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2 Constitutional Law of India

Savitribai Phule Pune Univercity LLM first Year Notes

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Constitutitutional Law

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Savitribai Phule Pune University

Academic year: 2022/2023

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Ahmednagar Jilha Maratha Vidya Prasarak Samaj’s

NEW LAW COLLEGE, AHMEDNAGAR

CONSTUTUTIONAL LAW OF INDIA

(Subject Code-LW 0102)

STUDY MATERIAL

FOR

LL (Sem-I) Pattern 2014

By

Prof. Priyanka Chandrakant Khule

LL. NET

Assistant Professor

New Law College, Ahmednagar

ACADEMIC YEAR

2020-

CONTENT

MOULE

NO

PARTICULARS PAGE. NO

I I Introduction

1)Constitutional developments since 1858 – 1947

-Making of Indian constitution

Debates of Constituent Assembly relating to drafting of constitution. -Constitutionalism -Supremacy of constitution

3 to 14

II Preamble – Reflection of constitution

Significance of Preamble Source, aim and objective of Preamble. Amendments relating to preamble.

15 to 22

III 3)Fundamental rights and directive Principles

-Right to equality

Equality and Social Justice
Equality and rule of law Protective discrimination
Special protection to SC/ST and backward classes, women

23 to 36

IV ) Freedoms and Social control

-Speech and expression -Freedom of assembly, association, movement, to reside ,settle profession and business. -Constraints on these freedoms

37 to 47

V ) Personal Liberty

a. Rights of an accused – double jeopardy – self- incrimination b. Right to life and personal liberty c. Due process of law d. Art 21 – ocean of rights

48 to 55

VI Judiciary under the constitution

a. Judicial Process b. Separation of Powers c. Independence of Judiciary d. Judicial Activism e. Judicial Accountability

56 to 69

Constitutional Law of India

Chapter 1: Constitutional Developments since 1858-

Topics for study:

Making of Indian Constitution
Debates of Constituent Assembly relating to drafting of Constitution
Supremacy of Constitution

1. Making of Indian Constitution:

Generally, the task of framing the constitution of a sovereign democratic nation is performed by a representative body of its people. Such a body elected by the people for the purpose of considering and adopting a constitution may be known as the constituent assembly.

The concept of a constituent assembly had always been linked with the growth of the national movement in India. The idea of a constituent assembly, whereby Indians themselves might frame a constitution for their country, was implicit in the opposition to the 1919 Act. But, the first definite reference to a constituent assembly for India, though not in those words or under that particular name, was made by Mahatma Gandhi in 1922, soon after the inauguration of the Government of India Act, 1919.

In 1922 itself, a joint meeting of members of the two Houses of the Central Legislature was held at Simla at the initiative/of Mrs. Annie Besant, which decided to call a convention for the framing of a constitution. Yet another conference attended by members of the Central and Provincial Legislatures was held in Delhi in February 1923. This conference outlined essential elements of a constitution placing India on equal footing with the self-governing Dominions of the British Empire. A "National Convention"was called which met on 24 April, under the President ship of Sir Tej Bahadur Sapru. This convention drafted the "Commonwealth of India Bill". The draft Bill was submitted in slightly amended form to a committee of the All Parties

Conference held at Delhi in January 1925, which was presided over by Mahatma Gandhi. Finally, the draft was submitted to a Drafting Committee which published the Bill.

The Bill was sent to an influential member of the Labour Party in Britain accompanied by a memorandum signed by 43 leaders of various political parties. It found wide support in the Labour Party and was accepted with slight modifications. The Bill had the first reading after it was introduced in the House of Commons. Though with the defeat of the Labour Government the fate of the Bill was sealed, it was a major effort by the Indians to outline a constitutional system for India with the help of peaceful and constitutional means.

The adoption of the famous Motilal Nehru resolution in 1924 and 1925 on the National Demand was a historic event in as much as the Central Legislature had, for the first time, lent its support to the growing demand that the future constitution of India should be framed by Indians themselves.

