2013

JAIPUR
ENGINEERING
AND COLLEGE
CENTRE

HUMANITIES
AND SOCIAL
SCIENCE PROJECT



1


[INDIAN CONSTITUTION]
2


3


The Constitution of India is the supreme law of India. It
lays down the framework defining fundamental
political principles, establishes the structure,
procedures, powers, and duties of government
institutions, and sets out fundamental rights, directive
principles, and the duties of citizens. It is the longest
written constitution of any sovereign country in the
world, containing 450 articles in 22 parts, 12 schedules
and 94 amendments.

The Constitution was enacted by the Constituent
Assembly on 26 November 1949, and came into effect
on 26 January 1950.India celebrates the adoption of
the constitution on 26 January each year as Republic
Day.
Parts: The Individual Articles Of The Constitution Are
Grouped Together Into The FollowinG-
4



Part I - Union And Its Territory
Part II - Citizenship.
Part III - Fundamental Rights
Part IV - Directive Principles And Fundamental Duties.
Part V - The Union.
Part VI - The States.
Part VII - States In The B Part Of The First
Schedule(Repealed).
Part VIII - The Union Territories
Part IX - Panchayat System And Municipalities.
Part X - The Scheduled And Tribal Areas
Part XI - Relations Between The Union And The States.
Part XII - Finance, Property, Contracts And Suits
Part XIII - Trade And Commerce Within The Territory Of
India
5

Part XIV - Services Under The Union, The States And
Tribunals
Part XV - Elections
Part XVI - Special Provisions Relating To Certain Classes.
Part XVII - Languages
Part XVIII - Emergency Provisions
Part XIX - Miscellaneous
Part XX - Amendment Of The Constitution
Part XXI - Temporary, Transitional And Special
Provisions

6

INTRODUCTION-

There is no doubt that each society has political activity
that connects with its social, economic, geographic and
political conditions, as well as constitutional studies
come at the top of the legal studies due to the subject
of the constitutional law connects directly with life and
cares of all citizens in the state, rulers or subjects. If the
constitutional law cares with the rulers from one
corner, but it determines the general aspect of
authorities and regime of the governing in the state
and draws the limits for specification to each authority
and its relations with others.

Whatever point of view, there is no dispute on
importance of the constitutional law because it cares
with the rulers and subjects and upgrades to the top
7

place. The constitution is a set of the legal rules
organize entity of the state and human society that
exists among definite geographic space regarding with
constitution and legal rules are in permanent and
continues movement.

Customary Constitutions And Written Constitutions

It's known that the rules regarding with any political
system of any state, it will be two ways, either resulting
from customary without writing out any formal texts,
in this case it's said there is customary constitution.
The second case it may be wrote down in formal
document that is made to be known at the all (Dr.
Sabri, Said).


8

So that there two types that are customary
constitutions and written constitutions.

CUSTOMARY CONSTITUTION

The customary is considered the oldest formal
resources of the legal rule. It remained the sole source
of the constitutional rules in the world till 18th century.
It is theoretic and needed source, whereas gives
binding force to the legal rule in the performance. (Dr.
Abu Steet, A).

English constitution is the clearest example for such
type of the constitutional laws because the
constitutional laws were formed by the customary in
Britain that often represents still constitutional rules.
Customary ruels include other written constitutional
rules embody in the "the Greatest Era" of year 1215
9

A.D. "Magna Carta and Bill & Rights" of year 1689, and
Parliament Act in 1911. Although such constitutional
documents vary in Britain, it is not sufficient for
political regime in the state that determined by
customary rules in general. (Bashir, M. Ibid, page 42).

The cause may be that England takes the customary
constitution, this is referred to nature of the English
people itself who intends to develop its rules and laws
quietly without violent, as well as constitutional history
began in England early. Moreover, the causes that
called most of the countries to take with written
constituions that were not available in English regime.
(Al Sha'r, R.).


The importance of customary rules in the English
constitution appears in survey the field that prevailed
10

by it. Because of the English constitution is a set of the
systems are often emerged in permanent customaries
as long as new necessities made.

