M P Jain Indian Constitutional Law Join us for PDF Notes and documents Page 1 M P Jain Indian Constitutional Law/Volume 1/PART I/CHAPTER I INTRODUCTORY PART CHAPTER I, INTRODUCTION A. CONSTITUTIONAL LAW A state is defined in international law as “an independent political entity” that “occupies a defined territory”, “whose members are united for the purpose of resisting external violence and maintaining internal order”. The declaration emphasizes what might be called the “police functions” of the State, namely the maintenance of law and order and the defence of the country against external aggression. However, it must be stressed that no modern state today is satisfied with such a limited range of functions. A modern state is not content to be simply a “police” or “law enforcement” state. It is much more than that. It tends to become a welfare state. The crucial point, however, is that, in order to carry out its activities and functions, whatever their scope, it becomes necessary for each State to establish certain fundamental organs or actors or instruments acting on its behalf and through which the State can function and act. Not all the peoples of a State can unite and act all the time to achieve the desired goals. Thus, some basic organs become necessary. This creates the need for constitutional law.
If there is a need for certain bodies through which the State acts, should there be a law that determines how those bodies are to be established? How are these bodies supposed to work? What powers will they have? What should their mutual relationship look like? A state cannot govern itself on an ad hoc basis without certain standards to regulate its fundamental institutions. There must be a predictable set of rules from which governmental bodies must derive their powers and functions. The purpose of a constitution is to have a governance framework that can survive the vicissitudes of a nation. This objective does not appear to have been achieved in India. There have been nearly 300 constitutional amendments. The legal system of a country is divided into: (i) the law governing the State; (ii) The law under which the State regulates or regulates the conduct of its members. Laws such as contracts, torts, property, criminal law fall into the second category. Constitutional law, administrative law and international law fall into the first category. These are laws that attempt to govern the state.
The laws that regulate the state fall into the category of public law. The laws that govern the affairs of citizens fall into the category of private law. In general, the Constitution of a country aims to establish its basic or basic or superior organs of government and administration, to describe their structure, composition, powers and main functions, to define the relations of these organs with each other and to regulate their relations with the people, in particular political relations.1 And even beyond these basic institutions, only fundamental norms are included in the Constitution. affiliated. Not all rules are subject to discussion under the heading of constitutional law. It should be noted that the term “constitutional right” is broader than the term “constitution” as it covers the “constitution”, relevant law, judicial decisions and conventions. Traditionally, a country`s government structure is divided into three institutional components; (1) legislators to legislate; (2) Executive branch for the administration and enforcement of laws; and (3) justice, to interpret laws and administer justice. Thus, the Constitution deals with questions such as: How is the legislative branch structured, composed and organized? What are its powers and functions? Similar questions will be asked for each of the other two institutions. Other questions to be answered by the Constitution are: what is the mutual relationship between the legislative and executive branches? Or between the executive and the judiciary? Or between the legislature and the judiciary? What is the relationship between these organs and people? Does the constitution guarantee rights for the people? Page 2 Although these three organs are fundamental in all countries and the Constitution treats them without exception, the Constitution may also create any other body that deems them important and fit to be incorporated into the Constitution.
For example, the Indian constitution provides for the establishment of a finance commission every five years to regulate financial relations between the centre and the states, and it also establishes an election commission on a permanent basis to ensure free and fair elections. In the Chander Hass case,2 a two-judge panel of the Supreme Court, quoting Montesquieus, stated unreservedly that Montesquieus` view of the separation of powers and the dangers associated with a deviation from his view was an appropriate warning to the Indian judiciary, which “has been rightly criticized for its `encroachments` and interference in the other two organs.” that is, Parliament and the executive. The House appears to have collapsed in the face of fiercely negative criticism voiced mainly by legislators and the executive branch of the “activist” role of the Supreme Court.3 All of the Court`s observations on the separation of powers were totally inappropriate, as the real question was whether the Supreme Court of Punjab and Haryana could order the creation of posts. to accommodate day labourers, which, according to the High Court, should have been regulated. A long series of cases have answered this question in the negative, so that the law is well regulated on this issue. Indeed, the sudden attack on justice by the judiciary finds its place in the judgment after the court, after considering the merits, concluded: “Accordingly, this appeal is allowed and the judgment and order of the High Court and the Court of First Instance are set aside and the judgment of the Court of First Instance is upheld. Dismisses the action; No charge.” Then they said, “Before we separate ourselves from this case, we would like to make some comments about the limits of the powers of the judiciary. We are compelled to make these remarks because we always encounter cases where judges unjustifiably attempt to exercise executive or legislative functions. In our view, this is clearly unconstitutional.
In the name of judicial activism, judges cannot overstep their bounds and attempt to take on functions belonging to another organ of the state. What follows is that about 7 pages of the report is not only obiter, but reveals a constitutional reason that judges cannot turn courts into husts.