Protection against constitutional amendments

Necessity of Amending Provisions in the Constitution

The social, economic and political conditions of the people go on changing so the constitutional law of the country must also change in order towards it to the changing needs, changing life of the people. If no provisions were made for amendment of the constitution, the people would have recourse to extra constitutional method like revolution to change the constitution. The framers of the Indian constitution were anxious to have a document which could grow with a growing nation, adapt itself to the changing circumstances of a growing people. 

Power to amend Constitution:

The Constitution of India was apparently intended to entrench the more permanent values cherished by the society, particularly in its Part III. The founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance. Hence Parliament was vested with the power under Article 368 to amend the Constitution.

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Restriction on parliament power of Amending Provisions in the Constitution and Judicial Review: 

However, with the intention of preserving the original ideals envisioned by the Constitution makers, the Supreme Court in Kesavananda Bharati v. State of Kerala held that Parliament could not distort, damage or alter the essential features or the 'basic structure' of the Constitution under the pretext of amending it. The enunciation of this doctrine can be said to be an attempt to preserve the spirit of the rule of law from the otherwise unlimited power of Parliament to amend the Constitution. Thus, Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments. Since what constitutes 'basic structure' is not spelt out in the Constitution, the features that constitute the same cannot be laid down until another authoritative pronouncement is rendered by the apex court. However, it can be said that the sovereign, democratic and secular character of the polity, rule of law, independence of the judiciary, fundamental rights of citizens, etc. are some of the essential features of the Constitution.

The framers of the Indian constitution were also aware of that fact that if the constitution was so flexible it would be like playing cards of the ruling party so they adopted a middle course. It is neither too rigid to admit necessary amendments, nor flexible for undesirable changes.

According to constitution, parliament and state legislature in India have the power to make the laws within their respective jurisdiction. This power is not absolute in nature.

The constitution vests in judiciary, the power to adjudicate upon the constitutional validity of all the laws. If a laws made by parliament or state legislature violates any provision of the constitution, the Supreme Court has power to declare such a law invalid or ultra vires. So the process of judicial scrutiny of legislative acts is called Judicial Review. Article 368 of the Constitution gives the impression that Parliament's amending powers are absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With the intention of preserving the original ideals envisioned by the constitution-makers.

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Role of law in Business

The rule of law plays an important role in the business world when set setting a business it is the laws that determine what type of business it is to became, and the structure is to be formed.

Also the law sets up a reasonable expectation on how the business should operate in order to protect the business owner’s interest of the Customer of that business. The rule of law not only allows people to understand what is expected of them in their personal capacities but also set forth rules for business so that they, too know what is expected of them in their dealing and transactions the law protects those who work for a business. It sets Guideline of how treat your employees, equal opportunities, pay scale, hours, breaks, benefits and long with a host of other right privileges.

In short the laws for business create an honest environment where consumers and business owners interest can be protected and we have ways to solve of any disputes arise. If these laws are in any ways are violated it sets up Guidelines for punishment.

Rule of the Constitution in India

Unfortunately, much British Indian legislation denied the enjoyment of civil and political rights to the Indian citizens. The letters of the law, therefore, went against the spirit of the law. Taking cue, therefore, from the earlier American example, the Constitution of India was made the supreme law of the land in 1950. The Constitution is based on the ideals of justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and fraternity assuring the dignity of the individual and the unity and integrity of the nation. The rule of law was, therefore, placed on a footing higher than ordinary legislation.

Constituent power is, thus, superior to ordinary legislative power. Though under the Constitution, the Parliament and the state legislatures have the power to make laws within their respective jurisdiction; this power is not absolute in nature. The Constitution vests in the judiciary the power to adjudicate upon the constitutional validity of all laws. If a law made by the Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. Thus, unlike the British Parliament which is a sovereign body, the powers and functions of the Indian Parliament and the state legislatures are subject to limitations laid down in the Constitution.

