00:00:15
Hello. And welcome to your
course on Constitutional Law.
00:00:18
This is week 1. And we will be focusing this week
00:00:22
on introducing you to 2 key concepts and key
issues in the study of Constitutional Law.
00:00:29
The concepts that we will look at are, what is a
Constitution? What is it that constitutions do?
00:00:36
And what are the key features
of the Indian Constitution?
00:00:42
Now, we all are familiar with the Constitution
itself. We have some passing familiarity,
00:00:50
either from our civics courses in school,
or if we have had any exposure to political
00:00:56
science or other social sciences, we have
some familiarity with the Constitution.
00:01:02
But sometimes it is very easy
to forget the extent to which
00:01:06
the Constitution regulates our daily lives. If
you were to pick up a newspaper on any given day,
00:01:12
the front page is plastered with issues that
either relate to or are directly governed
00:01:18
by the Constitution. Take for example, the
issues that are making the headlines today.
00:01:25
One issue in the, on the front pages of every
newspaper today is about the Delhi Riots case,
00:01:34
and how certain academics and political
activists have been implicated in that case.
00:01:40
Or another issue that has the media
in a frenzy is the Sushant Singh
00:01:47
Rajput death and the investigation surrounding it,
00:01:52
where Rhea Chakraborty and others have been
arrested and other investigations are ongoing.
00:02:00
Now, in both these cases, deal with Criminal
Law and all of criminal law is governed by
00:02:06
the Constitution, because criminal law seeks
to regulate our liberties. What we can do?
00:02:13
What we cannot do? What is what is allowed?
What is prohibited? How can the State enforce
00:02:18
that prohibition? When can the State deprive of,
deprive us of our liberty in the enforcement of
00:02:23
these prohibitions? These are key concerns of the
Constitution and all of criminal law and criminal
00:02:30
process is therefore governed by principles of
the Constitution. Or take, for example, if you
00:02:39
are talking about the Delhi riots, the Delhi riots
were in the background of the anti-CAA protests.
00:02:47
And we saw earlier this year and late last
year earlier this year that the protests
00:02:54
against the against the Citizenship Amendment
Act were in the name of the Constitution,
00:03:02
that the idea that the CAA was violating the
Constitution, both in terms of its text and the
00:03:08
core principles of the Constitution, and that it
was, it was a denial and a betrayal of what the
00:03:16
Constitution stands for. And so that is something
that the Constitution does. The Constitution
00:03:22
provides a site for protesting against the
Government of the day, whatever Government it is.
00:03:28
We have seen protests against previous
Governments. We have seen protests against
00:03:32
the actions of this Government, but it, but when
we protest against the actions of the State,
00:03:38
we often protest in the name of the Constitution,
because the Constitution governs every action of
00:03:44
the State. The Constitution is the supreme law
of the polity, and every action that the State
00:03:52
takes and every law that the State passes, has
to comply with the Constitution. If it does not,
00:03:58
then it is invalid. So, when we want to protest
against the actions of the State, or against a
00:04:03
particular law, we often do so in the name of
the Constitution. This right to protest, this
00:04:10
right to voice our opinion against the actions of
the State is also protected by the Constitution.
00:04:16
So, the Constitution guarantees us liberty of
thought, expression, belief, faith and worship,
00:04:21
the right to free speech and expression
and the right to assemble peaceably.
00:04:25
And these are ways in which we organize
ourselves when we want to protest against the
00:04:29
State. So, then what is it
that the Constitution is doing?
00:04:33
The Constitution is the supreme law of the land,
there, and every other action, every other State
00:04:40
action, every other law has to be in compliance
with the Constitution. And very importantly,
00:04:47
the Constitution, it places a limit on what
the State can do. That is why we invoke the
00:04:52
Constitution, when we want to protest against the
actions of the State. We say that the State, you,
00:04:57
State, you cannot do something because the
Constitution prohibits you from doing it.
00:05:01
Let us take another example. In, there has been
a lot of debate recently about the upcoming
00:05:10
Parliamentary Session. One level of debate is
about whether Parliament should be convening at
00:05:16
all, given the current pandemic. And of course,
there are other debates about the cancellation of
00:05:24
the Question Hour and the
cancellation of Zero Hour.
