UNIT 1

DEFINITON OF CONSTITUTION AND

CONSTITUTIONALISM
• “Constitution is not a mere lawyers’ document, it is a vehicle of Life, and its spirit is
always the spirit of Age.”- B.R. Ambedkar
• The word ‘Constitution’ is of French origin which is generally used for regulation and
orders. The Constitution is, to use a Latin expression, our suprema lex.
• The Constitution of any country is the fundamental law of the land with greater
authority and sanctity.
• It not only describes the basic principles of the State, the structures and processes
of governance and the fundamental rights of citizens but also envisions a path of
growth and development for a nation.
• Our Constitution is a resolve to constitute India into a sovereign, socialist, secular
democratic Republic. It is, in fact, a promise to the people for securing them socio-
economic and political justice, liberty and equality.
CONT….
• Dr. B. R. Ambedkar, very clearly outlined the core expectations underlining the
various commitments. He said: “Our object in framing the Constitution is two-fold:
to lay down the form of political democracy, and to lay down that our ideal is
economic democracy and also to prescribe that every Government whatever is in
power shall strive to bring about economic democracy…”
• Making India, that is Bharat, as a Union of States, equality before the law and
equal protection of the laws is the essence of the Constitution.
• At the same time, the Constitution is sensitive to the needs and concerns of the
underprivileged and disadvantaged segments of the society too.
• On 26 November 1949, "We, the People of India”, resolved “to adopt, enact and
give to ourselves" the Constitution of independent India. Since then, the day of 26
November is celebrated as the Constitution Day every year.
CONSTITUTIONAL LAW
• Constitutional law is crucial in maintaining a political system of checks and balances. It matters
because it protects the rights of individuals against the arbitrary actions of the state. 
• It involves the rights and powers of the branches of government. It outlines three branches of
government and give distinct powers and responsibilities to each one. 
• The government and its citizens operate under various types of policies, legal practices and agencies,
including constitutional law. Understanding the legislation and procedures related to constitutional
law may assist both individuals and companies in protecting or defending their legal rights. 
• 3 main parts:
Due process: Due process means individuals get fair treatment during legal situations. 
Freedom of speech: The Bill of Rights protects freedom of speech and allows individuals to assemble,
speak publicly, write or publish content.
Separation of powers: Separation of powers refers to the distinctions between the three primary
branches of government. Legislature, Judiciary and Executive.
CONSTITUTIONALISM
• How can a government be legally limited if law is the creation of government?
• There are norms creating legislative, executive and judicial powers, but these norms also impose
significant limits on those powers.
• Constitutionalism is the idea, often associated with the political theories of John Locke and the
founders of the American republic, that government can and should be legally limited in its
powers, and that its authority or legitimacy depends on its observing these limitations. 
• In some minimal sense of the term, a constitution consists of a set of norms (rules, principles or
values) creating, structuring, and possibly defining the limits of, government power or authority.
• Often these limitations are in the form of civil rights against government, rights to things like free
expression, association, equality and due process of law. Constitutionalism in this richer sense of
the term is the idea that government can/should be limited in its powers and that its authority
depends on its observing these limitations.
• Rule of law
Classification
• Written and Unwritten constitution: A written constitution is one in which the fundamental  principles
concerning state administration are embodied and which has, as a specific document, been passed by a specific
body So a written constitution can be produced and shown as a single document. The US constitution, Indian
Constitution, Bangladesh Constitution provide examples of written Constitution. On the other hand, where the
constitution has not been passed formally as a specific document by a specific body and the fundamental
principles concerning state administration exist in political customs, Judicial decisions and in some scattered
documents, the constitution is an unwritten one. The British Constitution provides the glaring  example of
unwritten constitution. An unwritten Constitution must have some written elements. Likewise, a written
constitution cannot be fully written , some elements of it exists in unwritten form. For example, British
Constitution  is unwritten but some important elements of it are contained in written documents like Magna
Carta, Bill of Rights, Petition  of Rights, Act of settlement etc. On the other hand , the US constitution is written
but some important Constitutional subjects like political party organization, cabinet, committee of the Congress,
working procedure of the Congress etc. are not written
• Rigid and Flexible constitution: A rigid constitution cannot be easily amended. It has very complex modification
procedures. It is essentially a written constitution composed of experienced and learned people. A flexible
constitution can be amended with the same ease as the general laws. It is very useful for a developing country
because it will not be a hindrance to progress due to its adaptability.
