Module 1: Constitution-

Definition and Meaning

By
Anu Mishra
Assistant Professor (Law)
[Link]@[Link]
Constitution: meaning definition

• Constitution of a country seeks to establish its fundamental or basic or apex

organs of government and administration, describe their structure, composition,

powers and principal functions, define the inter relationship of these organs

with one another, and regulate their relationship with the people, more

particularly, the political relationship

• It deals with such questions as:

• How is the Legislature structured, composed and organised?

• What are its powers and functions? Similar questions are to be asked about each of the

other two organs as well.

• What is the mutual relation ship between the Legislature and the Executive? Or, between

the Executive and the Judiciary? Or, between the Legislature and the Judiciary?

• What is the relationship between these organs and the people?

 Salient Features of the Indian
Constitution
• Modern Constitution
• Written Constitution
• Preamble
• Socialist State
• Secular State
• Welfare State
• Fundamental Rights
• Federal Constitution
 Constitution and Constitutionalism
• Constitutionalism: essence is limited government , antithesis of arbitrary
powers

• Recognises the need for Govt with power but at the same time insists that
limitations may be placed on those powers

• A Country may have constitution but not necessarily constitutionalism

• some markers of Constitutionalism : A written Constitution, independent

judiciary with powers of Judicial Review, Rule of Law, separation of power,
Free and Fair elections, FRs of the citizens, federalism
 Rule of Law
• One of the most basic principles of English Constitutional Law; accepted and
imbibed in US and Indian Constitution

• Sir Edward Coke: Law supreme over King

• A V Dicey: 1885: The Law and the Constitution : developed this theory

• ‘Le Principle de Légalité ’. i.e. a government based on the principles of law

• Rule of Law is the foundation of good governance

• Acc to dicey ROL includes 3 distinct ideas

1. Supremacy of law: rule of law requires that the Government should be subject
to the law, rather than the law subject to the Government.

2. Equality before Law: Every man, whatever his rank or condition, is sub ject to
the ordinary law and jurisdiction of the ordinary courts. No man is above law.

3. Predominance of Legal Spirit/Judge made Constitution: Rights of

individuals would be more secured if they were enforceable in courts and
protected by the judges rather than being documented in constitutions. English
Constitution is judge made and secures most the rights that the constitution of
other nations guarantee.
Constitutional Conventions:
• The provisions of the Constitution comprise the formal rules of
government. But formal rules are only part of the story about how a
system of government operates.
• In areas about which the Constitution is silent, political behavior is
guided by ‘well established practice, methods, habits, maxims and
usages’—many of them long-standing— which were inherited from
colonial parliaments, which in turn inherited them from Westminster.
• It is these practices, methods and usages which tend to be referred
to as ‘conventions of the Constitution’
• the conventions of the Constitution are ‘the unwritten principles
which, though they could never be enforced as law in the courts are
nonetheless rules since in fact the players of the constitutional game
do observe them, for if they are not observed, the constitutional
game would immediately degenerate into a political fracas or, worse
still, a bloody revolution.
Constitution and Statutory Laws: Difference
• Statutory law is required to adhere to the norms of the
Constitution whereas Constitution is the grundnorm of
all the laws
Public and Private Law
• The Legal System of a country is divisible into
(i) Law governing the state; Constitutional Law,
Administrative Law and Public International Law
(ii) Law by which the state governs or regulates the
conduct of its members. example Contracts, Torts,
Property, Criminal Law fall in the first category.
Constitution and Constitutional Law
• The term “Constitutional law” is broader than the term
“Constitution”, as it comprises of the “Constitution”,
relevant statutory law, judicial decisions and
constitutional conventions.
 History of the Indian Constitution
• Government of India Act 1935 : twin imp features: federal structure and limited self

governance power

• Before 1947, the effective power and control over the Indian Administration lay with

the Secretary of State, the Governor-General and the Governors; Indian participation

in the governmental process was minimal and naturally the Indians never felt

reconciled to such a dispensation.

• The Indian Independence Act 1947

• Constituent Assembly: The demand for a Constituent Assembly to draft a

constitution for India was a core strand of the anti-colonial freedom movement. The

Assembly was created in 1946 by the British Cabinet Mission Plan, which also

contained provisions on the Assembly’s functioning and composition .

• Members were chosen by indirect election by the members of the
Provincial Legislative Assemblies, according to the scheme
recommended by the Cabinet Mission.
• The arrangement was: (i) 292 members were elected through the
Provincial Legislative Assemblies; (ii) 93 members represented
the Indian Princely States; and (iii) 4 members represented the
Chief Commissioners' Provinces. The total membership of the
Assembly thus was to be 389.
• However, as a result of the partition under the Mountbatten Plan
of 3 June 1947, a separate Constituent Assembly was set up for
Pakistan and representatives of some Provinces ceased to be
members of the Assembly.
• As a result, the membership of the Assembly was reduced to 299.
ADM Jabalpur v Shivakant Shukla 1976 2 SCC 521
• Presidential order challenged which suspended FRs and therefore persons detained
under MISA were left remediless
• Majority held that the Constitution is a mandate and the text needs to be respected. If the
enforcement of 21 and 22 is denied as result of the Presidential order, then it is according
to the “procedure estd by law” as required under Art 21. (Hence did not agree with
Dicey’s 3rd principle)
• Sanctity of life and liberty was not something new when the Constitution was drafted. The
principle that no one shall be deprived of his life and liberty without the authority of law
was not the gift of the Constitution. It was a necessary corollary of the concept relating to
the sanctity of life and liberty; it existed and was in force before the coming into force, of
the Constitution
• Even in the absence of Article 21 in the. Constitution, the State has got no power
to deprive a person of his life or liberty without the authority of law. This is the
essential postulate and basic assumption of the rule of law and not of men in all civilised
nations. Without such sanctity of life and liberty, the distinction between a lawless society
and one governed by laws would cease to have any meaning.
• “Rule of law is the antithesis of arbitrariness...Rule of law is now the ac cepted norm of
all civilised societies...Everywhere it is identified with the lib erty of the individual. It
seeks to maintain a balance between the opposing no tions of individual liberty and public
order
Maneka Gandhi vs Union Of
India
• The spirit of Man is at the root of Art. Procedure which deals with the
modalities of regulating, restricting or even rejecting a fundamental right
falling within Article 21 has to be fair, not foolish, carefully designed to
effectuate, not to subvert, the substantive right itself. Thus, understood,
'procedure' must rule out anything arbitrary, freakish or bizarre.
What is fundamental is life and liberty. Law is reasonable law, not any
enacted piece.
• The idea of a natural law as a morally inescapable postulate of a just order,
recognizing the inalienable and inherent rights of all men (which term
includes women) as equals before the law persists. It is, I think, embedded
in our own Constitution
• Any procedure which permits impairment of the constitutional right to go
abroad without giving reasonable opportunity to show cause cannot but be
condemned as unfair and unjust and hence, there is in the present case
clear infringement of the requirement of Article 21