Constitution Law and Constitutionalism

Constitution Law

• It defines the role, powers, and structure of different state entities like the executive, parliament, judiciary, and the basic rights of citizens.
• In federal countries such as the United States and Canada, it elaborates on the relationship between the central government and state, provincial, or territorial governments.
• Jus commune includes customary law, statutory law, and international rules
• It deals with the fundamental principles by which the government exercises its authority, granting specific powers.
• These principles can impose limits on governmental actions, such as prohibiting arrests without sufficient cause.
• In most nations (USA, India, Singapore), this law is based on a ratified document.
• The United Kingdom relies on unwritten rules known as constitutional conventions

Constitutionalism

• It provides legitimacy to a democratic government, not to be confused with the legality of the acts of government officials.
• Constitutionalism is more important than having a written constitution.
• Basic principles include separation of powers, judicial control, and accountable government.

Principles of Constitutionalism

• Separation of powers divides governance into the legislature, executive, and judiciary, preventing monopolization and creating checks and balances.
• Responsible and accountable government serves the people who elect it, allowing electors to demand accountability.
• Failure to meet electorate expectations results in the revocation of the government's authorization through voting.
• Popular sovereignty dictates that the government derives legitimacy from the people.
• Ultimate sovereignty resides in the nation, emanating from the public.
• The rule of law dictates the government does not belong to men but to the laws.
• Three components of the rule of law:
  • Punishment only for specific breaches of law established in ordinary legal manners.
  • No one if above the law
  • Courts play a vital role in protecting the rights and freedoms of individuals.
• An independent judiciary is essential for any liberal democracy.
• Independence of the judiciary is upheld by the constitution with separation from the executive

Historical Perspective of the Indian Constitution

• History reveals how the constitution came into being and why India chose parliamentary democracy.
• The British came to India initially for trade in the 17th century.
• After gaining power, they collected revenue, governed themselves, and enacted laws.
• Charter Act of 1833: The Governor General of Bengal became the Governor General of India.
• It created a Central Legislature, making the British supreme rulers.
• Government of India Act in 1858: Company rule ended, the British Crown ruled India directly.
• Indian Councils Acts of 1861, 1892, and 1909: Gave representation to Indians in councils and restored legislative powers to provinces.
• This decentralized power between the Center and provinces.

Key Acts in Background

These acts were instrumental for the development of the Indian Constitution including:

• Regulating Act 1773
• Pitt’s India Act 1784
• Charter Act of 1813
• Charter Act of 1833
• Charter Act of 1853
• Government of India Act 1858
• Indian Councils Act 1861
• India Councils Act 1892
• Morley-Minto Reforms 1909
• Montague-Chelmsford Reforms 1919
• Government of India Act 1935
• Indian Independence Act 1947

Regulating Act 1773

• The British Parliament regulated the affairs of the East India Company for the first time.
• The Governor of Bengal became the Governor-General of Bengal, Warren Hastings.
• An Executive Council of the Governor-General with 4 members was created.
• The administration was centralized, with the Presidencies of Madras and Bombay subordinate to Bengal.
• Supreme Court established as the Apex Court in Calcutta in 1774.
• Company officials were prohibited from private trade and accepting gifts from Indians.

Pitt's India Act 1784

• Commercial and political functions of the company got separated.
• The Court of Directors managed commercial activities, while the Board of Control managed political affairs.
• Company territories in India were called ‘British possession in India’.
• Governor's Councils were set up in Madras and Bombay as well.

Charter Act 1813

• This act ended the East India Company's monopoly over trade with India except in tea and opium.
• Trade with India was open to all British subjects.

Charter Act 1833

• The Governor-General of Bengal was designated the Governor-General of India, Lord William Bentinck.
• The legislative powers of the Bombay and Madras Presidencies got removed
• The act transformed the company into an administrative body while ending commercial activities.

Charter Act 1853

• The legislative and executive powers of the Governor-General’s Council got separated.
• A Central Legislative Council with 6 members was created.
• Four members were appointed by the provisional governments of Madras, Bombay, Agra, and Bengal.
• The Indian civil service was opened to recruit officers for administration through open competition.