If the customary rules took great importance in
establishing of the constitutional laws in non written
constitutions of the countries. Such rules and laws are
emerged as a result of following up a public authority
in the definite country relating with habit of the any
target of the constitutional law without any contrary of
the other authorities till it remains in the minds of the
people had to respect such rules, consequently it adds
binding feature.

WRITTEN CONSTITUTION

The first written constitutions were English colonies
constitutions in the North America after its freedom in
11

1776, USA Constitution in 1787 that still remains. Since
written constitutions appeared, the idea of
constitution liberty prevailed to be a tool for freedom
whereas it remains with specific right for the citizen.
The idea of written constitution transferred from
America to France till it made the first written
constitution on 3 September 1791, then coveyed into
the remaining European countries. After that range of
the written constitution expanded in First World War
as well as expanded into the Arabian countries.

Consequently, the written constitution acquired
political sense because it connects closely with definite
matter of the government. According to that written
constitutions add on the constitutions rules
emphasizing and determining. (Dr. Bashir, M).

Flexible And Rigid Constitutions
12


Explainers indicated that flexible constitution that is
can be amended by the authorities and with
procedures may need for the ordinary laws. When
there is flexible constitution such England Constitution,
this means that there is no any constitution from the
form aspect because there is no any conditions vary
between the constitution amendments and ordinary
legislation amendment, so that establishing authority
mixes with legislative authority.

As per the rigid constitution, it can't be amended but
by authorities and different procedures than such
methods that amend the ordinary laws. Whereas as
amendment of the rigid constitution vary here than
method of the flexible constitution amendment.


13

On the second hand, the rigid constitution has firmness
feature as a result of the special procedures that are
shall be regarded at amendment of its items. As per
the flexible constitution doesn't stipulate definite
procedure that should be regarded to amend. (Bashir,
Al Shafei Mohammed). This doesn't mean that the
constitution can't be touched totally and it can't ever
amended, but it means making and amendment it.

In short, I can sum that the Standard can be taken for
the difference between the flexible and rigid
constitutions in as difficulty and complexity in
amendment of the rigid constitution, if this difficulty
increases, it will be rigid constitution, while this
difficulty decreases, it will be half rigid or half flexible.

Constitutional Convention

14

It may appear along with written constitution practical
needs in which written constitutional rules doesn't
complicate; in this case constitutional convention
appears along with constitutional flexible rules
officially. This convention may interpret or complete
deficit in the constitution, but some says that the
constitutional convention may be amended as
constitutional item.

The constitutional convention emerges along with
written constitution and it consists with physical and
spiritual article, i.e. with following up definite custom
then is followed till to be binding matter. Such customs
are emerged by political life in the country to exist to
the written constitution as complementary or
amended rules to some its items.

15

Accordingly, the constitutional convention is either
interpretation or complementary, or amended to some
items of the constitution. In the interpretation custom,
the customs performs with interpreter for ambiguity of
the constitutional text. To raise this role, it's supposed
there is ambiguity constitutional text, as well as it
shows way of application of the texts and conditions.
Among examples of the interpreter custom what is
made in accordance with French Constitution 1875.

As per complementary custom, it overcomes
interpreter custom role to play affected role along with
written text, it represents in establishing new decision.
As shown from its name, complementary custom may
emerge to handle deficit problem of the written
constitutional text because it supposes that the
constitution neglects specific matter.

16

In short that complementary constitution is unlike
interpreter custom because it doesn't relay on
constitution item, and also it establish new
constitutional rule. Among examples is French
constitution 1875 provided that election shall be the
ballot, and the custom completed this item whereas
the election was directly and one degree. (Abu Al
Magd, Ahmed Kamal).

As per amended custom, that works to amend the
constitutional text, it doesn't limited to its ambiguity as
interpreter custom or complete what is required of
deficit as complete custom, but it aims at amendment
of constitutional text and abrogate it provision and add
new provision or cancel the standing text.

Legal Value Of The Constitutional Convention

17

The jurists vary in determine of the legal value of the
constitutional convention. Some of them say that its
value may be over the constitutional texts, equals to be
established in accordance flexible or rigid constitution.
But others say that interpreter constitution convention
takes degree of the written constitutional text that is
emerged beside it. As types of the other constitutional
custom takes degree of ordinary law.

