constitutional law

This article on the constitutional law is written by Gourav Khatri, pursuing M.A. in business law from NUJS, Kolkata.

The primary emphasis of the present work is to synthesis all major provisions of the Constitutional   law which come across with every Indian from day to day life and which are the very basic provisions of the Constitutional Law including but not limited to the purpose of Constitutional Law, formation of Constitutional Law, key provisions, Preamble, Union of India, Citizenship, Fundamental Entitlements, Directive Principles of the State Policy, Fundamental Duties, President of India, Prime Minister, Attorney General of India, Parliament of India, Powers of House of the People and Council of States, Parliamentary Committees, Sessions of Parliament, Comptroller and Auditors General of India, Supreme Court of India and High Court jurisdiction, Pertains between the Union and the States, Entitlement to property Elections, Emergency provisions.

To start with we might find the following important facts of our Constitutional Law as the interesting facts of every Indian citizen should be aware of:

  • The British Parliament on 18th July 1947 passed the Indian Independence Act, 1947 to provide a setting up of the two dominions i.e. India and Pakistan as from 15th August 1947.
  • Due to the said statute, the existing Constituent Assembly was abolished.
  • It is an essential attribute of national freedom that to provide right to people to have the Constitution of their own choice.
  • The people of India resolved to constitute India into a Sovereign Democratic Republic nation and adopted, enacted and gave to themselves the Constitutional Law on the Constitutional Law on the 26th November 1949. The pyramid of Government of India is established on the premises of the Constitutional Law of India.
  • Shri B.R. Ambedkar is regarded as the main architect of the Constitution of India.
  • The Constitutional Law of India is a document which was not typed or printed. It was handwritten and the calligraphy was done in both English and Hindi languages.
  • The original copies of the Constitutional Law of India have been preserved in special helium-filled cases which are safely kept at the Library of the Parliament of India
  • Many parts of the Indian Constitutional Law has been borrowed from many countries
  • The concepts of Liberty, Equality and Fraternity was borrowed from France Constitutional Law
  • The idea of five-year plans was borrowed from the USSR
  • The idea of Directive Principles were obtained from Ireland
  • The Supreme Court machinery was taken from Japan
  • Worth mention that the Constitutional Law of India is the longest written Constitutional Law of any Independent countries
  • It contains 448 articles in 25 parts, 12 schedules, 5 appendices and has been amended for 98 times so far
  • It took 3 years to complete the draft which was submitted in November 1949.
  • Total of 284 members of the Constituent Assembly signed the documents on January 24, 1950
  • The Constitutional Law came into effect on January 26, 1950
  • It is also worth mention that the national emblem of India too was adopted on the same day

1.1 Concept of Constitutional Laws

  • We must know that everything we do is governed by rules. There are rules for games any game such as for social clubs. Rules of morality and customs also play an important role to establish our day to day life. Few rules that are made by the legislatures, for the nation, are called “Law”.
  • Laws in Society are must so our society can regulate its work properly. They are designed to safeguard our property and safeguard us and to ensure that everyone in society behaves in a proper manner.
  • It is established fact that Law tells us what we should expect as a consequence of our actions. Without laws, anarchy would prevail.
  • Essentially, the Constitutional law is the supreme law. All other laws have to conform to the Constitutional Law. The Constitutional Law contains laws concerning the government and its people.

1.3 Preamble

  • The Preamble of the Constitution has been prepared meticulously. The reflections come out the Preamble is this document is of great importance to the nation. There won’t be any exaggeration in saying that the Preamble is the soul of the Constitution of India.

1.4 Union of India

  • The union territories are described in First Schedule.
  • The union of India is regarded as the administrative branch of the nation.
  • Due to Constitutional provisions, the Union territories have their special rights  

1.5 Citizenship

  • Domicile of the country is one i.e. domicile of the country. There is no separate domicile of different states. Domicile means permanent home at any place in India.
  • Article 11 empowers to regulate laws relating to citizenship of the country.
  • The Central government has exclusive power to ascertain the jurisdiction to determine the question of citizenship of a person. The court has no power to entertain any such matter.

1.6 Fundamental Rights

  • These are the basic rights and include guaranteed freedom to the individual. Article 12 to 35 deals with fundamental rights. These freedoms are not absolute. These are judicially enforceable.
  • Fundamental rights are different from the legal rights. The legal rights are protected and enforced by ordinary law. Fundamental rights are protected by Constitution of India

The fundamental rights are:

It is about the Right to equality

It is about the Right to freedom

It is about the Right against exploitation

It is about the Right to freedom of religion

It is about the Cultural and educational rights

It is about the Right to constitutional remedies

 

  • Earlier, right to property was a fundamental right till 1978 which has now been removed. Article 31 was amended to make right to property as a legal right and not as the fundamental right.

