CONSTITUTIONAL LAW

Constitution and Constitutionalism

• Constitution: Refers to the framework or set of fundamental principles
according to which a state or organization is governed.
• Constitutionalism: The principle that the authority of the government is
derived from and limited by a body of fundamental law. It ensures that power is exercised
within legal boundaries, preventing arbitrary decisions.
Purpose of Constitution:
• Establishes order in society.
• Provides stability.
• Acts as the supreme law.
• American Constitution: Recognized as the first modern constitution,
emphasizing limitations on state sovereignty through mechanisms like the rule of law.

Absolutism vs. Constitutionalism

Constitutionalism: Imposes restrictions on state sovereignty to prevent absolute power (e.g.,
rule of law).
Absolutism: Opposite of constitutionalism; refers to complete, unchecked power.

Sovereignty
Defined as both internal and external power:
Internal Sovereignty: State’s authority within its territory (e.g., making and enforcing laws).
External Sovereignty: State’s recognition and independence in international relations.
• Sovereignty ensures political and territorial integrity.

Political vs. Legal Constitution

Political Constitution:
• Descriptive in nature.
• Establishes legal frameworks.
Legal Constitution:
 • Prescriptive in nature.
• Details how institutions will function.

Separation and Division of Powers

• Separation of powers divides authority among legislative, executive, and
judicial branches to ensure checks and balances, accountability, and prevent abuse of power.
• Division of powers refers to the allocation of authority between:
• Central Government (e.g., defense, foreign affairs).
• State Government (e.g., police, public health).
• Concurrent List: Shared responsibilities (e.g., education, criminal law). In case
of conflict, central law prevails.

Mechanisms of Constitutionalism
Key mechanisms include:
• Rule of Law
• Separation of Powers
• Decentralization and Distribution of Power
• Judicial Review
• Checks and Balances
• Fundamental Rights (e.g., Right to Life under Article 32)

Grundnorm (Basic Norm)

Introduced by Hans Kelsen:
A fundamental principle that gives shape and substance to the constitution.
It is abstract and derived from society’s common consensus or social norms.
Two components:
1. Legal Norms
2. Social Norms

Delegated Legislation
Delegated legislation creates a framework for drafting laws by delegating authority to
specific entities or individuals.
Carl Schmitt’s Perspective
Carl Schmitt emphasized:
• The distinction between the constitution (highest exercise of constituent
power) and constitutional law (documents governing political institutions).
• The constitution is unamendable as it represents constituent power.

Types of Constitutions
Based on Hans Kelsen and Carl Schmitt:
• Constitutions derive from social/political norms.
• Constituent Power: Allows decisions on who holds power.
• Constituted Power: Power exercised by those allowed to govern.

Popular Sovereignty
Refers to the people as the ultimate sovereign authority with the right to amend or change the
constitution through a constituent assembly.

Semantic Constitution
• Constitutions that exist only in name and lack actual enforcement or substance.
• They are not effective in organizing political institutions or ensuring governance.

End Goals of Political Institutions

• Constitutions establish frameworks for political institutions to function effectively.
• Constitutional law determines the political structure and ensures proper functioning.

Types of Constitutions
Rigid vs. Flexible: Based on ease of amendments. Some constitutions are amendable, while
others have unamendable provisions.
Written vs. Unwritten:
•Written Constitution: Codified in a single document (e.g., India, USA).
•Unwritten Constitution: Based on conventions and traditions (e.g., UK, New Zealand).
•Judicial Review: Courts examine whether legislative, executive, and administrative actions
comply with the constitution (e.g., Marbury v. Madison).

Political vs. Legal Constitutionalism

•Political Constitutionalism focuses on governance and policymaking.
• Legal Constitutionalism emphasizes adherence to legal frameworks.

Enduring vs. Unenduring Constitutions

• An enduring constitution is adaptable and relevant over time.
• An unenduring constitution fails to meet changing societal needs.

Liberalism
• Focuses on individual rights and welfare.
• Emphasizes the well-being of individuals rather than collective welfare.
• Constitutions can be categorized as:
• Liberal Democratic
• Liberal Non-Democratic
• Non-Liberal Democratic
• Non-Liberal Non-Democratic (not considered a valid type of constitution).

Rule of Law
Contrasts with the “rule of man.”
Ensures that individuals are subject to laws rather than arbitrary decisions by rulers.

Popular Sovereignty

• Refers to the power of the people in drafting and amending constitutions.