Reference of this difference is that interpreter
constitutional convention doesn't establish new
constitutional rule other than types.

Conclusion

In conclusion, I can confirm that there is no any state
can live without law and there is not law without
sovereignty. So that sovereignty of the law represents
18

in our belief distinctive standard of the state then
others of human communities. Sovereignty of the law
is not slogans but it is fact shall be committed and
obligated till the people find it before them in their
daily life. There is no doubt that constitutional law is
the first laws. Emphasizing that protection of the
constitution from frivolity is to protect of entity of the
society and its people.

19

The main reason for having a constitution is to define
the laws, rules and procedures under which the
organization operates.

Types of constitution: Virtually all organizations have to
be legally constituted in some way and each category
will be subject to different laws and taxation regimes.
Some examples of constitutions follow: Sole traders
(Plumber, accountant, artist), Partnerships (Legal and
accountancy firms), Charities (Oxfam, hospices,
churches), Private companies (Small businesses,
residents' groups) Public companies (IBM, Marks &
Spencer, Shell), Government agencies (Food
Standards, Racial Equality), Government departments
(Social Security, Ministry of Defence), Public Services
(BBC, National Health Service), Local government (City
councils, county councils), Mutual (Financial funds,
betting syndicates), Franchises (Burger King, Budget
Rent-a-Car), Co-operatives (Groups of fishermen or
20

craftsmen), Illegal organizations (Cartels, crime
syndicates). Each form of constitution is subject to its
own peculiar legal framework, taxation regime and
disclosure and accountability rules. What is right at a
particular time is not necessarily appropriate five years
later, as for example with a private company finding
that it needs additional finance which only a public
company would have access to.

Changes to constitutions: It is often fashionable to
change a constitution - mutuality often giving way to
company status, as with the recent fashion for financial
institutions to convert from mutual societies (owned
by the members, who may be employees or
customers) to public companies (owned by
shareholders, who provide finance and receive profits).
The reason usually given for this change is to
encourage greater growth, diversification and access to
21

funds, but it could be that the senior executives want
to appear more successful and justify higher salaries.

The effects of a constitution: The type of constitution
affects other elements in the model. For example, a
charity does not have owners as such but trustees; it is
limited in obtaining financial resources (since it cannot
raise funds on the stock market); and its financial
results are not geared to making a profit but showing
that it has been prudently managed. All managers in
the organization should be aware of what its
constitution is and under which laws and constraints it

22

PUBLIC CONSTITUTION AND
GOVERNMENT

Introduction

There have been many different approaches to
defining what a constitution actually is, however, for
the purposes of this text, I will be using the broad
definition that:

A constitution is a set of rules (e.g. conventions),
procedures and laws

which divide the government into identifiable
institutions and determines how power will be
distributed between them, gives the procedures
through which the power is to be exercised and
23

explains the relationship between these governmental
institutions and the individual citizen.



Compared to other countries

Most countries have a written constitution, that is a
single document which encompasses all of the above,
for example the Constitution of the USA within which is
found the Bill of Rights'. Evidence of this is to be found
in the first three articles of the document which set out
the roles and powers of the Congress (Art 1), the
President (Art 2) and the Supreme Court (Art 3).


Structure
24


There are only three countries in the world which have
an unwritten constitution, or more specifically, un-
codified, namely New Zealand, Israel and the United
Kingdom (although New Zealand has recently taken
steps towards a written constitution with the
enactment of the Constitution Act 1996). In his book
Constitutional and Administrative Law,' Alex Carroll
describes the UK constitution as a myriad of judicial
decisions, Acts of Parliament and established political
practices (conventions). It is in this sense, therefore,
that the constitution may be defined as unwritten'.'
He goes on to explain that the reason why our
constitution has remained unwritten could be put
down to the fact that we haven't had the sort of
cathartic political events (e.g. defeat in war or civil
insurrection) which, in many other countries, have led
to the abandonment and replacement of a pre-existing
constitutional order.'
25




Sources

The UK constitution has a number of sources, the
traditional ones being legislation, whether primary
(Acts of Parliament) or delegated (made by other
authorities on whom Parliament has conferred the
power to legislate); judicial decisions, whether that be
in the interpretation of statutes or in the formation of
common law; and constitutional conventions which
Dicey described as constitutional morals.'




