Concept of the Constitution PDF

CHAPTER - 3 Concept of the Constitution t MEANING relation of the government to th...

CHAPTER - 3 Concept of the Constitution t MEANING relation of the government to the people over whom its autho rity is exercised".2 The term 'con stitution' is derived from the Latin word constitu ere, which m ea n s 'to Wh ea re : "The Co n st ituti on describes th e establish' or 'to set-up'. In the prese n t sense, whole system of government of a country, the te rm 'constitution ' refers to a set ofprin- the collect ion of rules which establish a nd J ci pIes, which specify the orga ni satio n a nd regu late or govern the governmenV wo rking of th e government and th e relation- Wade and Phillips: "A constitut ion is a doc u- ship between the gove rnme nt a nd the people ment h avin g a spec ia l lega l sanctity whi ch in te rm s of th eir rights a nd duti es. sets out the framework and the principal The constitution is va ri ously described as functions of the organs of th e Government of the 'fundam enta l law of the land ', 'supreme a State and declares the prin ciples governi ng law of the sta te', 'basic law of the coun try ', the operation of those organs.,,4 'instrument of the government', ' rul es of the state', 'basic structure of the polity', 'grund- norm of the cou ntry' and so on. t FUNCTIONS Political scie nti sts an d Co n stitut iona l The consti tuti o na l sc h ola r, Elli ot Bulm e r, exp erts h ave defined the constitution in the has very well identified the functions (o r following way: purposes) of a const i t uti o n. H is list is co mprehen s ive an d includes the fo llowing Gilchrist: "The con stitut io n consi sts of that. ; pomts : body of rules or laws which determine the orga ni zation of government, the di stribution 1. It can declare and defin e the boundaries of powers to the va riou s organs of govern- of the political commu nity. ment, and the general principles on whi ch 2. It ca n declare and define the nature a nd these powe rs a re to be exerci sed.,,1 authority of the politica l comm uni ty. Gettel1: "Th e fundamental principles that 3. It ca n express th e ide ntity and va lues of determine the form of a state are ca lled its a national comm uni ty. co nstitut ion. These include the method of which the state is organised, the distribution 2Geuell, R.G., Politica l Science, 1956, p. 244. of its sovere ign powers among the various 3 Wheare, K.C., Modern Constitutions, 1956, p. l. organs of government, the scope and ma nn er "Wade and Phillips, Co nstitutiona l Law, 1965, p. l. of exercise of governm ental functions, a nd the 5EI1iot Bulmer, What is a Constitution? Principles and Concepts, I nternational ID EA Co nstitution - Building Primer I , Second Edition , 2017, In ter- lGilchrist, R.N. , Principles o r Poli tical Science, 1961, n ational Institute ror Democracy and Electoral p. Zll. Assistance, pp. 6-7.  Concept of the Constitution 23 4. It can declare and defin e the rights and 7. Adaptability: A co n sti tution should be duties of ci tizens. dynamiC and not static. It should be able 5. It can establish and regulate the political to adapt itself to changing situations institutions of the community. and requirements. It sh ould be a living 6. It ca n divide or share power between dif- docum ent. ferent layers of government or sub-state communities. 7. It can declare the official religious iden- CLASSIFICATION tity of th e state and demarcate rela- The constitutions are classified into the fol- tionships between sacred and secular lowi ng types: ,. authorities. 8. It can commit states to particular social, economic, or developmental goals. D I Evolved and Enacted On the basis of evolution, the 'constitutions QUALITIES are classified into evolved a nd en acted con- stitution s. An evolved constitution is the There are some qualities (or characteristics) outcome of a slow and gradual evolutionary of a good constitution. These are explain ed process. Its provisions are contain ed in the below: form of co nve ntion s, practices, principles, 1. Brevity: A con stitution should be precise a nd judicial dec is ions. It is also known and should not contain unwanted provi- as a cumulative co n st itution and the Brit- sion s. A lengthy co n stitution with too ish Con stitution is a good exa mple in thi s many details creates confusion in the regard. interpreta tion of its clauses. An ena cted con stitution, on the other hand, 2. Clarity: A con stitution should specify its is deliberately made by a con stituent assembly provisions in clear terms. A complicated or a constitutional councilor promulgated by language would reduce the degree of its a king or parliament. Its provisions are con- understanding. tained in the form of a book or a document 3. Definiteness: A constitution sh ould or a series of documents. It is also known as a co ntaIn a defin ite m ea ning for its pro- conventional con stitution and the American visions. The ambiguous and different and Indian Constitutions are the good exam- meanings would increase the disc retion ples in this regard. Qf the judges in their interpretation. 