Constitutionalism

Constitutionalism:

1. State is an entity with definite territory, and where people have come together to resist external force and maintain

internal law and order

2. A definite procedure is required to maintain this state, its organs, and to assure rights and liberties to its people

3. This excessive power could be usurped by an individual or a group of individuals if there is no fundamental framework to

guide the same, i.e., it could result in absolutism – supreme power to an individual or a group, resulting in arbitrary

ruling based on the whims and fancies of the ruler

4. Constitutionalism is the antithesis of absolutism, i.e., it is a phenomenon which lays down that supreme power vests

with the people and not the state or the ruler. In essence, it means a limited government with defined restraints on both

the ruler and the ruled and results in the formation of the phenomenon called constitution
Agency Relationship
Constitution:

1. The concept of constitutionalism, ie. Checks and balances on both the ruler and the ruled, results in the formation of a

phenomenon, a guiding philosophy, an institution, referred to as constitution

2. Constitution is the way of life, a fundamental principle, the basic guidelines and caricature, according to which a state is

governed, its organs are defined and granted powers, its relationship is defined with the people, and the way the system

of government is to be managed

3. It is found in Athens in the ancient rome, where people were regarded the highest source of authority

4. Accordingly, it can be defined as granted, enacted and evolved

5. It can also be classified as written, unwritten, unitary, federal, confederal, rigid, and flexible
Federalism
Necessary features of Federalism:

1. Written constitution

2. Supremacy of constitution – In Sub Committee on Judicial Accountability vs. Union of India 1991, the SC held that in

India it is the constitution and not the parliament that is supreme

3. Existence of Dual government

4. Distribution of Powers

5. Independent Arbiter

6. Rigidity in Amendment – Under Article 368, any amendment which affects the federal nature requires ratification by

more than half of the states

Federalism
Features of Unitary Government:

1. Mode of formation is not by agreement among the states or provinces. India had a highly centralized unitary

constitution till the passage of Government of India Act 1935, by which British set up a federal system by creating

autonomous units and combining them into a federation by one and the same act

2. No separate state constitution or flag

3. No dual citizenship

4. Control of union over states in normal/special circumstances in terms of executive relations – governor is head of state,

laws made by union are implemented by states, president may delegate to state functions which are in domain of union,

emergency provisions
Federalism
Features of Unitary Government:

1. Control of union over states in normal/special circumstances in terms of legislative relations – under article 249,

parliament can legislate on matters within state list. If council of state passes a resolution by a special majority,

parliament can make laws on matters of national importance. Parliament can make laws for whole of country for

implementation of foreign treaties, in cases of inconsistency, union laws prevail, bills may be reserved for presidential

consideration

2. Strong union in terms of financial relations – by the provision of grant in aids, centre can exercise control over states.

President is also empowered to proclaim financial emergency

3. Governor has a role to play in states in appointment or dismissal of government, power to allocate business, power to

call for information, and power to proclaim emergency under article 356
Federalism
Judicial pronouncements:

1. Keshavanand Bharati vs. State of Kerala 1973- the SC held that the federal character of Indian constitution is a basic

feature and cannot be amended away

2. In Satpal Singh vs. State of Punjab 1982, the SC held that in Indian constitution, there is a combination of federal

structure with unitary features

Salient features of Indian Constitution
Salient Features: 1. Fundamental duties

1. Detailed constitution – originally had 8 schedules, 395 2. Directive principles

articles 3. Parliamentary form of government

2. Written constitution 4. Federal constitution with unitary bias

3. Single citizenship (Article 5 – 11) and Flag 5. Partly rigid and partly flexible

4. Adult franchise 6. Independent judiciary

5. Sovereign, socialist, secular, democratic republic 7. Rule of law – equality before law and equal protection of

6. Fundamental rights – article 13 – 35 law – no man is above or below the law – like to be

treated alike – article 14 guarantees equality before law

Preamble
Case laws:

1. Berubari Union and Exchange of Enclaves 1960 – the SC held that preamble is not a part or a source of power to

legislatures or executives

2. In Keshavanand Bharati vs. State of Kerala 1973, the SC changed its earlier view and held that preamble was enacted

after the enactment of whole constitution and hence stands as a part

3. LIC vs. Consumer Education and Research Centre 1995 – the SC held that Preamble is an integral part of constitution
Fundamental Rights
Part III – Articles 12 to 35:

1. Right to Equality

2. Right to Freedom

3. Right against Exploitation

4. Cultural and Educational Rights

5. Right to Freedom of Religion

6. Right to Constitutional Remedies

Fundamental Rights
Article 13:

1. Source of the concept of judicial review

2. Article 13(1) states that all laws in force within territory of India immediately before the commencement of the

constitution will be void to the extent that they are inconsistent with the provisions of part III. Article 13(2) provides that

the state shall not make any law which takes away or abridges the fundamental rights conferred by part III and any law

repugnant of fundamental rights will be void. Article 13(3) gives broad connotation to the term law to include legislative

laws, bylaws, ordinances, executive orders, notifications etc.

3. Right to constitutional remedies under article 32 itself is a fundamental right

4. In Keshavanand Bharati case, the SC held that judicial review is an integral part of constitution and it is within the

purview or HC and SC to decide upon the constitutionality of laws made by the parliament or state legislatures
Fundamental Rights
Doctrine of Eclipse

1. Article 13(1) gives rise to doctrine of eclipse

2. In Bhikaji vs. State of MP 1955, the SC held that any law passed before the enforcement of constitution, if such law

violates any fundamental right, then it is void and is not enforceable, thus has no legal force and a court takes no notice

of it

3. This principle is referred to as Doctrine of Eclipse and has been held to apply to both pre and post constitutional laws
Fundamental Rights
Doctrine of Severability

1. Article 13(2) gives rise to doctrine of severability

2. Provides that any law which violates the fundamental rights is void only to the extent of the inconsistency or

contravention with the fundamental rights. This means that an act may not be void as a whole, only a part may be void,

and if that part is severable from the rest of the provisions, then the rest of the them continue to stand and remain

operative

3. The act as a whole will not be void if one of its provisions is void and could be separated, but the whole act is void if

provision is not separable, valid part cannot be enforced without void part, if whole act fails because of separation of

void part, and if removal of void part prevents the intention of legislators from taking effect

4. In AK Gopalan vs. State of Madras 1950, the SC held that only repugnant provisions will be void and not whole act