Certificate

This is to certify that this project entitled Constitution as a Basic Law submitted by Mr. Sudhir Tundwal to the Siddhartha Law Collage Dehradun, in partial fulfillment of the requirements for the award of Bachelor of law, is a record of certified work undertaken by me.

(Student) Guidance of: Santosh YadavName: Sudhir Tundwal SignatureSignature:

Acknowledgement

I deem it my proud privilege to express my indebtedness and sincere thanks to all those who have in various ways, helped in the successful completion of the project and without their invaluable help this project would not have been a reality.I am extremely thankful to Mr. Santosh Yadav Sir Faculty of law who was constant source of knowledge and inspiration at all levels throughout my project.To took a lot of pain in providing guidance about project report.Finally, I express my most sincere gratitude to my Parents and my Family members for supporting and encouraging me to this challenging project. I deeply acknowledge the support and inspiration by my academic career.

Content1. Introduction of preamble.1.1 Enacting formula1.2 Sovereign1.3 Socialist1.4 Secular1.5 democratic2. 42th amendment...83. Article 14...8-94. The Basic Structure of the Indian Constitution.9-105. Article 368 in the Constitution of India 1949.10-116. Ultra Vires.11-137. Pure Theory of Law.13-147.1 Hanskelsens introduction 7.2 Theory of Positive Law7.3 Law and Morals8. Aspect of Law.14-16 8.1The Static Aspect of Law 8.2The Dynamic Aspect of Law 8.3Law and State 8.4 State and International Law 8.5 Interpretation 9. Defining 'Purity' of Legal Science.16-21 9.1'Legal Orders' 9.2 'Basic Norm (Grundnorm)' 9.3 Law and Power 9.4 Toward a General Theory of Norms 10. Friedrich Karl von Savigny.21 10.1 Law is found and not made 11. Sources of the constitution.22

PreambleThepreamble to the Constitution of Indiais a brief introductory statement that sets out the guiding purpose and principles of the document. The preamble-page, along with other pages of the original, constitution of India was designed and decorated solely by renowned painterdeodar ram manohar sinha ofJabalpur. As such, the page bears deodhar Ram manohar Sinha's short signature Ramindevanagrilower-right corner.

That the preamble is not an integral part of the India constitutionwas first decided upon by theSupreme Court of Indiain theBeruBari case;therefore it is not enforceable in a court of law. However, theSupreme Court of Indiahas, in theKesavanandacase, recognized that the preamble may be used to interpret ambiguous areas of the constitution where differing interpretations present themselves. In the 1995 case of Union Government Vs LIC of India also the Supreme Court has once again held that the Preamble is an integral part of the Constitution. As originally enacted the preamble described the state as a "sovereigndemocraticrepublic". In 1976 theAmendment changed this to read

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WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:JUSTICE, social, economic and political,LIBERTY, of thought, expression, belief, faith and worship,EQUALITYof status and of opportunity,And to promote among them all.FRATERNITYassuring the dignity of the individual and the unity and integrity of the Nation,IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The original 26 November 1949 constitution stated "SOVEREIGN DEMOCRATIC REPUBLIC" and "unity of the Nation", the words "SOCIALIST SECULAR" and "Unity and Integrity" were added via the 42nd amendment during the Emergency in 1976).Enacting Formula.It signifies the democratic principle that power ultimately rests in the hands of the people. It also emphasizes that the constitution is made by and for the Indian people and is not given to them by any outside power (such as the British parliament). The wording is close to the preamble to the constitution, which had been adopted in 1937; it reads We, the people of India Do hereby adopt, enact, and give to ourselves this Constitution. The phrase we the people emphasizes upon the concept of popular sovereignty as lay down by J. J. Rousseau. All the power emanates from the people and the political system will be accountable and responsible to the people.