00:05:28
The Constitution has something to say on when
parliamentary sessions have to be held. In Article
00:05:35
85, The Constitution says, the President shall
from time to time summon each house of Parliament
00:05:40
to meet at such time and such place as he thinks
fit, but 6 months shall not intervene between its
00:05:47
last sitting in one session and the date appointed
for its first sitting in the next session.
00:05:52
So, you cannot have more than 6 months between
2 sessions of Parliament, between the ending
00:05:58
of the first session, the prior session of
Parliament and the start of the next session of
00:06:04
Parliament. There are no exceptions to this. That
means, that regardless of what the Government of
00:06:10
the day wants, the regardless of the wishes
of the President or any other official,
00:06:17
Parliament has to meet, Parliament has to convene
within 6 months. And that gets over in the coming
00:06:24
week. That is why Parliament will convene in this
time. And this is the nature of Constitution.
00:06:30
This tells us something about what Constitutions
do. Constitutions place limits on what the State
00:06:37
can or cannot do. When the Constitution says, you
have to do something, the State has to do it. When
00:06:42
the Constitution says, you cannot do something,
the State cannot do it. So, the Constitution is
00:06:48
supreme law of the land. All other laws have
to be in compliance with the Constitution,
00:06:55
all other State actions have to be in compliance
with the Constitution, and the Constitution
00:06:59
places limits on what the State can or cannot
do, those limits have to be complied with.
00:07:06
How do we enforce those limits? The
Constitution also creates institutions
00:07:10
and structures to distribute power, in power of
the State and to provide checks and balances.
00:07:18
So, for example, the Constitution
creates the Architecture of State,
00:07:23
where there is an Executive, there is a
Legislature and there's the Judiciary.
00:07:26
The actions of the of the
Executive are checked and balanced
00:07:31
by the Legislature and the Judiciary. The actions
of Parliament are checked by the Judiciary. So,
00:07:38
there is a system of checks and balances,
a system of distribution and separation
00:07:42
of powers and of checks and balances, and this
is again something that the Constitution does,
00:07:47
it organizes it creates the institutions of the
State and it distributes powers within the State.
00:07:55
These keep, keep these concepts in mind. The idea
that the Constitution is supreme law of the land,
00:08:01
and the idea that the Constitution places limits
on what the State can or cannot do. These are
00:08:07
themes that will come up repeatedly in the course
of this week, as well as our future lectures.
00:08:16
Now, let us let me take you briefly through
the thinking process behind the framing of
00:08:24
India's Constitution. I am sure we all
know that the Constitution came into force
00:08:30
on the 26th of January 1950, it is the day that
we celebrate as Republic Day for that reason.
00:08:37
The framing of the Constitution
actually predates independence.
00:08:41
The Constituent Assembly started the
task of framing India's Constitution
00:08:46
in 1946. And in 1947, when India gained
independence, the Constituent Assembly
00:08:53
took over as the provisional Parliament as well.
So, the Constituent Assembly started functioning
00:08:58
both as the Constituent Assembly, as
well as the provisional Parliament.
00:09:03
It took roughly 3, nearly 3 years, a little
bit shy of 3 years to frame the Constitution.
00:09:11
And this 3-year period was marked
by intense public deliberation,
00:09:18
both within the Constituent Assembly
and outside, on what the nature of
00:09:24
this document should be like, this charter
for the future governance of the country,
00:09:29
what should it be like, what should it
contain, what should it not contain.
00:09:32
These are, this is an incredibly rich source of
modern and political philosophical deliberation
00:09:41
about the nature of nature of the Indian
experiment. And if you are interested you should,
00:09:48
on anything touching upon the Constitution, do
look up as your first point of entry, do look up
00:09:54
the Constituent Assembly debates on that
particular issue, to see what was the
00:09:59
thinking behind putting, behind the design of
the Constitution in the way it was designed.
00:10:09
So, what were the key, what was the key idea and
understanding behind this Constitution? That is
00:10:15
contained actually in the very first words of the
Constitution, the Preamble of the Constitution.
