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e-Notes
Class : BBA LLB + BA LLB
Paper Code : LLB 205
Subject : CONSTITUTIONAL LAW - 1
Faculty Name : Ms. RIDAM AGGARWAL
Unit 1
a) Definition and Classification, b) Sources of Constitution, c) Constitutional Conventions, d) Salient features of Indian Constitution, e) Rule of Law, f) Separation of powers. Definition 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 and declares the principles governing the operation of those organs. The term constitutional law has been defined by many writers. 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”. 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
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) members to each other or which determine the mode in which the sovereign power or the members thereof exercise their authority”.
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) SALIENT FEATURES OF THE INDIAN CONSTITUTION :
- The lengthiest Constitution in the world: The Indian Constitution is the lengthiest and the most detailed of all the written Constitutions of the world. While the American Constitution originally consisted of only 7 Articles, the Australian Constitution 128 Articles, the Canadian Constitution 147 Articles, the Indian Constitution originally consisted of 395 Articles divided into 22 Parts and 8 Schedules, at present, the though still, the last numbered Article is 395 and the last numbered part is 22, yet the actual articles are 460 in number and 25 parts at present and the Schedules at present are 12 in number. Since 1950 Articles have been repealed and several Articles have been added to the Constitution. This extraordinary bulk of the Constitution is due to several reasons:- (1) The framers of the Indian Constitution have gained experience from the working of all the known constitutions of the world. They were aware of the difficulties faced in the working of these constitutions. This was the reason that they sought to incorporate good provisions of those constitutions in order to avoid defects and loopholes that might come in future in the working of the Indian Constitution. The framers of the Indian Constitution framed, the most important chapter of the Fundamental Rights on the model of the American Constitution, and adopted the parliamentary system of government from the United Kingdom; they have taken the idea of the directive principles of state policy from the Constitution of Ireland, and added elaborate provisions relating to Emergency in the light of the Constitution of the German Reich and the Government of India act, 1935. (2) The Indian Constitution lays down the structure not only of the Central Government but also
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) of the States. The American Constitution leaves the states to draw up their own constitutions. (3) The vastnesses of the country and peculiar problems relating to the language have added to the bulk of the constitution. Establishment of a Sovereign, Socialist, Secular, Democratic Republic: The Preamble of the Constitution declares that India to be a Sovereign, Socialist, Secular, Democratic Republic. The word ‘Sovereign’ emphasizes that India is no more dependent upon any outside authority. It means that both internally and externally India is sovereign. The term ‘Socialist’ has been inserted in the Preamble by the Constitution 42nd^ Amendment act, 1976. The word ‘Socialism’ is used in democratic as well as socialistic Constitutions. The term ’Secularism’ means a State which has no religion of itsThe term ’Secularism’ means a State which has no religion of its own as recognized religion of state. It treats all religions equally. In a secular State the State regulates the relation between man and man. It is not concerned with the relation of man and God. The term ‘Democratic’ indicates that the Constitution has established a form of Government which gets its authority from the will of the people. The rulers are elected by the people and are responsible to them. Justice, Liberty, Equality and Fraternity which are essential characteristics of a democracy are declared in the preamble of the Constitution as the very objectives of the Constitution. The Preamble to the Constitution declares that the Constitution of India is adopted and enacted by the people of India and they are the ultimate master of the Republic. Thus the real power is in hands of the people of India, both in the Union and in the States.
