Law, Courts and the
Constitution:
India has one of the
oldest legal systems in the world. India’s commitment to the law is created in
the Constitution which constituted India into a Sovereign, Democratic Republic,
containing a federal system with the Parliamentary form of the Govt in the Union
and the States, an independent judiciary, guaranteed Fundamental Rights and the
Directive Principles of The State policy containing the objective which though
not enforceable in law are fundamental to the governance of the nation.
The main Sources of
Law:-
The fountain source of
the laws in India is the Constitution which, in turn, gives
due recognition to the statutes or the legislation, the case laws or
the precedent and the customary law consistent with its
dispensations.
The statutes are
enacted by the Parliament, the State legislatures and the Union Territory
Legislatures. The statutes are the most potent and sovereign source of the law
making. It is the only source which has all the powers of enacting the law,
repealing the old laws and modifying the current laws.
The case laws are
the statements of the law found in a judicial decision of a superior court.
These are also called the judge made laws. The decisions of the Supreme Courts
are binding on all the courts within the territory of India. Article
141 of the Indian Constitution declares that the decisions given by
the S C shall be binding on all the courts within the territory of India.
Similarly the decisions of the H C are binding over all the courts below it
within its jurisdiction.
As India is a land of
diversities, the local customs and the conventions which are
not against the statute, morality, etc. are to a limited extent also recognised
and taken into account by the courts while administering the justice in certain
spheres. The customs means the certain rules of action that is voluntarily and
uniformly followed and observed by the people of the generation from the time
immemorial. It should be actionable reasonable, observed as a right, immemorial
antiquity, continuity, peaceable certainty, consistency with the other customs,
should not contradict any laws.
The main features of
the Indian Constitution:-
1. Judiciary:-
One of the unique
features of the Indian Constitution is the Judiciary, as it has generally
provided for a single integrated system of the Courts to administer both the
Union and the State laws. At the apex of the entire judicial system, exists
the Supreme Court of India below which is the High
Courts in each State or the group of States. Below the High Court lies
a hierarchy of the Subordinate Courts. Panchayat Courts also function in some
States under the various names like theNyay Panchayat, Panchayat Adalat, Gram
Kachheri, etc. to decide the civil and the criminal disputes of the petty and the
local nature.
Each state is divided
into the judicial districts presided over by a District and Sessions Judge,
which is the principal civil court of the original jurisdiction and can try all
the offences including those punishable with death. The Sessions Judge is the
highest judicial authority in a district. Below him, there are Courts of the
civil jurisdiction, known in different States as the Munsiffs, sub judge, civil
judges and the like. Similarly the criminal judiciary comprises the chief judicial
magistrates and the judicial magistrates of the 1st class and
the 2nd class.
2. The
largest constitution:-
The Indian
constitution is the world’s largest constitution. It consists of about 448
articles, 25 parts, 12 schedules and more than 100 amendments. It is a
very detailed constitution and had borrowed several features from the other
constitutions.
3. The
written constitution:-
The Indian
constitution is a wholly written document which incorporates the constitutional
law of India. It took 2 years, 11 months and 18 days to
write and enact the Constitution. The constitutions of the U K and Israel are
the examples of the unwritten constitution.
4. The
preamble of the Constitution:-
The preamble to the
Constitution of India is a well drafted document which states the philosophy of
the constitution. It declares India to be a sovereign, socialist, secular,
democratic, republic and a welfare state committed to secure injustice, liberty
and equality for the people. Preamble is the key to the Constitution.
5. Sovereign,
secular, socialist, democratic, republic:-
Sovereign as
it does not recognise the legal supremacy of the other country over India.
India is the fully independent and is no more dependent upon any outside the
authority.
Secular as
India gives no special status to any religion. There is no such thing as a
national religion of India. The Indian secularism guarantees the equal freedom
to all religions. The constitution grants the Right to religious freedom to all
citizens.
Socialist as
it incorporates the philosophy of socialism which aims at the elimination of
the inequality in the income and status and the standards of the life. It
considers every citizens equal before of the law.
Democratic as
the constitution of the India provides for a democratic system. It denotes a
form of govt which secures the power from the will of the people by electing
the representatives by the universal franchise. The authority of the govt rests
upon the sovereignty of the people. The person elect their own govt. India is
the world’s largest working democracy.
Republic as
the head of the state is not a hereditary monarch. India has an elected head of
the state, who wields the power for a fixed term of 5 years. The President of
the India is the Chief Executive Head elected by the people’s representatives.
6. Parliamentary
form of the Govt:-
The constitution of
India provides for a parliamentary system of the govt at the centre as well as
in every State of the Union. The president of India is the Constitutional head
of the state with the nominal powers. The Union Council of the Ministers headed
by the P M is the real executive. For all its policies and decisions the
council of the ministers is collectively responsible before the Lok Sabha. The
members of the Lok Sabha are elected for the period of 5 years. The Upper House
or the Rajya Sabha members are elected indirectly.
