Professional Documents
Culture Documents
Constitution .Final
Constitution .Final
This is to certify that this project entitled Constitution as a Basic Law submitted by Mr.
Sudhir Tundwal to the Siddhartha Law Collage Dehradun, in partial fulfillment of the
requirements for the award of Bachelor of law, is a record of certified work undertaken by me.
(Student)
Guidance of: Santosh Yadav
Name: Sudhir Tundwal
Signature:
Signature
Acknowledgement
I deem it my proud privilege to express my indebtedness and sincere thanks to all those who
have in various ways, helped in the successful completion of the project and without their
invaluable help this project would not have been a reality.
I am extremely thankful to Mr. Santosh Yadav Sir Faculty of law who was constant source of
knowledge and inspiration at all levels throughout my project.
To took a lot of pain in providing guidance about project report.
Finally, I express my most sincere gratitude to my Parents and my Family members for
supporting and encouraging me to this challenging project. I deeply acknowledge the support and
inspiration by my academic career.
Content
1. Introduction of preamble.
1.1
1.2
1.3
1.4
1.5
2.
3.
4.
5.
6.
7.
8.
Enacting formula
Sovereign
Socialist
Secular
democratic
42th amendment...8
Article 14...8-9
The Basic Structure of the Indian Constitution.9-10
Article 368 in the Constitution of India 1949.10-11
Ultra Vires.11-13
Pure Theory of Law.13-14
7.1 Hanskelsens introduction
7.2 Theory of Positive Law
7.3 Law and Morals
Aspect of Law.14-16
8.1The Static Aspect of Law
8.2The Dynamic Aspect of Law
8.3Law and State
8.4 State and International Law
8.5 Interpretation
Preamble
The preamble to the Constitution of India is a brief introductory statement that sets out the
guiding purpose and principles of the document. The preamble-page, along with other pages of
the original, constitution of India was designed and decorated solely by renowned painter deodar
ram manohar sinha of Jabalpur. As such, the page bears deodhar Ram manohar Sinha's short
signature Ram in devanagri lower-right corner.
That the preamble is not an integral part of the India constitution was first decided upon by
the Supreme Court of India in the BeruBari case; therefore it is not enforceable in a court of law.
However, the Supreme Court of India has, in the Kesavananda case, recognized that the
preamble may be used to interpret ambiguous areas of the constitution where differing
interpretations present themselves. In the 1995 case of Union Government Vs LIC of India also
the Supreme Court has once again held that the Preamble is an integral part of the Constitution.
As
originally
enacted
the
preamble
described
the
state
as
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its
citizens:
JUSTICE, social, economic and political,
LIBERTY, of thought, expression, belief, faith and worship,
EQUALITY of status and of opportunity,
And to promote among them all.
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation,
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, DO HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Enacting Formula.
It signifies the democratic principle that power ultimately rests in the hands of the people. It also
emphasizes that the constitution is made by and for the Indian people and is not given to them by
any outside power (such as the British parliament). The wording is close to the preamble to the
constitution, which had been adopted in 1937; it reads We, the people of India Do hereby
adopt, enact, and give to ourselves this Constitution. The phrase we the people emphasizes
upon the concept of popular sovereignty as lay down by J. J. Rousseau. All the power emanates
from the people and the political system will be accountable and responsible to the people.
Sovereign
The word sovereign means supreme or independence. India is internally and externally sovereign
- externally free from the control of any foreign power and internally, it has a free government
which is direct elected by the people and makes laws that govern the people. She allies in peace
and war. The Popular sovereignty is also one of the basic structures of constitution of India.
Hence, Citizens of India also enjoy sovereign power to elect their representatives in elections
held for parliament, state legislature and local bodies as well. People have supreme right to make
decisions on internal as well as external matters. No external power can dictate the government
of India. All the people are free in a limit to do their work in their own opinion.
Socialist
The word socialist was added to the Preamble by the 42th Amendment during the Emergency in
1976. It implies social and economic equality.
Social equality in this context means the absence of discrimination on the grounds only of
caste, colour, creed, sex religion, or language. Under social equality, everyone has equal status
and opportunities.
Economic equality in this context means that the government will endeavor to make the
distribution of wealth more equal and provide a decent standard of living for all. This is in effect
emphasized a commitment towards the formation of a welfare state. India has adopted a
socialistic and mixed economy and the government has framed many laws to achieve the aim.
