Constitutional

Law-I
Introductory Week PPTs
 Synopsis

01 02 03 04
Understanding the Looking in the hindsight: Understanding the tensions Understanding the Working
conceptual differences making of the constitution: within the Indian of the Indian Constitution
between a ‘constitution’, • Understanding the Constitutional Constitutional Design
‘constitutional law’ and Morality in the Indian context
‘constitutionalism’. • Understanding the project of the
Indian Constitution as a journey in
cosmopolitanism.
 Understanding the conceptual differences between a
‘constitution’, ‘constitutional law’ and ‘constitutionalism’

‘Constitutionalism’ as the overarching philosophy

Constitutional Law

Constitution
 Constitutions • “the Constitution of a country seeks to
establish its fundamental or basic or apex
and the organs of government and administration,
describe their structure, composition, powers
Constitutional and principal functions, define the inter-
relationship of these organs with one another,
Law and regulate their relationship with the people,
more particularly, the political relationship.
• And even about these basic institutions, only
the basic norms are inscribed in the
Constitution. All and sundry rules are not
brought into discussion under the rubric of
Constitutional Law.
• It may be noted that the term “Constitutional
law” is broader than the term “Constitution”,
as it comprises of the “Constitution”, relevant
[MP Jain, Commentary on the Constitution pg. 2] statutory law, judicial decisions and
conventions.”
Constitutiona “The Constitutional law of a country consists of both ‘legal’ as well as
‘non- legal’ norms. ‘Legal’ norms are enforced and applied by the courts

l Conventions
and if any such norm is violated, courts can give relief and redress. On the
other hand, ‘non- legal’ norms arise in course of time as a result of
practices followed over and over again. Such norms are known as
conventions, usages, customs, practices of the Constitution. There may be
nothing in the Constitution sanctioning them, nevertheless, they exist. In
the words of Jennings: “Thus within the framework of the law there is
room for the development of the rules of practice, rules which may be
followed as consistently as the rules of law which determines the
procedure which the men concerned with Government follow.”” [Jain,
pg.3]

According to KEETON, the conventions of the Constitution are ‘the

unwritten principles which, though they could never be enforced as law in
the courts are nonetheless rules since in fact the players of the
constitutional game do observe them, for if they are not observed, the
constitutional game would immediately degenerate into a political fracas
or, worse still, a bloody revolution.”” [Jain, pg.3]

[MP Jain, Commentary on the Constitution pg. 3]

Constitutionalism “Modern political thought draws a distinction
between ‘Constitutionalism’ and ‘Constitution’. 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’.” [Jain, pg. 8]

“The underlying difference between the two

concepts is that a Constitution ought not merely to
confer powers on the various organs of the
government, but also seek to restrain those
powers. Constitutionalism recognises the need for
government but insists upon limitations being
placed upon governmental powers.
Constitutionalism envisages checks and balances
and putting the powers of the legislature and the
[MP Jain, Commentary on the Constitution pg. 8] executive under some restraints and not making
them uncontrolled and arbitrary.” [Jain, pg. 8]
Constitution as a
Living Document “‘Constitutions spring from a belief in limited government’. According to SCHWARTZ,
in the U.S.A., the word Constitution means “a written organic instrument, under
which governmental powers are both conferred and circumscribed”. He emphasizes
that “this stress upon grant and limitation of authority is fundamental”.” [Jain, pg. 8]

“The idea of Constitutionalism is not new. It is embedded deeply in human thought.

Many natural law philosophers have promoted this idea through their writ ings.
Some of these philosophers are: ACQUINAS, PAINE, LOCKE, GROTIUS AND
ROUSSEAU. The Magna Carta (1215) strengthened the traditional view that law is
supreme. As observed by ARTHUR SUTHERLAND, “The Great Charter was obviously
a cherished standard, a welcome assurance that people could set some limitation on
the arbitrary power of the king.” [Jain, pg. 8-9]

“A written Constitution, independent judiciary with powers of judicial review, the

doctrine of rule of law and separation of powers, free elections to legislature,
accountable and transparent democratic government, Fundamental Rights of the
people, federalism, decentralisation of power are some of the principles and norms
which promote Constitutionalism in a country.” [Jain, pg. 9]
[MP Jain, Commentary on the Constitution pg. 8-9]
 Looking in the
In the words of Granville Austin, India’s constitutional project
Hindsight: is characterized as a twin revolution: social and national. The
question is how was this brought through by the makers?
Making of the
Constitution
According to Khosla, Mehta and Choudhary, "For others, it
was a political project, an expression of the fact that the
Indian people were finally sovereign and dedicating
themselves to the universal values of liberty, equality, and
fraternity.” [pg.2]

