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CONSTITUTIONAL LAW – CLASS SUMMARY

This summary comprises of constitution, constitutional law, constitutionalism, constitutional


interpretation, constitutional assembly, constitutional autochthony and various features of
constitution.

Constitution

A constitution is a legal document having a special legal sanctity which sets out the
framework and the principal functions of the government organs of a State and lays down the
principles governing the operation of those organs. The Constitution is framed by a body of
representatives duly elected by the people at a particular point of time in history. The
Constitution places itself above and between the two processes of law-making and law
enforcement. The Constitution is a source of power and not an exercise of legislative power.

Constitutional Law

Constitutional law is a broader term as it comprises of the Constitution, statutory regulations,


judicial decisions and conventions. It has been developed by interpretation of the Constitution
through judicial review. It consists of legal norms and non-legal norms. Legal norms are
those which can be enforced and applied by the Courts, whereas non-legal norms refer to
conventions, usages, practices and customs.

Constitutionalism

Constitutionalism means that the government should be limited in its powers, and its
authority depends upon its ability to observe those limitations. Constitutionalism recognizes
the need for a government but insists upon constraints being placed on the powers of the
government. It envisages checks and balances and puts the power of the legislature and
executive under some restraints. It prevents them from being arbitrary. The powers of the
government can be limited through procedural stability, division of powers, accountability,
openness, and disclosure. The Constitution places restrictions on the powers of the
government to preserve the fundamental freedom of the individuals.

Constitutional Interpretation

Interpretation of the Constitution gives rise to two doctrines: Living Constitution and
originalism. Originalism is the judicial interpretation of the Constitution which aims to
recover the original meaning of the Constitutional text. The focus is on the textual meaning of
the Constitution. In originalism, the interpretation seeks to follow the intention of the drafters
of the Constitution. Thus, originalism tries to keep the original meaning of the Constitution
intact. On the other hand, living Constitution states that the Constitution must be able to adapt
to the present times. The Constitution does not have a fixed meaning but is dynamic.
“Constitution is a living tree which must grow and adapt to contemporary beliefs and
practice.” Though the basic features of the Constitution remain unalterable, the flexible
provisions can be interpreted dynamically. Thus, the Constitution is considered as an organic
living document.

Constitutional Autochthony

In political science, constitutional autochthony is the process of asserting constitutional


nationalism from an external legal or political power. It usually means the assertion of not
just the concept of autonomy, but also the concept that the constitution derives from their
own native traditions. The autochthony, or homegrown nature of constitutions, give them
authenticity and effectiveness.

Independence was formally granted to India by the Crown-in-Parliament’s enactment of the


Indian Independence Act, 1947 though the executive decision to grant India independence
was arrived at earlier in the Cabinet Mission Plan (1946). It was under the Cabinet Mission
Plan that the Constituent Assembly was envisaged and charged with the mandate of drafting
the new Constitution for India. This was legally recognised in Section 8 of the Independence
Act. The Cabinet Mission Plan had envisaged that the new Constitution would be put to the
Crown-in-Parliament for approval. Though the Indian Independence Act did not reiterate this
requirement, it did specify that the new Constitution drafted by the Constituent Assembly
would have to receive the assent of the Governor General of India, who would assent to such
law in the name of the British Crown.

The framers introduced two deliberate procedural errors in the enactment of the Constitution
of India in violation of the Independence Act: a) They did not put the Constitution to the
approval of the either the British Parliament as envisaged by the Cabinet Mission Plan or the
Governor-General as envisaged in the Indian Independence Act 1947; b) Following the Irish
precedent, Article 395 of the Constitution of India repealed the Indian Independence Act —
something the Constituent Assembly did not have the authorisation to do. In doing so, the
framers not only repudiated the source which authorised them to enact the Constitution but it
was also a denial, albeit symbolic, of Indian independence being a grant of the imperial
Crown-in-Parliament. This ensured that the chain of constitutional validity did not extend all
the way to the Crown-in-Parliament, thus delivering a completely autochthonous
Constitution. In this fashion, We the People, through the members of the Constituent
Assembly, came to be the ‘source’ of authority of the Constitution, rather than the authority
being traceable to the Indian Independence Act enacted by the British Crown-in-Parliament.

Features of Constitution

It is the lengthiest and the longest constitution in the world. It has 395 Articles and 12
Schedules. Also, about 90 Articles have been added since 1951 and there have been more
than 100 Amendments. But, as the Articles are not separately added but as a part of an
existing Article, the total number of Articles remain the same.

The basis of the basic structure such as Federal scheme, Judiciary, Governors, Emergency
powers, Public Service Commissions, Administrative details, etc. are from the Government
of India Act, 1935. Similarly, the fundamental rights are from the American constitution,
Directive Principles from the Irish Constitution and the Cabinet form of government is from
the British Constitution. In addition, it adopts various provisions from the Constitutions of
Canada, Australia, Germany, USSR, and France.

The Indian Constitution chose the Parliamentary form of government. In a Parliamentary


form of government executive is part of the legislature and there is a collective responsibility
of the council of ministers to the legislature. In addition, there exists majority party rule and
the Prime Minister is the leader of the country and the Chief Minister is the leader in the
state.
S. Dhanush Veer

(BC0190010)