Ch - 1

WHY DO WE NEED A CONSTITUTION?

1. The first function of a constitution is to provide a set of basic rules that allow for minimal
coordination amongst members of a society.
2. The second function of a constitution is to specify who has the power to make decisions in a
society. It decides how the government will be constituted.
3. The third function of a constitution is to set some limits on what a government can impose
on its citizens. These limits are fundamental in the sense that government may never
trespass them
4. The fourth function of a constitution is to enable the government to fulfil the aspirations of a
society and create conditions for a just society.
5. A constitution expresses the fundamental identity of a people

Constitution – ‘Constitution’ is a compact document that comprises a number of articles about the state,
specifying how the state is to be constituted and what norms it should follow

Mode of promulgation - This refers to how a constitution comes into being. The authority of people who
enact the constitution helps determine in part its prospects for success

Balanced institutional design

 Constitutions are often subverted, not by the people, but by small groups, who wish to enhance
their own power.
 Well crafted constitutions fragment power in society intelligently so that no single group can
subvert the constitution.
 One way of such intelligent designing of a constitution is to ensure that no single institution
acquires monopoly of power
 An intelligent system of checks and balances has facilitated the success of the Indian Constitution
 Another important aspect of intelligent institutional design is: that a constitution must strike the
right balance between certain values, norms and procedures as authoritative, and at the same time
allow enough flexibility in its operations to adapt to changing needs and circumstances

CH -2

THE IMPORTANCE OF RIGHTS

In 1982 during the construction work for Asian Games the government engaged a few contractors. These
contractors employed a large number of very poor construction workers from different parts of the country
to build the flyovers and stadiums. These workers were kept in poor working conditions and were paid less
than the minimum wages decided by the government.
A team of social scientists studied their poor condition and petitioned the Supreme Court. The court
accepted this plea and directed the government to ensure that thousands of workers get the prescribed
wages for their work.

A democracy must ensure that individuals have certain rights and that the government will always
recognise these rights.
A bill of rights prohibits government from thus acting against the rights of the individuals and ensures a
remedy in case there is violation of these rights.

The Constitution listed the rights that would be specially protected and called them ‘fundamental rights.
The word fundamental suggests that these rights are so important that the Constitution has separately listed
them and made special provisions for their
protection. The Fundamental Rights are so important that the Constitution itself ensures that they are not
violated by the government.
Diff b/w ordinary rights & FR:
1. While ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are
protected and guaranteed by the constitution of the country.
2. Ordinary rights may be changed by the legislature by ordinary process of law making, but a
fundamental right may only be changed by amending the Constitution itself
3. Besides this, no organ of the government can act in a manner that violates them.

CH – 4

 Executive is the branch of government responsible for the implementation of laws and policies
adopted by the legislature. The executive is often involved in framing of policy. The official
designations of the executive vary from country to country.
 While the heads of government and their ministers, saddled with the overall responsibility of
government policy, are together known as the political executive,
 those responsible for day to day administration are called the permanent executive

DIFFERENT TYPES OF EXECUTIVE

 The USA has a presidential system and executive powers are in the hands of the
 president.
 Canada has a parliamentary democracy with a constitutional monarchy where Queen Elizabeth II
is the formal chief of state and the prime minister is the head of government.
 In France, both the president and the prime minister are a part of the semi-presidential
 system. The president appoints the prime minister as well as the ministers but cannot dismiss them
as they are responsible to the parliament.
 Japan has a parliamentary system with the Emperor as the head of the state and the prime minister
as the head of government.
 Italy has a parliamentary system with the president as the formal head of state and the prime
minister as the head of government.
 Russia has a semi-presidential system where president is the head of state and prime minister, who
is appointed by the president, is the head of government.
 Germany has a parliamentary system in which president is the ceremonial head of state and the
chancellor is the head of government

In a presidential system, the president is the Head of state as well as head of government. In this system
the office of president is very powerful, both in theory and practice. Countries with such a system include
the United States, Brazil and most nations in Latin America.

In a parliamentary system, the prime minister is the head of government. Most parliamentary systems
have a president or a monarch who is the nominal Head of state. In such a system, the role of president or
monarch is primarily ceremonial and prime minister along with the cabinet wields effective power.
Countries with such system include Germany, Italy, Japan, United Kingdom as well as Portugal.

A semi-presidential system has both a president and a prime minister but unlike the parliamentary system
the president may possess significant day-to-day powers. In this system, it is possible that sometimes the
president and the prime minister may belong to the same party and at times they may belong to two
different parties and thus, would be opposed to each other. Countries with such a system include France,
Russia, Sri Lanka, etc
 Constitution as a Living Document

Our Constitution accepts the necessity of modifications according to changing needs of the society
In the actual working of the Constitution, there has been enough flexibility of interpretations.
Both political practice and judicial rulings have shown maturity and flexibility in implementing the
Constitution

The constitution has to be able to respond to the challenges that may arise in the future. In this sense, the
constitution will always have something that is contemporary and something that has a more durable
importance. It is an instrument that societies create for themselves.
Our Constitution is not a static document, it is not the final word about everything; it is not unalterable.

Contents of Amendments made so far

Amendments made so far may be classified in three groups.
In the first group there are amendments, which are of a technical or administrative nature and were only
clarifications, explanations, and minor modifications etc. of the original provisions. They are amendments
only in the legal sense, but in matter of fact, they made no substantial difference to the provisions.

