CONSTITUTIONAL LAW

MODULE 1: Introduction to Constitution and Constitutional Law

Table of Contents
Lecture 1: Constitution, Constitutional Law, and Key Principles..........................................2
1. Constitution....................................................................................................................................2
2. Constitutional Law........................................................................................................................2
3. Constitutionalism...........................................................................................................................2
4. Transformative Constitutionalism...............................................................................................3
5. Basic Constitutional Principles....................................................................................................3
Federalism:.....................................................................................................................................................3
Rule of Law:...................................................................................................................................................3
Separation of Powers:.....................................................................................................................................4
Checks and Balances:.....................................................................................................................................4
The Preamble:.................................................................................................................................................4

Key Readings Summary....................................................................................................................4

Lecture 2: Indian Constitutional History and the Constituent Assembly...............................5
1. Historical Influences on the Indian Constitution.......................................................................5
Government of India Act, 1858:.....................................................................................................................5
Indian Councils Act, 1892:.............................................................................................................................5
Government of India Act, 1919:.....................................................................................................................5
Government of India Act, 1935:.....................................................................................................................5

2. Constituent Assembly and the Framing of the Constitution.....................................................6

Adoption of the Constitution:...........................................................................................................6
Key Readings Summary....................................................................................................................7
Lecture 1: Key Readings Summary on Constitutional Concepts and Principles...................7
1. Gautam Bhatia on Transformative Constitutionalism...............................................................7
2. Akash Singh Rathore on the Authorship of the Preamble.........................................................8
Lecture 2: Key Readings Summary on Indian Constitutional History...................................9
1. D.D. Basu on Historical Foundations and the Constituent Assembly......................................9
2. Rohit De on Everyday Impact of the Constitution in India....................................................10
Lecture 1: Constitution, Constitutional Law, and
Key Principles
1. Constitution
 Definition: The Constitution is the supreme law of India. It is a written
document that lays out the framework of the government, defines its
powers, and establishes the relationship between the government and its
citizens.
 Purpose: It protects citizens’ rights, limits government powers, and
ensures the rule of law. This makes the Constitution the foundation of all
legal and political authority in India.
 Characteristics:
o Comprehensive: India's Constitution is one of the longest in the
world, covering various aspects of governance and rights.
o Flexible yet Rigid: Some parts can be amended easily, while
others require a more rigorous process.
• The basic features of the Constitution are
1. Parliamentary form of government.
2. Federal nature of the Constitution.
3. Flexibility of the Constitution.
4. Aspirational character of the Constitution.

2. Constitutional Law
 Definition: Constitutional law refers to the body of laws that interprets
and applies the Constitution. It involves the judicial interpretation of the
Constitution and the roles of various institutions within it.
 Significance: Constitutional law maintains a balance between different
branches of government and protects fundamental rights. It also allows
the judiciary to perform judicial review, ensuring that government actions
comply with the Constitution.
3. Constitutionalism
 Concept: Constitutionalism is the belief that government powers should
be limited by a constitution to prevent abuse of power. It emphasizes the
rule of law, meaning that everyone, including government officials, is
subject to the law.
 Application in India: The Indian Constitution includes mechanisms like
the separation of powers and checks and balances to prevent any single
branch from dominating. This structure embodies constitutionalism,
where government actions are regulated to protect citizens' rights and
freedoms.

4. Transformative Constitutionalism
 Definition: Transformative constitutionalism is the idea that the
Constitution should be used to bring about social change and address
inequality. It views the Constitution not only as a legal document but as a
tool for social justice.
 Relevance to India: India’s Constitution aims to reduce socio-economic
disparities, promote equality, and protect marginalized groups. Judicial
interpretations often focus on these goals, evolving the Constitution to
meet new social challenges. For example, cases like Navtej Singh Johar
v. Union of India decriminalized homosexuality, showing the
transformative power of the Constitution.

5. Basic Constitutional Principles

Federalism:
o Definition: Federalism divides power between the national
government (the Union) and regional governments (the States).
o Indian Model: India has a unique model called "cooperative
federalism," where the central government holds more power than
the states. However, states still have significant autonomy in
specific areas.
o Example: The Constitution lists subjects under Union, State, and
Concurrent Lists, giving each level of government clear areas of
authority.
Rule of Law:
o Concept: The rule of law means that everyone, including
government officials, is subject to the law. It ensures fairness and
equality before the law.
o Importance: It prevents arbitrary actions by the government and
guarantees that rights are protected through the legal system.
o Example: Articles 14 to 18 ensure equality before the law and
prohibit discrimination, supporting the rule of law in India.

