constitution of india · law -general prepared by: mr. vimal k. shah (9426159641)...

LAW - GENERAL

PREPARED BY:PREPARED BY:

Mr. Vimal K. Shah

(9426159641)

[email protected]

Mrs. Kavvita N.Choksi

(9512333666)

[email protected]

WHAT IS CONSTITUTION??WHAT IS CONSTITUTION??WHAT IS CONSTITUTION??WHAT IS CONSTITUTION??Almost everything we do is governed by some set of rules.There are rules for games (like- soccer), for social clubs andfor adults in the workplace. There are also rules imposed bymorality and custom that play an important role in telling uswhat we should and should not do.what we should and should not do.

For example- In the game of soccer, a referee has "fullauthority to enforce the Rules or Law of the Game on thePlayers”, when a player do something against the Rulesreferee takes action like send-off a player

� Some rules that are made by the legislatures (also knownas Lok sabha/Rajya Sabha in India), for there owncountry, are called “Law”.

�We need Laws in Society so our society can regulateand work properly. They are designed to protect us andour property and to ensure that everyone in society behavesour property and to ensure that everyone in society behavesthe way that the community expects them too.

� Laws tell us what to expect as a consequence of ouractions. Laws have been the glue that has kept societytogether.Without laws there would be complete anarchy.

In General-

The Constitution is the supreme law of the land. All otherlaws have to conform to the Constitution. The constitutioncontains laws concerning the government and its relations with thepeople.

A constitution is concerned with 2 main aspects:-

a)The relation between the different levels of government and

b) Between the government and the citizens.b) Between the government and the citizens.

WHY DO WE NEED CONSTITUTION?WHY DO WE NEED CONSTITUTION?WHY DO WE NEED CONSTITUTION?WHY DO WE NEED CONSTITUTION?

In General-

I.We need a constitution to govern a country properly.

II.The constitution defines the nature of political system of a country.

III. sometimes we feel strongly about an issue that might go againstour larger interests and the constitution helps us guard against this.

IV. All the 3 organs of government (executive, legislature andjudiciary) functions within the constitution. All the 3 organs ofgovernment, including ordinary citizens, derive their power andauthority (i.e. Fundamental Right) from the constitution. If theyact against it, it is unconstitutional and unlawful.

So constitution is required to have authoritativeallocation of power and function, and also to restrictthem within its limit.


To perform following Functions we need Constitution-

I. The first function of a constitution is to provide a set of basic rulesthat allow for minimal coordination amongst members of a society.

II. The second function of a constitution is to specify who has thepower to make decisions in a society. It decides how the governmentwill be constituted.will be constituted.

III. The third function of a constitution is to set some limits on what agovernment can impose on its citizens. These limits are fundamental inthe sense that government may ever trespass them.

IV. The fourth function of a constitution is to enable the governmentto fulfill the separations of a society and create conditions for a justsociety.

PREAMBLEPREAMBLEPREAMBLEPREAMBLE

THE PREAMBLE TO CONSTITUTION THE PREAMBLE TO CONSTITUTION THE PREAMBLE TO CONSTITUTION THE PREAMBLE TO CONSTITUTION

OF INDIA.OF INDIA.OF INDIA.OF INDIA.The Preamble to the Constitution of India is a brief introductorystatement that sets out the guiding purpose and principles of thedocument.

The first words of the Preamble - "We, the people" - signifiesthat power is ultimately vested in the hands of the People of India.So far the Preamble has been amended only once in 1976 by 42ndamendment (change) which inserted the words Socialism,Secularism and Integrity. A brief description of theseconcepts are as follows (in the order they come in Preamble)-

1. Sovereign- It means free to follow internal and external Policies.1. Sovereign- It means free to follow internal and external Policies.

2. Secular- It means no particular Religion is preferred.

3. Socialist- It means no concentration of Power and Money.

4.Democratic- It means rule by elected representative of the Peopleof India.

5.Republic- It means no room for hereditary ruler or monarch.

PURPOSE OF HAVING A PREAMBLEPURPOSE OF HAVING A PREAMBLEPURPOSE OF HAVING A PREAMBLEPURPOSE OF HAVING A PREAMBLE

The Preamble to our Constitution serves two purposes: -

A) It indicates the source from which the Constitution derives its authority;

B) It also states the objects, which the Constitution seeks to B) It also states the objects, which the Constitution seeks to establish and promote.

