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Constitution & Constitutionalism


Constitution & Constitutionalism


Characteristics of good Constitution, Classification of Constitution, Constitutionalism:-

CONSTITUTION:- The word constitution has been derived from the Latin word ' constituere which means 'to establish'. All the states must have a constitution without which there will be anarchy and chaos in the state, the constitution indeed has a special place in the democratic state. But even a dictatorial state needs a constitution, It is to be noted here that the constitution plays an important role in limiting the arbitrary action of the government. Therefore, the basis of a constitution lies in a belief in limited government.



Meaning a constitution

Constitution is a body of rules and regulations, written as well as unwritten, whereby government is organized and it functions. It is a legal document which is concerned directly or indirectly with the exercise of sovereign power. The rules, regulations and the procedures within which the government is expected to work is known as the constitution. A constitution means a set of principles which outline the, relations between the government and the governed. Constitution discuss the whole system of government of a country on the basis of which certain rules are formed and which are recognized by the courts of law. In short, the constitution is the supreme law of the land. It is the basic structure which defines the power of the state and right and duties of the citizens.


Definitions of constitution


1)According to MC Intosh "A constitution is a body of fundamental laws which regulate the most important rights of the higher magistrates and the most essential privileges of the subjects”.

2)According to T.D. Woolsey and C.F. Strong "A constitution is a collection of principles

according to which the powers of the government the rights of the governed and the relations between the two are adjusted.”

3)According to R.N. Gilchrist "The constitution is that body of rules and laws which determines the organisation of the government the distribution of the powers to the various organs of the government and the general principles on which these powers ate to be

exercised.”

4)According to Brewster A constitution is the basic law of the state which outlines the framework and procedures of Government defines the powers and functions, provides how constitutional charges may be made, and guarantees the citizens protections against certain

arbitrary governmental action.


5)Importance of constitution : It must be admitted that constitution occupies an important place in the function of a state mainly, it limits the powers of the government state can exercise the powers and discharge the functions, defined by the constitution of the state. There is less possibility of a government doing injustice to the people. The rights of people guaranteed by the are and the Constitution help the smooth functioning of three branches of the government. It clearly defines their functions which help them to work in their proper sphere. This is very important for the smooth functioning of government sine the constitution reflects the aims and aspirations of the people, the government has to keep in view these aims and aspirations and try to fulfill them. Thus, it will be seen that a state without a constitution is like a sheep without a rudder. There will be no order but chaos in such a state Hence, modern states have constitution.


a)Every state needs a constitution. A state without constitution will lead to anarchy and chaos.

b)It contains the fundamental rules of the state according to which the sovereign powers of the state is exercised.

c)It contains the aims and objectives of the state. It reflects the aims and aspirations of the people.

d)It defines the organs of the government and demarcates their powers and function.

e)It shows the relationship between the rulers and the people by defining the rights and duties of the citizens, and defining powers and functions of government.

f)It discusses whole system of government.

g)Entire machinery of the government is organised and worked in accordance with the provisions of the constitution.


Classification of constitution Constitution mainly classified into

i. Evolved and Enacted

ii. Written and unwritten

iii. Rigid and Flexible.


Evolved constitution An Evolved constitution is one which is not made at one time by any assembly or persons or an institution and which is the result of show and gradual process of evolution. Its rules and principle draw binding force and strength from the fact of their being recognized as ancient time tested and respected customs and conventions. Some of the# conventions stand recognised by law and hence become enforceable while others are followed because of the sanctions of the public opinion, practical utility and moral consciousness in their favour. such constitutions are the results of the historical evolution and political needs of the people. it is a constitution based mostly on the usages, customs and conventions. Such type of constitution is a growth and not a make. The constitution of England presents a key examples of an evolved constitution.


Enacted constitution:- An Enacted constitution is non-made constitution, It is made, enacted, and adopted by an assembly or council called a constituent assembly or council after a through discussion over its objectives: principles and provisions, It is written in the from of a book or a series of documents and a systematic and formal manner, It means an enacted constitution is one which is framed by the constitution making body at the particular time, So it is a man made constitution. It describes the process or organization of governmental organs and other aspect of the government. The American constitution of 1787 is the finest example of such constitution.


