Introduction to the Constitution and Constitutional Law.
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Introduction to the Constitution
1. Why the State need the Constitution?
Whenever any state decides to organise itself politically, then at that time the state faced with a number of questions and some these questions are as follows:
1. What type of Government it would have?
2. What would be the principal organs of the Government?
3. How the organs of the Government will be constituted?
4. What will be functions of the various organs of the Government?
5. What will be the powers, duties and limits of the organs of the Government?
6. What will be the fundamental rights, fundamental duties of the individuals in that state? Etc.
All these questions are required to be answered by the constitution of that state. So every effort should be made by the drafters of the constitution to give the answers of these questions while drafting the constitution of their state.
2. What is a Constitution?
A Constitution means a document having the special legal status.
It set out the framework and principal functions of various organs of the Government of a State.
It also set out the principles which govern the functions of those organs of the Government of a State.
Constitution is the basic or fundamental document of the state and it contains the first law of the state.
All other laws of the state or country are enacted within the limits of the constitution.
That is why the Constitution of a State is also known “Grundnorm of the Country or State”.
Question: What is the meaning of the Organs of the Government and what are the principal organs of a Government?.
Answer: Meaning of the Organs of the Government:
“Those essential parts of the Government
which are very important for the government
for its governance
and to carry out various functions of the Government
are called Organs of the Government.”
The Organs of the Government are divided on the basis of their functions which are they are going to perform in the governance of the Country.
Traditionally there are following three principal organs of the Government of any Country i.e. Legislature, Executive and Judiciary:
1. Legislature: The function of the Legislature is to make the laws, amend them or to repeal them;
2. Executive: The function of the Executive is to implements, execute or administer the laws which are made by the Legislature;
3. Judiciary: The function of the Judiciary is to interpret and enforce the laws made by the Legislature and to administer the Justice.
Question: Whether apart from these three principal organs there may any other organ of the Government?
Answer: Yes, apart from the three principal organs i.e. Legislature, Executive and Judiciary
the Constitution of any state
may also provide for the creation of other Organs of the Government,
which the framers of the Constitution
thinks fit to include
in the Constitution
for performing any important function.
For Example: Article 280 of the Constitution of India provides for the setting up of a Finance Commission for the settlement of the distribution of revenue between the Centre and the States and between the State inter se.
Question: Which Organ of the Government is superior among all these organs?
Answer: As all the organs of the Government are independent in their own area, so none of the organ of the Government is superior among these organs.
Question: Then who is superior in India?
Answer: The Constitution of India is supreme from all of its organs i.e. Judiciary, Executive, Legislature and the Finance Commission. All these organs must perform their functions within the limits of the constitution.
Question: If any law which is made by legislature whether the Union Parliament or the State Legislature is beyond their respective Jurisdiction as defined in the Constitution of India then whether that law is valid?.
Answer: That law is not valid.
That law can be declared as unconstitutional by the judiciary by the exercise of their power of Judicial Review.
Question: Why the Constitution is considered to be supreme in India and is above than legislature, executive and judiciary?
Answer: Because all the organs of the Government in India whether it may be the Legislature, Executive or Judiciary are created by the Constitution of India.
They owe their origin from the constitution and derive their authority from the constitution and discharge their duties within the limitations as prescribed under the provisions of the Constitution.
If these organs do any work which is beyond their Jurisdiction as defined in the Constitution of India then that can be challenged before the Court of law under the power of Judicial Review.
Classification of Constitution
There are number of ways in which Classification of various types of Constitutions can be made. Some of ways are as follows:
1. . Constitution may be written or unwritten [ This Classification of the Constitution is based on the basis of formation of Constitution]
Written Constitution is that constitution under which all the provisions of the constitution can be found in one place.
For example: Indian Constitution is a written constitution in which all the provisions of the constitution can be found in one place. If any clarification in the provisions of the constitution is needed that can be made clarified from the provisions of the Indian Constitution itself.
Unwritten Constitution is that Constitution in which all the provisions of the Constitutional Law are not given at one place. These provisions are to interpreted from the number of sources.
For example: The constitution of UK is an unwritten constitution in which the provisions of the UK Constitution are not given at one place.
For getting the clarification of various provisions in the UK Constitution one need to take the help of judicial decisions, common law as well as various conventions.
2. 2. Constitution may be Unitary or Federal [ This classification of the constitution is based on the basis of vesting of power of between the center and unit governments]
A constitution is said to be unitary constitution when it set up one central government and all main powers of the constitution are vested with the central government. That means to say when the State Government has no power and when state government has only those powers which are given to the State Government by the Central Government.
On the other hand when there is division of powers between the Central and State Government and no one is superior to each other then the constitution is said to be federal.
In India there is division of powers between the central and state governments in three lists which are given in 7th Schedule of the constitution. i.e. union list, state list and concurrent list. Under the union list only central government is entitled to make law. In State list only state government is entitled to make law. Whereas in the concurrent list both the central and state governments are entitled to make the law.
But in certain cases in India the central government becomes more powerful than the State Government. So we can say India Constitution is neither pure federal nor pure unitary. Indian Constitution is quasi federal or quasi unitary constitution.
3. . Constitution may be flexible or rigid [ This classification is based on the basis of power of amendment of the constitution]
A constitution is said to flexible when the provisions of the constitutions can be amended or when the constitution can be changed very easily. That means when the procedure for the amendment of the constitution is simple then it is said to be flexible constitution.
A constitution is said to be rigid when it is very difficult to amend the provisions of the constitution. That means when there is complex procedure involved for the amendment of the constitution then the constitution is said to be the rigid constitution.
In India the constitution of India can be amended under the provisions of Article 368.
Some provisions of the constitution can be amended by simple majority whereas some provisions of the constitution require the complex procedure i.e. special majority for their amendment.
