A Constitution is a document that has a special legal sanctity, which sets out the framework and principal functions of the government.
Constitutionalism:– a way for reconciling the powers of the state with individual liberty, by prescribing the principals of organizing the state. It defines the powers, demarcates responsibilities and regulates the relationship between the organs of the state & the people.
Important facts about the constitution
- Constituent assembly set for the first time – 9th December, 1946
- Constitution adopted –26 Nov, 1949.
- Constitution came in to force – 26 January, 1950.
- Provisional Chairman of assembly – Sachidanand Sinha.
- Permanent Chairman of Assembly – Dr. Rajendra Prasad.
- Drafting Committee :– Dr B.R. Ambedkar (Chairman), members N. Gopalswami Ayyangar, K.M. Munshi, Alladi Krishnaswami Ayyar and three others.
Source and provisions of Constitution
||Law making providence||Directive|
||Rule of Law||Principles|
||Single Citizenship||Method of Election of|
- Provision of emergency – Germany
- Fundamental Duties – USSR, Japan
- Government list – Australia
- Federation with strong centre –
- Distribution of power between centre and state where in vesting residuary power with centre Canadian constitution.
Preamble: We the people of India, having solemnly resolved to constitute India into a sovereign Socialist Secular democratic Republic and to secure to all it’s citizen. Justice, social economic and political. Liberty of thought expression belief and worship, equality of status and of opportunity and to promote among themselves fraternity assuring the dignity of the Individual and unity and integrity of the nation in an constituent assembly this 26th day of 1947 do hereby adopt enact and give ourselves this constitution.
- Written constitution – (unlike UK’s)
- A federal polity with – unitary bias (Unlike USA’s)
- Union of India – Indian states only
- Territory of India – States +Union territory + acquired territory special case Sikkim
- Directive Principle of state policies –– Not enforceable by the court
ARTICLE 32- Right to constitutional Remedies (heart and soul of constitution- DR BR Ambedkar)
Concepts of writs (borrowed from UK)
- HABEAS CORPUS 2. MANDAMUS 3. PROHIBITION 4. CERTIORARI
- QUO WARANTO
- HABEAS CORPUS:–(TO HAVE THE BODY ,TO BE PRODUCED BEFORE THE COURT)
a writ to protect personal liberty of individual against arbitrary action of state/Pvt individuals, Compensation can be claimed..
- MANDAMUS (COMMAND):– A writ issued against public authority as officer or in inferior courts for enforcing legal rights only (can not be issued against president, governor)
(Private rights can’t be enforced).
- PROHIBITION (restrain):–writ issued by higher courts to lower courts/ quasi judicial bodies when the latter exceed their judicial authority.
Difference b/w mandamus & prohibition is that mandamus can be issued against judicial and administrative bodies/authorities / where as prohibition can
be used only against judicial/quassi judicial bodies.
- CERTIORARI (to be certified):–Issued to quash the order of lower court/tribunal in excess of its function. The purpose is to ensure this jurisdiction of lower courts/tribunal is properly exercised and does not usurp jurisdiction it does not possess (prohibition can be done pre-emptively, certiorari only after a decision. prohibition can be done by any court
Certiorari only by SC/HC)
- QUO WARRANTO (by what authority):–issued to ensure that the person holding a public office is qualified to hold it..
SPECIAL POWERS OF THE PRESIDENT
JUDICIAL POWER OF THE PRESIDENT
- PARDON : Completely absolves the offender
- REPRIEVE : Temporary suspension of the sentence
- RESPITE : Awarding a lesser sentence on special grounds
- REMISSION : Reducing the amount of sentenced without changing its character
- COMMUTATION : Substitution of one form of punishment to another of lighter character
TYPES OF VETO (ABSOLUTE, SUSPENSIVE, POCKET)
1). ABSOLUTE VETO: THE PRESIDENT MAY DECLARE HIS ASSENT TO ANY BILL PASSED BY PARLIMENT OR WITHHOLD HIS ASSENT TO BILL
2). SUSPENSIVE VETO: the president may return any bill(other than money bill) for reconsideration of parliament. If the bill is passed again by both houses, he is obliged to give assent
3). POCKET VETO; the president neither sign nor send for reconsideration or may keep it with himself till his enacted.
