UNIT III

Constitution as Basic Law

Introduction

Whenever a person first learns about the Constitution of India, there is always a statement
attached to it- “The Constitution is a living document.” But why is it called so? Any Act or law
which is inconsistent with the Constitution becomes invalid. It makes one wonder how the
Constitution is so powerful and what makes the Constitution so supreme that anything not in
accordance with it holds no value anymore.

The term “constitution” is a French term and refers to the set of fundamental rules and
regulations that govern the functioning of a nation-state or any other organization. A state’s
constitution is the supreme law of the land and thus requires higher standards of legitimacy and
integrity. It outlines a state’s fundamental principles, administrative structures, procedures, and
fundamental rights of individuals while defining the directions for a state’s development.

What is a Constitution

Albert Venn Dicey, a constitutional theorist and a British Whig jurist, interpreted the term
“Constitution” as consisting “of all rules which directly or indirectly affect the distribution or
the exercise of sovereign power in the state, including all rules which define the members of the
sovereign power, all rules which regulate the relations of such members to each other, or which
determine the mode in which the sovereign power, or the members thereof, exercise their
authority.” Thomas M.Cooley interpreted the expression “constitution” as “the body of rules and
maxims in accordance with which the powers of sovereignty are habitually exercised.”

Scope of Constitutional Law

The function and authority of the institutions within the state as well as the interactions between
citizens and the state come under the scope of constitutional law. The law of the constitution
must thus be understood within the sociopolitical atmosphere in which it functions, since a
constitution is a sentient, evolving organism that, at any given time, will symbolize the political
and ethical ideals of the individuals it regulates.

Need for the constitution and Constitutional Law

Constitutions around the world ensure “the fair and impartial exercise of authority,” as well as
“a harmonious and stable society; protection of individual and community rights; and promotion
of appropriate resource management and economic growth.” Simply put, a constitution
empowers lawful authorities to function in the public interest through the administration of key
problems and the prevention of arbitrary power of leaders who otherwise would abuse their
position. This is based on the principle of constitutionalism, which governs the legitimacy of
government actions and requires the government to abide by the law of the land.

Without implementation and adherence to the law of a state, even the finest constitution cannot
achieve all its goals on its own. Nations that have successfully established and maintained
constitutional governments have typically been at the cutting edge of scientific and technological
advancement, economic dominance, cultural growth, and human well-being. Conversely, nations
that have failed to sustain constitutional government have generally struggled or failed in the past
in terms of growth potential.

The constitution and constitutional law can be analogised with a basketball game between two
teams. A match would hardly be impartial if the team in control of the ball could rewrite the law
and choose its referee. One team always wins, while the other will eventually lose or quit playing
entirely. Similarly, if rules were made up by the ruling party, faction, or group, and they were
unmatched and unchecked by the power of the law, there would emerge a situation of chaos and
disorder.

A democratic constitutional system can assume the role of the rules of a game while its
protectors, such as a constitutional court of law, serve as the referee. They ensure that everyone
has an equal opportunity to participate in the “political game.”
Constitutionalism is the absolute opposite of authoritarianism in this sense. Authoritarianism is a
form of government in which the ruling authority is in charge of its laws. Many tyrannical states
have existed throughout history that has not been governed by any higher law that imposes
limitations on how they rule, such as defending citizens’ fundamental rights or ensuring their
accountability to the people. Therefore, authoritarians rule for their own interests or for the
benefit of a privileged minority who support the ruling class, rather than for the benefit of all
citizens.
 RULE OF LAW

Dicey’s Concept of Rule of Law

It would be appropriate to discuss the views of Dicey, as he is known to be the main exponent of
the concept of rule of law. However the origin of his doctrine was attributed to Sir Edward Coke.
He introduced for the first time that, ‘King is under God and the Law.’ The firm base of rule of
law owes its exposition to Albert Venn Dicey. Dicey, in his book Law and Constitution in the
year 1885 further developed this concept given by Coke. According to Dicey’s theory, rule of
law has three pillars based on the concept that “a government should be based on principles of
law and not of men”, these are-

 Supremacy of Law;

 Equality before the Law; and

 Predominance of Legal spirit.

1. Supremacy of Law
This is the first pillar of Dicey’s concept of rule of law. It means that the law rules over all
people including the persons administering the law. According to Dicey the absolute supremacy
of the law as opposed to the arbitrary power of the government is what constitutes the rule of
law. In other words a man should only be punished for the distinct breach of law, and not for
anything else. The person cannot be punished by the government merely by its own fiat but only
according to the established law.