1.7 Directive Principles of State Policy

The Directive Principles can be divided into the following classes:

  1. Socialistic
  2. Gandhian and
  3. Liberal-intellectual.

Class: 1 – Socialistic Class

Broadly the ideas in this category of directives:

(a) The welfare of the people

(b) Proper distribution of material resources of the community

(c) Right to work, education etc.

(d) Just and humane conditions of work and maternity relief

 

Class – 2 Gandhian classes

Such directives are a range over numerous Arts. Basic among such directives

(a) Consolidate village panchayats

(b) Secure living wage, decent standard of life, and to promote cottage industries

(c) Provide free and compulsory education to all children up to 14 years of age

(d) To promote economic and educational interests of the weaker sections

 

Class -3 Liberal intellectual directives

(a) Uniform civil code throughout the country

(b) Separate judiciary from the executive

(c) Protect monuments of historic and national importance

(d) To promote international peace and security.

 

Application of the Principles contained under

Directive Principles of the State Policy

The Directive principles of the policy lay down fundamental principles for governance of the Country. It controls material resources of the community are well distributed to serve common welfare thereby economic system does not result in an economic concentration of power.

 

Article 47 states that the State has power to completely prohibit the manufacture, sale possession, distribution and consumption of liquor since it is dangerous.

Citizen does not have fundamental right to trade or business of liquor.

1.8 Fundamental Duties

It is important to note that the fundamental duties cannot be enforced by writ jurisdiction. The fundamental duties can be enforced only and only by constitutional methods.

1.9 The Union

Article 72 is of key importance to Indian judicial system. During the process of examination of mercy petition, the judicial review power given to the Courts is very limited.

Only where the court can interfere is when the application of mind is not done during arriving at the judgement.

The intention of keeping Article 72 was to secure the power of sovereign to grant remission within its exclusive domain.

Unbridled power of reprieve: as this was preserved power, it was intended to be unrestrained.

 

1.10 – Article 76: Attorney General of India (AGI)

The power to appoint Attorney General of India is vested with the President. The primary qualification is that the person to be appointed as AGI should be eligible to be appointed as a judge of Supreme Court.

The primary duty of the AGI is to tender advice to the Government of India upon legal matters and secondary duty is to perform other duties as may be from time to time delegated to the AGI.

AGI has the right to the audience in all the territories spread across India. The office shall remain in force till the office of President and the remuneration of the AGI shall be as determined by the President.

1.11 Article – 79: Parliament

  • The Parliament of India has two houses namely Councils of the State (Rajya Sabha) and House of the People (Lok Sabha).
  • The Composition of the Councils of the State consist 12 members nominated by the President and 238 members shall be elected as representatives of all the States.
  • The description is given in Schedule IV
  • The representatives of the State Councils shall be elected by the elected members of the Legislative Assembly.

 

1.12 Article 107 & 108 Legislative Procedure

  • With respect to Money Bills and other financials bills, a Bill may originate in either House of Parliament
  • Unless it has been agreed to by both the houses, a bill shall not be deemed to have been passed by the Houses of Parliament either without amendment or with such amendment only as are agreed to by both houses.
  • The bill pending in parliament shall not lapse only reason of prorogation of the houses.
  • Any bill pending in the Councils of the States which has not been passed by the houses of the people shall not lapse on a dissolution of the house of the people.
  • A bill which is pending in the house of people, or which having been passed by the house of people is pending in the councils of the state shall lapse on a dissolution of the house of the people.

Article 108

There is the provision where the joint sitting of the both the houses are required:

  • When a bill has been passed by one house and transmitted to another house:
    • The bill is rejected by other house
    • Houses have finally disagreed
    • More than 6 months elapsed from the date of its received.
  • However, the President may, unless the bill has lapsed on account of dissolution of the house of the people, notify to the houses by message if they are sitting and may summon them to jointly meet.

 

1.13. Special Procedure for Money Bills

  • The money bill can be placed before the councils of the states.
  • First the house of people passes the money bills
  • Then it is forwarded to council of states for its recommendations
  • The councils of states is duty bound to revert within 14 days
  • The house of people thereafter accepts or rejects
  • If the house of the people accepts any of the recommendations of the councils of states the money bill shall be deemed to have been passed by both houses

1.14 Language to be used in the Parliament

  • Business in Parliament shall be conducted in Hindi or in English
  • However, the member who can’t adequately express in said languages may address the house in his mother tongue.

1.15 Restriction on discussion Parliament & Courts can’t inquire into proceedings of the Parliament

  • There is no possibilities of taking place the conduct of any judge of the Supreme Court or the High Court except his removal
  • The acute law is that the validity of any proceedings in the Parliament shall not be questioned on the grounds of any alleged irregularities.

1.16 What is the Legislative Power of the President of India?

  • President has the power to promulgate Ordinances if circumstances appears to him
  • The Ordinance shall have the same effect as an Act of Parliament.
  • The life of 6 months or the President may withdraw the same at any time.

1.17 Union Judiciary

Article 124: The Supreme Court of India is the highest judicial court in India. The chief of the Supreme Court is the Chief Justice of India. The other judges can be upto 30. Every judge of the Supreme Court shall be appointed by the President of India under his hand and seal.