In November 1927, when the Simon Commission was appointed without any Indians represented on it, an all-party meeting held at Allahabad said that apart from being virtual negation of the "National Demand", it amounted to 'a "deliberate insult to the people of India" for, not only did it "definitely assign to them a position of inferiority" but also denied to them "the right to participate in the determination of the constitution of their own country". Earlier on 17 May 1927, at the Bombay Session of the Congress, Motilal Nehru had moved a resolution calling upon the Congress Working Committee to frame a constitution for India in consultation with the elected members of the Central and Provincial Legislatures and leaders of political parties.

Adopted by an overwhelming majority with amendments, it was this resolution on the Swaraj constitution which was later amplified and reiterated by Jawaharlal Nehru in a resolution passed by the Madras Session of the Congress on 28 December 1927. An All- Parties Conference organized at Bombay on 19 May 1928 appointed a committee, under the chairmanship of Motilal Nehru "to determine the principles of the constitution of India".

The report of the Committee (submitted on 10 August 1928) was later to become famous as the Nehru Report. It was the first attempt by Indians to frame a full-fledged constitution for their country and has been described by Coupland as "not only an answer to the challenge that Indian

The failure of the Simon Commission and the Round Table Conference which led to the enactment of the Government of India Act, 1935 to satisfy Indian aspirations accentuated the demand for a constituent assembly of the people of India. The Congress adopted a resolution at its Lucknow Session in April 1936 in which it declared that no constitution imposed by an outside authority shall be acceptable to India; it has to be one framed by an Indian constituent assembly elected by the people of India on adult franchise.

Since the Congress had contested elections to the Provincial Legislature on the issues of total rejection of the Act of 1935 and the demand for a, constituent assembly, following a decisive victory it adopted at Delhi on 18 March 1937 a resolution asserting the electorate's approval of the demand for a constituent assembly. It desired to frame "a constitution based on national independence, through the medium of a constituent assembly elected by adult franchise". This demand was firmly reiterated by the All India National Convention of Congress Legislators held in Delhi in March, 1937.

During August October 1937, the Central Legislative assembly and the Provincial Assemblies of each of the Provinces where the Congress held office, adopted resolutions reiterating the Congress demand to convene a constituent assembly to frame a new constitution for a free India. After the outbreak of the War in 1939, the demand for a constituent assembly was reiterated in a long statement issued by the Congress Working Committee on 14 September, 1939.

Gandhiji wrote an article entitled "The Only Way" in the Harijan of 19 November 1939 in which he expressed the view that" constituent assembly alone can produce a constitution indigenous to the country and truly and fully representing the will of the people". He declared that the only way out to arrive at a just solution of communal and other problems was a constituent assembly

The demand for a constituent assembly was for the first time authoritatively conceded by the British Government, though in an indirect way and with important reservations, in what is known as the" August Offer" of 1940.

The Cripps proposals marked an advance over the "August Offer" in that the making of the new constitution was now to rest solely and not merely "primarily" in Indian hands and a clear undertaking to accept the constitution framed by the proposed constitution-making body was given by the British Government. After the failure of the Cripps Mission, no steps were taken for

the solution of the Indian constitutional problem until the War in Europe came to an end in May, 1945.

In July, with the new Labour Government coming into power in England, its Indian policy was announced on 19 September 1945 by Lord Wavell who had succeeded Lord Linlithgow as Viceroy in 1943. The Viceroy affirmed His Majesty's Government's intention to convene a constitution making body" as soon as possible".

The Cabinet Mission realized that the most satisfactory method to constitute a constitution- making body would have been by election based on adult franchise, but that would have caused "a wholly unacceptable delay" in the formulation of the new constitution.

"The only practicable course" according to them was, therefore, "to utlize the recently elected Provincial Legislative Assemblies as electing bodies". As what they called the "fairest and as most practicable plan" in the circumstances, the Mission recommended that the representation of the Provinces in the constitution making body be on the basis of population, roughly in the ratio of one Member to a million and the seats allocated to the Provinces be divided among the principal communities, classified for this purpose as Sikhs, Muslims and General (all except Sikhs and Muslims), on the basis of their numerical strength. The representatives of each community were to be chosen by members of that community in the Provincial assembly and voting was to be by the method of proportional representation with single transferable vote. The number of Members allotted to the Indian States was also to be fixed on the same basis of population as adopted for British India, but the method of their selection was to be settled later by consultation. The strength of the constitution making body was to be 389. Of these 296 representatives were to be from British India, (292 representatives drawn from the eleven Governors' Provinces of British India and a representative each from the four Chief Commissioners' Provinces of Delhi, Ajmer Merwara, Coorg and British Baluchistan) and 93 representatives from the Indian States.