4. Comprehensiveness: A co nstitution shou ld be comprehensive in laying fl iWritten and Unwritten down the powers of the government as On the basis of inco rporation of provisions, well as the rights and duti es of th e citi- the co nstitu tion s a re classified into wri t- zens. This would reduce th e scope for ten and unwritten constitutions. A written I controversies and litigation s. con stitution is one in which the provisions 5. Suitability: A constitution should reflect are incorporated in the form 'of a book or the needs and aspirations ofthe people. a document or a series of documents. It is It must be suitable to the hi storical, conSCiously fo rmulated and adopted by a socia-cultural, economic and political body known as the con stituent assembly or co nditions of the nation. the constitutional convention 'or by any other 6. Stability: A con stitution should facilitate l1ame. It is also known as a docum entary con - l political stability and should not allow stitution or a codified con stitution. The con- easy tampering. This would strength en stitutions of the USA, Ca nada, Japan, France the obedience of the cit izens to the and India are som e of the good examples in con stitution..  24 t! Indian Polity An u nwritten co n stitut ion , on th e ot her D IFederal and Unitary ha nd , is one in wh ich m ost of the provi s ions Based on the nature of relationship between arc n ot in co rporated in t he form of a book the nationa l gove rnm e n t and the regio nal or a doc um e n t or a se ri es of docume nts. It is gove rnm ents, the constitu tions are cl ass i- foun d in the form of co n ve nt io ns, practi ces, fie d in to fede ral a nd u n itary co nstitution s. principles, charte rs, statute s, a nd judic ia l A federal co n stitut ion is one whi ch provides deci sio n s. It is a produ ct of hi storica l evo lu- for a division of power between the national tio n and not de liberate ly form ul ated by a govern ment and the regional govern ments.. body. It is also known as a non-documentary It en ab les them to operate in t heir respec- constitution or a n u n codi fied co n stitution tive jurisdiction s ind epe nd e n tly. A un ita ry and the const it uti ons of UK, New Zea land co nstitution , on the other hand, is one which and Israel a re the good examp les in t h is provides for the conce n tration of power in the regard. ha nds of the national governme nt. It makes The di st inction between a written constitu- the regional governments to o perate as the tio n and an un written co nstitutio n is more subordinate agencies of the na tional govern- or less the sa me as is between a n evo lved me n t and exercise only such powers wh ic h constitution a nd an e nacted constitution. may be delegated to them by the nationa l govern ment. g IRigid and Flexible Federal constit ution is prevalent i n the Based on the method of amend ment, the con- USA, Switzerland, Austra li a, Ca n ada, Rus- stitutions are class ified into rigid and flexible s ia, Brazil, and some oth er states. Uni tary co nstitution s. Thi s classification was given by constitutio n is prevalent in the UK, Fra nce, Lo rd J ames Bryce 6. Japan , Chi na, Italy, Norway, a nd other states. A rigid co n stitution is one, whi ch ca n- The Const itution of Ind ia contains both t he n ot be ame nded in t he same man n er as t he federal prov isions as well as t he uni tary provi- o rdin ary la ws. It requires a specia l p rocedure sions. He nce, it was desc ribed as quas i-federa l fo r its a me n dment. In other words, it makes by K.C. Wheare. a distinction between the constituti ona l law a nd the ordi nary ' law. A flexible cons ti t u- 1:1 1Procedural and Prescriptive tion, on the other hand, is one whi c h can be Accordi ng to t he co nst itut ional scholar, Elli ot amended in the same manner as the ordi nary Bulmer, two broad co nstitutional archetypes laws. It does not require a special procedure ca n be identified: the