CHAPTER 2 – “MAKING OF THE CONSTITUTION”
| DEMAND FOR CONSTITUENT ASSEMBLY | • In 1934 – MN Roy – 1st time put the Idea of Constituent Assembly.
• In 1935 – INC – demanded a CA to frame the const. of India. • In 1938 – J.L Nehru on the behalf of INC declare. • Finally, demand was accepted in principle by British Govt, known as “August Offer” of 1940. • In 1942, Sir Stafford Cripps – came to India – Framing of an independent Constitution to be adopted after World War II. {Cripps Proposals rejected by Muslim} |
| COMPOSITION OF THE CONSTITUENT ASSEMBLY | • Constituent Assembly (CA) was constituted – In Nov 1946 – under the scheme formulated by the Cabinet Mission Plan.
• Total Strength (Members) 389 – 296, British Indian – 292 from 11 governor & 4 Chief Commission Provinces and, 93, Princely states (nominated by head) • Seat allocation on principle of Community-based on population. • Roughly, 1 seat = 10, 00,000 people. • Method of election – proportional representation by means of single transferable votes. • Provinces members – elected – by members of L. Assembly. • Princely states – selection – on basis of nomination/consultation. • Election – July – August 1946 • 208 – congress, 73 – Muslim League • 15 – others, 93 seats vacant – NoNomination |
| Synthesis of Parliament Sovereignty & Judicial Supremacy | • Sovereignty of Parliament : British Principle
• Supremacy of Judiciary: American principle • The India system combines these principles to establish a system that suits our needs. • SC can declare any Parliamentary law as a unconstitutional (Article 13s power of judicial review) • Parliament can amend large parts of the Constitution. |
| Scope of Judicial Review | • In India, Judicial Review Power of SC is narrower than scope in USA (due process of law)
• India follows principle of ‘procedure established by law’ (Article 21): No person shall be deprived of his life or personal liberty except according to procedure established by Law. |
| Procedure established by Law | A law established by the legislature, following correct protocols and procedures
Problem in it: – may not be fair, may not uphold principles of justice and equity. |
| Due process of Law:- | • Checks if the law is fair and just.
• American theory contains many implied rights. • Due process balances the power of the law of the land and protects the individual person from it. • The state must respect all rights that are owed to a person and laws that the state exacts must conform to the laws of the land. • The DPL clause developed from the Magna carta of England ( 1215CE) • In India, the SC interrupted the principle of DPL into the PEC close in the Maneka Gandhi case (1978). • Justice P.N. Bhagmati: the Constitution mandates “fair” procedure when the rights are deprived. |
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