The Cabinet Mission recommended a basic framework for the constitution and laid down in some detail the procedure to be followed by the constitution-making body.

2. Debates of Constituent Assembly relating to drafting of Constitution

"Justice, social, economic and political; Equality of status, of opportunity and before the law; Freedom of thought, expression, belief, faith, worship, vocation, association and I, action" were to be guaranteed to all the people along with "adequate safeguards" to "minorities, backward and tribal areas and depressed and other backward classes". Thus, the Resolution gave to the Assembly its guiding principles and the philosophy that was to permeate its tasks of constitution making.

It was finally adopted by the Assembly on 22 January 1947 and later took the form of the Preamble to the Constitution. Framing the Constitution The assembly appointed a number of committees to deal with different aspects of the problem of framing the constitution. These included the Union Constitution Committee, Union Powers Committee, Committees on Fundamental Rights, Minorities, etc. Some of these Committees were headed by either Nehru or Patel to whom the President of the assembly gave the credit for working out the fundamentals of the constitution. The Committees worked hard and in a businesslike manner and produced valuable reports.

Between the third and the sixth sessions, the Assembly considered the reports of committees on Fundamental Rights, on Union Constitution, on Union Powers, on Provincial Constitution, on Minorities andon Scheduled Areas and Scheduled Tribes.

Recommendations of the other Committees were later considered by the Drafting Committee.

The first draft of the constitution of India was prepared in October, 1947 by the Advisory Branch of the Office of the Constituent Assembly under Sir B. Rau.

Before the preparation of this draft, voluminous background material had been collected and supplied to the members of the assembly in the shape of three series of 'Constitutional Precedents' which gave salient texts from the constitutions of about 60 countries. The Constituent Assembly on 29

August 1947 appointed the Drafting Committee with Dr. B. Ambedkar as the Chairman to scrutinize the draft of the text of the constitution of India prepared by the Constitutional Adviser (B. Rau) giving effect to the decisions taken in the assembly.

The Draft Constitution of India prepared by the Drafting Committee was submitted to the President of the assembly on 21 February 1948. A large number of comments, criticisms and suggestions for the amendment of the Draft Constitution were received. The Drafting Committee considered all these.

A special committee was constituted to go through them along with the recommendations of the Drafting Committee thereon. The suggestions made by the Special Committee were again considered by the Drafting Committee and certain amendments were picked up for incorporation. To facilitate reference to such amendments the Drafting Committee decided to issue a reprint of the Draft Constitution which was submitted to the President of the assembly on 26 October 1948.

While introducing the Draft Constitution in the assembly for consideration on 4 November 1948, Dr. Ambedkar replied to some common criticisms of the Draft, particularly the criticism in regard to there being very little in it that could claim originality.

He observed: One likes to ask whether there can be anything new in a constitution framed at this hour in the history of the world. More than hundred years have rolled over when the first written constitution was drafted. It has been followed by many countries reducing their constitutions to writing. What the scope of a constitution should be has long been settled. Similarly what are the fundamentals of a constitution are recognised all over the world.

Given these facts, all constitutions in their main provisions must look similar. The only new things, if there can be any, in a constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country.

The charge of producing a blind copy of the constitutions of other countries is based, I am sure, on an inadequate study of the constitution. As to the accusation that the Draft Constitution has produced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a constitution.

The clause by clause consideration of the Draft Constitution was completed during 15 November 1948-17 October 1949. The Preamble was the last to be adopted. The Drafting Committee,

added :If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective constitution.

If they are lacking in these, the constitution cannot help the country. After all, a constitution like a machine is a lifeless thing. It acquires life because of men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. There is a fissiparous tendency arising out of various elements in our life.

