CLAT 2012 Preparation and Discussions

[trustmenot]

Hi friends,
Lets make a list of some of the important questions and discuss your views and answers about it.
Lets name a few of them:

1. What is Constitutions?
2.State the features for having a good constitutions ?
3.State the features for Indian Constitution?

[wooohahaha]

What is a constitution ?

​A Constitution can be defined as body of rules, written or unwritten according to which the government of a state is carried on. These rules not only lay down the form of government, the structure and functions of the various organs of government but also prescribe the rights and duties of citizens. The ancient Greek philosopher Aristotle speaks of the Constitution as "the arrangement of powers in a state, especially of the supreme power".
Wade and Philips describe the Constitution as "a document having a special legal sanctity which sets out the framework and the principle functions of the organs of government of a state and declares the principles governing the operation of these organs.

[masoom]

Features of having good constitution ?


Features of a Good Constitution
A good Constitution must take into account the following:
2. Clarity and precision: It has to be drafted carefully so that its principles are precise and clear
1. Comprehensiveness: A Constitution should be comprehensive enough for the government to know its powers and limitations, and the people to know their rights and obligations.
2. Not Too Much Detail: It should avoid unnecessary details.
3. Stability and Flexibility: While a Constitution should be well planned and give stability to the state, it should provide the maximum scope for introducing changes to suit the changing times.
4. Declaration of Rights: A good constitution must contain the fundamental rights of the people. In the Constitution of countries like India, Soviet Union, China, France, Japan and Italy such types of declarations have been made.
5. Independence of Judiciary: The Judiciary should not be under the control of the executive and it should function freely and act as the guardian of the Fundamental Rights of the people, without fear.
6. Directive Principles of State Policy:
These principles help in the establish¬ment of a welfare state, hence in a good Constitution mention must be made of the Directive Principles of State Policy.

[arvi]

Features of Indian Constitutions ?

FEATURES OF THE INDIAN CONSTITUTION

1. The Bulkiest Constitution of the World
The Indian Constitution is one of the bulkiest constitutions of the world. The Constitution, originally consisting of 395 articles and eight schedules now consists of 450 articles divided into 22 parts and 12 schedules. The main factors that contributed to the bulk of the constituti('!: were:
(i) Incorporation of good provisions of l:-,;C'
Constitutions of other countries to .).\ (:': future loopholes.
(ii) Absence of separate constitutions for the states and provision of both central an': state structure in the Constitution.
(iii) Incorporation of Fundamental Rights.
Fundamental Duties and Directive Prin-ciples of State Policy.
(iv) Provisions regarding peculiar problem~ facing the country. such as problem of Scheduled Castes and Scheduled Tribes. backward classes, official language, etc.
(v) Inclusion of eme~gency provisions in the Constitution for the protection of the interests of the country and the people. (vi) Detailed provisions regarding the organization of the judiciary, the services. elections and other transitory provisions. (vii) Codification of details regarding centre-
state relations to prevent future conflicts (viii) Enumeration of certain practices, which in other countries operate on the basis of conventions.


2. Combination of Rigidity and Flexibility

The Indian Constitution is a combination of rigidity and t1exibility while some provisions of the Constitution can be amended by the Parliament by a simple majority, others require two-thirds majority of the members of the Parliament as well as a majority in the state legislatures. Again. some provisions of the Constitution can be amended by the Parliament alone by a two-third majority. Further t1exibility is introduced in the Constitution by the provisions which permit the Parliament to supplement the provisions of the Constitution by legislation.

3. Parliarnentarv System of Governrnent

The Constitution provides for a parliamentary system of government under which the real executive power rest with the counci I of ministers and the President is only nominal ruler. The council of ministers stays in office as long as they enjoy the confidence of the Parliament. The framers of the Constitution decided to adopt a parliamentary system of government for several reasons. Firstly, the system was already in exist¬ence in India and people were well acquainted with its working. Secondly, the vast size of the country and the diversity of its culture necessit¬ated the adoption of a parliamentary form of government. Thirdly. the desire to avoid cont1icts between the executive and the legislature, which was a common feature in America, also induced the members of the Constituent Assembly to opt for a parliamentary system.