procedural and th e pre- for its a mendm e n t. In other words, it does not script ive. The difference between these two make a distin ct ion between the con stitutional typ es of co nstitution s re late to the natu re and law a nd the ord in ary law. purposes of the document itsel f1. A fl ex ible constitu t ion is a lso k n own as an A procedura l co nstitutio n defines the lega l e last ic const itution a nd the co nstitution s of an d po l itical structures of pub lic in stitution s UK and New zea land are some good exam ples an d sets out the legal limits of gove rn m ent in th is regard. A rigid co nstitut io n is a lso power to protect democratic p rocesses and known as an inelastic co n st itutio n an d the fu nda menta l hu man rights. co nst itutions of the USA, Austra li a and Swit· In ad di t i o n to d escr ib ing how the zerland are some examples in thi s rega rd. govern m e nt fun c tion s, a prescriptive co n- The Constituti o n ofInd ia is neither rigid nor stitut ion assum es (o r atte mpts to impose) a flexible, but a sy n thesis of both. b road co n sen sus on common societal goa ls that publi c a uthorit ies mll st strive to ach ieve. 6Bryce, J., Studies in History and Jurispruden ce, Volu m e 1, p. 127. 7Sa m e as footnote 5 above, pp. 9-10.  Concept of the 25 CONSTITUTIONALISM a "civili zed" government. The real justi- AND CONSTITUTIONAL fication of the co nstitution finds place in hav ing a "limited govern m ent" and of GOVERNMENT requiring those who gove rn to conform to laws and ru les ll. II IMeaning The concepts of constitution and constitution- alism are closely related to each other. But, !I IDefinition there are a few differences between them; like: The con cepts of constitutionali sm and co n- stitutional governm ent have been defined in 1. A country may have the 'constitution' but the following way: not necessarily 'constitutionalism', For example, a country with a dictatorship, Fried rich: "Constitutionalism provides a where the dictator's word is law, ca n system of effective restraints upon gove rn- be said to have a 'constitution ' but n ot mental action. It is a body of ru les ensur- 'co nsti tutiona I ism ,8. ing fairpla y, thus rendering the government 2. Constitutionalism recognises the n eed for responsible"lz. government with power but, at the same time, in sists that limitat ions should be Roucek: "Con stitutionalism mean s essen- placed on those powers. Unlimited power tially limi ted government. It is the antithesis may lead to an authoritarian, oppres- of government by the unrestrain ed will be sive government which jeopardises the of rulers. Regardless of the actual form of freedom of th e people. Only when the effectiveness of restraints, it assumes limita- co n stitution of a co untry imposes limi- tion s on government as opposed to arb itrary tation upon governmenta l power, does governm ent,,13. a country have not only a 'constitution' but also 'constitutionali sm, 9. Wheare : "Co n st itution al government mean s 3. The concept of constitutionalism is that so mething more than a government accord- ·of a polity governed by or under a con- ing to the terms of a co n st itution. It m ea n s stitution that orda ins essentially limited gove rnm ent acco rding to ru le as opposed government and rule of law as opposed to arbitrary government; it mean s govern- to arbitrary, despot ic, authoritarian or m ent limited by the terms of a co nstitu- totalitarian rul e. Constitutional govern- tion, not government limited only by the ment should n ecessarily be democratic de sires and cap acities of those who exe rci se government. Arbitrary power in the power ,, 14. hand s of any indi vidual or institution - ¥bema: form of government ca n on ly be eve n if confe rred by a constitutional classified as co nstitutional when the rulers docum ent - is a n egation ofthe concept are subject to a body of rules and principles, of constitutionalism lO which limit the exercise of their power. 4. Constitutionalism desires a political order " in which the power of the government are limited. It is another name for the IIJohari, J.C., Comparative Politics, Fourth Edition, concept of a limited, and for this rea son, Sterling Publish ers Private Limited, New Delhi, 20ll, p. 217. · 8Jain , M. P., Indian Con stitutio nal Law, Eight 12 Friedrich, Carl J., Con stitutional Government and Edition, Lexis Nexis, Gurgaon, 2018, p. 6. Democracy, Oxford and IBH, Calcutta, 1964, p. 25. 