Cont….
• Evolved and Enacted constitutions: An evolved constitution is the repercussion of the history. It is not mounted at a
particular time. For instance, the British Constitution has not been passed by any exceptional Constituent Assembly
at a specific time. Enacted constitutions are framed at a specific time, like the Indian or American constitution. They
are mounted by a Constituent Assembly after the declaration of Independence
• Unitary and Federal Constitutions: A unitary constitution is one which defines a centralized system of government
without constitutional friction between the national and regional government. It promotes the spirit of oneness
among the people. A federal constitution is a document that provide for system of government between a
government at the center and other component states with division of powers.
• Monarchical and Republican Constitutions: A Monarchical Constitution is a constitution where the King or Queen in
the head of government. The government may be presidential or republican government. In most cases, the
Monarch acts as a ceremonial head with absolute or limited authority. A Republican Constitution is a document in
which the officials of government are elected as representatives of the people, and must govern according to
existing constitution that limits the government's power over citizens.
• Presidential and Parliamentary Constitutions: A presidential system of government is a government where all
executive powers are vested in a president who is the head of state and head of government. A parliamentary or
cabinet system of government is a government where all the executive powers of government are vested in a Prime
Minister who is the head of government and head of the majority party or ruling party, but is not the head of state.
FRAMING OF THE COI
• The Charter Act of 1853 provided some sort of a separate ‘Legislature’ in the form of a 12-member
Legislative Council.
• The Act of 1909 which was in implementation of the Morley-Minto Reforms, introduced an element of
election and representation in the Legislative Council at the Union.
• The Government of India Act of 1919, which gave effect to the Montague-Chelmsford Reforms,
established a Bicameral Legislature at the Union for the first time and introduced some elements of
responsible form of Government in the Provinces. The national leaders found the 1919 reforms
inadequate, unsatisfactory and disappointing and urged the British Parliament to take early steps to
establish fully responsible Government in India in accordance with the principle of self-determination.
• In 1922, Mahatma Gandhi asserted the demand that India’s destiny should be determined by the
Indians themselves.
• Another significant development in the Indian constitutional history was enactment of the Government
of India Act, 1935. The Government of India Act, 1935 occupies a significant place in the constitutional
history of India as the Act had endeavoured to give a written Constitution to the country.
Cont….
• The Quit India Movement of 1942 lent a new thrust to the freedom struggle. As a part of these efforts, a British
Cabinet Mission arrived in India on 24 March 1946. The avowed purpose of the Mission was to assist the viceroy in
setting up in India the machinery by which Indians could devise their own Constitution.
• Under the terms of the Cabinet Mission Plan, the Members of Constituent Assembly were elected in July 1946.
• The India Independence Act, 1947 provided that the Constituent Assembly would have unlimited power to frame
and adopt any Constitution and even to supersede the India Independence Act itself without the need for any
further legislation on the part of the British Parliament. The Indian Independence Act expressly terminated the
British Parliament’s authority to legislate for the Dominion on or after the 15 August 1947.
• As a sovereign body, it completed the task of framing the Constitution for India in the best interest of people and
without any outside interference. On 29 August 1947, the Drafting Committee was elected by the Constituent
Assembly under the Chairmanship of Dr. B.R Ambedkar for preparation of a draft Constitution.
• They produced a fine document, handwritten in 90,000 words. On the 26th day of November 1949, it could proudly
declare on behalf of the people of India that we do HEREBY ADOPT, ANACT AND GIVE TO OURSELVES THIS
CONSTITUTION.
• The Original Constitution contained a Preamble, 395 Articles and 8 Schedules. The provisions relating to citizenship,
elections, provisional Parliament, temporary and transitional provisions were given immediate effect. The rest of the
Constitution of India came into force on 26 January 1950. On that day, the Constituent Assembly ceased to exist,
transforming itself into the Provisional Parliament of India until a new Parliament was constituted in 1952.
