Constitution
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- 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
- A constitution is a living
document
- Responsive
- Dynamic
- Evolving
- Judicial interpretation
- Amendments
- Just overall philosophy
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Significance
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- a framework of polity:
- Distribution of power
- Nature of relationship
between state and people (rights, duties, and restraints)
- Gives ideas and
aspiration
- Identity to nation and its
dwellers
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Features
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- Positive:
- Organic: that grows and
evolve
- more flexible less rigid
- 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
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Constitutionalism
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- 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:
- 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
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Interpretation of
the Constitution
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- Doctrine of liberal
interpretation:
- to give relevance and
meaning to every word etc
- Progressive interpretation
- Constitutional assembly debates
- Preamble
- Prospective rather then
retrospective
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Process of
constitution-making
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- 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
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Critique of CA
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- 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
- UnIndian
- Huge size
- Complicated language
- Un-Gandhian:
- Pyramidal rather then
circular model: vertical hierarchy rather then no hierarchy
- but had many provisions
in DPSP etc
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Obj
resolution moved in 1st session by JL nehru
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- 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
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Ambedkar
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- 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
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