26

Characteristics

Due to the structure of our constitution, it is far easier
to make changes to it than in other countries. For
example, to make an amendment to any part of the
constitution of the USA, it is required that a majority of
two thirds of both houses of Congress, and the
legislatures of three quarters of the several states,
agree upon it (Art 5). This method of protecting
constitutional fundamentals is called entrenching.'
However, in the UK there

are three ways to make amends. The first is through
legislation. A new piece of legislation, passed according
to normal Parliamentary procedure may change any
part of the constitution. Judicial decisions in normal
cases may also have an effect, making this the second
method. Changes in existing conventional practices can
27

also lead to a change in our constitution. Because there
are three methods and they are each easily
implemented, then it's shows us that our constitution
has the ability to be very flexible. This has been both
criticised and praised. Those in support of the current,
unwritten, format emphasise its ability to change
quickly with changing times and this characteristic of
flexibility. Those who are in favour of forming a written
constitution argue that due to the executives' majority
in the House of Commons, it is possible that the
government could, Alex Carroll says, impose
constitutional change purely for reasons of political
expediency and ephemeral ideology.

28

SALIENT FEATURES OF INDIAN
CONSTITUTION

The main features of Indian Constitution are the
following:

(i) A written and lengthy constitution:

The Constitution of India is a written constitution. It
was framed by a Constituent Assembly which was
established for the purpose in 1946. It has 395 Articles
and 12 Schedules. A number of amendments, (about
96) passed since its enforcement in 1950, have also
become a part of the Constitution.

The Constitution of India is the lengthiest constitution
in the world as no other constitution contains as many
29

articles. The constitution of USA has 7 Articles, of China
138, Japanese 103, and Canadian 107 Articles.

(ii) Sovereign, socialist, secular, democratic, republic:

The Constitution declares India to be a Sovereign,
Socialist, Secular, Democratic, Republic. The words,
'Socialist' and 'secular' were added in the Preamble of
the Constitution by 42nd amendment which was
passed in 1976.

Sovereign means absolutely independent; it is not
under the control of any other state. Before 1947, India
was not sovereign as it was under the Britishers. Now it
can frame its policy without any outside interference.

Socialist:
30


Word 'Socialist' was added in the Preamble by 42nd
Amendment of the Constitution which was passed in
1976. This implies a system which will endeavour to
avoid concentration of wealth in a few hands and will
assure its equitable distribution.

It also implies that India is against exploitation in all
forms and believes in economic justice to all its
citizens.

Secular:

The word 'Secular', like Socialist, was also added in the
Preamble by 42nd Amendment of the Constitution.
There is no state religion in India. Every citizen is free
to follow and practise the religion of his/her own
31

choice. The state cannot discriminate among its
citizens on the basis of religion.

Democratic:

Means that the power of the government is vested in
the hands of the people. People exercise this power
through their elected representatives who, in turn, are
responsible to them. All the citizens enjoy equal
political rights.

Republic:

Means that the head of the State is not a hereditary
monarch but a President who is indirectly elected by
the people for a definite period.

32

(iii) Federal government:

The Constitution provides for a federal form of
government. In a federation, there are two
governments-at the central level and at the state
(province) level. In India, the powers of the
government are divided between the central
government and state governments. There are three
different lists of subjects- (i) Union list, (ii) State list and
(iii) Concurrent list. The Union list contains 97 subjects
of national importance like Defence, Foreign Affairs,
Currency, Post and Telegraph, Railways.

On these subjects, only central legislature (Parliament)
can make laws. State list contains 66 subjects of local
importance. On these subjects, state legislatures make
laws. These subjects include agriculture, police, and
jails. Concurrent list contains 47 subjects which are of
33

common concern to both the central and state
governments.

