Constitutional law

1. Constitutional Law of India – 1
Module 1
Topic 1
Constitutional Law
By Gagan K

2. 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

3. 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”.

4. 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.

5. 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”?

6. 1. Constitutional Law
Taken from MP Jain

7. 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.

8. 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

9. 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)

10. 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.

11. 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

12. 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

13. 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

14. End of topic 1 within module 1

15. Constitutional Law of India slides by Gagan
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