Further, Dicey asserted that discretion has no place where there is supremacy of law. According
to him discretion is a link to arbitrariness. Dicey says that wherever there is discretion, there is
room for arbitrariness and discretionary authority on the part of the government to jeopardize the
legal freedom of the people.
 2. Equality before Law
The second important pillar of Dicey’s concept of Rule of Law is Equality before Law. In other
words, every man irrespective of his rank or position is subject to the ordinary law and
jurisdiction of the ordinary court and not to any special court. According to him special law and
special courts is a threat to the principles of equality. Therefore he is of the view that there
should be the same set of laws for all the people and should be adjudicated by the same civil
courts.

3. Predominance of the legal spirit

The third pillar of Dicey’s concept of Rule of Law is predominance of legal spirit. According to
Dicey, for the prevalence of the rule of law there should be an enforcing authority and that
authority he found in the courts. He believed that the courts are the enforcer of the rule of law
and hence it should be free from impartiality and external influence. Independence of the
judiciary is therefore an important pillar for the existence of rule of law. He asserted that the
courts of law and not the written constitution are the ultimate protector of an individual’s
fundamentals.

Dicey’s theory has been criticised by many from various angles but the basic tenet expressed by
him is that power is derived from, and is to be exercised according to law. In substance, Dicey’s
emphasis, on the whole, in his enunciation of rule of law is on the absence of arbitrary power,
and discretionary power, equality before law, and legal protection to basic human rights and
these ideals remain relevant and significant in every democratic country even today.

Indian Case Laws

As mentioned earlier, rule of law is not expressly provided under the Indian Constitution but it
has been assertively pronounced as the essential part of the Constitution by the Supreme Court
through several judgements. Some of them are as under:

A.K Gopalan Vs State

Also known as the Habeas Corpus case, the order of detention passed during emergency was
challenged in this case on the grounds that such order is violative of the principles of rule of law
which is the basic feature of the Indian Constitution. The issue that was before the Supreme
Court to decide was whether there is any rule of law in India apart from Article 21 of the
Constitution. The majority bench in the case decided the matter in the negative while Justice
khanna gave a dissenting Judgement.

He observed that the Rule of Law is accepted in all civilised society and is considered as a
symbol of society being free. He further observed that Rule of Law is the only means of
archiving the balance between individual liberty and public order. Hence he was of the opinion
that even if there was no such Article like Article 21 in the Indian Constitution the state has no
power to deprive a person of his life and liberty without the authority of law.

A.K Kraipak V Union of India

Supreme Court on the question whether the principle of natural justice can be followed in
administrative function held that every instrumentalities of the state is bound by the doctrine of
rule of law and is charged with the duty of discharging their functions in a just, fair and
reasonable manner, which forms the basic principle of Rule of Law without which the concept of
Rule of Law has no validity. The rule of law is applicable to the entire field of the administration
as every organ of the state is regulated by the rule of law.

Indra Nehru Gandhi V Raj Narayan

In this case the 39th amendment to the Constitution was challenged which has placed the
election of President, Prime Minister, Vice-President and the Speaker of Lok Sabha unjustifiable
in the courts of law. Holding the amendment as unconstitutional chief justice Ray found the
amendment as violative of the basic structure of the Constitution i.e., Rule of Law. Rule of Law
being anti thesis to arbitrariness does not empower the parliament to pass a retrospective law
validating an invalid election. Such exercise of power is opposed to the basic principles of Rule
of Law.

Bachan Singh v. state of Punjab Singh

This a landmark judgement on death penalty. The question whether death penalty can be
imposed under section 302 of IPC was discussed in this case. While the majority of the judges
held that the death penalty can be imposed under rarerest of the rare situation, justice Bhagwati
dissented with the majority opinion and said said that imposition of the death penalty under
Section 302 of IPC is ultra vires and void as it violates Articles 14 and 21 of the Constitution.