Sources
• Our constitution has features taken from the Government of India Act, 1935. Those features are:
1. Federal Scheme
2. Office of governor
3. Judiciary
4. Public Service Commissions
5. Emergency provisions
6. Administrative details
• Australia: Concurrent list, Freedom of trade, commerce and intercourse and Joint-sitting of the
two Houses of Parliament
• Canada: Federation with a strong Centre, Vesting of residuary powers in the Centre,
Appointment of state governors by the Centre and Advisory jurisdiction of the Supreme Court
• Ireland: Directive Principles of State Policy, Nomination of members to Rajya Sabha and Method
of election of the president
• Japan: Procedure Established by law
Cont….
• Soviet Union (USSR) (now, Russia): Fundamental duties and Ideals of justice (social,
economic and political) in the Preamble
• UK: Parliamentary government, Rule of Law, Legislative procedure, Single Citizenship,
Cabinet system, Prerogative writs, Parliamentary privileges and Bicameralism
• US: Fundamental rights, Independence of judiciary, Judicial review, Impeachment of
the president, Removal of Supreme Court and High Court judges and Post of vice-
president
• Germany: Suspension of Fundamental Rights during emergency
• South Africa: Procedure for amendment in the Indian Constitution and Election of
members of Rajya Sabha
• France: Republic and Ideals of liberty, equality and fraternity in the Preamble
SALIENT FEATURES
• Salient Features of the constitution are as follows: 1. Lengthiest constitution in the world. 2. Sovereignty
resides in the people 3. Parliamentary form of Government. 4. Unique blend of rigidity and flexibility. 5.
Fundamental Rights. 6. Directive principles of the state policy. 7. Quasi – federal in nature. 8. Adult suffrage.
9. Independence of Judiciary 10. Judicial Review. 11. Fundamental duties 12. Sovereign. 13. Democracy. 14.
Republic. 15. Secular. 16. Single citizenship. 17. Uniformity in Basic Administration. 18. Revolutionary. 19.
Lawyer’s paradise. 20. Judicial Review and parliament sovereignty
• Universal Adult Franchise: The people of India exercise their sovereignty through Parliament at the Centre
and a Legislature in each State, in which the lower House is elected on the basis of universal adult franchise
and to which the Executive has been made accountable. In order to ensure political justice to all, article 326
of the Constitution enjoins that every person who is a citizen of India and who is not less than 18 years of age
is entitled to vote at elections without any discrimination on the ground of qualification, religion, race, caste
or sex. We believe in the principle of ‘one man one vote’.
• Organs of State: The Constitution of India envisages separation of powers among the organs of State while at
the same time providing for a harmonious relationship amongst them. All the organs of State have been
made accountable to the overriding authority of the Constitution. Each organ of the State – the Legislature,
the Executive and the Judiciary – is the creation of the Constitution and draws its existence from it.
Cont….
• Nature of Federal Structure: Article 1 describes India, that is Bharat, as a ‘Union of States’ rather than a
‘Federation of States’. Dr B.R. Ambedkar, while introducing the Draft Constitution, explained why the term
‘Union of States’ was preferred over ‘Federation of States’. The decision of the Constituent Assembly to have a
federal Constitution with a strong Centre was occasioned also by the circumstances in which it was taken.
• Unique blend of Rigidity and Flexibility: Though India has a written constitution; the Indian constitution is not as
rigid as the American constitution. It has incorporated the flexible nature in the procedures for amendments.
There are three methods by which the constitution is amended. The procedure for amendment is simple.
• Single Citizenship: The constitution of India confers single Indian citizenship. This helps in creating feeling of
oneness
• Basic Structure Theory: The Supreme Court in his landmark judgement of Keshavananda Bharati Case has
devised the theory of basic feature of the Constitution. There are certain basic features like Judicial Review,
Parliamentary Form, Secularism, Federal Republic Nature, Free and Fair Election System etc are immune from
the amending powers of Parliament under Article 368 of the Constitution. Basic Structure Theory puts implied
limitation on the power of the Parliament and advocated Doctrine of Limited Government preferred to English
Doctrine of Parliamentary Sovereignty.
Cont….
• Independence of Judiciary: The constitution has made Judiciary independent from legislature and
executive. Judges are free from the interference of other organs of the government, so that judges can
give judgement without fear and favour. The Indian Judiciary is independent as per the norms of
separation of powers.The feature that goes with the independence of judiciary are direct appointment by
the President, given decent salaries and perks, judges can not be removed simply by executive.
• Judicial Review: It means the power of the courts to declare any law passed by the legislature and any act
of executive as void, if it violates any provision of the constitution. It emphasise supremacy of judiciary.
