The Constitution of India

What it does

The Constitution sets up the organs of government, divides the power to legislate between Parliament and the State legislatures through the three Lists in the Seventh Schedule, and states the rights that a person holds against the State. It came into force on 26 January 1950. Every other instrument on this site draws its authority from it, and none can stand against it.

For commercial work it does three things that are easy to overlook. It decides which legislature may make a given law, so that a statute on a subject outside that legislature's list is void to that extent. It subjects State action to the guarantee of equality in Article 14, which reaches the way the State chooses its contractors and sets terms. And it provides, in Articles 32 and 226, the remedy of a writ against the State, before the Supreme Court and before the High Courts.

Who it binds

The State, which Article 12 defines to include the Government and Parliament of India, the Government and legislature of each State, and local and other authorities within the territory of India or under the control of the Government of India. The fundamental rights are enforceable against the State, and not in general against a private person. A body that is not the State in name may still be treated as State action for a given purpose, and the question is raised most often in disputes with public sector undertakings and statutory corporations.

What has changed, and when

The Constitution has been amended many times since 1950 and the amendments are part of the text. The one that matters most to land and projects work is the Forty-fourth Amendment of 1978, which removed the right to property from the list of fundamental rights and placed it in Article 300A. That Article says no person shall be deprived of property save by authority of law. It remains a constitutional right, and the deprivation must have the support of a valid statute, but it is no longer a fundamental right enforceable under Article 32.

What turns on it in practice

Two practice areas on this site rest directly on the Constitution.

In contracts and procurement, the starting point is Article 299, which governs contracts made in the exercise of the executive power of the Union or a State. Such a contract must be expressed to be made by the President or the Governor, as the case may be, and executed by a person authorised for the purpose. A contract that does not meet that form may not be enforceable against the government in the ordinary way, and this is why the mode of execution of a public contract is checked before the commercial terms. Article 14 adds a public law layer. A tender process that is arbitrary, or a termination of a contract that is without fair procedure, may be challenged by writ, though the courts leave purely contractual remedies to the civil forum.

In projects and land, Article 300A is the constitutional footing of land acquisition, which is carried out under a statute and not directly under the Constitution. The division of legislative power decides whether the Union or a State has made the law that applies to a given parcel, a mine, a port or a transmission line, and a project that crosses States meets more than one legislature. Environmental compliance, forest clearance and pollution control are also fed by the courts' reading of the right to life in Article 21, which has supported a right to a healthy environment.

An advisory opinion on a project or a procurement contract usually needs one constitutional question answered at the outset: who is the State here, and which legislature made the law that governs the transaction.