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INTRODUCTION to Concepts of LAW & Constitution, Constitutionalism …

- - - - Case law**
        
        A judicial precedent or a case law is common law. A law passed by the Supreme Court will be obligatory upon the courts and within the territory of India under Article 141 of the Indian Constitution.
      - Statuary law/ Ordinary law
        
        It is made by the government (legislature) and it determines and regulates the conduct and behaviour of the people
        
        PUBLIC LAW
        
        The law which regulates the relations between the individual and the State
        
        GENERAL PUBLIC LAW
        
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        ADMINISTRATIVE LAW
        
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        PRIVATE LAW
        
        It lays down rules regarding the conduct of the individual in society and his relations with other persons.
        
        State-established legal drinking age or imposed penalties for exceeding the given speed limits by riders in traffic framed as a traffic law are a few examples of statutory law.
      - *Common law
        
        Indian Penal Code of 1860, the Indian Evidence Act of 1872, the Code of Criminal Procedure 1973, and the Code of Civil Procedure 1908
        
        CIVIL LAW
        
        b. Family Law,
        
        Family law is the branch of civil law that deals with marriage, divorce, child custody, adoption, etc, and any other issues and disputes of families.
        
        Different religions have their own personal laws in this regard, for example, Hindu law, Muslim law, Christian law, Parsi law, etc. The cases relating to this law are dealt with by the family courts and not civil courts
        
        c. Contract Law,
        
        Contract law is the body of legislation that governs the formation, enforcement, and final execution of all legal contracts or agreements.
        
        Contract law affects everyone who conducts commercial operations at some time.
        
        d. Property Law
        
        a. Law of Torts,
        
        Law of loss/compensation
        
        a tort is breach of a non-contractual duty which has caused damage to the plaintiff giving rise to a civil cause of action and for which remedy is available. If a remedy does not exist, a tort has not been committed since the rationale of tort law is to provide a remedy to the person who has been wronged.
        
        CRIMINAL LAW
        
        Criminal law is concerned with laws pertaining to violations of the rule of law or public wrongs. Criminal law is governed under the Indian Penal Code, 1860, and the Criminal Procedure Code, 1973.
  - - - Besides the concept of the Constitution, there is an important idea of Constitutionalism.
        
        Constitutionalism
        
        Elements of Constitutionalism
        
        Independent Judiciary
        
        Judicial Review
        
        Rule of Law
        
        Separation of Powers
        
        Free and Fair Elections
        
        Responsible Government
        
        Fundamental Rights
        
        Federalism
        
        Decentralisation of Powers
        
        Written Constitution
        
        liberty
        
        representative government
        
        political democracy
        
        CONSTITUTIONAL MORALITY
        
        The root of 'Constitutional Morality' in the Indian Constitution lies in its Preamble, which embodies the aspirations and values of "We, the people of India."
        
        Moreover, the fundamental rights enshrined in Part III of the Constitution and the Directive Principles of State Policy in Part IV reflect the core principles of 'Constitutional Morality.' These rights and principles act as guiding principles for the government and citizens to ensure the holistic development and welfare of the nation.
        
        Naz Foundation case 2009 addressed the issue that how the penultimate aim of a democracy is to cultivate constitutional morality and dismiss the notion of popular or societal morality.
        
        thus Supreme Court in the case of Triple Talaq(Shayara Bano), right of the LGBTQA community and freedom of sexual orientation, right to privacy, decriminalizing adultery, right of women to enter the Sabarimala temple, etc established the supremacy of constitutional morality.
        
        Joseph Shine ,Adultery was decriminalized on the rationale that it is discriminatory to the women and treats them as the property/chattel of the husband in the patriarchal society. However, even though the aid of constitutional morality was taken,
        
        In Indian Young Lawyers Association wherein the issue of entry of women of certain age was restricted at Sabarimala Temple and provided for in state law.
        