• Judicial Review and Parliamentary Sovereignty Compromised: The constitution of U.S.A. recognized
judicial supremacy. The British system recognizes Parliamentary sovereignty i.e. the court can not declare
any law of parliament as cancelled on any ground. The constitution of India compromises between the
two, it empowers the judiciary the power of declaring any law as null and void if it violets the Basic
framework of the constitution. But the judiciary does not have the power of judicial review over the
wisdom of any legislative policy i.e. important questions of public policy are to be decided on the floor of
the House. Constitution gives the legislature the power to amend the constitution without destroying the
basic structure.
PREAMBLE
• "The Preamble is the most precious part of the Constitution. It is the soul of the Constitution. It is the key to
the Constitution... It is a jewel set in the Constitution... It is a proper yardstick with which one can measure
the worth of the Constitution.“- Pandit Thakur Das Bhargava, member of the Constituent Assembly
• A preamble is an introductory statement in a document that explains the document’s philosophy and
objectives.
• In a Constitution, it presents the intention of its framers, the history behind its creation, the core
values and principles of the nation and sources of the constitution. It can be amended by Article 368 of the
COI but we cannot amend its basic structure.
• It is indicated by the Preamble that the source of authority of the Constitution lies with the people of India.
• The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through 42nd Amendment Act,
1976. ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’. ‘Unity of the Nation’ was
changed to ‘Unity and Integrity of the Nation’.
Cont….
• We, the people of India: It indicates the ultimate sovereignty of the people of India.
• Sovereign: The term means that India has its own independent authority and it is not a
dominion of any other external power.
• Socialist: The term means the achievement of socialist ends through democratic means. It
holds faith in a mixed economy where both private and public sectors co-exist side by side.
• Secular: The term means that all the religions in India get equal respect, protection and
support from the state.
• Democratic: The term implies that the Constitution of India has an established form of
Constitution which gets its authority from the will of the people expressed in an election.
(political, economic and social democracy)
• Republic: The term indicates that the head of the state is elected by the people. In India,
the President of India is the elected head of the state.
Cont….
• Justice: It is necessary to maintain order in society that is promised through various provisions of Fundamental
Rights and Directive Principles of State Policy provided by the Constitution of India. It comprises three elements, which
is social, economic, and political.

• Social Justice – Social justice means that the Constitution wants to create a society without discrimination on any grounds like caste,
creed, gender, religion, etc.
• Economic Justice – Economic Justice means no discrimination can be caused by people on the basis of their wealth, income, and
economic status. Every person must be paid equally for an equal position and all people must get opportunities to earn for their living.
• Political Justice – Political Justice means all the people have an equal, free and fair right without any discrimination to participate in
political opportunities.
• Equality: The term ‘Equality’ means no section of society has any special privileges and all the people have given equal
opportunities for everything without any discriminations. Everyone is equal before the law.
• Liberty: The term ‘Liberty’ means freedom for the people to choose their way of life, have political views and behavior in
society. Liberty does not mean freedom to do anything, a person can do anything but in the limit set by the law.
• Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment with the country and all
the people. Fraternity helps to promote dignity and unity in the nation.
Cont….
• Berubari Case: It was used as a reference under Article 143(1) of the Constitution which was on the
implementation of the Indo-Pakistan Agreement related to the Berubari Union and in exchanging the
enclaves which were decided for consideration by the bench consisting of eight judges. Through this
the Court stated that ‘Preamble is the key to open the mind of the makers’ but it can not be
considered as part of the Constitution. Therefore it is not enforceable in a court of law.
• Kesavananda Bharati Case: In this case, for the first time, a bench of 13 judges was assembled to
hear a writ petition. The Court held that:

• The Preamble of the Constitution will now be considered as part of the Constitution.

• The Preamble is not the supreme power or source of any restriction or prohibition but it plays an important role
in the interpretation of statutes and provisions of the Constitution.
• So, it can be concluded that preamble is part of the introductory part of the Constitution.
• In the 1995 case of Union Government vs LIC of India also, the Supreme Court has once again held
that Preamble is the integral part of the Constitution but is not directly enforceable in a court of
justice in India.
IS INDIAN CONSTITUTION FEDERAL IN
NATURE?
• CLASS NOTES AND I HAVE SHARED AN ARTICLE ON IT.
Thank You