Government of India Act 1858

• Following the 1857 revolt, British possessions in India came directly under the British Crown, ending the rule of the company.
• The office of the Secretary of State for India was created.
• The office was assisted by a 15-member Council of India.
• The Viceroy was designated as the agent.
• The Governor-General was designated the Viceroy as well, Lord canning.
• Abolishment of the Court of Directors and the Board of Control,

Indian Councils Act 1861

• Indians were given representation in the Viceroy's Councils, where 3 Indians got representation in to the Legislative Council.
• Provisions were made for the entry of Indians in the Viceroy's Executive council also as non-official members.
• Recognization of the Portfolio system.
• Initiation of the Decentralization with the presidencies of Madras and Bombay being restored for the legislative powers.

Indian Councils Act 1892

• Introduction of Indirect elections.
• Expansion of Legislative Councils, provided increased functions like budget discussion and executive questioning

Indian Councils Act 1909 (Morley-Minto Reforms)

• Direct elections to the legislative councils get introduced for the first time.
• The central Legislative Council becomes the Imperial Legislative Council.
• The number of members of the legislative council was increased from 16 to 60.
• The concept of the separate communal electorate gets accepted
• An Indian gets appointed for the first time as a member of the Viceroy's Executive Council, Satyendra Prasad sinha (Law Member).

Government of India Act 1919 (Montague-Chelmsford Reforms)

• Central and provincial gets separated
• Introduction of Diarchy with executive councillors in charge of the reserved list and ministers in charge of the transferred list get in the provincial Governments.
• Introduction of A bicameral legislature at the centre for the first time.(Legislative council and legislative assembly later to become Rajya Sabha and Lok Sabha respectively).
• 3 Indians were mandated for the Viceroy's executive council.
• To establish a public service commission in India, had provisions implemented

Government of India Act 1935

• Proposing All-India Federation consisting of British India and the princely states
• All subject were further categorized between the centre and the provinces. Centre was in charge of the Federal List, provinces was in charge of the Provincial List.
• Abolishment of Diarchy at the provincial level and introduction at the centre was established.
• More Freedom was given to the provinces and in 6 provinces bicameral legislature was introduced

Indian Independence act 1947

• Declared Independent and Sovereign India.
• The Viceroy and the Governors were made constitutional.
• Governments were set up at the centre and provinces that had power to Assign both legislative and executive powers to the Constituent Assembly of India.

Constituent Assembly

• Members of the assemblies indirectly elected members for the Constituent Assembly.
• The Assembly serves as the first Parliament meeting in Delhi 09th DEC 1846.
• Post independence Dr Rajendra Prasad became Chairman.

Facts

• 26 NOV 1946 The constitution as approved.
• 26 JAN 1950 The constitution gets fully adopted making this the country's republic day.
• ₹6.4 million was spent in the initial production.
• The original constitution can still be seen in hand-written having been signed during 24 JAN 1950 in all available languages.
• The Assembly appointed Rajendra Prasad as its president, H. C. Mukherjee as its vice-chairman
• The Assembly declined to 299 members after partition (having comprised of 389 members).
• Jawaharlal Nehru presented An 'Objective Resolution' that was unanimously adopted on 22 JAN 1947.
• The drafting committee was formed with B. R. Ambedkar, Munshi, Muhammed Sadulla, Alladi
• 2,473 amendments had to had been processed from an initial 7,635 amendment proposals.
• Constituent Advisor Sir B.N Rau had 243 articles which after amendment increased to 395.

