Constitution of India



State
  • an organized framework of an institution for running and managing a country. 

Constitution
  • Legus legum or law of the laws
  • fundamental law according to which a nation-state is governed
  • A set of basic rule for minimum cooperation between various section
    • Dhamma of Ashoka
  • A constitution is a living document
    • Responsive
    • Dynamic
    • Evolving
      • Judicial interpretation
      • Amendments
      • Just overall philosophy
Significance
  • a framework of polity:
    • Three organs of state
  • Distribution of power          
  • Nature of relationship between state and people (rights, duties, and restraints)
  • Gives ideas and aspiration
  • Identity to nation and its dwellers
Features
  • Positive:
    • Organic: that grows and evolve
    • more flexible less rigid
      • US: 17 amendments 
    • Enacted 104th
    • Written
    • Independent Judiciary
    • Fundamental Rights
    • 3 tier governance
  • Negative but Positive
    • Borrowed: UK, US, Germany
      • comprehensive
      • tested
      • suited to Indian needs
    • Bulky: 
      • Diverse nation, forseeable, 
      • Lawyers, exhaustive
    • Emergency Provisions
  • Unique features of Indian constitutionalism:
    • Middle Path:
      • Parliamentary vs Judicial supremacy
      • Flexible and rigid
      • Federal system with Unitary bias
    • DPSP
    • Single citizenship
    • Grenville Austin - cooperative federalism 
Constitutionalism
  • system of government which has restriction and limitation on the absolute power of the state
  • 22 Parts , 395 Articles , 8 schedule 
Components
  • Rule of law: A. V. Dicey
    • from King is the law to law is the king
    • no arbitrary powers
    • equal subjection to law
    • Constitution derives powers from individual rights: not valid in India
    • Exception from the RoL:
      • Quasi judicial bodies
      • Positive discrimination
      • Parliamentary privileges
      • President and Governor's immunities
  • Separation of Power:
    • Montesquieu
    • Provision of Separation of powers:
      • Article 50 (Separation of Judiciary and Executive)
      • Article 211, 121, (Legislature cannot discuss conduct of Judges, except on impeachment motion)
      • Article 122, 212: Courts cannot enquire into proceedings of Legislature
      • Article 361: Immunity to President and Governor from Court proceedings
    • Benefits:
      • Division of labour, efficiencies and specialization
      • System of checks and balances
      • Preserves the democracy and civil liberties
    • Need:
      • prevent authoritarianism
    • Exception:
      • Parliamentary form of government: political executive are from the legislature
      • Executives often have judicial as well as Law making eg. DM 
      • MPLAD, MLALAD
      • Ordinance
      • Tribunals
      • Pardoning power of President
      • Appointment of Judges is done by President
      • Parliament Can impeach Judges
      • Legislature decides on Anti defection, breach of privelges
      • Judicial over-reach/Activism
        • common law or judge made law
        • Vishaka Guidelines
      • Legislature bypasses the judiciary verdicts by forming the Acts
      • Executive has power of subordinate legislation
      • Independent regulators: have powers of all
      • article 370: power of law with president
  • Elected government or temporariness of government
  • Free press
  • Independent Judiciary
Interpretation of the Constitution
  • Doctrine of liberal interpretation:
    • to give relevance and meaning to every word etc
  • Progressive interpretation
  • Constitutional assembly debates
  • Preamble 
  • Prospective rather then retrospective
Process of constitution-making
  • MN Roy,1934 - idea of const assembly 
  • 1937 Congress manifesto
  • Cabinet mission of 1946
  • Member elected by provincial LA & nominated by state
  • Each province & Indian State allotted seat in proportion 
  • Seats were distributed among major communities Sikh, Muslim & general 
  • 385(292+93) after partition 299 &  284 present on date
  • 2 chairman Cons - Rajendra prasad, leg - gv mavalankar
  • 2 y , 11 month , 18 days 
  • 3rd & final reading of draft completed on 26 nov, 1949
  • Work done by CA
    • Citizenship, Election and Provisional parliament implemented with immediate effect 
    • N flag, N song , 1st prez, commonwealth membership
  • Full ops - 26 Jan 1950
  • Commitees Head 
    • Steering C, C on rules of procedures - Rajendra prasad
    • Finance & Staff, Union power, Union const - JL Nehru 
    • State , Advisory com on FR, Minorities & tribal & excluded areas - Vallabhbhai Patel
    • Drafting com - BR Ambedkar
Critique of CA
  • Unrepresentative: 
    • Indirectly elected but
      • may cause delay
      • Constitution was put in public domain etc
    • Not all section
  • Congress dominated
    • Social and ideological coalition, all thoughts are represented
  • Hindu dominated
    • Based on secularism
  • UnIndian
  • Huge size
  • Complicated language
    • Lawyer's paradise
  • Un-Gandhian:
    • Pyramidal rather then circular model: vertical hierarchy rather then no hierarchy
    • but had many provisions in DPSP etc
Obj resolution moved in 1st session by JL nehru  
  • Ind as sovereign , democratic , republic 
  • Federal form of gov with distribution of powers
  • Residuary power with state
  • Unity of nation, Written constitution, 
  • Justice, equality , freedom of thought , expression , belief , faith , worship , vocation , association 
  • Safeguard to minority , backward, tribal areas, depressed & other backward classes  
Ambedkar
  • The spirit of constitution can be easily violated without violating its letter this emphasis or focus on constitutional morality
  • Political democracy can't last until there lies a base of it in social democracy
  • Inspiration for Indian Constitution  
    • GOI, 1935- Federal system, office of governor , emergency power
    • Britain - ROL, Law Making procedure, Single citizenship , CAG, Bicameral parliamentary system 
    • USA- Independence of judicary, JR, FR, Removal of SC & HC judge, Preamble & functn of Prez & VP
    • Canada- Federation with strong centre, residuary power to centre, SC's advisory jurisdiction 
    • Ireland - DPSP, method of a presidential election , Nomination of member to RS by prez
    • Weimer C Germany-Suspension of FR during emergency
    • Australia - Concurrent list , Trade & commerce provisio
    • S Africa - amendment with 2/3 majority in parliament & election of members of RS on basis of proportional rep
    • France - republican sys, principles of LEF
    • USSR - Fundamental duties, Idea of Justice  



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