00:10:21
The Preamble itself draws from one of
the first things that the Constituent
00:10:26
Assembly got down to doing, which was
to draw up the Objectives Resolution
00:10:32
for the Constituent Assembly. The Objectives
Resolution was defined the aims behind the
00:10:39
framing of the Constitution and provided a
blueprint for the design of this Constitution.
00:10:48
So, the Objectives Resolution set, and
the 8 points of the Objectives Resolution,
00:10:54
I am just going to briefly highlight a few.
The Objectives Resolution proclaimed India
00:11:00
as an Independent Sovereign Republic, and
the purpose of the Constituent Assembly was,
00:11:05
the objective of the Constituent Assembly was to
draw up for future governance - a Constitution.
00:11:10
This is very important. Proclaiming
India as a Sovereign Republic
00:11:14
was important to break the tie from the colonial
past, that the Constituent Assembly drew its own,
00:11:21
its powers from a Sovereign Republic as
opposed to from the British Parliament.
00:11:26
This was very, this was an act of
breakage from the colonial past.
00:11:33
And to buttress that, the Objectives Resolution
said that all power and authority of Sovereign
00:11:39
Independent India, its constituent parts and
organs of government are derived from the people.
00:11:45
What does that mean? Derived from the people means
00:11:48
that all power in the Indian polity resides in
the people, it does not reside in a monarch,
00:11:56
so it is not, India is not a monarchy, it does
not reside in a group of people, India is not
00:12:01
an oligarchy, it is derived from the people,
India is being constituted into a democracy.
00:12:09
And wherein shall be guaranteed and secured to
all people of India, justice, social, economic and
00:12:15
political; equality of status of opportunity and
before the law; freedom of thought, expression,
00:12:23
belief, faith, worship, vocation, association
and action, subject to law and public morality.
00:12:30
These are the guarantees that structure
how the Constitution has been framed.
00:12:36
And when adequate safeguards are provided
for minorities, backwards and tribal areas,
00:12:42
and depressed and other Backward Classes. These
are some of the key ideas animating the design of
00:12:48
the Indian Constitution. This is the framework;
this is the skeletal structure and the Constituent
00:12:55
Assembly spent 3 years filling in that skeletal
structure and putting flesh on these bones.
00:13:02
The Objectives Resolution then goes on to
shape the Preamble of the Indian Constitution,
00:13:07
which says, We The People Of India, that we are
this, its we the people of India who are giving
00:13:14
ourselves this Constitution. So, we are the
repository of the sovereign power of the State,
00:13:19
all power in the, in India derives from
the people, it does not derive from the
00:13:23
British Parliament, it does not derive from the
Constituent Assembly, it does not derive from God,
00:13:29
it does not derive from any other source,
it is derived from the people of India.
00:13:33
We The People Of India, having solemnly resolved
to constitute India into a Sovereign Democratic
00:13:39
Republic and to secure to all its citizens:
Justice, social, economic and political;
00:13:44
Liberty of thought, expression, belief, faith and
worship, equality of status and of opportunity;
00:13:50
and to promote amongst them all Fraternity,
assuring the dignity of the individual
00:13:55
and the unity of the nation; In Our Constituent
Assembly this 26 th day of November, 1949,
00:14:02
do Hereby Adopt, Enact And Give To
Ourselves This Constitution. So,
00:14:06
we, the people of India are giving
to ourselves, this Constitution.
00:14:11
Now, if you're familiar with the text of the
Constitution, you might notice that there are some
00:14:16
key words that are missing in
this particular framing of the
00:14:20
Preamble. So, the current Preamble
reads. We the People of India,
00:14:25
having solemnly resolved to constitute India into
a Sovereign Socialist Secular Democratic Republic.
00:14:31
The word socialist and secular were
added by the 42nd amendment in 1976.
00:14:37
Now, this was, these were amendments made during
the emergency. And there has been some recent
00:14:43
controversy on whether the fact that the original
Constitution did not contain the word secular
00:14:48
means that India was not constituted as a secular,
that the Indian Constitution is not secular.