Drafting Committee

• H C. Mukherjee as its vice-chairman
• B. N. Rau as constitutional legal adviser

Timeline

• 6 December 1946 : The Constitution Assembly formed.
• 9 December 1946: The first meeting was held now being the Central Hall of Parliament House with speaker, Sachchidananda Sinha President.
• 11 December 1946: The Assembly appointed Rajendra President
• 22 January 1947: Unanimous adaption of Objective resolution.
• 29 August, 1947 - Drafting Committee got appointed with B. R. Ambedkar
• 1949 NOV 26 - The Assembly accepts and signs adoption of the Constitution with 395 Articles, 8 Schedules, 22 Parts
• 1950 JAN 26 - The Constitution came into force

Council Members

• B. R. Ambedkar, Sanjay Phakey, Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Vallabhbhai Patel
• Kanaiyalal Maneklal Munshi, Ganesh Vasudev Mavalankar, were major notable key figures in the assembly having 30 scheduled class representatives.
• Frank Anthony from the Anglo-Indian community and the Parsis represented by H. P. Modi. Judges included the likes of Alladi Krishnaswamy and Ganesh Mavlankar.

Influence of Other Constitutions

• UK
  • Parliamentary government
  • Concept of single citizenship
  • Rule of law
  • The legislative speaker and their role
  • Legislative procedure
• USA: Independent judiciary and separation of powers.
• Equal Legal Protections: Guarantees that everyone, regardless of origin, is granted equal rights before the law.
  • Fundamental Rights of Man: Grants the right to personal freedom.
• Ireland- Directive principles of state policy
• Australia: Establishes freedoms when it comes to trade
• Canada: Federal structure of government.
• France- Liberty.
• Soviet Union- Duty.

Structure of Constitution.

• This is a sovereign nations longest constitution having comprised of 395 articles in 22 parts and 8 schedules as initially ratified.
• Roughly measuring near 145,000 it becomes second longest running constitutions - after Constitution of Alabama.
• This preamble contains 470 articles in 25 parts, amended 104 times.

Salient Features of Indian Constitution

• Lengthy constitution.
• Written and comes with a fixed date.
• Sovereign, Socialist, Secular, Democratic Republic
• Democratic in Nature: Comprises of an elected body
• Rigidity and Flexibility.
• Unitary and Federal.
• Offers a list for state, Union and Concurrent powers.

Preamble to the Constitution of India.

• Power from the people of India.
• One of the most important aspects, to give and protect rights.
• To come into effect only once the citizens have been protected.

Rigid and Flexible.

• Called as such because of the amending procedure.
• Whereas some constitutions are rigid.
• UK and British easy
• Has 3 categories dependent on the matter.

Federal but Unitary

• There are two distinct levels of governments.
• There is one government for the whole country which is called the Union or Central Government.
• This does not utilise the word "Federal stae" But rather States in union.

Quasi Federal

• It means a federal set up where despite having two clear sets of govt.
• Central and the states.

Partliamentary Democracy

• There is a close relationship between the legislature and the executive
• Cabinet is selected from among members of legislature with the head of the state being the president.

Fundamental Rights and Fundamental Duties

• Guaranteed by the constitution along with rights of justice.
• It lays down a list of 10 fundamental duties for all citizens of India.

Directive Principles of State Policy

• Taken in consideration from the Irish constitution aimed to ensure social and economic justice for the citizens.
• There is to be concentration of wealth in the hands of a few.

Single Integrated Juciary System.

• This like a pyramid with the with the Supreme Court the apex body, High courts as the middles and lower courts at the base.

11. Independence of Judiciary

• Free from the influence of the executive of legislature.
• Those with the credentials are nominated and cannot be removed easily.

Single Citizenship:

• In India, it is single citizenship which means that every Indian is a citizen of India, irrespective of the place of his/her residence or place of birth.

Universal Adult Franchise:

• Establishes the ‘one person one vote’ system with right to democracy for the every Indian.

Indepdendent Agencies:

• Provides for important agenceies like the Election comission and other services.

Emergency Provisions:

• Has three catagories for situations where normal government is under threat:.
• The Government can no be run, in usual states.
• Emergency of state.
• Financial Emergency

Scheme Of Fundamental Rights.

• Enshrined by by the constitution.
• Enforceable by the courts.
• Is equality.
• Is freedom.
• Is exploitation -
• Has cultural and educational rights.

Fundamental Rights

• A right to those that are guaranteed under Part 3