These include marriage, divorce, social security etc. On
these subjects, both the parliament and state
legislatures can legislate. However, if there is a conflict
between a central law and the state law over a subject
given in the concurrent list, the central law will prevail.

(iv) Parliamentary government:

Indian Constitution provides for a parliamentary form
of government. President is nominal head of the state.
In actual practice, the government is run by the Prime
Minister and other members of the Council of Minister.
The Council of Ministers is collectively responsible to
the Parliament.

34

(v) Fundamental rights and duties. The Constitution of
India guarantees six fundamental rights to every
citizen. These are:

i. Right to Equality.

ii. Right to Freedom.

iii. Right against Exploitation.

iv. Right to Freedom of Religion.

v. Cultural and Educational Rights.

Vi. Right to Constitutional Remedies.

35

By 42nd Amendment of the Constitution, ten
Fundamental Duties of citizens have also been added.

(vi) Directive principles of state policy:

The Directive Principles of State Policy are listed in Part
Four of the Constitution. The framers of our
constitution took the idea of having such principles
from the Irish Constitution. These principles are
instructions given by the Constitution to government.

All the governments-Central, State and Local-are
expected to frame their policies in accordance with
these principles. The aim of these principles is to
establish a welfare state in India. They, however, are
not binding on the government-they are mere
guidelines.

36

(vii) Partly rigid and partly flexible:

The Constitution of India is neither wholly rigid nor
wholly flexible. It is partly rigid and partly flexible. It is
because of the fact that for the purpose of
amendment, our constitution has been divided into
three parts: (a) certain provisions of the constitution
can be amended by a simple majority in the
Parliament.

(b) Certain provisions can be amended by a two-third
majority of the Parliament and its ratification by at
least fifty percent states.

(c) The remaining provisions can be amended by the
Parliament by two-third majority.

(viii) Single citizenship:
37


In federation, normally we have double citizenship. In
U.S.A. every citizen besides being a citizen of United
States of America is the citizen of the state in which he
or she resides. But the Constitution of India provides
for singi' citizenship-every Indian, irrespective of his
place of birth or residence, is a citizen of India. There is
no citizenship of Delhi, Punjab, Haryana or U.P.

(ix) Universal adult franchise:

The constitution provides for Universal Adult
Franchise. It means that every citizen who is 18 years
of age or more is entitled to cast his/her vote
irrespective of his caste, creed, sex, religion or place of
birth.

(c) Language policy:
38


The Constitution has also defined the language policy.
India is a country where different languages are spoken
in various parts of the country. Hindi and English have
been made official languages of the central
government. A state can adopt the language spoken by
its people in that state also as its official language. At
present, we have 22 languages which have been
recognised by the Indian Constitution. These are:

Languages Recognised by the Indian Constitution

Assamese

Gujarati

Konkani
39


Marathi

Sanskrit

Telugu

Bengali

Hindi

Maithili

Nepali

Santhali
40


Urdu

Bodo

Kannada

Malayalam

Oriya

Sindhi

Dogri

Kashmiri
41


Manipuri

Punjabi

Tamil

(xi) Special provisions for scheduled castes and
scheduled tribes:

The Constitution provides for giving certain special
concessions and privileges to the members of these
castes. Seats have been reserved for them in
Parliament, State legislature and local bodies, all
government services and in all professional colleges. At
present these concessions will continue up to the year
2010.
42


(xii) Independent judiciary:

The Indian Constitution provides for an independent
judiciary. The judiciary has been made independent of
the Executive as well as the Legislature. The judges give
impartial justice.

(xiii) A constitution derived from many sources:

The framers of our constitution borrowed many things
from the constitutions of various other countries and
included them in our constitution. That is why; some
writers call Indian Constitution a 'bag of borrowings'.

(xiv) One national language:

43

Although India is a multi-lingual state, the constitution
provides that Hindi in Devnagri script will be the
national language. It shall be the duty of the union to
promote and spread Hindi language.

(xv) Emergency provisions:

The framers of our constitution had realised that there
could be certain dangerous situations when
government could not be run as in ordinary time.
Hence our constitution contains certain emergency
provisions. During emergency the fundamental rights
of the citizens can be suspended and our government
becomes a unitary one.


44