Separation of Powers:
o Concept: This principle divides the government into three
branches—Legislative, Executive, and Judiciary—to prevent any
one branch from having too much power.
o Application: Each branch has distinct roles:
 Legislature (Parliament): Makes laws.
 Executive (Government): Enforces laws.
 Judiciary (Courts): Interprets laws and ensures they comply
with the Constitution.
 . John Lock observed on the need for separation of powers in
as early as 1960. He satisfied to the human refuse to grasp
power and danger of such power vesting absolutely in one
person or institution
 First attempt towards this was “Philadelphia Convention”.
 When the legislative and executive powers are united in the
same person or in the same Magistrates or body, there can be
no liberty. Again, there is no liberty if the judicial power is
not separated from the legislative and executive powers.
Were it joined with the legislative power, the life and liberty
of the subject would be exposed to arbitrary control; for the
judge would then be the legislator. Were it joined with the
executive power, the judge might behave with violence and
oppression. There would be an end of everything were the
same man or the same body to exercise these three powers.
  There are two views about Doctrine of separation of powers
– (In USA)
 Formalistic View: It demands adherence by each branch
meaning thereby – as a command of the Constitutional text.
Thus this view expresses strict separation of powers.
 Functionalism: Commands fidelity to the purposes of
distribution of powers. The Constitution’s distribution of
powers is violated only if one branch of federal government
aggrandizes its power at the expense of another branch.
 In short functionalist views such SOP as a component of
fulfilling the constitutional goals.
o Example: The Supreme Court has the power of judicial review to
check if laws passed by Parliament adhere to the Constitution.

Checks and Balances:

o Definition: Checks and balances are mechanisms that allow each
branch of government to limit the powers of the others. This
prevents misuse of power.
o Example: The President can return a bill passed by Parliament for
reconsideration, and the judiciary can declare laws unconstitutional
if they violate fundamental rights.
o Art 262(1) & (2) Parliament may be law provide for the
adjudication of any dispute or complaint with respect to use, dist

o In Indian system besides from broad separation, there is a

functional overlapping i.e. checks and balances the Supreme Court
has the power to declare void the laws passed by the legislative and
the action taken by the executive if they violate the provisional of
constitution or law passed by the legislative in case of executive
actions. Similarly, it is open to a legislative to act the basis of the
judgment.

o Check on Judiciary-
 o The appointment and removal of the High Court and Supreme
Court judges is by the head of the executive but now in practice
this power has been taken over by the Supreme Court. (Supreme
Court Advocates on Record Association v. Union of India).
o The Judges of superior courts may be removed through
impeachment by Parliament on the grounds of incapacity and
proved misbehavior.
o Article 262 is also a check on the Judiciary.

The Preamble:
o Purpose: The Preamble of the Indian Constitution introduces its
fundamental values: justice, liberty, equality, and fraternity.
o Significance: It reflects the aspirations of the people and guides
interpretation, though it is not legally enforceable.
o Content: It states that India is a sovereign, socialist, secular, and
democratic republic, committed to securing justice, liberty,
equality, and fraternity for all citizens.

Key Readings Summary:

 Aakash Singh Rathore discusses the drafting and philosophical debates
surrounding the Preamble. He highlights that the Preamble represents
India's collective goals, yet its precise authorship is debated(Who wrote
the Preamble …).
 Gautam Bhatia describes transformative constitutionalism, encouraging a
view of the Constitution as an evolving document that adapts to social
needs and challenges for greater equality(youtube notes).
Lecture 2: Indian Constitutional History and the
Constituent Assembly
1. Historical Influences on the Indian Constitution
Government of India Act, 1858:
o Impact: Ended the East India Company’s rule and brought India
under British Crown control. This act marked the beginning of
centralized administration in India.
Indian Councils Act, 1892:
o Contribution: Introduced legislative councils, allowing limited
Indian participation in governance.
o Limitations: Participation was restricted, and the British
government retained significant control.
Government of India Act, 1919:
o Key Feature: Introduced dyarchy (dual governance) in provinces,
dividing subjects into "transferred" and "reserved" categories.
Indians could manage the transferred subjects, mainly education
and health, while the British controlled reserved subjects like law
and order.
o Significance: This partial self-governance was an important step
toward full autonomy.