The qualification for being appointed as a judge of the Supreme Court is:

  1. Citizen of India
  2. 5 years judge in High court or of two or more such Courts in Sessions
  3. 10 years as an advocate of a High Court
  4. In the opinion of the President of India is an extinguished jurist.

Salary of judges of the Supreme Court shall be determined by Parliament by law and otherwise as prescribed in Schedule II.

1.18 – Article 132: Appellate Jurisdiction of

Supreme Court in appeals from High Courts

  • A judgement, decree or order passed by High Court can be challenged only in Supreme Court where there persists some substantial question of law as to the interpretation of this constitution
  • This includes criminal as well as civil suits.

1.19 Article 136: Special leave to appeal by the Supreme Court

  • Article 136 specifies no right of appeal on any party but it confers discretionary power of the Supreme Court to interfere is suitable cases. There is a non-obstante clause in the words are overriding effect and clearly indicate the intention of the framers of the constituent that it is a special jurisdiction and residuary power unfettered by any statue or other provisions.
  • Article 136 is not a regular appeal. It is a residual provision which enables the Supreme Court interferes with any order of any court.
  • Article 136 has the widest possible term, this extraordinary jurisdiction vested by in the Supreme Court
  • This is not a right vested to a party and its upto absolute independent discretion of the Supreme Court to entertain a case.

1.20 – Article 141: Law declared by

Supreme Court to be binding on all courts in India

  • The subsequent co-ordinate bench shall not consider the whole judgement but will focus only on ratio decidendi applied in said judgement.
  • Obiter dicta has been considered of no value
  • While interpreting the status of the constitution shall be followed.

1.21 Article 148 – Comptroller and Auditor – General of India

  • The Comptroller and Auditor-General of India is appointed by the President
  • He acts at par with a Judge of the Supreme Court.
  • Oath is required before he assumes the office.
  • Salary shall be determined by the Parliament by a law
  • Not eligible for further office
  • His salary is charged from the Consolidated Fund of India

1.22 Article – 245

Legislative Relations – Distribution of legislative powers:

Laws made by one state can’t have operation in another state. A law which has extra territorial operation can’t be directly enforced in another State, but such a law is not held invalid.

Article 242(2) provides that no law made by the Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation.

There is three fold distribution of legislative power between the Union and the States made by the three lists in the Seventh Schedule of the constitution of India.

When repugnancy arises, it happens when both the pieces of legislation deal with the same matter but not where they deal with separate and distinct matter, through cognate and allied character.

1.23 Article 254

Inconsistency between laws made by the Parliament and laws made by the Legislature of the Statues:

For repugnancy of the provisions, there is twin side requirement to be fulfilled. The Central Act and State Act- there should persists some repugnancy and

Presidential ascent has to be held as being non-existent.

1.24 Article – 368

Power of the Parliament of India to amend the Constitution

The Constitution of India provides constituent power to make amendments and empowers Parliament to which is different from the procedure for ordinary legislation to amend the Constitution by way of addition, variation or repeal of any provision according to the procedure laid down therein,

Concepts like Power of judicial separation of Powers, review secularism, democracy, and drop separate the scope of amendatory power of the Parliament.

1.25 Power to make change in the

basic structure of the Constitution of India:

The power to make changes to the Basic Structure of the Constitution of India vests only in the People sitting as a nation, through its representative in constituent assembly.

If anyone of these were to be deleted, it would amount to have changes made not only in Part II of the Constitution but also in the Article 245 of the Constitution of India.

Conclusion:

With the finding the above mentioned significant provisions, it is imperative to draw some conclusion. Since subject is what every India should know about the Constitutional Laws, it is imperative to list down the key areas of benefits that the reader should be benefitted out of this report.

The important interesting facts about Constitution of India

  1. Indian Constitution is the longest Constitution in the World.
  2. Objective Resolution was moved by Pt. Jawaharlal Lal Nehru on 13/12/1946.
  3. Mr. B.R. Ambedkar was appointed the Chairman of the Parliamentary Committee.
  4. Good Omen: The day when the Constitution was signed, it was raining outside. It is considered by many as a good Omen.
  5. It took 2 years 11 months and 17 days to pass the Constitution.
  6. Total of 284 members signed the Constitution of India.
  7. The Constitution of India contains a total of 146,385 words.

The Constitution of India is the Charter law of the nation India and derives various powers, enriches with fundamental rights and vests certain duties on every Citizen of India. The Constitution of India defines the three functions, Legislature, Judiciary and Executive and mark a balance between all the three. It delegates powers to CAG, Supreme Court, and High Courts of various State Judicature. It provides powers to the President of India.

Therefore, it is the duty of every citizen to understand and respect the importance of this legendary piece of legislation.

For lawyers, while interpreting any statute, it is imperative to understand and connect provisions of such other legislation with those of Constitution of India.

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