WHAT IS THE CONSTITUTION OF WHAT IS THE CONSTITUTION OF WHAT IS THE CONSTITUTION OF WHAT IS THE CONSTITUTION OF

INDIA?INDIA?INDIA?INDIA?(I) CONSTITUTION OF INDIA IN GENERAL:-

Constitution of India is considered to be the supreme law of the country, as it puts forththe framework of fundamental political principles. It establishes the structure,procedures, powers and duties of the government and mentions the fundamentalrights, directive principles and duties of citizens.

The Constitution declares India as a Sovereign, Socialist Democratic, and RepublicThe Constitution declares India as a Sovereign, Socialist Democratic, and Republicwith a parliamentary form of government.

The Indian Constitution shows Federal as well as Unitary System.

1. Federal System- powers are divided and/or shared between state and

central governments

2. Union System- power concentration in central government with weak stateGovernment


INDIA?INDIA?INDIA?INDIA?

(II) STRUCTURE OF CONSTITUTION OF INDIA :-

The Constitution, in its current form (March 2011), consists of 1 preamble, 25parts containing 450 articles, 12 schedules, 2 appendices and 97 amendments todate.Although it is federal in nature it also has a strong unitary bias.


INDIA?INDIA?INDIA?INDIA?(III) CONSTITUTION OF INDIA AND GOVERNMENT:-

The Indian government is divided into three distinct but interrelated branches:

Legislative, Executive and Judiciary – have to function within their own spheresdemarcated under the Constitution. In other words, the doctrine of Separation ofPowers has been implicitly recognized by the Indian Constitution.


INDIA?INDIA?INDIA?INDIA?(IV) THE BASIC PRINCIPLES OF THE CONSTITUTION OF INDIA:-

A careful study of the Constitution will show that there are at leasteight basic principles which are embodied in it and which form thefoundation of the political system in India.These are:

(1) Popular sovereignty,(1) Popular sovereignty,

(2) Socialism,

(3) Secularism,

(4) Fundamental rights,

(5) Directive Principles of State Policy,

(6) Judicial independence,

(7) Federalism and

(8) Cabinet government.


INDIA?INDIA?INDIA?INDIA?

(V) PROCEDURE OF AMENDMENTS OF THE CONSTITUTION OF INDIA:-

The basic structure of the Constitution is unchangeable and only such amendments to the Constitution are allowed which do not affect its basic structure or rob it of its essential character.

1. By simple majority of the Parliament: Amendments in this category can be 1. By simple majority of the Parliament: Amendments in this category can be made by a simple majority of members present and voting, before sending them for the President's assent.

2. By special majority of the Parliament: Amendments can be made in this category by a two - third majority of the total number of members present and voting, which should not be less than half of the total membership of the house.

3. By special majority of the Parliament and ratification of at least half of the state legislatures by special majority. After this, it is sent to the President for his assent.

MAIN CHARACTERISTICS OF CONSTITUTION OF INDIAMAIN CHARACTERISTICS OF CONSTITUTION OF INDIAMAIN CHARACTERISTICS OF CONSTITUTION OF INDIAMAIN CHARACTERISTICS OF CONSTITUTION OF INDIA

1. Longest written constitution.

2. Partly Rigid and Partly Flexible

3. A Democratic Republic

4. Parliamentary System of Government

5. A Federation5. A Federation

6. Fundamental Rights

7. Directive Principles of State Policy

8. Fundamental Duties

9. Secular State

10.An Independent Judiciary

11.Single Citizenship

NATURE OF CONSTITUTION OF INDIA

The constitution of India is basically federal in nature with unitaryfeatures.

Let us first understand the federal system of governance. Federalism is aform of government where two sets of government operate and functionsimultaneously. Each state has its own government, which functionsindependently in the local matters like education, health, police etc.. Butindependently in the local matters like education, health, police etc.. Butmatters of national importance, e.g., defence, coins and currency, foreignaffairs, are not left in the hands of the State Government.

Federalism is a principle by means of which there is co-ordinate division ofpowers between the Central Government and the State Government andwhereby each of such governments exercise direct and simultaneousauthority in their limited sphere over the same territory.

