When this world was created by God, then he created human beings. These human being for their benefits started creating various rules and regulations in order to control society from evil practices. The said system of rules and regulations are known as the law. When these laws started being incorporated then different bodies were created by the law in order to provide checks and balance over the law. The different bodies are judiciary, legislatives and executives.
One of the laws is Constitutional law, which is defined as the body of law which defines powers of different bodies. Constitutional law is new concept in India, as the Constitution of India was incorporated in the year 1950. The need arose because of independence which India got from Britishers in the year 1947.
What is the need for constitutional law ?
The significant point however is that in order to carry out its activities and functions, whatever may be their range, it becomes necessary for any state to establish certain basic organs or agents or instrumentalists which act on its behalf and through which the state can function and operate. All the people in a state cannot combine and operate all together all the time to achieve the desired goals. Thus, certain fundamental organs become necessary. This creates the need for Constitutional Law.
A state cannot govern itself on an ad hoc basis without their being some norms to regulate its basic institutions. There must be a predictable body of norms and rules which the government organs must draw their powers and functions.
What is the purpose of having a Constitution?
The purpose of having a Constitution is to have a frame-work off government which is likely to endure through the vicissitudes of a nation. This purpose does not appear to have been achieved in India. There have been One hundred and one Constitutional (Amendment) Acts till date.
The 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.[i]And even about these basic institutions only the basic norms are inscribed in the Constitution.
It would be fruitful to mention here that constitutional law is broader than the constitution as it comprises of Constitution, relevant statutory law, judicial decisions and conventions. According to the Kelsen’s theory the Constitution of India is the Grundnorm of the laws in India.[ii]
A constitution is a unique legal document. It enshrines a special kind of norm and stands at the top of the normative pyramid. Difficult to amend, it is designed to direct human behaviour for years to come. It shapes the appearance of the State and its aspirations throughout history. It determines the State’s Fundamental political views. It lays the foundation for its social values. It determines its commitments and orientations.[iii]
The Constitution of India was drafted by the Constituent Assembly. It was for the first time when Indians were making law for Indians and the process of making constitution was started before India got its independence. The Constituent Assembly on 29 August, 1947 constituted a Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar also known as the father of the Constitution. The Constitution Draft was adopted on 29 November, 1949 after going through number discussion and amendments and revision and lastly adopted on the above mentioned date.
The constituent Assembly got inspired from local laws like Government of India Act 1858, Indian Councils Act 1861, Indian Councils Act 1892, Indian Councils Act 1909, Government of India Act 1919, Government of India Act 1935 and the Indian Independence Act 1947 which were considered as the source for Constitution of India and not only this, the Constituent Assembly also got inspired by other Constitutions of the world which are mentioned below along with the heads which are incorporated in our Constitution.
INFLUENCE OF OTHER CONSTITUTIONS
· The idea of single citizenship
· The idea of the Rule of law
· Institution of Speaker and his role
· Lawmaking procedure
· Procedure established by Law
- United States Bill of Rights
- Federal structure of government
- Electoral College
- Independence of the judiciary and separation of powers among the three branches of the government
- Judicial review
- President as supreme commander of armed forces
- Equal Protection under law
- Freedom of trade and commerce within the country and between the states
- Power of the national legislature to make laws for implementing treaties, even on
matters outside normal Federal jurisdiction
- Concurrent List
- Terminology for the Preamble
- Ideals of Liberty, Equality and Fraternity
- A quasi-federal form of government —a federal system with a strong central government
- Distribution of powers between the central government and state governments
- Residual powers retained by the central government[iv]
- Fundamental Duties u/a 51-A
- A Constitutionally mandated Planning Commission to oversee the development of the economy
- Emergency Provision u/a 356, Weimar Constitution(Germany)
- Amendment of Constitution, South Africa
- Due Procedure of Law, Japan
The Constitution of India is the lengthiest Constitution in the world as it comprises of Preamble, XXII Parts and VII Schedules.
- Part I– Union and its Territory
- Part II– Citizenship.
- Part III– Fundamental Rights
- Part IV– Directive Principles of State Policy
- Part IVA– Fundamental Duties
- Part V– The Union
- Part VI– The States
- Part VII– States in the B part of the First schedule (repealed)
- Part VIII– The Union Territories
- Part IX– The Panchayats
- Part IXA– The Municipalities
- Part IXB– The Co-operative Societies.
- Part X– The scheduled and Tribal Areas
- Part XI– Relations between the Union and the States
- Part XII– Finance, Property, Contracts and Suits
- Part XIII– Trade and Commerce within the territory of India
- Part XIV– Services Under the Union, the States
- Part XIVA– Tribunals
- Part XV– Elections
- Part XVI– Special Provisions Relating to certain Classes
- Part XVII– Languages
- Part XVIII– Emergency Provisions
- Part XIX– Miscellaneous
- Part XX– Amendment of the Constitution
- Part XXI– Temporary, Transitional and Special Provisions
- Part XXII– Short title, date of commencement, Authoritative text in Hindi and Repeals
Out of the above mentioned list there are few parts which are of great importance as it provides protection to every citizens of India and some articles provide protection to every person in India. Part III talks about the fundamental rights which is extremely important part of the constitutional law as it recognises basic human rights which is guaranteed by the Article 14, 15, 19, 21, 25 and so on. At this juncture, it is necessary to point out here that the preamble of the constitution also says that there should be justice, equality, liberty and fraternity which the Constitution of India given to every people of India.[v]
Not only this, but it also provides for basic concepts like federal structure, separation of powers, independence of Judiciary and due process of law etc. As far as the Constitutional law is concerned then it is necessary to mention few landmark judgments with this regard as it also comprises the judge made law. The federal structure was considered as the basic structure of constitution which is the new concept which was created in the famous case of Keshavananda Bharati v. State of Kerala,[vi] which means that the judiciary restricted the amending power of the parliament by saying that the parliament can amend constitution under Article 368 but cannot amend the basic structure. Therein, the court given a list, which is considered as the basic structure of the Constitution of India.
The constitutional law talks about the independence of Judiciary and the said concept is given under article 124, 127, 136 and 141 for the Union Judiciary and 214, 217, 226, 227 and not only this, the said concept was recognised in the case of Supreme Court Advocate on Record Associations and another v. Union of India[vii], wherein the court by 4:1 majority held the collegium system to be supreme and NJAC Act, 2015 to be unconstitutional.
Separation of power is another concept in the constitutional law, which states that neither of the institution can interfere in the working of the other institution. In simple words, the judiciary cannot legislate, legislatures cannot adjudicate and in the same way executive cannot perform the functions of the judiciary and legislatures and vice versa. The court also held this as the basic structure in the Keshavanada Bharati.[viii]
At last, the constitutional law is very important aspect of law. It is only because of the constitution of India that the democracy in India is still into existence otherwise it would have become extinct long time ago. It is the supreme law of land[ix] which regulates the functions of the organs in India and because of this every organ cannot enjoy its discretionary power arbitrarily as they have the fear of having something supreme even though they are apex institutions of the said organ.
[i] Wade & Philips, Const. & Adm. Law, 1, 5(IX Ed. ed. Bradley).
[ii] Kelsen Theory of Jurisprudence.
[iii] Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1(167).
[v] Preamble of the Constitution of India, 1950.
[vi] AIR 1973 SC 1461.
[vii] Decided on 16 October, 2015.
[ix] S.R. Bommai v. Union of India, AIR 1994 SC 1918.s