9Jbid. I3Roucek, J.S. and Others, Introduction to Political I°Kashyap, Dr. Subhash C., Constitutional Law of Science, 1954, p. 981. India, Second Edition, Volume 1, Uni versal Law 14 Wh eare, K. C., Modern Constitutions, Oxford , Publish ing, Gurgaon , 2015, p. 7. University Press, London, 1956, p. 137. \  26 Polity Constitutio nal governm ent is the a ntithes is 1. Popular sovere ignty of arbitrary rule,,15. 2. Rule of law 3. Democratic government (respon sible and El lElements accountab le government) 4. Separatio n of powers (checks and The constitu tio na l sch olar, Louis Henkin, balances) ident ified eight elements (features or prin· 5. An independent judiciary ciples) of constitutional ism. These are men - 6. Civilian control of the military tioned below 1s: 7. Poli ce governed by law and judi cia l control 15Ybema, S.P., Constitutionalism and Civil Liberties, 8. Respect for individual rights Leiden Unive rsity Press, Leiden , 1973, p. 1. 16 Hen kin, Louis, A New Birth of Constitutiona li sm: Legitimacy: Theoretical Perspectives, Edited by Genetic Influences and Genetic Defects. Chapter 2 Michel Rosenfeld. Duke University Press, Durham, in Constitutionalism, Identity, Difference a nd 1994, pp. 39- 54.  37 Consumer Commissions T he Consumer Protection Act, 2019 has repealed and replaced the earHer Consumer Protection Act, ] 986. Like the old Act, the new Act also provides for perform its functions at such other places as the central government may notify. This is done by the central government in consulta- the establishment of a three-tier Consumer tion with the National Commission. Further, dispute redressal machinery at the District, the central government may also establish State and National levels. These arc called regional branches of the National Commission. as the District Consumer Disputes Redressal At present, there are 678 District Com- Commission, the State Consumer Disputes missions and 35 State CommiSSions with RedressaJ Commission, and the National the National Commission at the apex. The Consumer Disputes Redressal Commission. In National Commission was constituted in 19881. brief, they arc known as the District Commis- sion, the State Commission, and the National NATIONAL CONSUMER Commission respectively. DISPUTES REDRESSAL The three-level hierarchy of the consumer COMMISSION commissions provides an alternative dis- pute resolution mechanism exclusively for D I Composition consumers. These arc quasi-judicial bodies. They are also popularly known as Consumer The National Commission shall consist of a forums or Consumer Courts. President and not. less than four or not more The District Commission is established in than such number of members as may be each district of the state by the state govern- prescribed. Accordingly, in 2020, the central ment, However, the state government may government has prescribed that the National also establish more than one District Com- Commission shaH consist of a President and mission in a district. not less than four or not more than eleven The State Commission is established in members. Further, out of these eleven mem- the state by the state government. It shall bers, at least one member shall be a woman2. ordinarily function at the state capital and The central government may make rules to perform its functions at such other places as provide for qualifications, appointment, sala- the state government may notify. This is done ries and allowances, resignation, removal and by the state government in consultation with other conditions of service of the President the State Commission. Further, the state gov- and members of the National Commission. ernment may also establish regional branches of the State Commission. IThis information is adopted from the official web- The National Commission is established site of the National Consumer Disputes Redressal by the central government. It shall ordinarily Commission. function at the national capital region and 2As per the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020.  