4. Federal System with a Unitary Bias The India Constitution provides for a federation with a strong centre. It is noteworthy that the Constitution has not used the word 'federation', anywhere. and has dcsnibed India as a 'Union of States'. which Implies that the Indian federation is not the result of any agreement among the units and the units cannot secede from it. India possesses most of the federal features but also several of the unitary features. The Indian federal structure acquires a unitary character during emergency, when the normal distribution of powers between the centre and the states undergoes vital changes.
5. Fundamental Rights


The Constitution contains an elaborate list of Fundamental Rights. The state cannot make laws which take away or abridge any of the fundamental rights of the citizens. If it does so, the courts can declare such a law as unconstitutional. It may be noted that the fundamental rights granted by the Constitution are not absolute and are subject to certain restrictions. In other words, the Constitution seeks to strike a balance between individual liberty and social interests.

6. Fundamental Duties


The Constitution also contains a list of II fundamental duties of citizens. While ten of these duties were added to the Constitution by the forty second amendment in 1976, the eleventh duty was added by the 86th Constitutional Amendment Act (2002). These duties serve as constant reminders to the citizens that they have to observe certain basis nomlS of democratic conduct.

7. Direct.ive Principles of State Policy The Constitution illltlincs certain Directive Principles of State Policy which the government has to keep in mind while fonnuJating any policy. These principles seek to provide social and eco¬nomic basis for democracy and the establishment of a welfare state. Unlike the Fundamental Rights. the Directive Principles of State Policy are non-justifiable, which implies that no action can be brought against the state before a cOUl1 of law for its failure to implement the Directive Principles. However. in actuality the government has accorded due importance to the Directive Principles in the formulation of its policies.

8. Secular State
A Secular State means that state which has no religion of its own unlike that of the Theocratic State. The Secular State neither favours any religion nor disfavours any religion. It neither encourages nor discourages any religion. The Constitution makes India a secular state. This means that there is no state religion and the state is completely detached from religious dogmas. It also implies that citizens are free to profess, practice and propagate any religion. However, freedom of religion is not absolute and the same can be regulated in the interest of the public. The Indian State is neither religious nor (ir)religious nor (anti)religious nor (pro)religious.
9. Independent Judiciary
The Constitution provides an independent judiciary which ensures that the government is carried on in accordance with the provisions of the Constitution. It acts as the guardian of the liberties and fundamental rights of the citizens. It also determines tLe limits of the powers of the centre and the states.

10. People as Source of Authority
The Constitution draws its authority from the people and has been promulgated in the name of the people. This is evident from the preamble which states 'We, the people of India ... do hereby adopt, enact and give to ourselves the Constitution.

11. Universal Adult Franchise
The Constitution introduces universal adult franchise and accords the right to vote to all citizens above 18 years of age without discrimination. However, it makes reservation of seats for Scheduled Castes and Scheduled Tribes to provide them adequate
representation.

12. Emergency Powers
The Constitution vests extraordinary powers in the President during emergencies arising out of armed rebellion or external aggression; emer-gency due to the breakdown of constitutional machinery in the state; and financial emergency when the credit of the country is threatened. In fact, during emergency the federal Constitution
can virtually be converted into a unitary Con¬stitution.

13. Single Citizenship
I provides single citizenship. All persons re-siding in different parts of the country are treated as Indian citizens and are entitled to the same rights of citizenship. There is no separate citizenship of different states.

14. Bicameral Legislature
It provides a bicameral legislature at the centre consisting of the Lok Sabha and the Rajya Sabha. The former contains representatives of the people, while the latter contains representatives of the states.


15. Special Provision for Minorities The Constitution makes special provision for minorities, Scheduled Castes, Schedules Tribes, etc. It not only reserves seats for them in the Parliament and state legislatures, but also grants them certain special rights and privileges.
16. Panchayati Raj
The Constitution provides constitutional basis to Panchayati Raj institutions as well as urban local bodies. This was achieved through the seventy¬third and seventy-fourth amendments to the Constitution carried out in December 1992.
I

17. Rule of Law
The concept of 'rule oflaw' was borrowed from Britain. It implies that no man is above law and all individuals are subjecUo the jurisdiction of the ordinary courts. There are basically three postulates of Rule of Law:
I. No person can be punished except for the
breach of an existing law.
2. All citizens are equal before law and no one
is above the law.
3. The Constitution is the Supreme law of the land and all laws passed by the Parliament must be in keeping with the provisions of the Constitution.

[arvi]

Explain DOCTRINE OF PITH AND SUBSTANCE ?

[alpesh2207]

Explain DOCTRINE OF PITH AND SUBSTANCE ?