        Justice K.S. Puttaswamy the right to privacy was held to a fundamental right under Article 21 of the Indian constitution giving an individual the right to choose and keep personal details out of the reach of the police in light of the spirit of the constitutional
        
        It is imperative that when the court decides an issue, it should be guided by constitutional morality and not popular or majoritarian morality
        
        CONSTITUTIONALISATION
        
        OF ENVIRIONMENTAL ISSUES
        
        Constitutionalisation of Environmental problem means aligning environmental problem to violation of fundamental rights of individual or community or abrogation of responsibility by government to enforce directive principles so as to impart meaningful decency to environmental problem.
        
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        Q:The most significant achievement of modern law in India is the constitutionalization of environmental problems by the Supreme Court." Discuss this statement with the help of relevant case laws.
        
        OF EMPOWERING WEAKER SECTION
        
        OF LIFE AND LIBERTY
        
        Constitutionalisation refers to the process of granting constitutional status to an institution or body. This gives the body a higher level of legal protection and authority, and ensures that it can perform its functions effectively and independently.
        
        The procedure for constitutionalisation of a commission in the Indian Constitution is as follows:
        
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        OF WOMEN EMPOWERMENT
        
        Q:Which steps are required for constitutionalisation of a commission? Do you think imparting constitutionality to the national commission for woman would ensure greater gender justice and empowerment in India? Give reasons. [250 words]
        
        'Constitutional Morality' Is the principle of adhering to the spirit and essential aspects of the constitution beyond its literal text
        
        It refers to the commitment and adherence to the values, ideals, and spirit of the constitution by all organs of the state, public institutions, and citizens of the country.
        
        The concept of 'Constitutional Morality' is a foundational principle deeply rooted in the Indian Constitution.
        
        Constitutional Morality refers to a moral obligation of an individual to uphold the constitutional values with utmost dignity without any compromise and be faithful towards it.
        
        the constitutional provisions for the independence of the judiciary and the system of checks and balances among the three organs of the state foster 'Constitutional Morality'
        
        Manoj Narula Case, Navtej Singh Johar Judgement, NCT of Delhi v. Union of India, Joseph Shinie Case, Independent Thought v. Union of India, and most famously, Sabarimala Judgement.
        
        In Manoj Narula v. Union of India, the Supreme Court had to decide if a person with a criminal background (or against whom charges had been framed in a criminal case involving moral turpitude) could be prevented from becoming a minister in the central or state governments.
        
        Basically constitutionalism consists in the belief that
        there must be a set of rules, procedures and institutional arrangements that effectively limit the
        exercise of the governmental power and authority
        
        Constitution ought to be saturated with Constitutionalism and have certain restrictions on the powers of different organs of government in order to safeguard some basic rights of an individual like freedom, and maintain the personal liberty and dignity of an individual.
        
        constitution should not merely grant powers to different organs of government, but additionally seek to limit those powers
        
        Rameshwar Prasad v. Union of India
        
        The Supreme Court recognized the concept of constitutionalism in this case and stated that "constitutionalism or the constitutional system of government abhors absolutism – it is based on the Rule of Law in which subjective satisfaction is replaced by objectivity provided by the provisions of the Constitution itself.
        
        IR Coehlo v. State of Tamil Nadu
        
        The Court determined that constitutionalism is a legal principle that necessitates control over the exercise of governmental power in order to ensure that the democratic principles upon which the government is founded are not undermined.
        
        Maru Ram v. Union of India, (1981)
        
        Constitutionalism or constitutional system of government abhors absolutism-it is premised on the rule of law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.Power corrupts AND Absolute power corrupts absolutely.
        
        A country may have the 'constitution' but not necessarily 'constitutionalism' For example, a country with a dictatorship, where the dictator's word is law, can be said to have a 'constitution' but not constitutionalism'
        
        Constitutional government should necessarily be democratic government. Arbitrary power in the hands of any individual or institution - even if conferred by a constitutional document - is a negation of the concept of constitutionalism'
        
        Negative Constitutionalism (preventing tyranny):
        
        The idea that the state can be a danger or a source of oppression to the citizens had gained ground
        in the late medieval and early modern age.
        