The rule of law

 

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One day everyone has to die and no one is immortal on this earth. God treats everyone equally and all the creations of god are regulated by uniform law. Same as law is necessary for the protection, peace, development and prosperity of any nation. Without law there can be no order and without order there can be no peace and progress. Without law society will be the part of jungle. Everyone will be wild, violent, and greedy and mighty has right will prevail. That's why law is mandatory for preventing injustice.

The first direct product of the common law system is the public law. The most important principle of it is the rule of law. The rule of law implies that government authority may only be exercised in accordance with written laws which are adopted through an established procedure. It means "government of laws and not of men." The principle is intended to be a safeguard against arbitrary rulings in individual cases. The doctrine does not speak anything about the 'justness' of the laws themselves, but simply how the legal system upholds the law.

The concept of rule of law is generally associated with several other concepts like:

(a) presumption of innocence - all individuals are innocent until proven otherwise;

(b) double jeopardy - individuals may only be punished once for every specific crime committed. Retrials may or may not be permitted on the grounds of new evidence;

(c) legal equality – all individuals are given the same rights without distinction to their social stature, religion, political opinions, etc.; and

(d) habeas corpus - term meaning 'you must have the body'. A person who is arrested has the right to be told what crimes he or she is accused of, and to request his or her custody be

reviewed by judicial authority. Persons unlawfully imprisoned have to be freed.

The classic description of the doctrine of rule of law by A. V. Dicey includes

All these are included as fundamental rights in Part III of Constitution of India.

(1) the absence of arbitrary powers on the part of the Government which always acts according to law,

(2) legal equality, that is, no man is above the law and that everyone is subject to the ordinary law of the land and is amenable to the jurisdiction of the ordinary courts and tribunals, and

(3) the customary and the common law rights of the people resulting in judicial decisions to form the general rules of constitutional law.

Basically, individual liberty was the outcome of the rule of law. It could not be affected except in accordance with law. The burden was, therefore, on the state or the public officials to show that their action affecting an individual is justified by law.

The success of the rule of law in England was due to the co-operation between the lawyers, the judiciary, and the Parliament. The rule of law and the sovereignty of Parliament worked harmoniously in their common attempt to limit the power of the executive.

But the basic weakness of the rule of law based on ordinary law is that the spirit of the rule of law is perverted when legislation results in unjust laws. With the freedom-loving tradition of the British people the principle of parliamentary sovereignty did not come into conflict with the rule of law because Parliament did not violate the spirit of the rule of law by unjust legislation.

Originally the rule of law merely protected the individual from the arbitrary actions of the state including the legislature. Later, the weaker sections of the society who are exploited by those who wielded power had to be protected by the state itself against private economic power. Inequality in societies had to be removed with a view to establishing an egalitarian order. The role of the state instead of being merely negative (abstaining from interfering with the liberties of the people) became positive (to protect the weak against the strong, the exploited against the exploiter and the poor against the rich).

In the International Congress of Jurists held in 1959 at New Delhi, the very first clause of the report of the First Committee reoriented the rule of law as follows: The function of the legislature in a free society under the rule of law is to create and maintain the conditions which will uphold the dignity of man as an individual. This dignity requires not only the recognition of his civil and political rights but also the establishment of the social, economic and educational and cultural conditions which are essential to the full development of his personality.

In concrete terms in India it meant that legislation to bring about equality and social welfare to implement the directive principles of state policy set out in Part IV of the Constitution would also be construed as conducive to the broader concept of the rule of law and, therefore, in consonance with the fundamental rights of the individual guaranteed by Part III of the Constitution.

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Constitution as Supreme law

Hello law knowledge seekers. In this article a brief discussion about Supremacy of Constitution is done. It is big question to every general person that "Why Constitution of India is Supreme law of land?". As Legal System in India allows judicial review and is also based on Common law, there is supremacy of Constitution of  India.

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The reason why the Constitution had to be made the supreme law was that in addition to judicial review of administrative action, the superior courts had to be given the power of judicial review of legislation. These two powers of judicial review are distinct from each other and are exercised at two different levels.