Khosla, Mehta and Choudhary characterize this historical

journey by recognizing the following as its hallmarks:
a. Constitutional Morality
b. Constitution Making and Constitutional Working as a
Cosmopolitan Journey
Oxford Handbook on the Indian Constitution, pg 2.
Indian Democracy as
a Classic Paradox
•Ambedkar’s distinction between
‘political equality’ and its ‘socio-
economic inequality’ highlights the
paradox in the Indian Democracy

•Ramchandra Guha, India after Gandhi

pg. 122
Ambedkar’s Distinction between
Constitutional Morality and Popular
Morality “This account of constitutional morality may seem to
emphasize the formal elements: self-restraint, respect
for plurality, deference to processes, scepticism about
authoritative claims to popular sovereignty, and the
concern for an open culture of criticism that remains at
the core of constitutional forms. These may seem rather
commonplace, but Ambedkar had little doubt that the
subjectivity that embodied these elements was rare and
difficult to achieve. Ambedkar grasped singularly the
core of the constitutional revolution: it was an
association sustained not by a commonality of ends, or
unanimity over substantive objectives (except at
perhaps a very high level of generality). It was rather a
form of political organization sustained by certain ways
of doing things. It was sustained not so much by
[Ramchandra Guha, India after Gandhi pg. 121] objectives as by the conditions through which they were
[Pratap Mehta, ‘What is constitutional Morality?’ realized. This was the core of constitutional morality.”
Seminar, see:
https://www.india-seminar.com/2010/615/615_
 • “The Indian Constitution is, in a significant
sense, a cosmopolitan constitution. It was a
cosmopolitan constitution in its fidelity to the
Constitution universal principles of liberty, equality, and
Making and fraternity. But it is also a cosmopolitan
constitution in a second sense. Its text and
Constitution principles, its values and its jurisprudence, have
al Working been situated at the major cross-currents of
global constitutional law.” [Oxford Handbook,
as a pg. 4]
Cosmopolita • Charges of being Un-Indian: Discuss the remarks
of K. Hanumanthaiya and Ambedkar on village
n Journey governance [panchayati raj], indigenousness,
nationalism and constitution-making.
Understanding • Check Arun Thiruvengadam, Constitution of India: A Contextual Analysis
(Chapter 4) from the essential readings for Week-I (see dropbox).

the Working of
• Phase I: The Supreme Court as Loyal Opposition During the Nehru
Era: Establishing Judicial Review and the ‘Technocratic’ Phase of the
Supreme Court (1950–66)

the Indian
• AK Gopalan v State of Madras
• Romesh Thapar v. State of Madras
• State of Madras v. Champakam Dorairajan

Constitution • Shankari Prasad v UOI

• Phase II: The Post-Nehru Years Until the Emergency: The
‘Teleological’ Phase of the Supreme Court (1966–77)
• Golakh Nath v State of Punjab
• R.C. Cooper v Union of India
• Madhavrao Scindia v Union of India
• Kesavananda Bharathi v State of Kerala
• State of Uttar Pradesh v Raj Narain
• Indira Gandhi v. Raj Narrain
• ADM Jabalpur v Shivkant Shukla
• Phase III: The Court’s Turn to Populism: The Flowering of Public
Interest Litigation and the Turn to the Directive Principles (1977–89)
• Maneka Gandhi v Union of India
• Minerva Mills v Union of India
• Olga Tellis v Bombay Municipal Corporation
• Mohini Jain v State of Karnataka
• Paschim Banga Khet Samity v State of West Bengal
Understanding • Check Arun Thiruvengadam (Id.) from the essential readings for
Week-I (see dropbox).

the Working of
• Phase IV: The Rise of the ‘Good Governance’ Court in the Era of
Coalition Politics, and the Age of Judicial Supremacy (1989–
2014)

the Indian • Environment Jurisprudence

• PILs

Constitution
• Independence of Judiciary
• Phase V: The Court as Counterweight to a Powerful Executive:
Back to Basics? (2014–present)
• Ayodhya Judgment
• Human Rights Cases (Pandemic, Navtej, NALSA,
Puttaswamy, Shabrimalla and SC’s U-Turn on Art. 25
jurisprudence).