Justice Bhagwati has emphasized that rule of law denies any room for arbitrariness and
unreasonableness. To ensure this, he has suggested that the power of the parliament to make law
should not be unfettered and the excesses of executive and legislative power should be brought
under the check by the independent judiciary so that the rights of the citizen can be protected.
 Hierarchy of Civil and Criminal Couts
CIVIL Court Criminal Court

Supreme Court Supreme Court

High Court High Court

District Court Court of Session

Chief Judicial Magistrate Chief Judicial Magistrate

Judicial Magistrate First Class Judicial Magistrate First Class

Judicial Magistrate Second Class Judicial Magistrate Second Class

Powers of Criminal Courts

Supreme Court – Death Penalty and/or Fine authorized by law

High Court - Death Penalty and/or Fine authorized by law

Court of Session – Death penalty (with confirmation of the HC in section 366 of CrPC)
and/or fine authorized by law

Chief Judicial Magistrate – 7 years and/or Fine authorized by law

Judicial Magistrate First Class - 3 years and/or Fine upto Rs. 100000

Judicial Magistrate Second Class - 1 years and/or Fine upto Rs. 5000
 Jurisdiction of Court In India

 Subject-matter jurisdiction:

It can be defined as the authority vested in a court of law to try and hear cases of a particular type
and pertaining to a particular subject matter. For example, District Forums established under the
Consumer Protection Act, 1986 have jurisdiction over only consumer-related cases. It cannot try
criminal cases.

 Territorial jurisdiction:

Under this type of jurisdiction, geographical limits of a court’s authority are clearly delineated
and specified. It cannot exercise authority beyond that territorial/geographical limit. For
example, if a certain offence is committed in Madhya Pradesh, only the courts of law within the
boundaries of Madhya Pradesh can try and adjudicate upon the same unless otherwise provided
for in a particular piece of legislation.

 Pecuniary jurisdiction:

Pecuniary means ‘related to money’. Pecuniary jurisdiction tries to address whether a court of
law can try cases and suits of the monetory value/amount of the case or suit in question. For
example, consumer courts have different pecuniary jurisdictions. A district forum can try cases
of value upto Twenty lakh rupees only.

 Original jursidiction:

It refers to the authority of a court to take cognizance of cases which can be tried and adjudicated
upon in those courts in the first instance itself. It is different from appellate jurisdiction in the
sense that in case of the latter, the courts rehear and review an already decided matter whereas in
case of the former the cases are tried for the very first time. For example, the High Court of
Allahabad has original jurisdiction with respect to matrimonial, testamentary, probate and
company matters.

 Appellate jurisdiction:

It refers to the authority of a court to rehear or review a case that has already been decided by a
lower court. Appellate jurisdiction is generally vested in higher courts. In India, both the High
Courts and the Supreme Court have appellate jurisdiction to hear matters which are brought in
the form of appeal before them. They can either overrule the judgment of the lower court or
uphold it. At times they can also modify the sentence.
 Principles of Natural Justice

 NEMO JUDEX IN CAUSA SUA

 AUDI ALTERAM PARTEM
 REASONED DECISION

Nemo Judex In Causa Sua

“No one should be a judge in his own case” because it leads to rule of biases. Bias means an act
which leads to unfair activity whether in a conscious or unconscious stage in relation to the party
or a particular case. Therefore, the necessity of this rule is to make the judge impartial and given
judgement on the basis of evidence recorded as per the case.

Audi Alteram Partem

It simply includes 3 Latin word which basically means that no person can be condemned or
punished by the court without having a fair opportunity of being heard.

In many jurisdictions, a bulk of cases are left undecided without giving a fair opportunity of
being heard.

The literal meaning of this rule is that both parties should be given a fair chance to present
themselves with their relevant points and a fair trial should be conducted.

This is an important rule of natural justice and its pure form is not to penalize anyone without
any valid and reasonable ground. Prior notice should be given to a person so he can prepare to
know what all charges are framed against him. It is also known as a rule of fair hearing. The
components of fair hearing are not fixed or rigid in nature. It varies from case to case and
authority to authority.

Reasoned Decision
Basically, it has 3 grounds on which it relies:-

1. The aggrieved party has the chance to demonstrate before the appellate and revisional
court that what was the reason which makes the authority to reject it.

2. It is a satisfactory part of the party against whom the decision is made.

3. The responsibility to record reasons works as obstacles against arbitrary action by the
judicial power vested in the executive authority.

Purpose of the principle

 To provide equal opportunity of being heard.

 Concept of Fairness.

 To fulfil the gaps and loopholes of the law.

 To protect the Fundamental Rights.

 Basic features of the Constitution.

 No miscarriage of Justice.
 Alternate Dispute Resolution
What is alternative dispute resolution?