7. Fundamental
Rights:-
The Indian
constitution under its Part 3 [Article 12 – 35] grants and guarantees the
fundamental rights to its citizens. The fundamental rights are 6 in no. Among
these, the equality before the law and the equal protection of the law [Art.
14]; freedom of the speech, etc. [Art. 19]; the right to life and the personal
liberty [Art. 21] are of the great importance and are described as the ‘Golden
Triangle’. The fundamental rights are the prohibitions against the state.
The state cannot make a law which takes away or abridges any of the rights of
the citizens guaranteed in the Constitution.
8. The
Directive Principles:-
The Part 4 of the
constitution dealing with the D P S P provides one of the most striking
features of the Indian Constitution. These are the instructions to the state
for securing the socio economic developmental objectives through its policies.
These are to be implemented by both the Union for the States. Unlike the
fundamental rights, these rights are not justifiable, that is, they cannot be
enforced in the court of law. These are to be kept in the mind by the
legislature while preparing the law. The aim of part 4 of the constitution is
to secure and strengthen the socio economic democracy in India.
9. The
Fundamental Duties:-
Originally, the
constitution does not contain any fundamental duties. Later certain fundamental
duties of the citizens of India have been introduced in the constitution of
India by the constitutional [42nd amendment] Act, 1976. These
are provided in the part 4 – A, Article 51 – A of the constitution. These are
some duties that the citizens are bound to do.
10. Universal
Adult Franchise:-
Another feature of the
Indian Constitution is that it provides for the universal adult franchise. All
the men and women above the age of 18 have been giving the right to elect the
representatives for the legislature. All the registered voters enjoy the right
to vote in the elections. The adoption of the universal adult franchise without
any qualification either of the sex, the property, the taxation, the race, the
religion, or the like is a unique one.
11. The Single
Citizenship:-
The citizen is one
who, as a member of a nation or the state, owes the allegiance to any may claim
the reciprocal protection from its govt. He/she is a natural person living in a
country. Unlike the USA there is only a single citizenship in India. Every
Indian is the citizen of India and enjoys the same right of the citizenship no
matter in what state he resides. They are entitled to the equal rights and
freedoms and the equal protection of the state.
12. The
Emergency Provisions:-
The Indian
constitution contains the special provisions for dealing with the emergencies.
It recognises the 3 types of the possible emergencies:
a. National
emergencies [Art. 352] :- is the emergency
resulting from the war or the external aggression or the threat of the external
aggression against India or from the armed rebellion within India or any of its
part.
b. State
emergencies [Art. 356] :- is the emergency
resulting from the failure of the constitutional machinery in any state or some
states.
c. Financial
emergencies [Art. 360] :- is the emergency
resulting from the threat to financial stability of the nation.
The president of India
has been empowered to take the appropriate steps for dealing with these
emergencies. These are called the emergency powers of the president.
13. Partly rigid
and partly flexible:-
The constitution of
India is neither rigid nor flexible. Article 368 of the
Constitution confers the power on the Parliament to amend the provisions of the
constitution in three ways, which are as follows:-
a. The
simple majority;
b. The
special majority; and
c. The
special majority with the ratification of the state.
Some of its provisions
can be amended in a difficult way while others can be amended very easily.
Certain provisions which are ultra vires can be amended without affecting the
basic structure of the constitution. Hence it is both rigid and flexible.
14. Both unitary
and federal:-
The Indian
constitution is both unitary and federal. The Indian constitution has the
characteristics of both the unitary and the federal constitutions. Thus the
powers are distributed among the union or the central govt as well as the state
govt. The constitution acquires the unitary character during the emergencies.
15. The
Constitutional Remedies:-
The Indian
constitution provides for the constitutional remedies to all the people. Under
the Art. 226 of the Indian constitution, it provides the
constitutional remedies available for the citizens from the H C. And in
the Art. 32 of the Indian constitution, it provides the
constitutional remedies available for the citizens from the S C. When the
rights of the citizens are violated, they can seek the remedies from the H C as
well as the S C, which are collectively known as the constitutional remedies.
The constitutional remedies are in the form of writs. A writ is an order. There
are 5 writs in total. These are as follows: habeas
corpus; mandamus; certiorari; quo warranto and finally
prohibition.
· Habeas
corpus: - The writ of habeas corpus is used when there is an illegal
detention of a person in the H C under Art. 226 and in the S C under Art. 32 of
the Indian constitution.
· Mandamus: -
The writ of mandamus is the issue of a command from the H C and the S C, which
is directed against the State or the authority mentioned. The performance of a
particular duty results from the official duty or by the operation of the law,
may be defined as the writ of mandamus.
· Certiorari: -
The writ of certiorari means to quash the order. This writ is issued to correct
the error of the jurisdiction committed by an inferior court or the tribunal in
the course of their judicial acts.
· Quo
warranto: - The term means “by what authority”. This writ is issued so
as to commence an action for the purpose of recovering of an office of
franchise from the person or authority that is in possession of the same
without the valid title to the office and/or usurping the same.
· Prohibition: -
The term means “to stop or to prevent”. This writ is preventive in nature. It
is issued to prevent the commission of the future act.
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