2SovereignThe wordsovereignmeans supreme or independence. India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is direct electedby the people and makes laws that govern the people. She allies inpeace and war. The Popular sovereignty is also one of the basic structures of constitution of India. Hence, Citizens of India also enjoy sovereign power to elect their representatives in elections held for parliament, state legislature and local bodies as well. People have supreme right to make decisions on internal as well as external matters. No external power can dictate the government of India. All the people are free in a limit to do their work in their own opinion. SocialistThe wordsocialist was added to the Preamble by the 42th Amendment during the Emergency in 1976.It implies social and economic equality.Social equality in this context means the absence of discrimination on the grounds only of caste,colour, creed, sex religion, or language. Under social equality, everyone has equal status and opportunities.Economic equality in this context means that the governmentwill endeavor to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect emphasized a commitment towards the formation of awelfare state. India has adopted a socialistic and mixed economy and the government has framed many laws to achieve the aim.SecularThe wordsecularwas added to the Preamble by the42th Amendmentduring the Emergency in 1976.Citizens have complete freedom to follow any religion, and there is no official religion. The Government treats all religious beliefs and practices with equal respect and honor.

3DemocraticThe first part of the preamble We, the people of India and, its last part give to ourselves this Constitution clearly indicate the democratic spirit involved even in the Constitution.Indiais ademocracy. The people of India elect their governments at all levels (Union, State and local) by a system ofuniversal adult franchise; popularly known as "one man one vote". Every citizen of India, who is 18years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis ofcaste,creed,colour,sex,religionoreducation.42th amendmentOn 18 December 1976, during theEmergencyin India, theIndira Gandhigovernment pushed through several changes in theForty-second Amendmentof the constitution of India. A committee under the chairmanship of Sardar Swarn Singhrecommended that this amendment be enacted after being constituted to study the question of amending the constitution in the light of past experience. Through this amendment the words "socialist" and "secular" were added between the words "sovereign" and "democratic" and the phrase "unity of the Nation" was changed to "unity and integrity of the Nation"Article 14The responsibility for operations of a licensed public higher education institution shall beBorne by the administrative board of the university or higher school (hereinafter referred to asthe administrative board).The administrative board shall perform the tasks as determined in the law and in the statute ofthe university, in particular: provide the opinions on the statute of the higher education institution, and pass the General enactments on internal organization and job systematization chart, and other General enactments pursuant to the law and statute of the higher education institution; pass the decisions on establishment of other legal entities, pursuant to the law and Statute of the higher education institution;

4 determine the financing and development plans; Upon the proposal from the senate of the higher education institution, pass the annual Work programs of the higher education institution; pass the financial plans and adopt the annual financial statements; Direct, control and evaluate the work of the record or principal in the domain of financial operations; resolve the issues of relations with the founder; pass the decisions on the use of funds exceeding the amounts determined in the statute Of the higher education institution; pass decisions on complaints of employees against the decisions of the higher Education institution bodies ruling in the first instance on the rights, obligations and Responsibilities of employees arising from employment; submit to the founder at least annual reports on operations of the higher education Institution; Also perform other tasks pursuant to the law, enactment on foundation and statute of the higher education institution.

The Basic Structure of the Indian Constitution

Introduction

Constitution is a living document, an instrument which makes theGovernment system work. Its flexibility lies in its amendments. In this edition,The text of the Constitution of India has been brought up-to-date byIncorporating therein all amendments made by Parliament up to and including the constitution 94th amendment act 2006.

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It may be said that the final word on the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court-as scenario that is unlikely to change in the near future. While the idea that there is such a thing as a basic structure to the Constitution is well established its contents cannot be completely determined with any measure of finality until a judgment of the Supreme Court spell sit out. Never the less 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 that have appeared time and again in the apex court's pronouncements. One certainty that emerged out of this tussle between Parliament and the judiciary is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely to be struck down by the Supreme Court. In essence 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.

Article 368 in the Constitution of India 1949Article 368, Power of Parliament to amend the Constitution and procedure therefore(1)Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article

6(2)An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in;

Article 54, Article 55, Article 73, Article 162 or Article 241, or Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or Any of the Lists in the Seventh Schedule, or The representation of States in Parliament, or The provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent Nothing in Article 13 shall apply to any amendment made under this article No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS.

7Ultra Virus:Pure Theory of LawGerman:Reine Rechtslehre is a book by legal theoristHans Kelsen, first published in 1934 and in a greatly expanded second edition (effectively amagnum opusdoubled in length of presentation) in 1960. The second edition appeared in English translation in 1967, asPure Theory of Law, the first edition in English translation in 1992, asIntroduction to the Problems of Legal Theory. The theory proposed in this book has probably been the most influential theory of law produced during the 20th century. It is, at the least, one of the high points of modernist legal theory.