370 P Indian Polity The Pres iden t a nd members of the Natio nal 30 days if it is sat isfied that there was Co m m iss io n are ap poi n ted by the ce ntral sufficient ca use for not filing the appea l governm e nt o n the recom mendations of a within the given time. search-cum·selcction com mittee chaired by the Furth er, the Na tional Co mmission sha ll Chi ef Justi ce of India or a Judge of Supreme a lso have jurisdiction to enterta in appeals Court, who is nominated by th e Chief Justice against the orders of the Cent ral Co nsum e r of I nelia. But, a perso n who has not co mpl eted Pro tection Authority (CCPA). The appea l the age of 50 years is not eligib le for ap po in t. may be made within 30 days from the date mcnt as a President or member. They hold of receipt of the order of the CC PA. office for a ter m of 4 years or un ti l they attain 3. Rev isional Jurisdiction: The Nat ion al the age of 70 years in case of Preside nt a nd Co mmi ss io n shall have jurisdiction to 67 years in case of me mbers, whi chever is ca ll for the records a nd pass appropriate ca rI i er;!:L. orders in any consumer dispute which is Ne ither th e sa lary a nd allowances no r pendi ng befo re or has been decided by the other terms and condit io ns of sc'rvi ce of a ny State Co m mission in the following the President or any other me mber of the circumstan ces: Nat io nal Co mmi ss ion shall be va ried to hi s (i) If the State Co ml11i ssio n has exer- d isa dva ntage after hi s appoi ntm e nt. c ised a jurisdi ctio n not vested in it by law, or fl i Jurisdiction (ii) If the St..l te Co mmissio n has fa Bed to The Nationa l Co mmi ss io n ha s the pecuni- exerc ise a j urisdiction so vested, or ary juri sdiction, the appellate jurisdiction (i.ij) If the State Com mission has acted in a nd the rev is ion a l jurisdiction. Th ese are the exercise of its jurisdict ion ille- explained below: ga ll y or with materia l irregularity. 1. Pec uniary Jurisdiction: The Natio nal Co mm ission shall have jurisdiction to 01 1O t her Powers en tertai n co mplaints where the value of In add iti on to th·e above j u risdic ti on, the the goods or se rvices paid as consider- Nat iona l Comm iss ion has the fo llow in g other ation exceeds rupees ten cro res. But the powers: centra l governm ent may prescribe such 1. The Na tional Commission may declare othe r va lu es as it deem s fit. Accordingly, a ny terms of contract, whi ch is unfair in 202 1, thi s limit was reduced to above to any co nsu m er, to he null and vo id. rupees two crores 3 2. T he Natio nal Com mi ss io n sha ll have 2. Appellate Jurisdiction: Th e Natio na l the power to review any of the orders Co mmi ss io n shall have jurisdiction to passed by it if there is an error appar- entertain appeals aga inst the o rders of e nt o n th e face of the reco rd. This ca n any State Commi ssion. The a ppeal may b e done by the Commission eith er of be made within 30 days from the date of its mo tio n o r on an appli cation made the order of the State Com m ission. But by a ny of the parties within 30 days of the Nat iona l Co mmissio n may enter- such o rd er. ta in a n ap pea l filed after the expiry of 3. Where a n order is passed by the Nationa l Co mmi ssio n ex-parte, the agg ri eved 2a Asper the 1tibunals Reforms Act, Z021. party may make a n applicat io n to the J Asper the Co ns umer Protect ion (.Ju risd iction of Co mmission for setting aside such order. the District Co mmissio n , t he State Commi ssion, 4. The Nat ional Co mmiss ion may tra nsfer and the Natio na l Co mmiss ion) Rules, 2021. a n y com plain t p end in g before t h e  Consumer Commissions 'tt 371 District Commission of one state to a District Commission of state or STATE CONSUMER DISPUTES before one State Commission to another REDRESSAL COMMISSION State Commission. This can be done by the Commission either on the application II IComposition of the complainant or of its own motion. Each State Co mmission shall consist of a An appeal against the order of the National President and not less than four or not more ·C ommission lies with the Supreme Court. than such number of members as may be The appeal can be made within 30 days from prescribed, in consultation -\vith th e central the date of the order of the National Com- government. mi ss ion. Howeve r, the Supreme Court may The central government may make rules entertain an appeal filed after the expiry of to provide for the qualifications for appoint- 30 days if it is sati sfied that there was suffi- ment, method of recruitment, procedure of cient cause for not filing the appeal within appointment, term of office, resignation and the given time. removal of the President and members of the State Commission. II IAdministrative Control The state government may make rules to The National Commission shall have adminis- provide for sa la ries and al10wances and other trative control over all the State Commissions term s and conditions of service of the Pres i- in the following matters: dent and members of the State Commission. 