00:14:56
In fact, there was discussion on this in
the Constituent Assembly. It was very much
00:15:00
the opposite. There was some discussion on
including the word secular in the Preamble.
00:15:06
And the reason why that was rejected was because
the Constitution was so self-evidently secular,
00:15:12
that there was no need to put the word in,
right at the beginning. The other phrase that is
00:15:19
missing from here again, is a later addition, is
fraternity assuring the dignity of the individual.
00:15:26
And the unity and integrity of the
nation is something that comes in later.
00:15:32
Now liberty, equality, fraternity, of
course, derive their inspiration from
00:15:37
the French Revolution, the 3 core ideas of liberal
liberalism that comes from the French Revolution.
00:15:46
But the framers of the Constitution added
as the first ideal of this Constitution,
00:15:51
justice, social, economic and
political. And why is that?
00:15:56
If you remember from your history, lessons,
the freedom struggle was not only aimed at
00:16:05
ending British rule. It was not just an
anti-colonial struggle. It was also a struggle for
00:16:10
social justice. It was a struggle to remove social
inequities and inequalities in Indian society. And
00:16:19
the Constitution framers thought that the Indian
Constitution should speak to and should address
00:16:25
social injustice, social, questions
of social justice and social injustice
00:16:31
in Indian society as well. And that is very-very
interesting because this is not something that
00:16:37
Constitutions till that time
were supposed to be doing.
00:16:41
Constitutions were supposed to create the charter
for the State and to create the framework for
00:16:46
organizing the State, not a framework for
organizing society, or not a framework,
00:16:51
not providing a vision for what society should
look like or for transforming society. The
00:16:57
Indian Constitution made a break in that sense
from the Constitutions that had gone before,
00:17:03
in saying that this Constitution should speak
not only to the organization of state, but also
00:17:08
to the, to have a vision for the organization
of society and the organization of the economy
00:17:18
in order to provide for social,
economic and political justice.
00:17:23
And this is, this aspect
of the Indian Constitution,
00:17:28
then comes to shape Constitutions that come
subsequently in other parts of the world. For
00:17:34
example, the South African Constitution was
heavily inspired by this ideal of the Indian
00:17:41
Constitution of having a vision for social
transformation embedded in the Constitution.
00:17:47
In many constitutions in what is considered to
be the global south or the third world is, are
00:17:55
that have come subsequent to the Indian
Constitution have borrowed this aspect of
00:18:01
Social Transformative Constitution from the
Indian Constitution. So, justice, social,
00:18:08
economic and political was very-very key
in the design of the Indian Constitution.
00:18:14
In fact, Doctor Ambedkar, when he stood up to
present the final Constitution to the Constituent
00:18:22
Assembly, he was of course the chairperson of
the drafting committee. And in that capacity,
00:18:28
he rose to introduce the final Constitution and
for its adoption in the Constituent Assembly.
00:18:36
And this is the, he makes this speech of
giving an overview to the Constitution
00:18:42
and talking about his own impressions of
the Constitution and his worries about
00:18:46
the future and his hopes and aspirations
for the future Indian State. And he says
00:18:52
that on the 26th of January 1950, we are
going to enter into a life of contradictions.
00:18:58
In politics, we will have equality and in social
and economic life, we will have inequality.
00:19:04
So, in politics, we have recognized that 1
person holds 1 vote and 1 vote holds 1 value.
00:19:10
We are all equal before the law. We are all equal
in terms of the political value that we have. All
00:19:17
offices are open to us, all officers of State are
open to us. And all of us count as 1 and no 1 less
00:19:25
than 1. But by reason of our economic and social
structure, our social and economic structure,
00:19:32
which is based on inequality, social inequality,
and economic inequality, we shall continue to deny
00:19:38
the principle of 1 man 1 value. How long shall we
live with this life of contradictions? He asks.
00:19:45
How long shall we continue to deny equality in our
social and economic life? Because if we continue
00:19:50
to deny it for long, we will do so only by putting
a political democracy in bedroom. So therefore,
00:19:56
you cannot have us this system of contradictions,
where in theory, in a formal theoretical sense,
00:20:03
you recognize the value of equality of all
human beings, but on, in reality on the
00:20:09
ground, in your social structure, in your
economic structure, there is no equality.
