Constitutional Law - 1

Lecture Notes -1

INTRODUCTION

By Dr. Anshuman Mishra

For the purpose of the present study of constitutional law, law can be divided into following two
parts:

1. Public Law.- Law governing the State fall in this category e.g., constitutional law,
administrative law and public international law. Public Law deals with the relationship
between the State and the individual.
2. Private Law.- Law by which the State governs or regulates the conduct of its people fall
in this category e.g., law of contract, law of torts, law of crimes and property Law.
Private Law deals with the relationship between the individuals.

Constitution contains the norms and rules from which governmental organs draw their
functions. It also provides for the mutual relationship between the governmental organs and the
people.

Constitutional law comprises of the ‘Constitution’, relevant statutory law, judicial decisions and
conventions. ‘Constitution’, relevant statutory law, and judicial decisions are legal norms which
are enforced and applied through Courts. Conventions are non-legal norms which arise in course
of time as a result of practices followed over and over again. The sanction behind convention is
mostly political or public opinion. Conventions cannot breach the law but can fill the gap.1

Constitutionalism seeks to retrain the power conferred on various organs of the government by
the Constitution. It may be said that a country may have the Constitution but not necessarily
‘Constitutionalism’. Unlimited powers jeopardize freedom of people. The antithesis of
‘Constitutionalism’ is despotism. Fundamental rights of the people, federalism, and
decentralization of power are some of the principles and norms which promote constitutionalism
in our country.


Assistant Professor in Law, Faculty of Law, University of Allahabad. Gmail: anshumanmishra73; Mobile:
9454018190.
1
S.P. Anand v. H.D. Deve Gowda, AIR1997SC272,279.
Rule of law: The Indian Constitution by and large seeks to promote rule of law through many of
its provisions. Rule of law does not mean rule according to statutory law pure and simple. Rule
of law connotes some higher kind of law which is reasonable, just and non-discriminatory. The
doctrine of rule of law includes 3 ideas. These are absence of arbitrary power, equality before
law and individual liberties.

Historical perspective: The Constitution of India came into force on January 26, 1950. Before
it, India was governed under the Government of India Act, 1935 2 and up to the year 1947, the
effective power and control over Indian administration lay with British Secretary of State, the
Governor General and the Governors. Participation in the governmental affairs (of the Indian
people) was minimal. There was a demand for independence which led to the setting up of are
constituent assembly for drafting of a constitution for free India. The Assembly started its work
of constitution making from December 9, 1946. However, due to political reasons, there was a
deadlock which was resolved in 1947 when the British Parliament enacted the Indian
Independence Act. After 3 years, on November 26, 1949 the Constitution of India was finalized
and adopted.3 The Draft Constitution, as prepared by the Drafting Committee, contained 315
Articles and 8 Schedules.4

2
For details see Constitution of India by V.N.Shukla, EBC.
3
For details see Constitution of India by V.N.Shukla, EBC.
4
For details see Constitution of India by V.N.Shukla, EBC.