The rule of law is, therefore, to be distinguished from the rule of the Constitution or that of the higher law in India. Even if the latter or a part of it is suspended when the enforcement of certain fundamental rights is suspended during emergency, the former would continue to operate. The suspension of the rule of the Constitution or of the higher law is intended to make legislation temporarily invulnerable. It can have, however, no effect on the rule of the ordinary law which is directed mainly against illegalities of administrative action. No difficulty is, therefore, experienced in the co-existence of the Constitution with the pre-existing law. It is to be noted that the fundamental rights are guaranteed expressly by article 13 only against inconsistent legislation. Similarly, the Constitution is supreme law against any inconsistent ordinary law. A fortiori, therefore, the fundamental rights and the rest of the Constitution would prevail against administrative action.

This should not, however, cloud our understanding of the basic purpose of the Constitution which was to provide the supreme law as against legislation. For, before the commencement of the Constitution, ordinary legislation, however unjust, had to prevail against the liberties of the people based upon the common law or the principles of justice, equity and good conscience. The effect of the Constitution was to place the fundamental rights and other provisions of the Constitution above the ordinary law and to protect them against any inconsistent legislation.

While legislation can be challenged as being inconsistent with the Constitution, administrative action may be reviewed on totally different grounds such as being based on mala fides or irrelevant considerations or being without jurisdiction or showing apparent error of law on the face of the record, etc. The existence of the Constitution and the remedies given by it are not a sine qua non for obtaining judicial review against administrative action by way of suits even though a more expeditious remedy may be available by way of writ petitions when disputed questions of fact are not involved. It would appear, therefore, that the suspension of the enforcement of a fundamental right during Emergency should not affect the ordinary remedy of judicial review of administrative action without seeking the enforcement of a fundamental right as embodied in the Constitution and not challenging the validity of any law but restricted only to the validity of administrative action on the abovementioned grounds all of which have existed from before the Constitution.

Even after the making of the Constitution and enactment of relevant statutes, the ecology of the Constitution and the statutes, is formed by "that part of common law which has been received in India as rules of ‘justice, equity and good conscience’ as suited to the genius of this country".

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Legal System in India

Hello law knowledge seekers. In this article a brief discussion about Legal system in India is made. 

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What is Legal System?

A legal system encompasses a set of legal principles and norms to protect and promote a secure living to its subjects in a cultured society. It recognizes rights, prescribes duties of people and provides the ways and means of enforcing the same. To achieve this particular objective, the legal system considering the sociological, economic and political conditions in the society designs its own goals and evolves a set of principles/ rules/ laws which help the society to attain its identified goals.

A system connotes a coherent whole. It is animated by a philosophy or ideas which connect its different parts leading to a harmonious working. The corpus of the system is its variable elements. Changes in the laws may result from legislation and judicial decision. But the concepts and methods of the system are its constant elements.

Law and legal system must be pervasive to envelop the whole life of the individual and the state. They cannot, therefore, consist merely of legislation or rules. A legislature or a rule-making authority can never attempt to make such comprehensive code as they will apply to every individual or state activity. Necessarily, the legislation and rules must, therefore, apply only to certain aspects of our social life leaving out large spaces of our life to be governed by the general principles of law or common law.

The relationship of common law and statute law in England:

The most fundamental part of our law is still common law. The statutes assume the existence of the common law; they are the addenda and the errata of the book of the common law; they would have no meaning except by reference to the common law.

How does the law develop into a system? 

Legislation and rules may provide the law for certain individual and social activities. The rest of the life of the society has to be regulated by custom, general principles of right and wrong and of justice, equity and good conscience. These principles are either observed by members of the society in their own good sense or are enforced by judicial decisions. The development of these principles over the centuries by courts forms the present state of common law. Since the lawmaking function of the judges in India is the same or even more comprehensive due to the power of judicial review of legislation exercised only by our judges which is not given to the judges in England, the development of law by judicial decisions on the basis of the common law principles in India follows the same pattern as has been followed in England. When a question arises as to what the law is on a particular point, we turn to legislation or rules which may exist. In their absence, we turn to general principles and act accordingly. These principles are found embodied in judicial decisions and are being created and developed every day by judicial decisions. 