Government of India Act, 1935:

o Foundation of Federalism: Established federal structure, dividing
powers between the central and provincial governments.
o Provincial Autonomy: Gave provinces more independence,
allowing them to operate autonomously in certain areas.
o Influence on the Indian Constitution: The act’s structure of
governance, including federalism and legislative lists, significantly
influenced the Constitution’s framework.

2. Constituent Assembly and the Framing of the Constitution

 Formation:
 o Demand for Self-Governance: Indian leaders had long called for
self-governance, and the idea of a Constituent Assembly emerged
to create a constitution reflecting Indian aspirations.
o 1946 Election: Members of the Constituent Assembly were
elected, representing a diverse range of communities and regions.
 Key Members: Figures like Dr. B.R. Ambedkar, Jawaharlal Nehru,
Sardar Patel, and Maulana Azad played vital roles in the Assembly, each
bringing unique perspectives.
 Drafting Process:
o Objectives Resolution: Introduced by Nehru, this outlined the
fundamental principles and objectives of the new Constitution.
o Role of Dr. B.R. Ambedkar: As Chairman of the Drafting
Committee, Ambedkar played a central role in shaping the
Constitution’s structure and ensuring it balanced democratic rights
with social justice.
o Debates and Discussions: The Assembly debated many issues,
including fundamental rights, secularism, and the balance of
power, showing a commitment to inclusivity.

Adoption of the Constitution:

o Date: The Constitution was adopted on November 26, 1949, and
came into effect on January 26, 1950.
o Significance: Adoption marked India’s transition to a republic with
a democratic framework, securing rights for all citizens.
o Guiding Vision: The Assembly’s vision was to create a
Constitution that would foster unity, uphold democracy, and
promote equality across the nation.

Key Readings Summary:

 D.D. Basu, in Introduction to the Constitution of India, explains the
gradual progression of constitutional reforms from the colonial period,
leading to the demand for a constituent assembly and eventual
independence(Introduction to the con…).
  Rohit De explores how early court cases quickly incorporated
constitutional principles into Indian life, illustrating the Constitution’s
relevance even beyond elite circles.

Lecture 1: Key Readings Summary on

Constitutional Concepts and Principles
1. Gautam Bhatia on Transformative Constitutionalism
 Concept Overview:
o Bhatia’s work on Transformative Constitutionalism emphasizes
how constitutions, especially India’s, can act as progressive forces
for social change. Transformative constitutionalism means using
the Constitution as a dynamic tool to address and correct societal
inequalities, advancing rights and freedoms over time. This
interpretation aims to make the Constitution an evolving document
that reflects and responds to the nation’s changing needs.
 Application in India:
o Bhatia argues that India’s Constitution was intended to address not
just legal governance but also social justice. Given India’s diverse
and historically stratified society, transformative constitutionalism
seeks to protect and uplift marginalized groups through inclusive
rights and protections.
o For example, Article 15 prohibits discrimination based on religion,
race, caste, sex, or place of birth. Such provisions are seen not just
as legal mandates but as societal corrections for centuries-old
injustices, embodying the transformative goals of the Constitution.
 Judicial Role:
o Bhatia highlights the judiciary’s role in interpreting the
Constitution to reflect these transformative values. Courts have
often expanded fundamental rights through progressive
interpretations, as seen in cases like Navtej Singh Johar v. Union of
India, which decriminalized homosexuality in 2018, and Shayara
Bano v. Union of India, which declared the practice of triple talaq
 unconstitutional. These judgments showcase how transformative
constitutionalism actively shapes Indian society.