Hanskelsens introduction of the pure theory of lawThe two editions of Kelsen's book were separated by twenty-six years, and the second edition (1960) was almost twice the length of the first in the detail of its presentation. The original terminology which was introduced in the first edition was already present in many of Kelsen's writings from the 1920s, and was also subject to discussion in the critical press of that decade as well, before it was first published in 1934. Although the second edition was significantly longer, the two editions had a great deal of similarity of content, and much of the material covered in the volumes is consistent not only with one another, but also with many of Kelsen's previous writings from the 1910s and 1920s. The following sections herein shall follow Kelsen's own preference for the presentation of his main topics of the pure theory of law as he presented them in the second edition of this book.

8Law and Morals inthe Pure Theory of LawKelsen's strict separation of law and morals was an integral part of his presentation of the pure theory of law. The application of the law, in order to be protected from moral influence or political influence, needed to be safeguarded by its separation from the sphere of conventional moral influence or political influence.

Kelsen did not deny that moral discussion was still possible and even to be encouraged in the sociological domain of inter subjective activity. However, the static operation of the pure theory of law (see section below) was not to be subject to such influences as presented by Kelsen in Chapter Two of the second edition of this book.

The Static Aspect of LawAs mentioned above, in Chapter Four of his book, Kelsen distinguished the static theory of law from the dynamic theory of law (see discussion below). The static theory of law represented the law as a hierarchy of laws where the individual laws were related the one to the other as either being inferior, the one to the other, or superior with respect to each other. This hierarchical theory was largely adopted from Adolf Merkl's research in the structural aspects of the law while Kelsen was still in Vienna.

The Dynamic Aspect of LawIn Chapter Five ofThe Pure Theory of Law, section 34 and 35, Kelsen discussed the dynamic theory of law. In the dynamic theory of law, the static theory of law comes into direct contact with the governmental administration of the state which must recognize the function of the legislature in the writing of new law.

9At the same time there is also the understanding of law as being affected by the accumulated standing law which represents the decisions of the courts which in principle become part of the hierarchical representation of the pure theory of law. Importantly, Kelsen allows for the legislative process to recognize the law as the product of political and ethical debate which is the product of the activity of the legislature before it becomes part of the domain of the static theory of law.

Law and StateChapter Six of thePure Theory of Lawhas Kelsen present his celebrated identity theory of law and state. This is Kelsen's highly functional theory of the state and the law as representing the same entity. It is not to be confused with the sociological domain or the cultural domain of inter subjective activity. Nor is it to be confused with the political or even the religious domain of inter subjective interaction amends individuals.

State and International LawOn page 320 of his book, Chapter Seven, Kelsen presents his discussion of the interaction of state law and international law as these are especially guided by the understanding of political sovereignty. For Kelsen, the assessment of international law is that it represents a very primitive form of law in distinct contrast to the highly developed forms of law as may be found in individual nations and states. As a result, Kelsen emphasizes that international law is often prone to the conduct of war and severe diplomatic measures (blockade, seizure, internment, etc.) as offering the only corrective measures available to it in regulating the conduct between nations. For Kelsen, this is largely inevitable due to the relative primitiveness of international law in contemporary society.

10InterpretationKelsen's final chapter, Chapter Eight, in the second edition ofThe Pure Theory of Lawdeals with the subject of interpretation in at least three of its most important aspects. First, Kelsen discusses the nature and methodology of the interpretation of the law. Second, Kelsen discussed interpretation as an act of cognition and of voluntary will. Third, Kelsen discusses interpretation as it is to be understood as part of the science of law, as Kelsen has defined it as being 'purified' from the undue influence of politics, morals, and metaphysics. Kelsen's essay titled "On the Theory of Interpretation" was translated into English in 1990 and published in the journalLegal Studies(Vol. 10, No. 2).

Legal Orders:For Kelsen as for other central European contemporaries, norms occur not singly but in sets, termed 'orders'. The ordering principle of an order of moral norms - and of an order of natural law, if one could exist - would be logical, as deduction. From the general norm 'do not kill other human beings', it follows deductively that A must not kill any other human being. Kelsen calls this a 'static' order. An order of positive law, he maintains, is not, or not centrally, like that. Although it forms a hierarchy, it is 'dynamic', in that its ordering principle is authorization. Each relatively 'higher' norm authorizes someone (an individual or an organ, primarily of the state) to create further and relatively 'lower' norms. In this is found the specific characteristic of positive law, hence of all law, that it regulates its own creation. Even though positive legal norms do commonly contain elements of generality, those elements are not central to the relation between a higher and a lower norm. This is a relation of legal 'validity' (not to be confused with logical validity), which is that the creation of the lower norm has been authorized by the higher norm. Since this moment of creation always involves extraneous considerations, Kelsen does not need to supplement his model with a concept of 'discretion'.