 

Written and Unwritten Constitution

Written Constitution:- The constitution of most countries are written ones. Written constitution is also called an enacted constitution. The written constitution is a deliberate work of an assembly or convention. A constituent assembly or a convention is specially set-up for the purpose of preparing a constitution for the state. Majority of its provisions are written down. It is promulgated on a definite day. Hence, A written constitution is a consciously planned constitution, formulated and adopted by deliberate actions of a constituent assembly or conation, It provides for a definite design of government institutions, their organizations, powers, functions and inter-relationships. It embodies the constitutional law of the state. The government is bound by its provisions. It has to work strictly in accordance with its provisions. It can be amended only by its corresponding provisions. The government, elected representatives and people byknow what they should do, what they can do, and what they cannot do.


Features of written constitution :-

  • A written constitution is a conscious act.

  • Most of the provisions are defined.

  • It is the product of a deliberate process,

  • It is framed by a committee of statesmen, lawyers, scholars, and others having good knowledge of the workings of a political system.

  • A constituent assembly or a convention is specially set up to prepare this constitution.

  • It is enacted and promulgated on a fixed day. We can point out the day on which the constitution came into being.

  • Normally a special procedure is followed to make a change in it.



 

Merits of a Written constitution


1)Clear, definite and unambiguous:-

A written constitution is precise, it is free from ambiguity. Since it is written, it is C|Par definite. Majority provisions are written down. As such there is no vagueness. They are clea and carry a definite meaning. Since the constitution is deliberately planned and formulated efforts were to made it make it more clear and definite, Thus avoiding vagueness.


2)It promotes stability

Since the provisions are written down, the constitution achieves stability in the political life of the people. It is not subject to frequent charges.


3)Ensures protection to the rights

A written constitution safeguards fundamental rights. Fundamental rights are very valuable for Individual's freedom and these rights are part of a written constitution. Denial of ' these rights to individuals would amount to the violation of the constitution. It is to be pointed out that the written rights definitely put restrictions on the powers of the powers of the rulers.


4)It is good and essential for federation

In modern times written constitution is considered as good and essential in all federal forms of government. There is division of powers between the center and the state. In order to avoid any confusion regarding this division, federations always prefer that this provision should be included in a written constitution. In the absence of a written constitution, the center and units would quarrel and fight.


 

Demerits of written constitution

1) It limits the progress of the country:- A written constitution is too rigid to adapt itself to changing conditions. A written constitution cannot be changed as and when the people like to do so. It is rigid in the sense that it needs special procedure for amending. Some time it takes considerably time to bring about changes in it. It cannot easily meet the requirements of changing times. This situation is not good for the country and achieve the goal of modernization.


2)It becomes a cause of revolution A written constitution may provoke a violent revolution. When a written constitution fails to change with times, the people becon^ impatient and may try to change it through revolts and such demonstrations of disapproval. In short, the people may resort to violent protest and resistance when th government fails to help and give Justice to them.


It becomes plaything in the hands of Judiciary :- The framers of written constitutions 3) always try to make every provision as complete as possible and without any loopholes. As a result, it becomes complex and complicated. Common man finds it difficult to understand and interpret. Such a constitution is interested by supreme court with regard to the powers of regional government and the central government.


Unwritten constitution :- 4) constitutions, Britain is the classic case of being governed by an unwritten constitution. A small number of states which do not have written From the term unwritten, we can easily make out that its provisions are not written down, An unwritten constitution is one which is neither drafted nor enacted by any assembly or convention. It is a product of slow and gradual evolution. It is not prepared by any constituent assembly or convention. In course of their political development people of a state may develop certain customs, convention, traditions and usages, on the basis of which all its political institutions function. The institutions of the government owe their existence and working to historical events, rules, precedents, and experiences. Hence, unwritten constitution contains many things like customs, conventions, statutes of the parliaments. Judicial decisions, scientific commentaries, etc. However, this should not be taken to mean that an unwritten constitution is totally unwritten. Some of its parts are available in the written form but these do not stand codified in the form of legal documents or code. According to Garner. An unwritten constitution is one in which most and not all, rules are unwritten and these are not found in any one charter or document. In modern times, the British constitution is a singular example of this kind.


It becomes clear that An unwritten constitution is not the product of a deliberate act. It grows over time. It is the product of long evolution of a number of customs, conventions and traditions.


Features of unwritten constitution :- A. In the unwritten constitution no distinction is usually maintained between ordinary law and constitutional law. Both are passed in the same manner in the parliament. This constitution is mostly unwritten. It is not prepared and enacted by a constituent assembly or convention. It is evolved through the course of history. It is not man-made constitution. D. B. C. No-fixed day or year can be quoted on which it came into being. It mainly consists of customs and conventions developed by the people and the rule and E. statutes passed by the legislature and Judicial decisions of the court of law. F. It is never complete. It is always growing.