2. Akash Singh Rathore on the Authorship of the Preamble

 Exploring Authorship Controversies:
o Rathore’s examination, Who Wrote the Preamble to the Indian
Constitution?, delves into the mystery and historical debate over
who truly authored the Preamble. Traditionally attributed to Dr.
B.R. Ambedkar and the Drafting Committee, Rathore questions
this common attribution, noting conflicting accounts and lack of
clear documentation.
 Conflicting Perspectives:
o Rathore describes multiple narratives:
1. Nehru’s Influence: Some accounts credit Jawaharlal Nehru,
whose Objectives Resolution outlined values like justice,
liberty, equality, and fraternity, which later appeared in the
Preamble. The Objectives Resolution, adopted by the
Constituent Assembly in 1946, provided the philosophical
basis for the Preamble, but the actual drafting remained
ambiguous.
2. BN Rau’s Role: BN Rau, the Constitutional Adviser,
prepared an early draft of the Constitution that included
principles similar to those later enshrined in the Preamble,
although his specific contributions remain unclear.
3. Collective Drafting: Another view is that the Preamble’s
drafting was a collaborative effort of the Drafting Committee
members, including Dr. Ambedkar, K.M. Munshi, and Alladi
Krishnaswami Ayyar.
4. Ambedkar’s Default Authorship: Since Dr. Ambedkar was
central to the Drafting Committee’s work, he is often
recognized as the Preamble’s author by default, though
Rathore suggests this view might oversimplify the drafting
process.
 Importance of the Preamble:
 o Despite the mystery of authorship, Rathore emphasizes the
Preamble’s power as a statement of India’s core values. It
articulates the nation’s goals—sovereign, socialist, secular,
democratic republic—and promotes justice, liberty, equality, and
fraternity. The Preamble serves as a guiding light for interpreting
the Constitution, reflecting the aspirations of the Indian people.

Lecture 2: Key Readings Summary on Indian

Constitutional History
1. D.D. Basu on Historical Foundations and the Constituent Assembly
 Influences from Colonial Legislation:
o In Introduction to the Constitution of India, D.D. Basu details how
key British legislative acts influenced India’s constitutional
framework:
 Government of India Act, 1919: Known as the Montagu-
Chelmsford Reforms, this act introduced dyarchy, where
provincial responsibilities were divided into “transferred”
and “reserved” subjects. While it allowed limited Indian
control over specific areas like education and public health,
key sectors such as finance and law enforcement remained
under British control. This limited autonomy laid a
foundation for self-governance in provincial matters.
 Government of India Act, 1935: This act proposed a
federal structure for India, dividing powers between central
and provincial governments. It introduced provincial
autonomy and a bicameral federal legislature, forming the
basis for federalism and legislative structures later adapted in
the Indian Constitution.
 Formation and Role of the Constituent Assembly:
o Basu outlines the demand for an Indian Constitution framed by a
body representative of the Indian populace. With the British finally
agreeing, the Constituent Assembly was formed in 1946. The
 assembly included prominent leaders from various backgrounds,
each contributing to the drafting process.
o Objectives Resolution: Proposed by Nehru, this resolution set the
principles of sovereignty, democracy, and social justice as core
ideals. Basu explains that these ideals directly influenced the
Constitution’s content and especially the Preamble.
 Drafting and Adoption:
o Dr. Ambedkar, as Chairman of the Drafting Committee, played a
pivotal role in finalizing the Constitution, balancing democratic
values with protections for marginalized groups. The Assembly
debated various provisions to ensure an inclusive and
representative constitution.
o The Constitution was adopted on November 26, 1949, and came
into effect on January 26, 1950, a date chosen to commemorate the
1930 declaration of Purna Swaraj (complete independence).

2. Rohit De on Everyday Impact of the Constitution in India

 Constitution’s Role in Daily Life:
o In Law and Life in India, Rohit De explores how the Constitution,
though written by elite politicians, quickly became relevant to
ordinary citizens. This accessibility arose from the Constitution’s
promise of rights and justice, encouraging citizens to use it to
challenge government actions.
 Case Studies of Legal Activism:
o De describes how marginalized groups—such as butchers,
vegetable vendors, and sex workers—began to assert their rights
through constitutional petitions. Despite legal illiteracy among
many citizens, they saw the Constitution as a pathway to justice,
using the courts to claim rights or challenge policies that affected
their lives. This everyday use of the Constitution strengthened
India’s democratic foundations and reinforced the Constitution’s
role as a living document.
 Role of Media and Lawyers:
o Lawyers and the media played crucial roles in making
constitutional rights more accessible to the public. By spreading
awareness and providing legal assistance, they enabled citizens to
engage with the Constitution. De highlights how this grassroots
activism contributed to a stronger, more participatory legal culture
in India.