• Challenges arise when limitations are imposed after constitutions are
established.
Historical Reforms in India

• Montague-Chelmsford Reforms: Introduced limited self-governance.

• Morley-Minto Reforms: Focused on communal representation.
• Simon Commission: Criticized for excluding Indians from drafting reforms.
• Cripps Mission Plan (1942): Proposed dominion status for India in exchange
for support during WWII.
• Quit India Movement followed as a response to British policies.

Independence of India Act & Constitution Formation

• The Cabinet Mission Plan (1946) led to the formation of the Constituent
Assembly.
• The Indian Preamble emphasizes sovereignty, socialism, secularism,
democracy, and republic principles.

Federal Structure of India

• Article 1 defines India as a “Union of States” with federal features.
• Amendments require special majorities and sometimes state ratification to
maintain federal integrity.

Citizenship in India
• Defined under Articles 5–11:
• Article 5: Citizenship at the commencement of the constitution (26th January 1950).
• Article 6: Rights of persons migrating from Pakistan to India.
• Article 7: Rights of persons migrating to Pakistan but later returning under resettlement
provisions.
• Article 8: Rights of Indians residing abroad.
Key Cases:
1. Babulal Parate v. State of Bombay: Clarified the President’s role in state reorganization
under Article 3.
2. Reza Pelstani Case: Discussed domicile requirements for citizenship.

Domicile vs. Residency

 • Domicile refers to permanent residence with intent to remain indefinitely.
• Residency is temporary presence in a territory.
Case Examples:
1. Ali Ahmed v. K Pathak: Differentiated between domicile and residency.

Citizenship vs. Nationality

• Citizenship involves legal rights and duties within municipal law.
• Nationality pertains to international law and defines a person’s allegiance to a state.
Key Case:
1. State Trading Corporation v. CPO: Distinguished between citizenship and
nationality under international law.

Citizenship Provisions (Articles 5-11)

Kulathil Mammu v Union of India
• Article 6: Provides citizenship to individuals who migrated to India from Pakistan
before July 19, 1948.
• Article 7: Acts as an exception to Article 6, granting citizenship to individuals who
migrated to Pakistan but later returned to India.
Articles Explained:
• Article 5: Citizenship for individuals domiciled in India at the commencement of
the Constitution.
• Article 6: Citizenship for migrants from Pakistan to India.
• Article 7: Citizenship for individuals who migrated to Pakistan but returned later.

Judiciary and State

• The judiciary is not considered a “State” under Article 12.
• However, the legislature and executive are part of the “State.”
Relevant Cases:
1. Naresh Mirajkar v State of Maharashtra: Judiciary is not a “State.”
2. Bidan Choudhary v State of Kerala: Discusses the scope of State
under Article 12.
RD Shetty v Airport Authority of India Case
Facts:
• A tender was issued for running a restaurant at Mumbai airport.
• Six bids were submitted; one bidder lacked experience but had significant expertise
in canteen management.
Judgment:
• The petitioner argued that Grade 2 hotels with five years of experience should also
be eligible.
• The court ruled that administrative law principles must be followed, ensuring
fairness and transparency in tenders.

Agency or Instrumentality (Ajay Hasia v Khalid Mujib)

Defines whether an entity is considered an instrumentality of the State under Article
12.
Key Points:
• Engineering colleges registered as societies can be considered instrumentalities if
funded by the government.
• Tests for Instrumentality:
• Financial assistance from the State.
• Pervasive control by the government.
•Monopoly status created by the State.

Citizenship Act, 1955

Enacted by Parliament to regulate Indian citizenship.
Key Provisions:
• Article 10: Continuity of citizenship unless Parliament enacts laws otherwise.
• Article 11: Parliament has ultimate authority over citizenship laws without requiring
constitutional amendments.

Fundamental Rights (Part III)

 Article 12
Defines “State” inclusively, covering government bodies, legislatures, and other
authorities like public corporations and instrumentalities.
Six-Prong Test for Instrumentality (Ajay Hasia Case):
1. State holds a large share in the entity’s capital.
2. Financial assistance from the State covers major expenditures.
3. Pervasive control by the government.
4. Monopoly status created by the State.
5. Nature of functions closely related to governmental functions.
Relevant Cases:
1. Rajasthan Electricity Board v Mohanlal: Expanded the definition of
“State.”
2. Sukhdev Singh v Bhagat Ram: Public corporations considered part of
“State.”

