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Constitutional Law of India – 1 Module 1 Topic 1 Constitutional Law By Gagan K
Constitutional Law of India – 1
Module 1
Topic 1Constitutional Law
By Gagan K
Syllabus
Module 1
– Constitutional Law– Constitutionalism– Rule of Law– Historical
Perspective– Salient features– Fundamental Law
Module 2• Fundamental rights – Concept,
Magna Carta, English Bill of Rights, American Bill of Rights, UDHR
• Need for Fundamental Rights (FR)
• Art. 12 and FR• Justifiability of FR (Art. 13)• Doctrine of eclipse• Doctrine of severability• Waiver of FRs• Right to equality
Social Contract theory
• Thomas Hobbes in his book “Leviathan” (1651) says about “state of nature”– Where the life of man is “solitary, poor, nasty,
brutish and short”– Because of absence of political law and order– Because of unlimited freedoms including
freedom to plunder and murder others.– “Bellum Omnium Contra Omnes” (latin)
means “war of all against all”.
Hobbes’s Social contract (cont)
• Men then thought about ideas on ending such “never ending misery and violence”.
• Men made a contract with each other within that society. This is what Hobbes calls as “social contract theory”.
• All men compromised certain of their rights / freedoms in lieu (return) of security and protection.
• All of them subjected themselves under a sovereign or group of men who would provide them security and protection.
• Hobbes, Locke, Rousseau and Rawls – all belong to the social contract theory tradition.
We… The People
• Is Constitution of India also a type of social contract?
• Just examine the words in the Preamble “We the people having solemnly resolved to constitute…. And secure all its citizens equality, fraternity, justice…. We give ourselves this constitution…”
• Don’t these words embody the principle of “social contract”?
1. Constitutional Law
Taken from MP Jain
Functions of a modern State
• Unlike the ancient Governments that concentrated only on “police functions” i.e providing security… modern govts have varied and expansive functions.
• Modern States are “welfare States”• They perform multiple and varied functions• So many functions are distributed among various organs• These organs will have certain powers, functions,
responsibilities and duties. And more importantly “inter relations”
• A Constitution lays down the rules and norms for these organs.
Legal system of every country
• 1. Law Governing the State– Constitution– Administrative Law– Public International Law
• 2. Law by which the State governs the members– Contracts, Torts, Property law, Civil Law
Scope of Constitutional Law
• Constitution of India only provides the basic framework required for the governance of the country (despite being a bulky document)
• Details – such as the sundry rules are not given in the Constitution
• Details are given in the statutes, Acts, rules, decisions of the courts and conventions.
• For example: Election Commission is constituted under the Constitution. The rules of functioning of the commission are given in Representation of People’s Act
• Constitutional law is broader than the Constitution. (that is – the Constitutional text)
Organs
• 1. Legislature – makes the laws• 2. Executive – executes / implements / enforces
the laws• 3. Judiciary – interprets the laws• Constitutional law is concerned with laying down
the rules governing the power relations between these organs
• Apart from these 3 organs, there are other organs created by our Constitution – like UPSC, Election Commission etc.
Fundamental Rights
• Fundamental Rights (hereinafter referred as FR) – FRs are guaranteed under the Part III.
• These are inherent rights of the people• Inalienable• Judiciary is the protector of these rights• Any law violating the FRs is unconstitutional (null
and void)• Study of FRs constitutes the major chunk of our
study
Conventions
• Non-legal rules• Keeton said “in the absence of conventions, there may
be a bloody revolution”• Justice Ahmadi said “conventions are -
– Long standing– Accepted practice– Arises where law is silent– And do not violate existing laws
• Conventions have less prominence in written constitutions
• In UK (unwritten constitution) has more promimence• In India, it has persuasive value
Written v. Unwritten Constitution
• Written – in black and white. Proof, fixed, certain• Unwritten – leads to confusions and uncertainty
at times• With unwritten Constitutions, the role of courts in
interpretation is wider• Written Constitutions have amendment
procedure provided• Written Constitutions also limit unlimited power
End of topic 1 within module 1
Constitutional Law of India slides by Gagan Krishnadas is licensed under a Creative Commons Attribution-
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