Chapter I: Introduction

1.1 Need for Constitutional law

 Legal system of any country-
a) Law governing the state (Public law)- Constitutional law, administrative law, Public International
law.
b) Law by which the state governs the conduct of its members (Private law)- Contract law, torts law,
Contracts law, Criminal law, etc.
 Functions of Constitution:
a) Seeks to establish fundamental or basic or apex organs of the government and administration
b) Describe the structure, composition, powers and principal functions
c) Describe the inter-relationship between these organs.
d) Regulate their relationship with the people i.e., political relationship.
 Constitutional law: Broader than the constitution. (Statutory law + Judicial decisions + conventions)
 What is Constitution?
 Unique legal document
 It enshrines a special kind of norm and stands at the top of the normative pyramid
 Difficult to amend
 Designed to direct human behaviours for years to come.
 Shapes the appearance of the state and its aspirations throughout the history
 Defines state’s fundamental political views
 Lays foundation for social values
 Institutional components of the State:
 Legislature: to make laws
 Executive: to make and implement laws
 Judiciary: To interpret the laws and administer justice

Divisional Manager, Aravali Golf Club v. Chander Hass (2008) 1 SCC 683: Two judge bench of the
Supreme Court cited Montesquieu and stated that the Montesquieu’s view of separation of powers and
the dangers involved in deviating from his view was an apt warning for the Indian Judiciary which has
been rightly criticized for overreach and encroachment in the domain of other two organs i.e., the
legislature and executive. In the name of judicial activism judges cannot cross their limits and try to take
over functions which belong to the other organs of the state.

 Federal Constitution:
 There is a central government having certain powers which it exercises over the entire country.
 India, USA, Canada, Australia, Malaysia, Germany, etc.
 Regional governments and each of such governments has jurisdiction within a region.
 More complicated and legalistic Constitution than Unitary Constitution.
 Unitary Constitution.
 One central governmental on which all powers of government are concentrated
 Central government delegates its powers to all such agencies
 Britain, Sri Lanka, Singapore
 Legal norms in the Constitution: Enforced and applies by the courts and if any such norm is violated
then courts give relief and redress.
 Non-legal norms: That arise in course of time as a result of practices followed over and over again.
Known as conventions, usages, customs, practices of the Constitution.
 Constitutional Conventions: Provide the flesh which clothes the dry bone of the law. Significant
role in unwritten constitution that written constitution. In Britain, conventions play very
important role. In India, in some areas. Example, the relationship between the legislature and
 the executive. Conventions may not lead to any court case and are not enforceable by the
courts.
 What is important between legal and non-legal norms?
 To have a full picture of country’s constitutional law, reference needs to be made not only legal
but to non-legal norms as well.
 Written and unwritten constitution
 Written Constitution: written down in the form of a Constitutional document. Formal source of
all constitutional law in the country. Supreme or fundamental law of the land. Need of special
procedure to amend it.
 Unwritten Constitution: Britain. No one comprehensive constitutional document. It is
interspersed in several statutes which define constitutional principles, courts decisions, common
law principles, conventions and customs. The central doctrine of British Constitution is
sovereignty of Parliament.
Chapter II: Constitutionalism