Judicial Review (Marbury v Madison, 1803)

• Established judicial review as a mechanism for examining legislative
and executive actions against constitutional provisions.
• Significance:
• Ensures checks and balances in governance.

Doctrine of Eclipse (Bhikaji Narain Case)

• Pre-Constitution laws inconsistent with Part III (Fundamental Rights)
are eclipsed until amended or repealed.
• Such laws are not nullified but remain dormant until they comply with
Part III.
Key Points:
1. Part III came into effect on January 26, 1950.
2. Laws violating Fundamental Rights are void only post-Constitution
commencement.

Doctrine of Severability
 • Under Article 13(2), only unconstitutional provisions of a law are
struck down, leaving valid portions intact.
• Legislative intent determines whether partial invalidation or complete
repeal is required.

Ordinances and Delegated Legislation

Ordinances: Temporary laws enacted by the President during emergencies when
Parliament is not in session.
Delegated Legislation: Executive powers delegated to create rules or regulations
within a framework established by Parliament.

Retrospective Effect and Pre-Constitution Laws

Relevant Cases:
1. Keshava Madhava Menon v State of Bombay: Pre-Constitution laws
cannot be deemed unconstitutional retrospectively unless explicitly stated in Part III.
2. Shanti Sh Swarup Case: Ripple effect on pre-Constitution laws after
commencement if inconsistent with Fundamental Rights.

Horizontal Application of Fundamental Rights

• Fundamental Rights can apply horizontally between private entities
(e.g., Marsh v Alabama).
European Cases:
1. X & Y v Netherlands: Expanded horizontal application principles
globally.

Constitutionality and Legislative Competence

1. Unconstitutionality of Laws:
 To declare a law unconstitutional, the petitioner must prove it violates the
Constitution.
 Unconstitutional laws can be struck down by courts on two grounds:
 Legislative Incompetence: When a legislature enacts laws outside its jurisdiction.
 Legislative Inconsistency: When a law contradicts provisions of the Constitution.
2. State Jurisdiction:
Example: Karnataka cannot make laws for Maharashtra, as legislative powers are
divided based on subjects in the Constitution.
 3. Sundararamier Case:
 A law that violates fundamental rights or is enacted without competence is void.
 The result of such a declaration renders the law null and void.
4. F.N. Balsara vs. State of Bombay (1949):
This case dealt with a prohibition law banning alcohol for all purposes. It highlights
judicial scrutiny of laws against constitutional benchmarks.

Definition of Law and Constitutional Amendments

1. Waiver: Defined as voluntarily giving up a right or claim.
2. Statutory Legislation and Law:
•Article 13(3)(a): Statutory legislations are not included in the definition of
“law” under certain contexts.
3. Constitutional Amendments:
•Are amendments to the Constitution considered “laws”? The distinction between
ordinary laws (made by Parliament) and constitutional amendments (which modify
the Constitution) is significant.
•The Constitution is considered supreme, and amendments require special procedures,
unlike ordinary laws.
4. Threshold for Passing a Law:
• Both houses of Parliament must pass a bill, followed by the President’s assent.
5. Constituent Power:
• The Constitution creates Parliament, while Parliament enacts ordinary laws.
• Amending the Constitution involves modifying its provisions, which is
distinct from passing ordinary legislation.

Constitutional Amendments and Judicial Review

1. Article 13(4):
Added through an amendment, it clarifies that constitutional amendments are
not “laws” under Article 13.
2. Key Cases on Constitutional Amendments:(very important)
 Sri Sankari Prasad Singh vs Union of India: Upheld the validity of
constitutional amendments.
 Sajjan Singh vs State of Rajasthan: Similar interpretation regarding
amendments.
  IC Golaknath vs State of Punjab: Challenged amendments affecting
fundamental rights.
 Kesavananda Bharati vs Union of India: Established the basic structure
doctrine, limiting Parliament’s amending power.
3. Eighth Schedule and Fundamental Rights:
 Laws violating fundamental rights are void under Article 13.
 However, certain provisions (like those in the Eighth Schedule) were deemed
unchallengeable initially but later subjected to judicial review.
4. First Amendment (1951): Introduced by Nehru to address issues like land reform
and reservations (Champakam Dorairajan vs State of Madras).
[Link] Cases Mentioned: State of Bihar vs Kameshwar Singh: Related to land acquisition
laws and their constitutionality.