We have communal differences, caste differences, language differences, provincial differences and so forth. It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences. We can only hope that the country will throw up such men in abundance.

The Constitution was finally signed by members of the Constituent Assembly on 24 January 1950-the last day of the assembly.

Besides framing the Constitution, the Constituent Assembly performed several other important functions like passing certain statutes of a constituent nature, adopting the national flag, declaring the national anthem, ratifying the decision in regard to the membership of the Commonwealth and election of the first President of the Republic.

It was no mean achievement that within a period of less than three years, the founding fathers succeeded in evolving a Constitution acceptable throughout the length and breadth of this vast and populous country and one capable of salvaging and strengthening the threads of national unity in the midst of the multiplicity of religions, races, languages and all the variants of diversity.

Our founding fathers were some of the most distinguished and the wisest of men and women- great jurists, patriots and freedom fighters. It is difficult to imagine any better or more representative results at that time even if the Constituent Assembly was directly elected by the people on the basis of universal adult franchise.

The Constitution of India evolved an integrated method of resolving conflicts by incorporating provisions catering to the needs of the different identities and ideologies and balancing the

proportion and priority of rights. By adopting a democratic form of government, the polity created choices and accommodated various pluralities. The fundamental right to speech and conscience became the platform to air grievances and maintain their identity without demolishing the structure of the polity.

3. Supremacy of Constitution

The constitutional format in respect of human rights is remarkable as a significant and unique attempt at conflict resolution for the delicate balance it sought to achieve between political and civil rights on the one hand and social and economic rights on the other or between the individual rights and the social needs. The philosophy behind this is the dialogue between individualism and social control and the belief that civil, political, economic and social rights are equally important and not contradictory.

The Constitution was the result of a great deal of mutual accommodation, compromise and wide ranging consensus. The makers of the Constitution realized that it was necessary to grapple with multiple pulls and pressures of various ethnic diversities, to transcend conflicts or to subsume them under the overall Indian national, identity. Where they failed to arrive at an acceptable consensus, they agreed to postpone the problem as in the case of the language issue where English was allowed to continue. The institutions continued by us after Independence and or embodied in the Constitution were those which had grown and developed on the Indian soil itself.

The Founding Fathers chose to build further on the foundations of the old, on the institutions which they had already known, become familiar with and worked, despite all the limitations and fetters. The Constitution rejected British rule, but not the institutions that had developed during the period of British rule. Thus the Constitution did not represent a complete break with the colonial past.

Also, constitution-making and institution-building being a living, growing, dynamic process, it did not come to a stop on 26 November 1949 when the people of India in their Constituent Assembly, were said to have" adopted, enacted and given to themselves" the Constitution. Even after its commencement on 26 January 1950, the Constitution of India was being further made through its actual working, judicial interpretations and constitutional amendments. The

Chapter 2: Preamble- Reflection of Constitution

Topics for study:

Significance of Preamble
Source, aim and objective of Preamble
Amendment relating to preamble

1. Significance of Preamble

The constituent Assembly first met in 9’th Dec. 1946 & soon on 13th Dec. with the objective, Resolution declaring & defining the aims & purposes of the constitution.

Ernest Barker:

Principle of Social & Political Theory 1961

The preamble of Indian constitution embodies the lofty principle in a charming lucid manner.

The people of India should begin their independent life by subscribing to the principles of a political tradition, which are something more than western countries.

Importance of the Preamble:

It is not compulsory or customary to have a Preamble to the Constitution. However, the framers of the Indian Constitution felt that to reflect the basic principles and philosophy of the Constitution, it is necessary to have a preamble.

The Preamble to the Indian Constitution is modeled on the Constitution of the United State. The preamble aims at a social order where the people are sovereign, the government is representative and accountable to people.

The importance and utility of the preamble has been stated in several decisions of our Supreme Court.

It is regarded as the basic philosophy of the Constitution and a key to unravel the minds of the framers of the Constitution. Though it is not enforceable in a court of law, the preamble to a written Constitution serves three important purposes c about the Constitution.