- Adult Suffrage: The old system of communal electorates has been abolished and the uniform adult suffrage system has been adopted. Under the Indian Constitution every man and woman above 18 years of age has been given the right to elect representatives for the legislature. The adoption of the universal Adult Suffrage without any qualification either of sex, property, taxation, or the like is
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) RULE OF LAW: Adjustment of law to the social needs is a continuing process. Law must always be responsive to the social development. This continuing process requires watchful legislature and alert judiciary. However, certain care and caution regarding the adjustment of law to social change should be observed. “The increasing use of device of legislation in modem societies and the general orientation of nearly all start and elites in favor of change and popular elections in democratic countries as also the decreasingly conservative attitudes of the lawmen including judges, provide rather simple ways of adjusting the law to social change. The problem today, as one writer sees it, is not as much of preventing lag of law behind social needs and development as of preserving legal security which is endangered by rapid changes in the law. “This is the interesting problem of the lag of society after changes in the law, which is a more novel problem, both from the theoretical and the practical point of view”. “The problem one has to grapple with today appears to be one arising out of the tension between the ideology of rule of law and the need for recognition of law as a means of social action. Law shapes various social institutions, which in turn have direct impact on society, i.e., compulsory education system, prohibition of polygamy etc. It has indirect impact on social change as where a new patent law calls forth inventions and further changes in technological institutions. Law may set up new public bodies and an authority, which is turn bring about significant social and economic changes”.The guarantee of equality before the law is an aspect of what Dicey calls the rule of law in England. It means that no man is above the law and that every person, whatever be his rank. Dicey gave three meanings of the Rule of Law those are: 1) Absence of Arbitrary power or Supremacy of the, 2) Equality before the law, and, 3) The Constitution is the result of the ordinary law of the land.
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) The first and the second aspects apply to Indian system but the third aspect of the Dicey’s rule of law does not apply to Indian system as the source of rights of individuals is the Constitution of India. The rule of law imposes a duty upon the State to take special measure to prevent and punish brutality by police methodology to a federal Government. The supreme Constitution is essential if The Indian Constitution possesses all the essential characteristics of a federal Constitution. The Constitution establishes a dual polity, a system of double Government with the Central Government at one level and the State Government at the other. There is a division of powers between the central and the State Government Rule of Law under Constitution of India: Dicey’s rule of law has been adopted and incorporated in the Constitution of India. The Preamble itself enunciates the ideals of Justice, Liberty and Equality. In part III of the Constitution these concepts are enshrined as Fundamental Rights and are made enforceable. The Constitution is supreme and all the three organs of the Government, namely, Legislature, Executive and Judiciary are subordinate to and have to act in consonance with the Constitution. The doctrine of judicial review is embodied in the Constitution and the subjects can approach High Courts and the Supreme Court for the enforcement of Fundamental Rights guaranteed under the Constitution. If the executive or the Government abuses the power vested in it or if the action is mala fide, the same can be quashed by the ordinary courts of law. Modern concept of Rule law: Davis has given seven principal meanings of the term ‘Rule of Law’ :-(1) Law and order; (2) Fixed rules; (3) Elimination of discretion; (4) Due process of law or fairness; (5) Natural law or observance of the principles of natural justice;
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) control; for the judge would then be the legislator. Where it joined with the executive power, the judge might behave with violence and oppression. Miserable indeed would be the case, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions and that of judging the crimes or differences of individuals.” (d) Effect of the doctrine: The doctrine of separation of powers as propounded by Montesquieu had tremendous impact on the development of administrative law and functioning of Governments. It was appreciated by English and American jurists and accepted by politicians. (e) Importance of the doctrine: On the whole, the doctrine of Separation of powers in the strict sense is undesirable and impracticable and, therefore, it is not fully accepted in any country. Nevertheless, its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of enormous powers of the executive. The object of the doctrine is to have “a Government of law rather than of official will or whim”. Montesquieu great point was that if the total power of Government is divided among autonomous organs, one will act as a check upon the other and in the check liberty can survive. Again almost all the jurists accept one feature of this doctrine that the judiciary must be independent of and separate from the remaining two organs of the Government, viz., Legislature and Executive. The most important aspect of the doctrine of separation of powers is judicial independence from administrative discretion. “There is no liberty, if the judicial power be not separated from the legislative and executive.” The judiciary is beyond comparison the weakest of the three departments of power. It has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society and can take no active resolution whatever. It may
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) truly be said to have neither force nor will, but merely judgment. There is no liberty, if the judicial power be not separated from the legislative and the executive. Unit – II Generally, three models are followed in the matter of division of powers in a federation. In the first model, the powers of the Centre are defined and the residuary powers are left to the States. This model is found in America. In the second module, the powers of the federating units or States are defined and the residuary powers are given to the centre. Canada follows this model. And in the third model, the powers of both the governments are clearly laid down. Australia has this model of federation. In India, we follow the combination of both the Canadian and the Australian models. The Constitution of India divides powers between the Union and the State governments. The Seventh Schedule of the Constitution includes three lists of subjects - the Union List, the State List and the Concurrent List. The Central or Union Government has exclusive power to make laws on the subjects which are mentioned in the Union List. The States have the power to make law on the subjects which are included in the Concurrent List. With regard to the Concurrent List, both the Central and State governments can make laws on the subjects mentioned in the Concurrent List. Finally, the subjects which are not mentioned in the above three lists are called residuary powers and the Union government can make laws on them. It may be noted here that in making laws on the subjects of the Concurrent list, the Central government has more authority than the State governments. And on the subjects of the State List also the Central government has indirect control. All this shows that though the Indian Constitution has clearly divided powers between the two governments, yet the Central government has been made stronger than the State governments.
