and states government is divided and both our independence in their own spheres.
- Unitary Constitution: A unitary system is governed constitutionally as one single unit in 3which the central government is supreme and any administrative divisions (subnational units) exercise only powers that the central government chooses to delegate.
Historical Background And Making Process
All constitution are the heirs of the past as well as the testators of the future. To study any constitutional law of a country, knowledge of the historical process which led it to its present form is very much necessary. The British came to India in 1600 to trade through east India company, which was started by a charter issued by Queen Elizabeth I.
In 1765 company obtained Diwani (rights over Diwani and civil justice) of Bengal, Bihar and Orissa. In the meanwhile, the British crown passed a number of charters and acts to regulate the conduct of the company, though the constitution of India was framed by constituting assembly, many constitutional experiments were introduced by the British govt. Before making this present constitution, some of the experiments to our constitution are given below:-
Constitutional experiments before 1858
- Character 1600: the Britishers came to India in 1600 as traders in the form of East India company. The company established factories or trading centres.
- The character of 1726: The charter established mayor courts in presidency towns. Separation of legislative powers from the court of direction to governor and council. The Battle of Plassey 1757 took place in which victory of the company against Suraj-Ud-Dralla was marked.
- Regulating act, 1773: To regulate the affairs of the company the administration of civil justice and collection of revenue was left to Indians. The company’s servants were responsible for the court of directors in England. It is of great constitutional importance because it asserted for the first time the right of parliament to regulate the affairs of East India company.
- The Act of settlement 1781- This act came to remove the defect of regulating act 1773 it empowered governor-general in council to frame regulation for provincial courts it confirmed appellate jurisdiction of the courts over servants of the company.
- The Pitts India act 1784- Rural system of government introduced. Act distinguished between commercial and political function of the company.
- The charter Act 1813- The monopoly of East India company was taken away and Indian trade was thrown open to British subjects.
- The charter Act 1833- The charter act of 1833 introduced important change in the constitution of the legislature in India. There was centralisation of administrative machinery in the hands of the governor-general in council. It ended activities of East India Company as a commercial body.
- The charter Act of 1853- Decentralisation of machinery was done separate legislative machinery from the executive. It introduced an open competitive system of selection and recruitment of civil servants and also opened covenanted civil services for Indians.
Crown rules (1848-1947)
- The govt. Of India Act 1858- Board of control failed to have proper control over the company’s affairs.
- It abolished the board of control and court of directors.
- The Act of 1858 transferred govt. Of India from the company to the British crown.
- It changed the designation of Governor General of India to that of Viceroy of India. Lord canning became the first viceroy of India.
- Indian Council Act of 1861: this act is an important landmark in the constitutional history of India. by this act the powers of the crown to be exercised by Secretary of State for India assisted by a council of 15 members known as council for India.
- Indian were associated with the work of legislation for the first time.
- It initiated the process of decentralisation by restoring the powers of Bombay and Madras Presidencies.
- The Viceroy Of India was empowered to issue ordinances in emergencies.
- Indian Council Act of 1892- it increased the functions of the legislative council and gave them the power of discussing the budget and addressing questions to the executive.
- Indian Council Act of 1909 & Minto –Morley Reforms
- Reforms recommended by the then Secretary of state for India (Lord Morley) and the Viceroy (Lord Minto) were implemented by the Indian council act, 1909.
- It increased the size of the legislative council central as well as provincial.
- An element of the election was introduced in the legislative council at the centre.
- Government of India Act 1919 & Montague Chelmsford Report- The then Secretary of state for India (Mr E. S. Montague) and the governor general lord Chelmsford formulated a proposal for the govt. Of India act 1919. the object to the introduction of the responsible government of India.
- Simon Commission: The commission headed by Sir John Simon, was constituted in 1927 to inquire into the working if the Act of 1919. The commission placed its report in 1930. the report was examined by the British parliament and govt. Of India act 1935 was drafted.
Government of India Act 1935
- It made the provisions for all India federation consisting of provision (states under British control) and princely states (Indian state) as a unit.
- The Act divided the powers between the centre and the units into the terms of three lists- federal, provincial and concurrent lists.
- It abolished diarchy in provinces and introduced ‘ provincial autonomy’ in its place and also responsible govt. In provinces.
- It further extended the principle of communal representation by providing separate electorate for depressed classes, women and labourers.
- It provided for the establishment of federal public service commission and also provincial public service commission.
- It provided for the establishment of federal court, which was set up in 1937.
- It provided for the establishment of a Reserve Bank of India.
Cripps Mission: In March 1942, Sir Stafford Cripps, a member of the British cabinet came with a draft declaration on the proposals of the British Govt. The main content of the proposal was that The Constitution of India to be framed by an elected constituent assembly by the Indian people.
Cabinet mission plan: In March 1946, a commission came in India knowns as cabinet mission comprising of 3 members namely- Lord Pethick Lawrence(head), Sir Stafford Cripps and Mr A.V. Alexander. The object of the mission was to help India to achieve its independence as early as possible and set up a constituent assembly.
The Mountbatten plan- This plan laid down the transfer of power of Indians and the partition of the country. Formal shape to the plan was given by the British Govt. On 3rd June 1947.
Indian Independence Act of 1947
Accepting Mountbatten plan the Indian independence act was passed
- It ended the British rule in India and declared India as an independent sovereign state from August 15, 1947.
- Two Dominion states – India & Pakistan came into existence, both states shall have the right to frame their own constitution by their respective constituent assemblies.
- It granted freedom to Indian states either to join India & Pakistan or remain independent.
- Till the new constitution are to be framed the govt. In the two states will be run on the basis of the government of India Act 1935.
- The British crown ceases to be the ruler of India.
Making of the constitution
The Congress, officially demands a constituent assembly for India in 1953. The British Government accepted, in principle, the demand in August offer, 1940. Finally, under the cabinet mission plan, 1946, the constitution of India was framed by a constituent assembly. The assembly consisted of 389 members representing provinces, states, and chief commissioner provinces. Though the major part of the constitution came into force on January 26, 1950, the provision relating to citizenship, elections, provisional parliament and other temporary provision came force with immediate effect, that is, from November 26, 1949.
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