CLASS DISCUSSION

16 FEBRUARY 2022

Agenda: MODULE 1- INTRODUCTION

1) Constitution
2) Constitutionalism
3) Constitutional Law
4) Constitution of India

What is a Constitution?
- Supreme Law: Higher than other laws
o (ultimate) Source for authority and law
o Other laws should be valid under Constn
- Instrument for governance
- Charter of “values”
- Liberty/ freedom (“Rights“)
- “CONSTITUTES A STATE”
o Identity
o Sovereignty:
 Autonomy to self-govern a territory without external
intervention/ People:
 India was a sovereign entity under the British
government?
 Cultural and social context
 Representative government?
 Who is the Self? Who is the outsider?
 A People with a shared -----?
 history/ culture/ social code/ ethnicity
o Mughals?
o First War of Independence (1857)?
o “Came together and decided”
o CONSENT:
 Ex-post facto rationalization for regime
change
o India has many different cultures, histories,
social identities
 Mutual agreement over values
 Shared goals of governance
  Who is the sovereign? Who does sovereignty reside in?
 The government?
 “We, the People…”- democracy

- Formation of a new entity
- For a geographical entity (could be state or province)
- May be written/ unwritten, constitutional or statutory
- Territorial law/ people within a territory

What makes a Constitution “a Constitution”? Features/ core

essence of a “Constitution”/ CONSTITUTIONALISM
- LIMITED GOVERNMENT/ LIMITATIONS ON STATE POWER
- Rule of Law
o No one is above the Law/ Howsoever high you may be, the Law
is above you
o How is it a constitutional value?
o Is the State bound by the Law? Is the State above the Law?
- Rights
o What are rights?
 Claims/ Entitlements
 Legal power behind it/ “enforceable”
 “Obligation” – not optional. Duty to respect rights.
 Non-derogable. Cannot violate/ breach a right. Not
negotiable.
 Inalienable- cannot be taken away from me. Inherent
attribute of my life and existence.
 Universal
 Rights – Fundamental Rights – Human Rights
o Enforceable; state is accountable- If State cannot violate rights,
that means that there are some things that they can, some that
they cannot.
- Separation of powers/ checks & balances
o There will be different organs of the State/ all State power will
not vest in a single organ
o Legislature- Judiciary- Executive
o Why? Checks & balances
- Judicial review
- Federalism? Democracy/ elections etc.