        Positive Constitutionalism:
        
        Positive constitutionalism says that government must have certain powers to perform its functions properly, thus trying to balance the government's powers to prevent tyranny (due to excessive power and its abuse) and anarchy. (due to inadequate power)
        
        Factors Affecting Constitutionalism
        
        Administrative culture:
        
        Social value system:
        
        Political Culture:
        
        Interpreting the Constitution:
        
        English words
        
        Preamble:
        
        Progressive Interpretation
        
        implies that the courts have construed the Constitution's provisions in light of the social, economic, and legal circumstances that existed at the time.
        
        Purposive Interpretation
        
        purposive construction, purposive interpretation, or the “modern principle in construction” is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (that is, a statute, a part of a statute, or a clause of a constitution) in light of the purpose for which it was enacted.
        
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        Harmonious Construction:
        
        The doctrine states that, whenever there is a dispute between two or more statutes, or between two or more portions or provisions of a legislation, the statute should be read in accordance with harmonious construction.
        
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        Liberal Interpretation:
        
        Article 366, 367 and 12,36
        
        Definitions and Interpretation are defined under
        
        Ram Jethmalani v. Union of India, (2011)
        
        Modern constitutionalism, to which Germany is a major contributor too, especially in terms of the basic structure doctrine, specifies that powers vested in any organ of the State have to be exercised within the four corners of the Constitution, and further that organs created by a constitution cannot change the identity of the constitution itself. ;
        
        HOW IT CAN BE MISUSED BY CROOKED MINDS :
        
        Constituent Assembly, its members were mindful of the challenges of governance.
        
        Dr. B.R. Ambedkar, Chairman of the Constitution Drafting Committee, said: “I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.”
        
        The members also recognised that the mere adoption of a good Constitution would not culminate in the values of constitutionalism permeating the civil and political culture in the country, nor could it ensure good governance.
        
        ‘Limited Governance’ is the Constitutionalism, which is supposed to reflect in the Constitutional Law of a democratic state.
        
        The listed fundamental rights and guaranteed remedies, creation of judiciary as an impartial arbiter with all independent powers besides broad based legislative check on the executive are the reflections of such constitutionalism.
        
        CRITICISM
        
        Legal scholar Jeremy Waldron contends that constitutionalism is often undemocratic:
        “Constitutions are not just about retraining and limiting power; they are about the empowerment of ordinary people in a democracy and allowing them to control the sources of law and harness the apparatus of government to their aspirations”
        
        This view does not hold well with Indian Constitution
        
        Murray Rothbard, attacked constitutionalism as incapable of restraining governments and does not protect the rights of citizens from their governments:
        
        no constitution can interpret or enforce itself; it must be interpreted by men.
        
        This can be related to India with Judicial Overreach by India Judiciary in Certain cases & declaration of emergency by Indira gandhi
      - Constitutional law includes .
        
        JUDICIAL PRECEDENTS
        
        AMENDMENTS IN CONSTITUTION
        
        the Constitution,
      - Purpose of
        Constitution
        
        Expression of ideology
        
        Reflects the ideology and
        philosophy of a nation state
        
        India: Sovereign, Social,
        democratic & Republic
        
        Nature of Government
        
        Explains the Levels of different
        organs
        
        Whether it is federal
        Whether it is unitary
        
        presidential or parliamentary
        
        Organizational framework
        
        Defines the Functions of Govt.
        organ :Legislative, Executive
        Judiciary
        
        Inter-relationship between them
        
        Process of Amendment
        
        Defines the provisions for
        amendment
      - The constitutional law of a country comprises of different ‘legal’ and ‘non-legal’ norms.
  - - - Fundamental Duties: Article 51 A of the constitution of India gives force to Article 29(1) of the UDHR
      - The Fundamental Rights in Part III of the constitution and the Directive Principles of state policy in Part IV of the constitution can be compared with the UDHR and many common points can be seen.
    - - reflected in Part III of the constitution
    - - is reflected in Part IV and the Preamble to the constitution
    - - Article 253 is the specific Article that gives the parliament the special power to legislate and pass laws in order to implement international agreements.
      - Article 51: According to the provisions in this Article, the state has the responsibility to promote international peace and security in the nation and maintain just and honourable relations with other nations
    - - Whenever any situation or conflict arises between two nation states, International Law is considered for its redressal, thus the states have to obey the rules enshrined in it