1. Monitoring the performance of the State Commissions in terms of their disposal fl lJurisdiction of cases. This includes ca lling for peri- The State Commission has the pecuni- odical returns regarding the institution, ary jurisdiction, the appellate jurisdiction disposal, and pendency of cases. and the revisional jurisdiction. These are 2. Investigating any allegations against explained b elow: the President and members of a State 1. Pecuniary Jurisdiction: The State Commission and submitting inquiry Commission shall have jurisdiction to reports to the concerned state government. entertain complaints where the value of 3. Issuance of instructions regarding the the goods or services paid as consider- following matters: ation, exceeds rupees one crore but does 0) Adoption of uniform procedures in not exceed rupees ten crores. But the the hearing of matters central government may prescribe such (ii) Prior service of copies of documents other values as it deems fit. Accordingly, produced by one party to the oppo- in 2021, this limit was reduced to at>ove site parties rupees fift y lakhs but up to rupees (iii) Furnishing of English translation of two crores4. judgements written in any language 2. Appellate Jurisdiction: The State (iv) Speedy grant of copies of documents Commission shall have jurisdiction to 4. Overseeing the functioning of the State entertain appeals against the orders of Commission or the District Commission any District Commission within the either by way of inspection or by any state. The appeal may be made within other methods to ensure that the objec- 45 days from the date of the order of tives of this Act are best served without the District Commission. But the State interfering with their qua s i-judicial free dom. '.  372 x7 Ind;an PaJ;1y Co mmi ss io n may e n tertain an appea l DISTRICT CONSUMER DISPUTES fi led after the expiry of 45 days if it is REDRESSAL COMMISSION s.1t isfied th a t th e re was suffi c ie nt ca use fo r n ot filin g t h e a ppea l wit hin the give n time. IIIComposition 3. Rc vi s ional Jurisdi c tion: The Sta te Each Distr ict Co mm ission sha ll consi st of a Co mmission shall have ju risdiction to Presi dent and n ot less than two or not mo re ca ll fo r the reco rds and pa ss a pp ro pria te than suc h number of me mbers as may be orde rs in any co nsume r di sp ute which prescribed, in co n sultation with the ce ntra l is pending befo re or h as been dec ided gove·rnment. by a ny Distri ct Commission within t he The ce ntral gove rnm e nt may make rules state in the following circumstances: to provide for the qualifi cat ion s for appoint· (i) If the Di strict Comm ission has exer- ment , method of rec rui t me nt, procedure for c ised a jurisdiction not vested in a ppo intm e nt, term of office, res ignat ion a nd it by law, or rem ova l of th e President a nd membe rs of the ( H) If the Di stri ct Commi ssion has failed Distri ct Co mm iss io ll. to exe rc ise a jurisdi ctio n so vested, T he state gove rnm e nt may make ru les to or provide for salari es and a ll owa nces a nd ot her ( iii) If th e Distr ict Co mmi ss ion has te rm s and co ndi tio ns of serv ice of th e Presi- acted in exe rc ise of its jurisdi c· de n t and me mbers of the District Comm ission. lio n i ll egally or w ith mater ia l If th e re is a vacan cy in th e office of th e irreg ul arit y. Pres id e nt or me mber of a Distri ct Co mmi s- sion, then the state governme n t may direct- g IOther Powers (a ) a ny othe r specifi ed Distr ict Commissio n to exerc ise th e jurisdi ction in respect of I n add itio n to the above jurisdi ct ion, th e State t hM distri ct a lso; or Co mmi ss io n has the fo llowing other powers: (b) the Pres id e nt or a me mbe r of any ot he r 1. The State Co mmi ssion may declare a ny spec ifie d Dist ri ct Co mmi ss io n to exer- terms of co ntract, whi ch is unfair to a ny c ise the power and di scharge th e fun c- co nsum e r, to he null and vo id. ti ons of the Presiden t or me mber of that 2. The State Co mmi ss ion shall have t he Distri ct Co m missio n a lso. power to review a ny of the o rde r passed by it i r there is a n error appa ren t on th e fa ce o f the record. This ca n be done by !I IJurisd iction the co mmi ssion e ither of its own m otio n T he District Co mmi ss ion shall haveju r isdi c· or on an appli cat ion mad e by a ny of th e tion to entertain co mpla i nts whe re the va lue pa rties within 30 days of suc h ord e r. of the goods o r se rvices paid as co nside r- 3. Th e State Co mmi ss ion ma y t ra n s- ation does not exceed rupees on e crore. But fer a ny compl