ADOPTION OF VARIOUS BILLS IN PARLIAMENT
|Ordinary bill||Money bill||Finance bill||Constitution amendment bill|
|Introduction||Any house||Lok Sabha||Lok Sabha||Any house|
|Passage||Both house||Lok Sabha||Both house||Both house|
|President reccomdation||Not required Exception Article 3||required||required||Not required|
|President power of veto||All three available||Has to give assent||All three available||Has to give assent|
The Parliament consists of: – 1. President
- Council of states (Rajya Sabha)
- House of the People (Lok Sabha)
-> Rajya Sabha: – It consist of no more than 250 members of which , 12 are nominated by president who have special knowledge, practice in literature, science, art ,social service.
Remaining seats allocated to states and Union territories in proportion of their population .Presently, RS has 245 members; 233(states) 12 nominated.
Minimum age = 30 years.
RS is a permanent body not subject to dissolution (unlike <5) one-third of its members retire every 2 years by rotation. The term of an individual member is 6 years. Representations of RS are elected by member of respective legislative assemblies in accordance to proportional representation.
->Lok Sabha: – Maximum strength may be 552. (530 from states,20 from Union territories us 2 nominated by president from Anglo Indian communities).Qualifying age = 25yeras currently 545 member(543+2).the minimum term is 5 years, unless sooner dissolved.
In case of emergency, the period may be extended one year at a time, not exceeding beyond a period of 6 month, once emergency ceases to operate.
Limitation of seats:- States are divided in a manner such that ratio between population of each constituency (as ascertained from preceding census) and the number of seats allotted to the state remains the same throughout the state. Also b/w any 2 states.
Types of Bills:-
- Ordinary Bills (any bills that is not a money bill/constitution ascend bill
- Original bill (new proposal, idea ,policy)
- Amending Bill (modify, service)
- Consolidate Bill (consolidate law in subjects)
- Expiring Bill (which authorize continuation of expiring Act)
- Bills to replace Ordinance issued by president
- Money and Financial bill ( all money bills are financial bills but all financial bills are not money bills)
If the bills has any of the following provision, it is a money/financial Bills.
1.Impostion, abolition, remission, altertion, regulation of tax
2.Regulation of money borrowed by govt. of India (or any guarantee)
- Custody of Consolidated fund of India: Contingency Fund of India.
- Declaring new items under expenditure charged on CFI.
* Speakers decision on whether a bill is money bill or not is final.
-> Election of president: – the electoral college comprises of an (1) Elected member of parliament
(2) ELECTED Member of Legislative assembly.
Impeachment of President:-
*can be impeached only on grounds of ‘Violation of Constitution’
*IT is a Quasi-judicial procedure.
* Can be initiated in any house (by 1/4th of the membership of that house). Before this resolution, a 14 day notice must be given. Such a must resolution be passed by a majority of not less than 2/3rd of the total membership of house.
*then the other house, the investigating house, investigates charges.
*president has right to be present, defend himself.
India has a single integrated system of courts to administer level union and state laws (Unlike USA, which is federal). SC is at the Apex, followed by HC’s and then subordinate courts.
An important feature is the common law system, where law is developed by judges through judgment, orders, decision. These are also called ‘Precedents’. But unlike UK where there is only common law, India has stationary law ®ulatory law.
Another feature is ‘Adversarial System ‘, instead of inquisitional system. Here, there are 2 sides to every case, and a neutral judge.
Jurisdiction of Supreme Court :
- Original Jurisdiction: The court has exclusive original jurisdiction over any dispute between gov. of India and one or more states, or between any two states, or gov. of India + 1state against any other state.
Article 32 gives an exclusive original jurisdiction is regard to enforcements of fundamental rights. It may issue directions, orders, writs.
- Appellate Jurisdiction: Appellate Jurisdiction of SC can be worked by a certificate granted by HC (Art 132(1), 133(1), 134) in both civil & criminal cases, involving substantial question of law as to interpretation of constitution
SC can also grant special leave to appeal from a judgment or order of any non-military Indian court
Parliament has power to enlarge the appellate jurisdiction
- Advisory Jurisdiction: SC has special advisory jurisdictions in matters which may specially he referred to it by president of India under Art. 143
- Under Art. 3 &4 of our constitution , Parliament may increase & diminish area of states , alter boundaries and names of states and there, are not considered amendments under Art 368
However changing the name of official state languages would be considered under Art 368 (affecting 8th schedule)
- A constitution amendments bill can be introduced either by a minister or a private member and does not require the president’s prior permission whereas a money bill can be introduced only by a minister and with the prior permission of the President.
- As a court of record, the SC has the following 2 Powers :
- The previous judgments’ have evidentiary value and cannot be questioned when produced before any court.
- The power to punish for the contempt of court.