First, it clearly states the source of authority that is people of India. “We the people of India” - The opening words of the preamble ‘We the people of India’ show that the authority of the Government of India is derived from the people.

The powers, which are given to the government of India and the states, have not been given by any particular body but by the people of India.

We have earlier seen that the Constitution of India has been framed by the people of India through their representatives and the same can be modified by them according to the procedure laid down in the Constitution. Secondly, it contains the aspirations of the people and the ideals on the basis of which those aspirations to be achieved. India is declared as a Sovereign, Socialist, Secular, Democratic, Republic but these objectives are to be achieved with the values of justice, liberty, equality, fraternity and unity and integrity of the nation. Lastly, it also contains the enactment clause that is when the Constitution was enacted. 1

2. Source, aim and objective of Preamble

Preamble WE, THE PEOPLE OF INDIA having solemnly resolved to constitute India into – SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC and to secure to all its citizens,

JUSTICE, social, economical & political,

LIBERTY of thought, expression, belief, faith & worship; EQUALITY of promote among then all FRATERNITY assuring the dignity of the individual and the unity & Integrity of the Nation.

1 manupatra

Thus it declares that the ultimate sovereign lies with the people of India. It also indicate India is a republican polity – it shall have no hereditary ruler & the people shall elect their government. The republican tradition has not been foreign to our country from beginning of the history we have known republic Bhagwan Buddha belonged to the Republic of Kapilvastu. Sovereign. It refers to independence of the country in all its external & internal matters. It recognizes no controls or Limitations. The Republic created by the constitution is sovereign & there is no authority above it. It is free within & outside the country. Synthetics v. State of Uttar Pradesh 1990 Supreme court – The word sovereign means that the state has power to legislate on any subject in conformity with constitutional limitations. *Charan Lal Sahu v. Union of India 1990 Supreme court – The doctrine of parent’s patriac can be invoked by reason of sovereign. *Maganbhai Ishwaribhai Patel v. Union of India 1970 Supreme court – being a sovereign state, India is free from any type of external control. It can acquire foreign territory & if necessary cede a part of the territory in favour of foreign state subject to constitutional requirement.

Democratic *Meaning of Democracy Abraham Lincoln: (Gettysburg speech) – It means government of the people, by the people, for the people. Viz – Representative Democracy. But the democracy is more than that it is not only political but also having social & Economic angles. Dr. B. R. Ambedkar – The democracy means representative government, which brings revolutionary changes in the social & economical life of the people without bloodshed. *Characteristics of Democracy

The core of democracy is choice.
Democratic society is always open to ideas & view therefore it is incompatible to any one form of idea i. socialism, collectivism or capitalism.
In Democracy groups with different ideas or view come together to find some conclusion agreeable to all or most of groups.
It entertains plurality of ideas & arrives at an agreed line of action by comparing them, ironing at the difference & forming a composition.
Process of selecting objective for state.
Every citizen has right to take part in government of country.
Universal suffrage & ministerial responsibility to the elected House.
Equality among all citizens & government official & single Electoral Roll. Is an evidence of Democracy in India. Republic All offices including highest offices are open to be elected to all citizens. Source of all authority under the constitution are the people & not hereditary ruler. Thus it refers to the election of the Head of State. Socialist Inserted by 42nd Amendment (1976), it intends to give a positive direction to the government in formulating its policies. This word initially not there because the constitution doesn’t commit the country to any particular form of economic structure. Though it’s many of the tenets were included as the Directive Principles of State Policy. By avoiding this world the constitution makers wants to refrain from committing the country to any particular form of economical order & must allow future government to evolve such economic policies as may be considered suitable for them. But, even though after such Amendment the government reversed its economic policy. Instead of state ownership it adopted privatization. The public ownership & controls of means of production and distribution were to be discontinued. The public sector was discontinued. The public sector was put on the private enterprise. All those who take oath to bear full faith & allegiance to the constitution have disregarded a part of the constitution have disregarded a part of the constitution. They start their day by breaching the oath. It was not prudent to disregard the wise precedent set up by the framers of the constitution therefore the constitution is not proper place for incorporation of party slogans.

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