Secular
The word secular was added to the Preamble by the 42th Amendment during the Emergency in
1976. Citizens have complete freedom to follow any religion, and there is no official religion.
The Government treats all religious beliefs and practices with equal respect and honor.
3
Democratic
The first part of the preamble We, the people of India and, its last part give to ourselves this
Constitution clearly indicate the democratic spirit involved even in the Constitution. India is
a democracy. The people of India elect their governments at all levels (Union, State and local) by
a system of universal adult franchise; popularly known as "one man one vote". Every citizen of
India, who is 18years of age and above and not otherwise debarred by law, is entitled to vote.
Every
citizen
enjoys
this
right
without
any
discrimination
on
the
basis
42th amendment
On 18 December 1976, during the Emergency in India, the Indira Gandhi government pushed
through several changes in the Forty-second Amendment of the constitution of India. A
committee under the chairmanship of Sardar Swarn Singh recommended that this amendment be
enacted after being constituted to study the question of amending the constitution in the light of
past experience. Through this amendment the words "socialist" and "secular" were added
between the words "sovereign" and "democratic" and the phrase "unity of the Nation" was
changed to "unity and integrity of the Nation"
Article 14
The responsibility for operations of a licensed public higher education institution shall be
Borne by the administrative board of the university or higher school (hereinafter referred to as
the administrative board).
The administrative board shall perform the tasks as determined in the law and in the statute of
the university, in particular:
provide the opinions on the statute of the higher education institution, and pass the
General enactments on internal organization and job systematization chart, and other
General enactments pursuant to the law and statute of the higher education institution;
pass the decisions on establishment of other legal entities, pursuant to the law and Statute
of the higher education institution;
Upon the proposal from the senate of the higher education institution, pass the annual
operations;
resolve the issues of relations with the founder;
pass the decisions on the use of funds exceeding the amounts determined in the statute
Institution;
Also perform other tasks pursuant to the law, enactment on foundation and statute of
the higher education institution.
It may be said that the final word on the issue of the basic structure of the Constitution
has not been pronounced by the Supreme Court-as scenario that is unlikely to change in
the near future. While the idea that there is such a thing as a basic structure to the
Constitution is well established its contents cannot be completely determined with any
measure of finality until a judgment of the Supreme Court spell sit out. Never the less the
sovereign, democratic and secular character of the polity, rule of law ,independence of
the judiciary, fundamental rights of citizens etc. are some of the essential features of the
Constitution that have appeared time and again in the apex court's pronouncements. One
certainty that emerged out of this tussle between Parliament and the judiciary is that all laws
and constitutional amendments are now subject to judicial review and laws that transgress the
basic structure are likely to be struck down by the Supreme Court. In essence Parliament's
power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over
and interpreter of all constitutional amendments.
6
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament, and when the Bill is passed in each House by a majority
of the total membership of that House present and voting, it shall be presented to the President
who shall give his assent to the Bill and thereupon the Constitution shall stand amended in
accordance with the terms of the Bill: Provided that if such amendment seeks to make any
change in;
Article 54, Article 55, Article 73, Article 162 or Article 241, or
Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
Any of the Lists in the Seventh Schedule, or
The representation of States in Parliament, or
The provisions of this article, the amendment shall also require to be ratified by the
Legislature of not less than one half of the States by resolution to that effect passed by
those Legislatures before the Bill making provision for such amendment is presented to
Ultra Virus:
Pure Theory of Law
German: Reine Rechtslehre is a book by legal theorist Hans Kelsen, first published in 1934 and
in a greatly expanded second edition (effectively a magnum opus doubled in length of
presentation) in 1960. The second edition appeared in English translation in 1967, as Pure
Theory of Law, the first edition in English translation in 1992, as Introduction to the Problems of
Legal Theory. The theory proposed in this book has probably been the most influential theory of
law produced during the 20th century. It is, at the least, one of the high points of modernist legal
theory.
8
Law and Morals in the Pure Theory of Law
Kelsen's strict separation of law and morals was an integral part of his presentation of the pure
theory of law. The application of the law, in order to be protected from moral influence or
political influence, needed to be safeguarded by its separation from the sphere of conventional
moral influence or political influence.
Kelsen did not deny that moral discussion was still possible and even to be encouraged in the
sociological domain of inter subjective activity.