Common Law in India:

The common law, custom and general principles of justice, equity and good conscience which are drawn upon by the courts both in England and India provide the basis and the environment in which statutes are enacted. It is a settled principle of interpretation of statutes that the pre-existing common law and principles of justice, equity and good conscience are not altered by statute law except to the extent of repugnancy between the two.

In spite of the march of statute law in England (as in India) it has been observed that "it is only where constitutional law is concerned, in that small but vital sphere where liberty of person and of speech are guarded that it means the rule of the common law. For here alone has Parliament seen fit to leave the law substantially unaltered and to leave the protection of the freedom of individuals to the operation of the common law."

The same observation would hold good in India in as much as freedom of the individuals is assumed to be the rule of law except insofar as statutes restrict it. Even in England, the sovereignty of Parliament has meant, "the supremacy of the existing law so long as Parliament was fit to leave it unaltered."

It is well known that Parliament identified itself with the cause of the supremacy of the law and did not alter by statute the basic principle that the individual enjoys all the liberties unless restrictions on them are placed by the statutes.

Judicial review of administrative action existed in India even before the Constitution. The law courts could draw upon the common law principles of justice, equity and good conscience and the relevant statutes to correct illegalities in administrative action and give reliefs in suits filed for that purpose. Even after the Constitution when High Courts are empowered to exercise the power of judicial review of administrative action under article 226 of the Constitution, these reliefs can still be obtained by way of suits. This is sufficient to show that the Constitution was not to wipe out the pre-existing law which was not inconsistent with the Constitution. This is confirmed by article 372 (1).

This much of common law is in force in India as recognised by article 372 (1) of the Constitution. A nine-judge Bench of the Supreme Court had this to say about the common law in India: It is well-known that the common law of England was applied as such in the original sides of the High Courts of Calcutta, Bombay and Madras, and that in the mofussil courts the principles embodied in the common law were invoked in appropriate cases on the ground of justice, equity and good conscience. It has been held by this court that the said expression 'law in force' includes not only enactments of the Indian legislatures but also the common law of the land which was being administered by the Courts in India.

Conclusion:

A legal system considering the sociological, economic and political conditions int he society designs its own goals and evolves a set of principles, rules, laws which help the society to attain its identified goals. In India the most fundamental part of legal system is based on common law. Judges in India are having right to judicial review hence they are doing a comprehensive task of lawmaking. Constitution of India guarantees the principles of common law such as justice, equity and good conscience.

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Kinds of law

Hello law knowledge seekers. Here a discussion on kinds of law is given. Please read this article till the end.

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This diagram is an illustrative classification of types of laws.

Introduction:

Law is used in different senses. The use of the term “law” is made in various senses. It denotes different kinds of rules and Principles.

Blackstone says “law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of action whether, animate, rational, irrational. Thus we say the law of motion, of gravitation, of optics or of Mechanics, as well as the law of nature and nations” it is helpful in understanding the different senses in which “law” is used in various fields of knowledge.

Types of law as per Salmond:

Sir John Salmond refers to eight kinds of law as follows:

1. Imperative law:

Imperative law means a rule of action imposed upon by some authority which enforces obedience to it. In other words it is a command enforced by some superior power either physically or in any other form of compulsion.

The Imperative law can be further classified as:

a) Divine laws: Divine laws are consists of the commands imposed by God upon men either by threats of Punishment or by hope of his blessings in this world or in the next world.

b) Human laws: Human laws are the laws by analogy. Human laws change from time to time and from country to country. 

Salmond classified Human laws as follows:

i) Civil Law: Imperative law imposed and enforced by State is called “Civil law”

ii) Moral Law: Imperative law imposed and enforced by members of society is “Moral law”

iii) Autonomic Law: Laws those imposed and enforced by different institutions or autonomous bodies like Universities, airline companies etc they are called “Autonomic law”

iv) International Law: Those imposed upon States by the society of States are called “International law”

2. Physical or scientific law

Physical laws are the expressions of the Uniformities of nature and General Principles Expressing the Regularity, and Harmony observable in the activities and operations of the universe. They are not the creation of men and cannot be changed by them. Physical laws are invariable forever. The uniform actions of human beings, such as law of psychology, also fall into this class they express not what man ought to do, but what they do.e.g. Laws of light, heat, motion, electricity etc.

