Introduction Flashcards
(4 cards)
Does constitution consist only of legal norms ?
No. It consists of both legal and non legal norms
• Legal Norms - are those which when violated are liable to be punished by the courts
• Non Legal norms - No. It consists of both legal and non legal norms
• Legal Norms - are those which when violated are liable to be punished by the courts
• Non Legal norms - those norms which are not sanctioned by the constitution but are still there. Punishment is not rendered on these norms
• In India some non legal norms exist between the relationship of the executive and the legislature.
• These non legal norms have come about through custom, usage and long standing practices.
• Jennings :- Thus within the framework of the law there is room for development of the rules of practice, rules which may be followed as consistently as the rules of law which determines the procedure which the men concerned in government follow.
• Keeton :- Convention of the constitution are the unwritten principles which though they could never be enforced as law in the courts, are nonetheless rules in fact and the players of the constitutional game do observe them, for if they are not observed, the game would immediately degenerate into a political fracas or worse still, a bloody revolution.
• Sanction behind such conventions is mostly public opinion.
• Ahmedi CJ:- Conventions grow from long standing accepted areas of practice or by agreement in areas where the law is silent and such a convention would not breach the law but fill the gap.
• Eg of convention in India - relationship between executive and legislature.
• There are many cases where conventions have been recognised and also applied by the courts, which is slowly starting to blur the distinction between law and convention. Because some legal rules - could directory and not mandatory, especially in the cases of procedural law.
• norms which are not sanctioned by the constitution but are still there. Punishment is not rendered on these norms
• In India some non legal norms exist between the relationship of the executive and the legislature.
• These non legal norms have come about through custom, usage and long standing practices.
• Jennings :- Thus within the framework of the law there is room for development of the rules of practice, rules which may be followed as consistently as the rules of law which determines the procedure which the men concerned in government follow.
• Keeton :- Convention of the constitution are the unwritten principles which though they could never be enforced as law in the courts, are nonetheless rules in fact and the players of the constitutional game do observe them, for if they are not observed, the game would immediately degenerate into a political fracas or worse still, a bloody revolution.
• Sanction behind such conventions is mostly public opinion.
• Ahmedi CJ:- Conventions grow from long standing accepted areas of practice or by agreement in areas where the law is silent and such a convention would not breach the law but fill the gap.
• Eg of convention in India - relationship between executive and legislature.
• There are many cases where conventions have been recognised and also applied by the courts, which is slowly starting to blur the distinction between law and convention. Because some legal rules - could directory and not mandatory, especially in the cases of procedural law.
A.K. Gopalan v. State of Madras,
A.I.R.1950 S.C. 27
The Supreme Court ruled that where an Act was partly
invalid, if the valid portion was severable from the rest, the valid portion would be maintained, provided that it
was sufficient to carry out the purpose of the Act.
(Doctrine of Severability)
Bhikaji Narayan Dhakras v State of MP
In this case, the validity of C.P. and Berar Motor Vehicles Amendment Act, 1947, empowering the Government to
regulate, control and to take up the entire motor transport business was challenged.
The Act was perfectly a valid piece of legislation at the time of its enactment. But on the commencement of the Constitution, the existing law became inconsistent under Article 13(1), as it contravened the freedom to carry on trade and business under Article 19(1)(g).
To remove the infirmity the Constitution (First Amendment) Act, 1951 was passed which permitted creation by law of State monopoly in respect of motor transport business.
The Court held that the Article by reason of its language could not be read as having obliterated the entire operation of the inconsistent law or having wiped it altogether from the statute book.
In case of a pre-Constitution law or statute, it was held, that the doctrine of eclipse would apply. (Doctrine of Eclipse)
Basheshar Nath v. C.I.T
It was held that it was not open to citizens to waive any of the fundamental rights. Any person aggrieved by the consequence of the exercise of any discriminatory power, could be heard to complain against it. (Doctrine of Waiver)