11What has to be consistent in a dynamic order of norms is only the process of authorizing. This process can (and perhaps always does) result in multiple and mutually uneven strands of hierarchy, such as legislative, executive and judicial strands.[5]In each strand, at every point in the process of norm-creation, many types of extra-legal factor may be taken into account - moral, political, economic and others. Kelsen notes that, in this respect, the Pure Theory of Law has an affinity with American 'legal realism'.At the same time, the 'hierarchy' model does not readily fit a common-law system. It takes as its paradigm a single constitutional document under which codes and statutes are enacted, with both administration and adjudication in subordinate places. However, at least outside the USA, common-law systems are moving in the direction of that paradigm. The 'hierarchy' model also fits public law more readily than private law. It is difficult to be convinced by Kelsen's contention that, in private transactions, the parties are exercising legal authorization.

Law is found and not madeAccording to Savigny, law is the rule where by the invisible border line is fixed within which the being and activity of each individual obtains a secure and free space. Law is a product of internal, silently operating force. Law is a product of the peoples life it is a manifestation of its spirit. Law has its sources in the general consciousness (volksgeist) of people. According to him, law grows with the growth, and strengthens with the strength of people, finally dies away as the nation loses its nationality. He said law is begotten in the people (volk) by popular spirit (volksgeist). He explain the theory of volksgeist by contending that it is the board principles of the system that are to be found in the spirit of the people and which manifest in customary rules. Law exists within each society and evolved by manifesting its appearance in the form of customs and traditions. It did not make its first appearance in the form of logical rules. Law is a matter of unconscious growth.

12Any law making should therefore follow the course of historical development Custom not only precede legislation, but is superior to it and legislation should always conform to the popular consciousness. Custom is the manifestation of popular spirit Constitution:-it is a document having special legal sanctity, which sets out the frame work of principle function of the organs of the government.

Sources of the constitution Sources features borrowed1. Government of India act, 1935:- federal scheme, office of governor, judiciary. Emergency provision and administration details.2. British constitution: -Single citizenship, rule of law, parliament government, cabinet system, bicameralism.3. Canadian constitution: -federation with a strong center, residuary power of the center, advisory jurisdiction of the Supreme Court, appointment of state governor.4. US constitution: -fundamental rights, judicial review, independence of judiciary impeachment of president; post of vice-president, removal of Supreme Court& high court judges.5. Irish constitution: - directive principles of state policy; nomination of members to Rajya Sabha and method of election of precedent.6. Australian constitution: - concurrent list, freedom, of trade, commerce and intercourse, joint sitting of two houses of parliament.7. Wiener constitution: - suspension of fundamental rights during emergency.8. Soviet constitution: - fundamental duties9. French constitution: - republic and the ideals of liberty, equality, and fraternity in the preamble.

1310. South African constitution: - procedure for amendment of the constitution and election of members or Rajya Sabha.11. Japanese constitution: - procedure established by law.

Cases law:-Kesavananda Bharati v. State of Kerala:His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr.(case citation: AIR 1973 SC 1461) is a landmark decisionof theSupreme Court of Indiathat outlined theBasic Structure doctrineof theConstitution. JusticeHans Raj Khanna asserted through this doctrine that the constitution is built on a basic foundation consisting of the dignity and freedom of the individual, and hence no amendment can destroy the fundamental rights of individuals.TheBasic Structure doctrineforms the basis of a limited power of theIndianjudiciaryto review, and strike down,amendments to the Constitution of Indiaenacted by theIndian parliamentwhich conflict with or seek to alter thisbasic structureof the Constitution.The 13-judge Constitutional bench of the Supreme Court deliberated on the limitations, if any, of the powers of the elected representatives of the people and the nature of fundamental rights of an individual. In a sharply divided verdict, by a margin of 7-6, the court held that while the Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution

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