Constitution and Constitutionalism

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In today’s class, we will be talking about the constitution and constitutionalism. Enjoy the class!

Constitution and Constitutionalism

Constitution

A constitution can be referred to as a book or document which contains the rules and principle by which a state is governed. It is the fundamental laws and principles that prescribe s the nature, functions and the limits of a Government.

Constitutionalism

The doctrine or system of government in which the governing power is limited by enforceable rules of law and concentration of power is limited by various checks and balances so that the basic rights of individuals and groups are protected.

A commitment to limitations on ordinary political power; it revolves around a political process, one that overlaps with democracy in seeking to balance state power and individual and collective rights; it draws on particular cultural and historical contexts from which it emanates, and it resides in the public consciousness.

Constitutionalism recognizes the need for a government with powers but at the same time insists that limitation be placed on those powers. It envisages checks and balances by restraining the powers of governmental organs by not making them uncontrolled and arbitrary.

Features of constitution

Organisation and powers of the government;
Principles and rules governing the political process;
Relations between the people and their government; and
Rights and duties of the people.

Sources of constitution

Convention
Judicial decisions
The common law
constitutional conferences
Historical records and artefacts

Types of constitution

Written constitution:

A written constitution means a constitution written in the form of a book or a series of documents combined in the form of a book. It is a consciously framed and enacted constitution. It is formulated and adopted by a constituent assembly or a council or a legislature.

Garner writes, “A written constitution is a consciously planned constitution, formulated and adopted by deliberate actions of a constituent assembly or a convention.” It provides for a definite design of government institutions, their organisations, powers, functions and inter-relationships.

It embodies the constitutional law of the state. It enjoys the place of supremacy. The government is fully bound by its provisions and works strictly following its provisions. A written constitution can be amended only by a settled process of an amendment written in the constitution itself. It is a duly passed and enacted Constitution. The Constitutions of India, the USA, Germany, Japan, Canada, France, Switzerland and several other states, are written constitutions.

Unwritten constitution:

An unwritten constitution is one which is neither drafted nor enacted by a Constituent Assembly and nor even written in the form of a book. It is found in several historical charters, laws and conventions. It is a product of slow and gradual evolution. The government is organised and it functions following several well settled, but not wholly written rules and conventions. The people know their Constitution. They accept and obey it, but do not possess it in a written form. An unwritten constitution cannot be produced in the form of a book.

However, an unwritten constitution is not totally unwritten. Some of its parts are available in written forms but these do not stand codified in the form of a legal document or a code or a book. 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.”

The Constitution of the United Kingdom is unwritten.

Difference between written and unwritten constitutions:

A written constitution is written in the form of a book or document, whereas an unwritten constitution is not written in such a form.
A written constitution is made and enacted by a constituent assembly of the people. An unwritten constitution is the result of a gradual process of constitutional evolution. It is never written by any assembly.
A written constitution is usually less flexible than an unwritten constitution. An unwritten constitution depends mostly on unwritten rules or conventions which do not require any formal amendment.
A written constitution is definite. Its provisions can be quoted in support or against any power exercised by the government. An unwritten constitution cannot be produced in evidence. It has to be proved by quoting its sources and practices.

However, the difference between written and unwritten constitutions is not organic. A written constitution has written parts of the majority. Along with these, it also has some unwritten parts in the form of conventions. In an unwritten constitution, most of the parts are unwritten and are not written in the form of a book. However, some of its parts are also found written in some charters and other documents.

Flexible constitution:

A Flexible Constitution is one which can be easily amended. Several political scientists advocate the view that a flexible constitution is one in which the constitutional law can be amended in the same way as an ordinary law. Constitutional amendments are passed in the same manner by which an ordinary law is passed.

British Constitution presents a classic example of a most flexible constitution. The British Parliament is a sovereign parliament which can make or amend any law or constitutional law by a simple majority. Laws aiming to affect changes in constitutional law or any ordinary law are passed through the same legislative procedure i.e., by a simple majority of votes in the legislature. Similarly, a Constitution is flexible when the procedure of amending it is simple and the changes can be made easily.

Merits of a flexible constitution

First, the major merit of the flexible constitution is its ability to change easily following the changes in the social and political environment of the society and state.
Secondly, it is very helpful in meeting emergencies because it can be easily amended.
Thirdly, because of its dynamic nature, there are fewer opportunities for revolt. The constitution can keep pace with the changing times. The people do not feel the need for revolutionary changes.
Finally, since the flexible constitution keeps on developing with times, it always continues to be popular and remains up-to-date.

Demerits of a flexible constitution

First, a flexible constitution is often, a source of instability. Flexibility enables the government in power to give it a desired dress and content.
Secondly, it is not suitable for a federation. In a federation, a flexible constitution can lead to undesirable changes in the constitution by the federal government or by the governments of federating units.

Rigid constitution:

The Rigid Constitution is one which cannot be easily amended. Its method of amendment is difficult. For amending it, the legislature has to pass an amendment bill by a specific, usually big, majority of 2/3rd or 3/4th. For passing or amending an ordinary law, the legislature usually passes the law by a simple majority of its members.

A rigid constitution is considered to be the most fundamental law of the land. It is regarded as the basic will of the sovereign people. That is why it can be amended only by a special procedure requiring the passing of the amendment proposed by a big majority of votes which is often followed by ratification by the people in a referendum.

The Constitution of the United States of America is very rigid.

Merits of a rigid constitution

First, a rigid constitution is a source of stability in the administration.
Secondly, it maintains continuity in administration.
Thirdly, it cannot become a tool in the hands of the party exercising the power of the state at a particular time.
Fourthly it prevents the autocratic exercise of the powers by the government.
Finally, a rigid constitution is ideal for a federation.

Demerits of a rigid constitution

First, the chief demerit of a rigid constitution is that it fails to keep pace with the fast-changing social environment.
Secondly, because of its inability to change easily, at times, it hinders the process of social development.
Thirdly, it can be a source of hindrance during emergencies.
Fourthly, its inability to easily change can lead to revolts against the government.
Fifthly, a rigid constitution can be a source of conservativeness. It can grow becomes old very soon because it cannot Keep pace with times.

Thus, there are both merits and demerits of Flexible and Rigid Constitutions. The decision of whether a state should have a flexible or a rigid constitution should be taken based on the needs and wishes of society. No hard and fast rule can be laid down as to whether a state should have a flexible or a rigid constitution.

A constitution must have both a certain degree of rigidity as well as an ability to change for keeping pace with the changing times. Excessive rigidity or excessive flexibility should be avoided. The Constitution of India is partly rigid and partly flexible. In several respects, it is a rigid constitution but in practice, it has mostly worked as a flexible constitution.

Purpose of the constitution

To promote public general welfare
To establish justice
To ensure domestic tranquillity
To provide common defence

Evaluation

Define the constitution.
How does the constitution ensure that the basic rights of individuals and groups are protected?
(a) What are the features of constitution (b) Name the sources of constitutions you know.
List the different types of constitution.
Differentiate between a written and an unwritten constitution.

In our next class, we will be talking about Structure and Organisation of Government. We hope you enjoyed the class.

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Constitution and Constitutionalism