Merits of an unwritten constitution


1) Elasticity and adaptability It is capable of meeting the demands of time. An unwr constitution mostly depends on customs, conventions, parliamentary statues and jU(jj decisions. All these are flexible elements. New conventions can be established to meet the ** situation. The parliament can pass statutes to meet the demands of the changing times. JU(J** may also give decisions to suit the prevailing circumstances. Therefore, unwritten constitute is adaptable and capable of meeting the demands of time.


2) Safety against revolution It satisfies people's wishes and aspiration. As it changes times without any difficulty, It satisfies people's wishes and aspiration. People do not have to agitate much for its change. Parliament can easily pass the laws and fulfill the people I demands, constitution does not stand in their way. There is less possibility of demonstration for its dis approval.

3) Progressive It would discourage any radical change which is likely to seriously harm the people. If written constitution is considered by many as conservative, unwritten is looked upon as progressive. It is a mirror of public opinion. It reflects the changing trends in public opinion.



Demerits of an unwritten constitution


1)It is imprecise, Indefinite and ambiguous Since an unwritten constitution is mostly based on customs, conventions and precedents, it suffers from vagueness. It is not clear and definite. The authority and powers of various organs and offices are not definite, precise and clear. All this is bound to create difficulties in the functioning of government. It may give chance to conflicts among the organs and various offices of government. In short an unwritten constitution gives rise to a lot of scope for conflicting interpretations.

2)It is bad for democracy The provisions of the constitution are not in written form. The people will have to depend for their rights on customs and conventions. The individual may not feel secure about their rights, their rights may be taken away by setting aside those customs and conventions. The people would fail to enjoy their freedom and take active part in the democratic process. Thus, an unwritten constitution is bed for democracy.

3)It is not situation of instability An unwritten constitution suffers from lack of permanence. It is subject to constant charge. As such it is not considered as stable.

4)It is not suitable for federation As the powers of the central government and federa units are not spelled out in a written form, they would fight between themselves about thdn


Written constitution

Unwritten constitution

1.Most of the provisions are written down.

2.It is definite and precise and unambiguous

3.A constitution assembly or a special convention works out and formulates this constitution. It is a deliberate work of this

assembly or convention.

4.It is enacted and form promulgated on a fixed day. We can point out the day on which the constitution came into being.


1.Majority of the provisions are not explained. It includes customs,

conventions, usages etc.

2.It is neither definite, nor precise and nor ambiguous.

3.No such assembly or convention work out or formulates this constitution. It is the result of historical evolution.

4.It is not enacted. We cannot point out a definite date on which this constitution was promulgated. This

constitution continually grows.


According to R.N. Gilchrist The distinction between the two is unscientific.




 

Rigid and Flexible Constitution

Constitutions can be classified on the basis of the their amending process into flexible and rigid constitutions.


Rigid Constitution The Rigid constitution is one which cannot be easily amended. Its method

of amendment is difficult; C.F. strong defines the rigid constitution as "the constitution which requires a special procedure for its alternation or amendment . It means that a rigid constitution cannot be changed or amended by passing a simple law in the legislature or parliament. It requires a separate and special procedure for making any change it. This shows that rigid constitution makes a distinction between constitutional law and ordinary law. It further shows that constitutional law is considered as superior to ordinary law.



Features of rigid constitution


1. Rigid constitution is always in a written form. It is precise and unambiguous.


2. Under a rigid constitution, there is always a distinction between constitutional law and

ordinary law. Both are different and distinct from each other.


3. For making any change, a special method or a special procedure is necessary. It can not be changed by passing a simple law in the legislature. Special procedure requiring the passing of the amendment proposal by a big majority votes followed by ratification by the people in a referendum.


4. Constitutional law is held as superior to ordinary law of the legislature in a state

a rigid constitution. The ordinary laws of the legislature must conform to the provisions of the constitutions. They should not conflict with the provisions of the constitution.


5.Legislature cannot pass any law as it wishes. The authority of the legislature is limited by the constitution. Rigid constitution says about a limited government.



 

Merits of Rigid constitution


1)It provides stability to the political systemSince special method is required to make changes or amendments in it, legislature canchange it as it wishes by passing an ordinary law. Frequent and easy changes are not possible it. The constitution is not a playing of a simple majority of the national legislature. As such' brings stability in the state and government.


