Teaching Constitutional Law in Indian Law Schools
- Prof. Uday Shankar, Registrar & Professor, Hidayatullah National Law University, Raipur
Constitutional Law finds its place at the core of the curricula in the law Universities/Colleges as it significantly contributes to fulfilling the University’s general function of training lawyers. Notably, the study of Constitutional Law serves as a fulcrum for other substantive and procedural laws taught in Universities. Besides the practical use in the courtroom, every law student must learn the foundational law of the country, the Constitution, to get acquainted with the rights of individuals and the allocation of power between the three organs of the state. Until the evolution of Public Interest Litigation, the graduated students had lesser occasions to utilize the learning in daily practice in the initial years of practice at Bar. The learning of the Constitution is not only being used in litigation on constitutional matters but also in other areas of practice such as criminal law, administrative law, election law, and labour law.
Considering the voluminous text, there is a standard practice of teaching Constitutional Law in two parts/semesters. There is uniformity in the structuring of the syllabus in the two semesters across the Law Universities/Colleges. In one semester, there is a discussion on the rights and directives, and in another semester, the syllabus covers the distribution of power in the federal system and the power and functions of the three organs of the State. The teaching aims to introduce the student to the constitutional ideals, principles, and institutions that constitute the core of the constitutional system of the country. Further, it is also desirable to give the historical perspective so that the development of law can be aligned with the intent of the makers of the Constitution. Considering the inter-generational importance of the subject, the discussion must be attuned to the contemporary developments taking place in society. The focus to develop critical thinking will facilitate the progressive growth of Constitutional Law. Having described so, it is incumbent to convey that the coverage of every aspect of the Constitution in the classroom discussion is not to be aimed at. Everything need not be taught. Depending upon the discourse prevailing at a particular point in time, the course teacher should have the flexibility to design the lecture plan. For instance, in today’s context, the prominence may be given to the legal importance of fundamental duties, enforcement of socio-economic rights, accountability of the judges in the higher judiciary, and common market and autonomy to the provinces,
The bulk of discussion on the subject is based on the development of the law through precedents. It has been observed that the course instructor stresses the detailed discussion on the decided cases in the classroom. The case law method is preferred to understand how the court operates, the sources used for interpretation, and the stability of constitutional principles. This method also encourages the student to look beyond the reported judgment such as the composition of the bench, author of the judgment, and litigating parties. These insights develop critical and analytical ability in the students. Also, the study of case law is preeminently a study of the Supreme Court and the role it plays in maintaining the constitutional order and disciplining other institutions of the state.
In addition to the traditional approach of the teaching of Constitutional Law, there is a need to stimulate critical thinking on contemporary problems so that solutions can be suggested by the students. A few instances of issues arising in the current time are horizontal federalism, fiscal federalism and free market, regulation of political parties, accountability of the regulatory bodies, horizontal application of the rights, legal relevance of fundamental duties, and the recognition and enforcement of new rights such as the right to access the internet, right to be forgotten and right to basic income. For probing such issues, the students should be exposed to scholarly writings, comparative law, and policy documents. A conversational method of teaching will be more effective to discuss these areas.
As a subject, Constitutional Law is all-pervasive and influences private and public law alike. The students should be informed about the relevance of constitutional norms in shaping up private laws. For instance, the attributes of fair use in copyright law could be drawn from the rights to education or the importance of access to electricity in delineating the universal service obligation of the distribution companies under the Electricity Act, 2003.
The direction to deal with the subject can be drawn from the pattern of the reference book followed by the course instructor. To elaborate, the reference of H M Seervai’s Constitutional Law of India drives the discussion on the idea underlying the incorporation of the constitutional values and the critical analysis of the judicial pronouncements. M P Jain’s Indian Constitutional Law presents the theme-wise deliberations of the Constitution. V N Shukla’s Constitution of India (revised by Prof. M P Singh) narrates an articles-wise interpretation of the Constitution. Be that as it may, the course teacher of Constitutional Law is concerned with massive reading materials, particularly lengthy judicial pronouncements, and the formidable task of encouraging the students to go through these materials in general and case laws in particular. In this regard, it is suggested that the constitutional law teachers of the Universities should collaborate to prepare reading material for the students. The books such as Shyam Divan & Armin Rosencranz: Environmental Law and Policy in India or Philip Alston & Ryan Goodman: International Human Rights could be looked at to design the framework of the reading material on the subject. Such reading material will contribute to the effective learning of the subject which otherwise creates disinterest in the students on the account of lengthier judgments and voluminous textbooks.
The learning of Constitutional Law demands multi-institutional inputs such as the judiciary, political system, and social fabric. Thus, the discussion in the classroom should be encompassing all the aspects which nurture the growth of Constitutional Law. In this regard, it is expected that the judges should write shorter judgments involving constitutional issues. In this regard, the Law Universities can experiment by offering a seminar course on judgment writing in constitutional cases. Needless to say, it will facilitate next-generation judges to make a more effective contribution in popularizing Constitution Law within and beyond the classroom.
Every student should be taught constitutional laws not only to use at Bar but also to inculcate values to become a good citizen. Well-educated students on constitutional law can contribute to building a culture of informed/reasoned discourse on the decision-making processes of the different institutions of the state.
1. Paul G Kauper, CONSTITUTIONAL LAW TEACHING: PROBLEMS AND PERSPECTIVES. Journal of Legal Education 20, no. 4 (1968): 487–99. http://www.jstor.org/stable/42891909.
2. Robert C. Power, Strategies and Techniques for Teaching Constitutional Law, Wolters Kluwer, 2012.