Alternative dispute resolution (ADR) refers to a range of dispute settlement methods which help
the parties in the dispute to come to a settlement without going to court, or without litigating on
the said matter. These methods usually involve a third party, who helps them in settling the
disputes. In many cases, ADR methods are used alongside the litigation process as well through
court authorisation.

Types of ADR methods

There are various ADR methods, but they differ from country to country. This article shall look
at the main ADR methods used, with special focus on India.

Arbitration

Arbitration in India is governed by The Arbitration and Conciliation Act, 1996. It is a form of
dispute resolution where one or more parties are appointed to adjudicate the dispute. They act as
third parties. This third party should be neutral and this party is referred to as an ’arbitrator’
while the decision of the arbitrator, which is essentially a determination of merits in the case, is
known as ‘arbitration award’.

The arbitration process is informal and this process allows the dispute to be resolved amicably
and efficiently as it takes less time and involves lesser costs for the parties. Therefore, parties
frequently choose to arbitrate when disputes arise, especially in the business world. Big
corporations would rather settle disputes quickly, rather than fighting long cases in the courts.

Before the arbitration process begins, an arbitration agreement is required to be formed. This
agreement lays down the terms and conditions on which the arbitration process is carried out. It
is determined through this agreement as to how the process will be made cheaper, efficient and
and how the rules of evidence would be applied etc. This agreement should be valid as per The
Indian Contract Act 1972 and the parties must have the capacity to contract under Sections
11 and 12 of the same Act.

Arbitral decisions are final and binding on the parties, who have limited scope of objecting to the
decisions. Non binding arbitrations also exist wherein the party can request a trial if it is not
satisfied with the arbitrator’s decision.
Mediation

In mediation, a third neutral party aims to assist two or more disputants in reaching a settlement.
This third party is referred to as the mediator. The mediator needs to properly communicate with
both the parties and use proper negotiation techniques, in order to make one party fully aware of
the other party’s perspective, through empathy and dialogue. This process is controlled by the
parties.

One of the characteristics of this type of dispute resolution is that the mediator is not allowed to
give an outcome of the dispute. The solution is given mutually, and the agreements are generally
non binding. Parties are in significant control of the mediation process and it is strictly
confidential. The parties can even go for litigation if they are not satisfied with the mediation
process.

It must be observed that the main aim of the mediation process is to build relationships, and not
to make a decision. It is more of an amicable resolution of differences with potential form future
business between the parties.

Conciliation

In conciliation, the third party, who is called the conciliator, talks to the parties involved
separately so that the parties can arrive at a mutually acceptable solution through facilitating
talks between the parties. Conciliation is also governed in India under The Arbitration and
Conciliation Act, 1996. Under Section 61, conciliation is provided for disputes arising out of
legal relationships, whether they are contractual or not.

Difference between Mediation and Conciliation

In mediation, the mediator plays a more active role in the the process by proposing compromise
solutions after hearing all parties while in the case of conciliation, the conciliator has to bring the
parties into such a state of mind as to facilitate the parties to come to an acceptable compromise.

Lok Adalats

In a country like India where there are many illiterate people, the concept of Lok Adalats is a
necessity. This was first introduced in 1982 in Gujarat. This concept mainly focused on reducing
the burden of pending cases on the Courts and has incorporated the concept keeping in mind
various factors like social justice.

Lok Adalats are governed under The Legal Services Authorities Act,1987. Sections
19, 20, 21 and 22 specifically deal with Lok Adalats. They have been organised by the State
Legal Aid and Advice Boards with the aid of District Legal Aid and Advice Committees. These
have helped poor people to avoid the inefficiencies of litigation. The aim of The Legal Services
Authorities Act was to provide access to justice for all, whether he be poor or rich. Since the
poor masses of the society were not being delivered on this promise, this Act was formed. This
access has been further strengthened by judgements of various courts, such as the Delhi High
Court, in the case of Abul Hasan and National Legal Service Authority v. Delhi Vidyut Board &
Ors. AIR 1999 Del 88, where it gave an order for setting up permanent Lok Adalats. Further, the
decision given by the Lok Adalat is binding and shall be treated akin to the order of a civil court.,
thereby increasing poor people’s access to justice.
 Unit – IV

Sources of Law

Custom as a source of law

Precedent as a source of law / Doctrine of Precedent/ Doctrine of Stare Decisis

Judgment and its parts

Justice, Equity and Good Conscience

Secondary sources of law

International Law as a source of Municipal law

Read these topics carefully and refer the class notes also the link shared by Dipanwita Ma’am.