• Within their respective spheres, the Union and the State legislatures are made supreme and they should not encroach on the sphere reserved for the other.
• If a law passed by one encroaches upon the field assigned to the other, the Court will apply the doctrine of pith and substance.
• If it is found that the law in substance is within the subjects assigned to that Legislature and the intention of the law is genuine, the law shall be held valid in its entirely, even though there is some overlapping.
• The justification of this is that since there cannot be clear-cut division of powers between the Centre and the States, a strict verbal interpretation of any provision would result, in invalidation of many laws on the ground of overlapping.
• The Supreme Court propounded this doctrine in the case of State of Rajasthan vs G. Chawla in 1959.
• In the opinion of the Court, such encroachment is only incidental and hence the extent of invasion is immaterial.

[alpesh2207]

CLASSIFICATION OF DIRECTIVE PRINCIPLES


Articles 36 to 51 contain the various directive principles. These principles are an amalgamation of Socialistic, Gandhi an and Liberal Principles and they are divided into five categories: (i) Economic (ii) Gandhian (i1i) Protection of Environment and Monuments (iv) Law, Justice and Administration (v) International Peace and Security
1. Economic Principles
These principles enable the individual to lead a good and satisfying life and provide the economic basis for the democratic system envisaged under the Constitution.
(a) To provide adequate means of livelihood
for all.

THE CONST!TUTlONAL AND LEGAL FRAMEWORK A.23
(t> .I[ \ > sccur~ ~LJual pay tor work for both men :i:,d women.
(,') Tu protect the \VOlkers, especially children. \.J) T" "cgulate the economic system of the cULllllry to control unequal concentration ol wealth and means of production in the h:Uil.is of a few.
l e) To make provision for securing the right to work, to education and to public aSSl:,tance in cases of unemployment, old age and sickness.
(1) To ,'nSLlr~ a decent standard of living and t:\cilitics of leisure for all workers.
(g) To provide opportunities and facilities for chi Idren so that they lllay develop in a lil'althy m<lnner and in conditions of frecdom and dignity and to protect the yuuu. against exploitation.

:2. Gandhian (Socialist) Principles These principles represent the Gandhian programme of reconstruction.
(a) To organize viUage panchayats and allow them to function as units of self Government.
(b) To prumote the educational and economic inkr~sts of the weaker sections of the pcupk. particularly the Scheduled Castes :.lnJ thc Schedukd Tribes, and to protect ,hcm social injustice.
(C) To promote Cottage Industries in the rural areas.
(dj To prevent the use of intoxicants, except fur ll1~dicinal purposes.
le) Pn:\c'ntion of slaughter of cows and much cauk.
(0 To proviJe free and compulsory education up:\) the age of fourteen years.
3. Protection of Environmental IHonulnents
(a) Tu protect and improve the environment anu to ~afcguard the forests and wild life of ihc' ,•uuntry.
\ b) 1\, I'r(lt~ct eV'.;ry monument which is of Naliunal importance from destruction, di~pusal ur export.
4. Law, Justice and Administration (a) To secure for all Indian citizens a uniform Civil Code Article 44.
(b) To take steps for the separation of the judiciary from the executive in the public services of the state Article 50.
(c) To provide free legal aid by suitable legis¬lation and to ensure that opportunities for securingjustice are not denied to any citizen on grounds of economic or other disabilities.
5. International Peace and Security (a) To provide international peace and security to maintain just and honourable relations between nations.
(b j To foster respect for international law and treaty obi igations, and encourage settlement of international dispute by arbitration.

[nana]

CRITICISM OF THE DIRECTIVE PRINCIPLES


Some scholars describe the Directive Principles as "pious wishes" devoid of all constitutional signi¬ficance. The reasons are as under:
1. Directive Principles are Non¬justifiable
These directives cannot be enforced by any court of law of the country. As such, no legal remedy is available to the sick, aged or the unemployed.
2. Lack of Fundsfor Implementation of the Directive Principles
The directives are not implemented due to paucity of funds. Furthermore, there is no time¬limit for the implementation of the Directive Principles. As a result, tangible progress in some priority areas like education and women empowerment have yet to be made.
3. Conflicts between the Directive Principles and Fundamental Rights
Article 31 C treats Directive Principles as being more important than some of the Fundamental Rights.

[educator]

Hi friends,
Please find the attached current affairs of 2011.