2)It is more clear and definiteA Rigid constitution is always in a written form. It is prepared after careful deliberations and discussions. As such it is more clear and definite. There is less vagueness and less ambiguity in it


3)Fundamental rights are more safe

Since it cannot be easily changed by passing simple law in the parliaments, fundamental rights can not be easily taken away. In other words, rigid constitution prevents autocratic exercise of the powers by the government. Lastly, constitution can not become a tool in the hands of ruling party exercising the sovereign powers of the State at a particular time.


4)Government cannot act arbitrarily

In a rigid constitutional system, constitution is a check on the powers of the legislative and executive bodies. Constitution defines the Jurisdiction of Executive and legislature. It restricts the actions and the Jurisdiction of both. This is the reason that why government cannot act arbitrarily.


5)It is Beneficial for the federal states

In a federal system, powers of the centre and of the states are clearly defined. It is not possible for the centre to take away the powers of the states under a rigid constitution. Hence, the rights and powers of the constituent Units are more safe under this constitution. It becomes clear that the rigid constitution is ideal for a federation.

6) There is very less possibility of misuse of powers.


 

Demerits of rigid constitution


1. It is not beneficial in the changing scenario A rigid constitution does not change with changing times. Naturally; it reflects the wishes and ambitions of the people of that period. The overall situation social, political and economic goes on changing. The rigid constitution does not harmonise with period of time. As a result people. become restless. Discontent among the people increases. Constitution does not satisfy the people. They may resort to demonstration.


2.It may be a cause of revolution A constitution which does not change with time is bound to become conservative in due course. The rigid constitution may not remain a leaving document. When it refuses to reflect the changing needs and aspirations of the people, it fails to earn the respect and reverence of the people. As a result revolution may take place.


3. It is a big hurdle to the progress The rigid constitution also proves a hindrance to the development or progress of the people and the nation. It represents the fundamental law according to which all institutions in the nation ought to function. If it fails to take a note of the changing socio-political and economic situation, it is likely to hinder the progress of the nation.


4. It gives under importance to Judiciary Rigid constitution opens the room for Judicial supremacy. Whenever, there is some controversy, matters are taken to the courts for authentic interpretation. As a result. the importance of the Judiciary is considerably increased.


 

Flexible Constitution

Flexible constitution is one which can be easily amended. In other words, a flexible constitution is one in which the constitutional law can be amended in the same manner as an ordinary law can be changed. The classic example of flexible constitution is British Constitution. Any new law made by the parliament gives a new rule to the constitution. Thus, it is obvious that there is no distinction between constitutional law and ordinary law.



Characteristics of a flexible constitutions.

1. No special procedure or method is necessary for making changes or amendments in a flexible constitution.

2. The country's parliament or legislature can pass an ordinary law and make changes in it. 3. Under this constitution there is no distinction between constitutional law and ordinary law

4.Under this constitution, parliament enjoys supreme powers

5.The procedures for amending constitutional laws and ordinary laws same.


 

Merits of flexible constitution :-


1)It helps to meet emergencies The flexible constitution can be easily changed by passing a simple lav/ in the legrslatu satisfies the demands of the new and changing times, ft helps to meet the emergencies + any trouble. It adapts itself with the changing situation.


2)No chance for revolutionSince, It can be amended by passing a simple law in the legislature, people feel that constitution can fulfill their needs and ambitions without any difficulty they follow a peacrf path to get the lav/ changed to fulfill their ambitions. The*/ do not need to resort to dry­ methods.


3)Reflects the national mindset reflects the spirit of the changing times. It taken into account the changing trends the public opinion. Hence, it really reflects the national minds.


4)Rights and liberties of the people may be tampered The right and liberties of the people are not safe under a flexible constitution. The pre/afex majority in the parliament may take away the rights and liberties of the people by passing simple law.

5)Plaything in the hands of Judicial tribunalBecause judicial courts interpret it according to their own will and give it a meaning of ther own liking and choice.


The distinction between Rigid and Flexible constitution.

Rigid Constitution

Flexible constitution

1. ​Special method is required for

making changes in the constitution

2. Parliament cannot make changes in

it by passing an ordinary laws.

3. There is a distinction between constitutional law and an ordinary law.

4. Constitutional law is superior to ordinary law.

5. It prescribes provisions to make a limited government.



1.It does not need special method for

making changes.

2. Parliament can make changes in it by

passing an ordinary law.

3. There is no distinction between constitutional law and an ordinary law.

4.Both constitutional law and ordinary law has equal value.

5. Under a flexible constitution parliament has supreme powers.



Constitution & Constitutionalism

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