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LUXMIKANT POLITY CRUX NOTES-CHAPTER 2

CHAPTER 2 – “MAKING OF THE CONSTITUTION”

DEMAND FOR  CONSTITUENT ASSEMBLY •              In 1934MN Roy – 1st time put the Idea of Constituent Assembly.

•              In 1935 – INC – demanded a CA to frame the const. of India.

•              In 1938J.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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