MAIN CHARACTERISTICS OF A FEDERAL CONSTITUTIONMAIN CHARACTERISTICS OF A FEDERAL CONSTITUTIONMAIN CHARACTERISTICS OF A FEDERAL CONSTITUTIONMAIN CHARACTERISTICS OF A FEDERAL CONSTITUTION

Dual Government

In a federal state, there are two governments – the national or federal government and the government of each state.

Distribution of Powers

There is a distribution of legislative and executive powers between the federalgovernment and the state government.

Supremacy of the ConstitutionSupremacy of the Constitution

As there is division of power, such division must be evidenced in a written document.The constitution, which provides for such division of power is a document of fundamental importance, and it is from such constitution that a federal polity drives itsexistence.

Authority of Courts

The interpretation of the constitution assumes great importance in the successful working of a federal constitution. This power of interpretation is vested in the courts. The courts are empowered to declare any action on the part of the government to be ultra virus; if such action violets the provisions of the constitution. Therefore, the judiciary acting as the constitution and guardian of the constitution assumes immense importance in a federal state.

CONSTITUTION OF INDIA IS FEDERAL BUT WITH UNITARY BIASCONSTITUTION OF INDIA IS FEDERAL BUT WITH UNITARY BIASCONSTITUTION OF INDIA IS FEDERAL BUT WITH UNITARY BIASCONSTITUTION OF INDIA IS FEDERAL BUT WITH UNITARY BIAS

It may appear that the Constitution of India has allcharacteristics of a federal polity. However, this is not so andthere is departure from the federal principle in various respects.

“The Constitution of India provides a unitary state withsubsidiary federal features, rather than federal state withsubsidiary unitary features”

CHARACTERISTICS OF THE CONSTITUTION OF INDIACHARACTERISTICS OF THE CONSTITUTION OF INDIACHARACTERISTICS OF THE CONSTITUTION OF INDIACHARACTERISTICS OF THE CONSTITUTION OF INDIA

Formation of the Constitution

Federations elsewhere have been the result of a voluntary agreementbetween number of sovereign and independent states coming under acommon administration of certain specific purposes. But in India,federation was not a process of integration,but a process ofdecentralization. The former imperialistic unitary state was convertedinto a democratic union by the constitution.into a democratic union by the constitution.

Distribution of Powers

It provides for the distribution of power on various matters throughUnion list, State list and Concurrent list and also provides forresiduary power on the matters not covered in the above lists. Theconstitution of India provides for clear and definite distribution ofadministrative power between centre and state.


No double Citizenship

There is singe citizenship for the whole union and there is no citizenship for the state.

No dual system of JudiciaryNo dual system of Judiciary

There is no bifurcation of the judiciary between the federal (Union) and state government. The same systems of courts, headed by the Supreme Court, administer both the union laws and the state laws as per applicable to the cases coming up forVadjudication. This is again in contrast to the American System, where there are Federal Courts and State Courts. There are equal laws for whole country.


Election, Accounts and Audit

The machinery for election, accounts and audits is also similarlyintegrated as single judiciary.

Power of Union during the failure of ConstitutionalMachinery in the State

Where there is a failure to the constitutional machinery in a state,the president can suspend the constitution of the state and assumethe president can suspend the constitution of the state and assumeresponsibility for administration of the state. In suchcircumstances, the parliament may legislate for such a state.

Formation of New States

The Union Legislative has the power to form new states, toincrease or diminish the area of existing states and to alter theirboundaries or names.

FUNDAMENTAL RIGHTSFUNDAMENTAL RIGHTSFUNDAMENTAL RIGHTSFUNDAMENTAL RIGHTS

RIGHT TO EQUALITY (ARTICLE 14 TO 18)RIGHT TO EQUALITY (ARTICLE 14 TO 18)RIGHT TO EQUALITY (ARTICLE 14 TO 18)RIGHT TO EQUALITY (ARTICLE 14 TO 18)

1. Equality before law

It means ‘any person shall not be given any specific rights and common law will beapplied to all individuals.’

Each state has to recognize certain exception of principle of principle of equality beforelaw due to political and international reasons.