Majority is said to be simple when any bill can passed by more than fifty percent of members of a House.
Whereas majority is said to be special when any bill is required to be passed firstly by more than 50 percent of members of that House plus by more than 2/3rd of members of House present and voting.
Hence we can say that Indian constitution is neither too flexible nor too rigid.
4. . Constitution : A Living Document
The nature of the constitution is of a living document. It means to say that with the passage of time it must change.
Constitutional Law
Constitutional law is the basic law of a Country which is related with the Government of a Country.
Constitutional Law is defined as
“The rules
which regulates
the structure of the organs of the Government of a State
And
Their relationship with each other
And
Determines their principal functions”
Question: What Rules are contained in the Constitutional Law of a State?
Answer: The rules which are contained in the Constitutional law of a Country consist of both legal as well as non-legal rules.
Legal rules are those rules of a Constitution which are enforceable by the Courts. For example:- Fundamental rights which are given under Part III of the Indian Constitution are enforceable by the Courts hence these fundamental rights can be said to be the legal rules of Indian Constitution.
Non Legal Rules: Whereas the non-legal rules are those rules of the constitution which are not so enforceable by the Courts, although these are accepted as binding by all who are concerned in government.
For example: Directive Principles of State Policy under Part IV of the Indian Constitution are not enforceable by the Courts though the Government recognizes these directive principles as fundamental for the good governance of the State.
Difference between the Constitutional Law and other laws.
The constitutional law is the fundamental or basic law of the State.
The validity of the constitutional law cannot be challenged before the Courts, because the courts are themselves are created from the constitutional law.
No original provisions of the constitution can be challenged before the Courts nor the courts can strike them on any ground.
If any original provision of the constitution is required to be amended, it can be done by the Parliament within the scope of Article 368 of the Indian Constitution.
On the other hand all the other laws must be within the constitutional law of the country.
In case there is any conflict between the provision of the constitutional law and other statutory law then the provision of the constitutional law will prevail over the provision of other law.
In Anup Bhyan vs. State of Assam AIR 2011 SC 957 the Supreme Court held that “Constitution is the highest law of the land and no Statue can violate it.”
“If there is a Statue which appears to violate it, we can declare it unconstitutional or we can read it down to make it constitutional.”
Question: What are the essentials of the Constitutionalism? And whether Indian Constitution contain the essentials of the Constitutionalism?
Answer: Constitution- Constitutionalism
The term Constitution and constitutionalism are not same and they are different from each other.
Meaning of Constitution: Constitution is the basic or fundamental document of the state and it contains the first law of the state.
Why the Constitution is said to be basic Law of the State?
The Constitution of a State is said to be the basic law of the state because all other laws of the state or country are based on the constitution and they are enacted within the limits of the constitution.
And if any law is against the basic provision of the constitution then that law can be declared as unconstitutional and can be set aside after which it will lost its enforceability in the State.
On the other hand the term “Constitutionalism” means the rule of law which is essential for a democratic country.
A country may have a Constitution but even then that constitution may not have the essentials of the system of Constitutionalism.
So it is very important to note here that a constitution is said to have constitutionalism if it incorporates following essentials of the constitutionalism.
1. There must be controlled Government by the provisions of the Constitution. That means to say that in the constitution there must be the system to control the government so that the government should not become the dictator.
In Our Indian Constitution the organs of the Government i.e. Legislature, Executive and Judiciary are controlled by various provisions of the constitution.
2. There must be the rule of law in the country. That means to say in a country in which there is the concept of constitutionalism no organ of the Government should be above than the constitution and all the organs of the government should act within the limitations as imposed by the provisions of the constitution.
In our Indian constitution no organ of the government is made superior to the constitution and all the organs of the government in India are bound to perform their functions within the framework of Indian Constitution.
3. There must be division of powers between the various organs of the Government so that no organ of government becomes more powerful in comparison to the other organs of the government.
In our Indian Constitution there is a division of power between the organs of the Government.
a. The functions of the Legislature is to make , amend and to repeal the laws;
b. The functions of the Executive is to implements, execute or administer the laws which are made by the Legislature;
c. Whereas the functions of the Judiciary is to interpret and enforce the laws made by the Legislature and to administer the Justice.
4. There must some fundamental freedom which should be available to all the individuals without any type of discrimination between them. In our India these fundamental freedoms can be found in Article 19-22 of the constitution of India.
5. The constitution should ensure the dignity of the individuals so as to make them happy. In our India the dignity of the individuals is made ensure by Fundamental Rights of the individuals.
6. The constitution of the country should ensure that there should not be the excessive taxation in the country. In the constitution of India this assurance is given by Article 26 and Chapter I of Part XII of Constitution.
7. There must be prohibition of unlawful detention of the individuals in the country. Article 22 of Indian Constitution prohibit against unlawful detention.
8. There must be independent judiciary in the state. That there should not interference by the executive in the functioning of the judiciary. Article 50 of the Indian Constitution provides for the separation of judiciary from the executive.
9. There must be government which is elected by the people i.e. democratic republic. The Preamble of Indian Constitution provides the concept of democratic republic.
10. The government should be selected by the adult Citizens of the country. That means there should adult suffrage in the country. In our constitution of India every citizen who is not less than 18 years of age has a right to vote to elect representatives to the Legislatures, both, Central as well as States without any discrimination of caste, race, religion, sex, literacy, wealth and so on
The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional Amendment Act of 1988.
11. The basic provisions of the constitution be rigid to change. In the Case of “Kesavananda Bharti Vs. State of Kerala, AIR 1973 SC 1461”, the Supreme Court held that Under Article 368 of the constitution the Indian Parliament cannot alter the basic structure of the Indian Constitution.
Thnku sir 🙏
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