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) the Constitution to nominate two anglo-Indians to the Lok Sabha, if he is of opinion that the anglo-Indians community is not adequately represented in that House (Article 331). The President has to lay before the Parliament the Annual Finance Budget, the report of Auditor- General, the recommendations of the Finance Commission, Report of the Union Public Service Commission, and report of the Special Commission for Scheduled Castes and Scheduled Tribes, the report of the Commission of the Backward Classes and the report of the Special Officer for linguistic minorities. b. Administrative powers As in legislative maters, in administrative matters also, the Central government has been made more powerful than the States. The Constitution has made it clear that the State governments cannot go against the Central government in administrative matters. The State governments have to work under the supervision and control of the Central government. The States should exercise its executive powers in accordance with the laws made by the Parliament. The Central government can make laws for maintaining good relations between the Centre and the States. It can control the State governments by directing them to take necessary steps for proper running of administration. If the State fails to work properly or according to the Constitution, it can impose President’s rule there under Article 356 and take over its (the State’s) administration. Again, there are some officials of the Central government, working in the States, through which it can have control over the State govern
- Article 257 of the Constitution lays down that the executive authority of every State shall be exercised in such a way that it does not impede or prejudice the exercise of the executive power of the Union.
- There are some functionaries of the Union government who serve the State governments. The Governor of a State is appointed by the President who acts as a central agent in the State. The Chief Justice and the Judges of a High Court are appointed by the President and he
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) can also
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State, according to Article 245(2) no law made by Parliament shall be deemed to be invalid on the ground that it would have extra- territorial operation. Thus, the Constitution confers the power to enact laws having extra- territorial operation only to the Union Parliament and not to the State legislature, and consequently and extra-territorial law enacted by any State is changeable unless the same is protected on the ground of territorial nexus. If a State law has sufficient nexus or connection with the Subject-matter of that law, the state law is valid even when it has extra-territorial operation. It could, therefore, be said that a State Legislature is also empowered to enact a law having extra- territorial operation subject to the condition that even though the subject matter of that law is not located within the territorial limits of the State, there exists as sufficient nexus of connection between the two. The area in which the principle of territorial nexus has been applied most in India is taxation. In State of Bombay Vs R.M.D. Chamarbangwala, a newspaper printed and published at Bangalore had wide circulation in the State of Bombay. Through this news paper the respondent conducted and ran prize competitions for which the entries were received from the State of Bombay through agents and depots established in the State to collect entry forms and fees for being forwarded to the head office at Bangalore. The Bombay Legislature imposed a tax on the business of prize competitions in the state by enacting the Act of 1952 and amending the Bombay Lotteries and prize Competitions and Tax Act, 1948. The respondent contended that he was not bound to pay the said tax on the ground of extraterritoriality. The Supreme Court ruled that when the validity of an act is called in question the first thing for the court to do is to examine as to whether the Act is called in question the first thing for the court to do is to examine as to whether the Act is a law with respect to a topic assigned to the
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) particular legislature which enacted it because under the provisions conferring legislative powers on it such legislature can only make a law for its territory or any part thereof and its laws cannot, in the absence of a territorial nexus, have any extra-territorial operation. For sufficiency of territorial connection, two elements were considered by the court, namely, (1) the connection must be real and not illusory, and (2) the liability sought to be imposed must be pertinent to that connection. It was held that all the activities which the competitor was ordinarily expected to undertake took place in the State of Bombay and there existed a sufficient territorial nexus to enable the Bombay Legislature to tax the respondent who was residing outside the state. Some other example of cases:-