2. Equal protection of law

The law will treat uniformly to all individuals in equal circumstances. All individuals areThe law will treat uniformly to all individuals in equal circumstances. All individuals areequal in the eyes of law and therefore, there shall not be any kinds. There should be nodiscrimination between one person and another if, as regards the subject matter of thelegislation, their position is same.

3. Prohibition of discrimination on ground only of religion, race, caste, sex or place ofbirth (Article 15).

4. Equality of opportunity in matters of public employment (Article 16).

5. Abolition of untouchability (Article 17).

`(Article 18).

RIGHT TO FREEDOMRIGHT TO FREEDOMRIGHT TO FREEDOMRIGHT TO FREEDOM

1. Freedom of speech and expression (Articles 19 (1)(a) and (2))

2. Freedom of assembly (Article 19 (1)(b) and (3))

3. Freedom to form associations or unions.

4. Freedom to move freely throughout India.4. Freedom to move freely throughout India.

5. Freedom to reside and settle in any part of India.

6. Freedom to acquire, hold and dispose of properties (omitted).

7. Freedom to practice any profession

PROTECTION IN RESPECT OF CONVICTION FOR PROTECTION IN RESPECT OF CONVICTION FOR PROTECTION IN RESPECT OF CONVICTION FOR PROTECTION IN RESPECT OF CONVICTION FOR

OFFENCES (ARTICLE 20)OFFENCES (ARTICLE 20)OFFENCES (ARTICLE 20)OFFENCES (ARTICLE 20)

1.Protection against ex-post facto laws (Article 20(1))

The definition of an ex post facto law is a law that applies tocrimes that happened before the law was passed.

2. Protection against double jeopardy (Article 20(2))

The Fifth Amendment to the Constitution states that no person shall “besubject for the same offense to be twice put in jeopardy of life orsubject for the same offense to be twice put in jeopardy of life orlimb.” The double jeopardy clause bars second prosecutions aftereither acquittal or conviction, and prohibits multiple punishments forthe same offense.

3. Protection against self-incriminations (Article 20(3))

This article states that where a person has been accused under acriminal offense, he shall not be compelled to vouch against himself.... And that the accused shall have immunityagainst selfincrimination.

RIGHT AGAINST EXPLOITATION (ARTICLE 23 RIGHT AGAINST EXPLOITATION (ARTICLE 23 RIGHT AGAINST EXPLOITATION (ARTICLE 23 RIGHT AGAINST EXPLOITATION (ARTICLE 23 –––– 24)24)24)24)

1. Prohibition of traffic in human beings and forced labor [Art. 23].

2. Prohibition of employment of children in hazardous 2. Prohibition of employment of children in hazardous employment [Art. 24].

RIGHT TO FREEDOM OF RELIGION (ARTICLE 25 RIGHT TO FREEDOM OF RELIGION (ARTICLE 25 RIGHT TO FREEDOM OF RELIGION (ARTICLE 25 RIGHT TO FREEDOM OF RELIGION (ARTICLE 25 –––– 28)28)28)28)

1. Freedom of conscience and free profession of religion (Article 25)

2. Freedom to manage religious affairs (Article 26)

3. Freedom from payment of taxes for promotion of any particular 3. Freedom from payment of taxes for promotion of any particular religion (Article27)

4. Freedom to attend religious instructions in certain educational institutions (Article 28)

CULTURAL AND EDUCATIONAL RIGHTSCULTURAL AND EDUCATIONAL RIGHTSCULTURAL AND EDUCATIONAL RIGHTSCULTURAL AND EDUCATIONAL RIGHTS

1. Protection of language, script or culture of minorities.(Article 29)29)

2. Right of minorities to establish and administer educational institutions (Article 30)

RIGHT TO PROPERTYIt is omitted by the Constitution (44th Amendment) Act, 1978

RIGHT TO CONSTITUTIONAL REMEDIESRight to constitutional remedies [Article 32 to 35]

empowers the citizens to move to a court of law in case ofempowers the citizens to move to a court of law in case ofany denial of the fundamental rights. For instance, in case ofimprisonment, any citizen can ask the court to see if it isaccording to the provisions of the law of the country bylodging a PIL

constitution of india · law -general prepared by: mr. vimal k. shah (9426159641)...

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