3. Natural or moral law:

By natural law is meant the principles of natural right and wrong (the Principles of natural Justice)”. It is unwritten, but written by God in the hearts of men. The constitutions of many nations applied principles of natural law.

It has various other names such as, “the Moral law” “Divine law” “God Law” “universal or eternal law” and “law of reason” etc. 

Natural laws have been called

Divine law:- commands of God imposed upon men.

Law of Reason: - being established by that reason by which the world is Governed.

Unwritten law:- as being written not an brazen tables or a pillar of stone but by the finger of nature in the hearts of people.

Universal or common law:- being of universal validity

Eternal law: - being uncreated and invariable

Moral law:- being the expression of the Principles of morality 

4. Conventional law

It is the body of rules agreed upon and followed by the concerned parties to regulate their mutual conduct. It is form of special law and law for the parties which can be made valid or enforced through an agreement. Thus it is a rule or set of rules which is the outcome of an agreement between the persons or the group of persons. 

A Good example of the conventional law is the International law, laws of cricket or any other game, rules of club. It has been further divided into two groups which are:-

1. Rules enforced by the parties themselves but not recognized by the State e.g. the rules of hokey

2. Rules which are recognized and enforced by the State, e.g. contract etc.

5. Customary law

Custom is a bonafide practice or usage being observed by the people in general form generations to generations and the starting point of which is unknown. 

Customary laws are those rules of custom that are habitually followed by the majority of the persons subject to them in the belief of binding nature. 

According to Salmond, customary law means “any rules of action which is actually observed by men i.e. any rule which is the expression of some actual uniformity of voluntary action. Thus a customary law means those rules and principles which have been observed in a particular community in actual practice from long time.

When a custom is firmly established it is enforced by the authority of the State. Custom is not law by itself but an important source of law only those customs acquired the force of law, which are recognized by the courts.

6. Practical or technical law

It consists of Principles and rules for the attainment of certain ends e.g. laws of health which are necessary to get a healthy life, laws of architecture which provide for guidelines in construction of a building. These rules guide us as to what we ought to do in order to attain certain ends.

7. International law

According to “Hughes” international law is the body of Principles and rules which civilized States consider as binding upon them in their mutual relations. It can be as the name for the body of customary and conventional rules, which are considered legally binding by civilized States in their intercourse with each other. According to Salmond it is considered of these rules which the sovereign States have agreed to observe in their dealings with one another.

International agreements are of two types: either expressed or implied.

Express agreements are contained in treaties and conventions, while implied agreements are to be found in the custom or practice of the States.

International law is of two kinds:

I) Public International law: It prevails universally all over the world.

II) Private International Law: It is enforced only between some of States.

8. Civil law

It is the law of the States regarding the land “Civil Law” according to the Salmond , is “the law of State or the law of the land, the law of lawyers and the law of the courts”. Civil law is the positive law, or law of the land which means the law as it exists. It is backed by the force and might of the State for purposes of enforcement. Civil law differs from special law as the latter applies only in special circumstances the other term is used for the civil law is Municipal Law and national law.

There are also following kinds of law:

9. Common law:

Earlier, in England, there were two kinds of courts namely: Equity Courts (Court of Chancery and Common Law Courts. Equity Courts used to decide cases applying the principles of equity i.e. justice, equity and good conscience.

Whereas the common law courts used to decide cases basng on common law i.e. the principles, rules evolved by the judges during judicial pronouncements. Hence, the common law is also known as Judge-made law. In India, almost all laws are originated from British Common Law. 

The Equity Courts and Common Law Courts were merged with the passing of the Judicature Act, 1875.

10. Special Law: 

Special law is applicable to specific region, specific sector of society. e.g. The Madras City Improvement Trust Act, 1950 is applicable to only within Madras City Municipal Limits. Martial law e.g. The Army Act are applicable to soldiers only in normal times, and may be applicable to civilians also during war time.

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