- Tata Iron and Steel Company Vs. State of Bihar, AIR 1958 SC 452
- State of Bihar vs. Charusila Das, AIR1959 SC 1002. (b) Harmonious Construction When two or more provisions of the same statute are repugnant, the court will try to construe the provisions in such a manner, if possible, as to give effect to both by harmonizing them with each other. The court may do so by regarding two or more apparently conflicting provisions as dealing with separate situations or by holding that one provision merely provides for an exception of the general rule contained in the other. The question as to whether separate provisions of the same statute are overlapping or are mutually exclusive may, however, be very difficult to determine. The basis of the principle of harmonious construction probably is that the legislature must not have intended to contradict itself. This principle has been applied in a very large number of cases dealing with interpretation of the Constitution. It can be assumed that when the legislature gives something by one hand it does not take away the same by the other. One provision of an Act does not make another provision of the same Act useless. The legislature cannot be presumed to contradict itself by enacting apparently two conflicting provisions in the same Act.
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) competence of Legislature. In order to ascertain the true character of the legislation one must have regard to the enactment as a whole, to its object and to the scope and effect of its provisions. The Privy Council applied this doctrine in Profulla Kumar Mukerjee Vs Bank of Khulna, AIR 1947.In this case the validity of the Bengal Money Lenders’ Act, 1946, which limited the amount and the rate of interest recoverable by a money-lender on any loan was challenged on the ground that it was Ultra virus of the Bengal Legislature in so far as it related to ‘Promissory Notes’, a Central subject. The Privy Council held that the Bengal Money-lenders’ Act was in pith and substance a law in respect of moneylending and money-lenders-a State subject, and was valid even though it trenched incidentally on “Promissory note”—a Central subject. In 1980 in the case of Ishwari Khetal Sugar Mills Vs State of U.P., the validity of the U.P. Sugar Undertakings (Acquisition) Act,1971, was challenged on the ground that the State Legislature had no competence to enact the impugned law on the ground that it fell under Parliament’s legislative power under Entry 52 of List I. It was contended that in view of the declaration the Parliament had made under Entry 52 List I to take the Sugar Industry under its control, that industry went out of Entry 24 of List II and hence the State Legislature was divested of all legislative power to legislate in respect of Sugar Industry and as the impugned legislation was in respect of industrial undertaking in Sugar (Entry 52 of List I) a central subject the impugned legislation was void. The Court, however, rejected these contentions and held that there was no conflict between that State Act and the Central Act under Industries Act, 1951. The power of acquisition or requisition of property in Entry 42, List III is an independent power and the impugned Act being in pith and substance, an Act to acquire scheduled undertakings the power of the State Legislature to legislate is referable to entry 42 and its control was taken over by the Central Government.
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) (d) Repugnancy: Article 254 (1) says that if any provision of law made by the Legislature of the State is repugnant to any provision of a law made by Parliament which is competent to enact or to any provision of the existing law with respect to one of the matters enumerated in the Concurrent List, then the law made by Parliament, whether passed before or after the law made by the Legislature of such stage or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy be void. Article 254 (1) only applies where there is inconsistency between a Central Law and a State Law relating to a subject mentioned in the Concurrent List. But the question is how the repugnancy is to be determined? In M.Karunanidhi vs Union of India, in 1979, Fazal Ali, J., reviewed all its earlier decisions and summarized the test of repugnancy. According to him a repugnancy would arise between the two statutes in the following situations:
- It must be shown that there is clear and direct inconsistency between the two enactments [Central Act and State Act] which is irreconcilable, so that they cannot stand together or operate in the same field.
- There can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
- Where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collusion with each other, no repugnancy results.
- Where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field. The above rule of repugnancy is, however, subject to the exception provided in clause (2) of this