00:20:14
If you continue with a life of
inequality, this life of contradictions,
00:20:20
those who suffer from inequality will blow up
the structure of liberal democracy on which
00:20:25
the constant assembly had built up. And so, he
therefore says that therefore, this Constitution
00:20:32
speaks to not only political inequality, but also
social and economic inequality. And therefore,
00:20:40
the Constitution is designed not only to address
the political aspects of the Indian State, but
00:20:48
also those social and economic life under the new
Constitution. And that is why justice in all these
00:20:55
spheres social, political and economic are our
key design principles for the Indian Constitution.
00:21:05
So, then what the Constituent Assembly goes on to
do is, it gives us the longest Constitution in the
00:21:13
world, by far the longest Constitution in
the world. And the reason for the length
00:21:17
of that Constitution was that
there was so much disagreement,
00:21:22
one of the reasons was there was so
much disagreement on so many issues
00:21:27
that the framers felt that they should address
and go into minutiae of various issues that
00:21:33
many other constitutions do not place on in the
Constitution. They place. they regulate those
00:21:40
aspects through statutory law. Now, what is the
consequence of placing it in the Constitution?
00:21:46
Placing it in the Constitution means that no
other law can contradict that, those aspects
00:21:52
of those laws. So, they one design choice that was
made by frames of the Constitution was to have a
00:22:01
very expansive Constitution, where many matters
that other countries and other Constitutions
00:22:07
have relegated to Parliament to decide were
actually put into the Constitution itself.
00:22:14
So, with that, the Indian Constitution regulates
a whole range of issues that go on to govern us
00:22:24
in our daily lives. So, it regulates citizenship,
it guarantees us fundamental rights, those include
00:22:31
the right to equality, to fundamental freedoms, to
including the right to life, to right to personal
00:22:37
liberty, guarantees in the criminal justice
process, our freedom of speech, expression,
00:22:44
association, assembly, freedom of trade
and occupation, so on and so forth.
00:22:51
The right against exploitation,
the rights of religious freedom,
00:22:55
certain cultural and educational rights and the
right to constitutional remedies. It guarantees
00:23:02
as an aspect of our fundamental rights, the right
directly to move the supreme court for enforcement
00:23:08
of our fundamental rights. Then it has a chapter
on the Directive Principles of State Policy.
00:23:15
The Directive Principles of State Policy are
guidance that the Constituent Assembly has
00:23:22
given to the future State and says that these
are principles that you should be bound by
00:23:27
in governing the future country, of governing
the future polity, these are the principles
00:23:34
that should guide you in your economic policy,
in your social policy, in your political policy.
00:23:40
So, for example, the idea that you should prevent
inequalities and the concentration of wealth
00:23:49
in the hands of a few. You should ensure that
there are just in fair working conditions for
00:23:56
all workers and that there is a fair living wage.
Then some that you might know, that are more
00:24:02
controversial is that the Constituent Assembly
directed the State to have a Uniform civil Code to
00:24:14
have, to make provisions for prohibition, to make
provisions for prohibition on cow slaughter. So,
00:24:25
these are directions that have been provided by
the Constituent Assembly to the future State.
00:24:31
And with the admonition that, that the State is
bound by these principles, but these principles
00:24:36
are not judicially enforceable. So, one cannot
go to the courts and say that the State,
00:24:43
the actions of the State are in contradiction
to the `Directive Principles of State Policy.
00:24:49
But these principles are nonetheless
binding upon the State. It's just that
00:24:52
they cannot be enforced before the judiciary.
The Constitution, through subsequent amendments
00:24:58
also provides for fundamental duties. It creates
the of provides the architecture of the State. So,
00:25:04
we have already discussed this, it separates
powers between the Executive, the Legislature
00:25:09
and the Judiciary, and also between, creates
certain Fourth Branch Institutions, accountability
00:25:15
institutions that provide another measure of
accountability and checks and balances upon
00:25:20
the actions of other branches. So, the Election
Commission, the CAG are examples of Fourth Branch
00:25:27
Accountability Institutions. It distributes
powers between the Centre and the States.