Differing Interpretations - A number of amendments are a product of different interpretations of the

Constitution given by the judiciary and the government of the day. When these clashed, the Parliament had
to insert an amendment underlining one particular interpretation as the authentic one.

Amendments through Political Consensus - amendments that have been made as a result of the consensus
among the political parties
Apart from the anti-defection amendments (52nd and 91st), these amendments include the 61st amendment
bringing down the minimum age for voting from 21 to 18 years, the 73rd and the 74th amendments, etc

Controversial Amendments - amendments during the period 1970 to 1980 generated a lot of legal and
political controversy. The parties that were in opposition during the period 1971-1976, saw many of these
amendments as attempts by the ruling party to subvert the Constitution. In particular, the 38 th, 39th and 42
nd

amendments have been the most controversial amendments so far.

The 42nd amendment was particularly seen as a wide ranging amendment affecting large parts of the
Constitution. It was also an attempt to override the ruling of the Supreme Court given in the Kesavananda
case. Even the duration of the Lok Sabha was extended from five to six years. Fundamental duties were
included in the Constitution by this amendment act. The 42nd amendment also put restrictions on the review
powers of the Judiciary. This amendment made changes to the Preamble, to the seventh schedule of the
Constitution and to 53 articles of the Constitution.

In this backdrop, elections were held in 1977 and the ruling party (Congress) was defeated. The new
government thought it necessary to reconsider these controversial amendments and through the 43 rd and
44th amendments, cancelled most of the changes that were effected by the 38th, 39th and the 42nd
amendments. The constitutional balance was restored by these amendments.

BASIC STRUCTURE AND EVOLUTION OF THE CONSTITUTION

the Judiciary advanced this theory in the famous case of Kesavananda Bharati. This ruling has contributed
to the evolution of the Constitution in the following ways:
1. It has set specific limits to the Parliament’s power to amend the Constitution. It says that no
amendment can violate the basic structure of the Constitution;
2. It allows the Parliament to amend any and all parts of the Constitution (within this limitation); and
3. It places the Judiciary as the final authority in deciding if an amendment violates basic structure
and what constitutes the basic structure.

The theory of basic structure is itself an example of a living constitution. There is no mention of this theory
in the Constitution. It has emerged from judicial interpretation. Thus, the Judiciary and its interpretation
have practically amended the Constitution without a formal amendment

In a sense, the basic structure doctrine has further consolidated the balance between rigidity and flexibility:
by saying that certain parts cannot be amended, it has underlined the rigid nature while by allowing
amendments to all others it has underlined the flexible nature of the amending process.

There are many other examples of how judicial interpretation changed our understanding of the
Constitution.
 In many decisions the Supreme Court had held that reservations in jobs and educational
institutions cannot exceed fifty per cent of the total seats. This has now become an accepted
principle.
 Similarly, in the case involving reservations for other backward classes, the Supreme Court
introduced the idea of creamy layer and ruled that persons belonging to this category were not
entitled to benefits under reservations.
  In the same manner, the Judiciary has contributed to an informal amendment by interpreting
various provisions concerning right to education, right to life and liberty and the right to form and
manage minority educational institutions

CONSTITUTION AS A LIVING DOCUMENT

 Almost like a living being, this document keeps responding to the situations and circumstances
arising from time to time.
 Like a living being, the Constitution responds to experience.
 Even after so many changes in the society, the Constitution continues to work effectively because
of this ability to be dynamic, to be open to interpretations and the ability to respond to the
changing situation.
 This is a hallmark of a democratic constitution.
 In a democracy, practices and ideas keep evolving over time and the society engages in
experiments according to these.
 A constitution, which protects democracy and yet allows for evolution of new practices becomes
not only durable but also the object of respect from the citizens.

In the last fifty five years some very critical situations arose in the politics and constitutional development
of the country.
In terms of constitutional-legal issues, the most serious question that came up again and again from
1950 was about the supremacy of the Parliament.

In a parliamentary democracy, the Parliament represents the people and thus, it is expected to have an
upper hand over both Executive and Judiciary.
At the same time, there is the text of the Constitution and it has given powers to other organs of the
government.
Therefore, the supremacy of the Parliament has to operate within this framework.
Democracy is not only about votes and people’s representation. It is also about the principle of rule of law.
Democracy is also about developing institutions and working through these institutions. All the political
institutions must be responsible to the people and maintain a balance with each other.

Contribution of the Judiciary

During the controversy between the Judiciary and the Parliament, the Parliament thought that it had the
power and responsibility to make laws (and amendments) for furthering the interests of the poor, backward
and the needy. The Judiciary insisted that all this has to take place within the framework provided by the
Constitution and pro-people measures should not bypass legal procedures, because, once you bypass laws
even with good intentions, that can give an excuse to the power holders to use their power arbitrarily. And
democracy is as much about checks on arbitrary use of power as it is about the well-being of the people.

The Judiciary, in its famous Kesavananda ruling found a way out of the existing complications by turning
to the spirit of the Constitution rather than its letter

Therein lies the distinction between letter and spirit. The Court came to the conclusion that in reading a
text or document, we must respect the intent behind that document. A mere text of the law is less important
than the social circumstances and aspirations that have produced that law or document. The Court was
looking at the basic structure as something without which the Constitution cannot be imagined at all. This
is an instance of trying to balance the letter and the spirit of the Constitution.

The Philosophy of the Constitution

A political philosophy approach to the constitution is needed not only to find out the moral content
expressed in it and to evaluate its claims but possibly to use it to arbitrate between varying interpretations
of the many core values in our polity.

Constitution as Means of Democratic Transformation