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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 LawA 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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