00:25:33
It is a particular feature
of the Indian Constitution
00:25:36
that this distribution of powers is
asymmetric, the Centre has more powers than the
00:25:41
State. Through the 73rd and 74th Amendments,
the Constitution now also has distribution of
00:25:50
federal powers to local Self-Government
Institutions, to Panchayats and Municipalities.
00:25:55
The Constitution also provides for
special provisions for certain States,
00:26:00
certain districts, certain areas, tribal areas,
autonomous areas, certain states. Article 374
00:26:09
was an example of special provisions for Jammu
and Kashmir. But there are many-many other states,
00:26:14
the North-Eastern states being example and
many-many other states that are governed by
00:26:20
special provisions. Article 371A to A B C D
E, there are multiple provisions that govern,
00:26:30
the that provide special provisions
for different States in the country.
00:26:36
It also in terms of the Architecture of
the State, creates the administrative,
00:26:40
the structure of the Administrative State, and
the Regulatory State provides for the services,
00:26:47
the bureaucracy and the principles that would
apply to the bureaucracy, creates tribunals
00:26:53
for resolution of some types of disputes,
provides for the freedom of trade and commerce,
00:27:00
provides for elections, how elections are to be
conducted, qualifications and disqualifications of
00:27:07
members provides protections for certain classes,
particularly scheduled caste, scheduled tribes,
00:27:13
creates commissions in the National Commission
for Scheduled Castes, for Scheduled Tribes.
00:27:18
Backward Classes commissions to protect
the interests of groups that have been
00:27:24
historically marginalized, provides for the
languages of the of the union and the States,
00:27:32
has certain emergency provisions and of course,
that, those are the provisions using which
00:27:36
the Emergency of 1975 was imposed. And
then it provides for its own amendment,
00:27:45
how can the Constitution be amended. And this
is something, this is an issue that we will
00:27:49
take up in greater detail in subsequent lectures.
00:27:55
So, let me conclude the session
by asking you a question.
00:27:59
What then is the Constitution? If I were
to ask you, what is the Constitution? Can
00:28:03
you identify what the Constitution is? What,
where would you look? I have taken you through
00:28:10
broadly the table of contents
of the text of the Constitution.
00:28:14
That is only one part of the Constitution. The
text of the, the document that the Constituent
00:28:22
Assembly prepared is one part of
what comprises the Constitution.
00:28:28
On top of that, are judicial decisions
that have interpreted the Constitution,
00:28:34
there are a set of what are
called Constitutional Conventions.
00:28:38
These are practices that have gained, that
because of repeated observance have gained
00:28:48
the sanctity of law. So, let me give you one
example. If there is a hung Parliament, and
00:28:57
no party has, no one party has majority, who
should the President call to upon to form the
00:29:05
Government? There is nothing in the Constitution,
no tech, no specific express provision in the
00:29:14
Constitution, which guides the President on
what to do or what not to do in the situation.
00:29:19
So, there are conventions that have developed
around this for under that, conventions are,
00:29:25
that it is either the single largest party
or the single largest coalition, depending on
00:29:32
various permutations and combinations. So,
these constitutional conventions because
00:29:38
of their, because of them being
followed for many-many years, with
00:29:45
the belief that, that the those who
are following this these principles
00:29:51
are also bound by them gain the
status of constitutional conventions.
00:29:56
And there is an expectation that they will
be followed, courts use these principles
00:30:01
to decide whether there was a violation of the
Constitution or not. So, there is a written part
00:30:07
of the Constitution, there are these unwritten
parts of the Constitution, and then there is the
00:30:12
judicial decisions that again add another layer
of flesh, maybe a, probably a layer of fat
00:30:20
on top of the flesh, that is the constitutional
text. So, that is what the Constitution is.
00:30:27
We will stop the lecture here, and take up
the issues of what it is that Constitutions
00:30:35
do and how we should think about the
Constitution in the next lecture.