However, the static operation of the pure theory of law (see section below) was not to be subject
to such influences as presented by Kelsen in Chapter Two of the second edition of this book.
9
At the same time there is also the understanding of law as being affected by the accumulated
standing law which represents the decisions of the courts which in principle become part of the
hierarchical representation of the pure theory of law. Importantly, Kelsen allows for the
legislative process to recognize the law as the product of political and ethical debate which is the
product of the activity of the legislature before it becomes part of the domain of the static theory
of law.
10
Interpretation
Kelsen's final chapter, Chapter Eight, in the second edition of The Pure Theory of Law deals with
the subject of interpretation in at least three of its most important aspects. First, Kelsen discusses
the nature and methodology of the interpretation of the law. Second, Kelsen discussed
interpretation as an act of cognition and of voluntary will. Third, Kelsen discusses interpretation
as it is to be understood as part of the science of law, as Kelsen has defined it as being 'purified'
from the undue influence of politics, morals, and metaphysics. Kelsen's essay titled "On the
Theory of Interpretation" was translated into English in 1990 and published in the journal Legal
Studies (Vol. 10, No. 2).
Legal Orders:
For Kelsen as for other central European contemporaries, norms occur not singly but in sets,
termed 'orders'. The ordering principle of an order of moral norms - and of an order of natural
law, if one could exist - would be logical, as deduction. From the general norm 'do not kill other
human beings', it follows deductively that A must not kill any other human being. Kelsen calls
this a 'static' order. An order of positive law, he maintains, is not, or not centrally, like that.
Although it forms a hierarchy, it is 'dynamic', in that its ordering principle is authorization. Each
relatively 'higher' norm authorizes someone (an individual or an organ, primarily of the state) to
create further and relatively 'lower' norms. In this is found the specific characteristic of positive
law, hence of all law, that it regulates its own creation. Even though positive legal norms do
commonly contain elements of generality, those elements are not central to the relation between
a higher and a lower norm. This is a relation of legal 'validity' (not to be confused with logical
validity), which is that the creation of the lower norm has been authorized by the higher norm.
Since this moment of creation always involves extraneous considerations, Kelsen does not need
to supplement his model with a concept of 'discretion'.
11
What has to be consistent in a dynamic order of norms is only the process of authorizing. This
process can (and perhaps always does) result in multiple and mutually uneven strands of
hierarchy, such as legislative, executive and judicial strands.[5] In each strand, at every point in
the process of norm-creation, many types of extra-legal factor may be taken into account - moral,
political, economic and others. Kelsen notes that, in this respect, the Pure Theory of Law has an
affinity with American 'legal realism'.
At the same time, the 'hierarchy' model does not readily fit a common-law system. It takes as its
paradigm a single constitutional document under which codes and statutes are enacted, with both
administration and adjudication in subordinate places.
However, at least outside the USA, common-law systems are moving in the direction of that
paradigm. The 'hierarchy' model also fits public law more readily than private law. It is difficult
to be convinced by Kelsen's contention that, in private transactions, the parties are exercising
legal authorization.
12
Any law making should therefore follow the course of historical development Custom not only
precede legislation, but is superior to it and legislation should always conform to the popular
consciousness. Custom is the manifestation of popular spirit Constitution:-it is a document
having special legal sanctity, which sets out the frame work of principle function of the organs of
the government.
scheme,
office
of
governor,
2. British constitution: -Single citizenship, rule of law, parliament government, cabinet system,
bicameralism.
3. Canadian constitution: -federation with a strong center, residuary power of the center, advisory
jurisdiction of the Supreme Court, appointment of state governor.
4. US constitution: -fundamental rights, judicial review, independence of judiciary impeachment
of president; post of vice-president, removal of Supreme Court& high court judges.
5. Irish constitution: - directive principles of state policy; nomination of members to Rajya Sabha
and method of election of precedent.
6. Australian constitution: - concurrent list, freedom, of trade, commerce and intercourse, joint
sitting of two houses of parliament.
7. Wiener constitution: - suspension of fundamental rights during emergency.
8. Soviet constitution: - fundamental duties
9. French constitution: - republic and the ideals of liberty, equality, and fraternity in the
preamble.
13
10. South African constitution: - procedure for amendment of the constitution and election of
members or Rajya Sabha.
14