M LAXMIKANTH

Indian Polity
7 Edition
th
Amit Varidhi Kilhor
Concept of the
Constitution
MEANING
The term 'constitution' is derived from the Latin
word constituere, which mean s 'to establish' or 'to
set-up’.
In the present sense, the term 'constitution' refers
to a set of principIes, which specify the
organisation and working of the government and
the relationship between the government and the
people in terms of their rights and duties.
The constitution is variously described as the
'fundamental law of the land', 'supreme law of the
state', 'basic law of the country', 'instrument of the
government', 'rules of the state', 'basic structure of
the polity', ‘ground-norm of the country' and so on.
•A constitution is the aggregate of fundamental
principles or established precedents that
constitute the legal basis of a polity, organisation
or other type of entity and commonly determine
how that entity is to be governed.
•When these principles are written down into a
single document or set of legal documents, those
documents may be said to embody a written
constitution; if they are encompassed in a single
comprehensive document, it is said to embody a
codified constitution.
•The Constitution of the United Kingdom is a
notable example of an uncodified constitution; it
is instead written in numerous fundamental Acts
of a legislature, court cases, or treaties
•The Constitution of India is the longest
written constitution of any country in the
world, with 146,385 words in its English-
language version, while the Constitution of
Monaco is the shortest written constitution
with 3,814 words.
• The Constitution of San Marino might be
the world's oldest active written
constitution, since some of its core
documents have been in operation since
1600, while the Constitution of the United
States is the oldest active codified
constitution.
Political scientists and Constitutional experts have
defined the constitution in the following way:
Gilchrist: "The constitution consists of that body of
rules or laws which determine the organization of
government, the distribution of powers to the
various organs of government, and the general
principles on which these powers are to be
exercised.”
Gettell: "The fundamental principles that determine
the form of a state are called its constitution. These
include the method of which the state is organised,
the distribution of its sovereign powers among the
various organs of government, the scope and
manner of exercise of governmental functions, and
the relation of the government to the people over
whom its authority is exercised”.
Wheare : "The Constitution describes the
whole system of government of a country,
the collection of rules which establish and
regulate or govern the government.”
Wade and Phillips: "A constitution is a
document having a special legal sanctity
which sets out the framework and the
principal functions of the organs of the
Government of a State and declares the
principles governing the operation of those
organs.”
•FUNCTIONS
•The constitutional scholar,
Elliot Bulmer, has very well
identified the functions (or
purposes) of a constitution.
His list is comprehensive
and includes the following
point :
• It can declare and define the boundaries of the political
community.
• It can declare and define the nature and authority of the
political community.
• It can express the identity and values of a national
community.
• It can declare and define the rights and duties of citizens.
• It can establish and regulate the political institutions of
the community.
• It can divide or share power between different layers of
government or sub-state communities.
• It can declare the official religious identity of the state
and demarcate relationships between sacred and secular
authorities.
•8. It can commit states to particular social,
economic, or developmental goals.
•QUALITIES
•There are some qualities (or characteristics) of a
good constitution . These are explained below:
• Brevity: A constitution should be precise and
should not contain unwanted provisions. A
lengthy constitution with too many details
creates confusion in the interpretation of its
clauses.
• Clarity: A constitution should specify its
provisions in clear terms. A complicated
language would reduce the degree of its
understanding.
•3. Definiteness: A constitution should contain a
definite meaning for its provisions. The ambiguous
and different meanings would increase the
discretion of the judges in their interpretation.
•4. Comprehensiveness: A constitution should be
comprehensive in laying down the powers of the
government as well as the rights and duties of the
citizens. This would reduce the scope for
controversies and litigations.
•5. Suitability: A constitution should reflect the
needs and aspirations of the people. It must be
suitable to the historical, social-cultural, economic
and political conditions of the nation.
•6. Stability: A constitution should
facilitate political stability and
should not allow easy tampering.
This would strengthen the obedience
of the citizens to the constitution.
•7. Adaptability: A constitution
should be dynamic and not static. It
should be able to adapt itself to
changing situations and
requirements. It should be a living
document.
CLASSIFICATION
The constitutions are classified into
the following types:
1. Evolved and Enacted
On the basis of evolution, the
'constitutions are classified into
evolved and enacted constitutions.
•An evolved constitution is the outcome of a slow
and gradual evolutionary process. Its provisions are
contained in the form of convention s, practices,
principles, and judicial decisions. It is also known as
a cumulative constitution and the British
Constitution is a good example in this regard.
•An enacted constitution, on the other hand, is
deliberately made by a constituent assembly or a
constitutional council or promulgated by a king or
parliament. Its provisions are contained in the form
of a book or a document or a series of documents. It
is also known as a conventional constitution and the
American and Indian Constitutions are the good
examples in this regard.
•2. Written and Unwritten
•On the basis of incorporation of provisions, the
constitutions are classified into written and
unwritten constitutions.
• A written constitution is one in which the
provisions are incorporated in the form 'of a book
or a document or a series of documents. It is
consciously formulated and adopted by a body
known as the constituent assembly or the
constitutional convention or by any other name.
•It is also known as a documentary constitution or
a codified constitution. The constitutions of the
USA, Canada, Japan, France and India are some
of the good examples in this regard.
•An unwritten constitution , on the other hand, is
one in which most of the provisions arc not
incorporated in the form of a book or a document
or a series of documents. It is found in the form of
conventions, practices, principles, charters,
statutes, and judicial decisions.
•It is a product of historical evolution and not
deliberately formulated by a body. It is also known
as a non-documentary constitution or an
uncodified constitution and the constitutions of
UK, New Zealand and Israel are the good
examples in this regard.
•The distinction between a written constitution
and an unwritten constitution is more or less the
same as is between an evolved constitution and an
enacted constitution.
 • Rigid and Flexible
•Based on the method of amendment, the constitutions are
classified into rigid and flexible constitutions. This
classification was given by Lord James Bryce.
•A rigid constitution is one, which cannot be amended in the
same manner as the ordinary laws. It requires a special
procedure for its amendment. In other words, it makes a
distinction between the constitutional law and the ordinary '
law.
•A flexible constitution, on the other hand, is one which can
be amended in the same manner as the ordinary laws. It does
not require a special procedure for its amendment. In other
words, it does not make a distinction between the
constitutional law and the ordinary law.
•A flexible constitution is also known as an elastic
constitution and the constitutions of UK and New
zealand are some good examples in this regard.
•A rigid constitution is also known as an inelastic
constitution and the constitutions of the USA,
Australia and Switzerland are some examples in
this regard. The Constitution of India is neither
rigid nor flexible, but a synthesis of both.
•4. Federal and Unitary
•Based on the nature of relationship between the
national government and the regional governments,
the constitutions are classified into federal and
unitary constitutions. A federal constitution is one
which provides for a division of power between the
national government and the regional governments.
•It enables them to operate in their respective
jurisdictions independently. A unitary constitution ,
on the other hand, is one which provides for the
concentration of power in the hands of the national
government.
•It makes the regional governments to operate as the
subordinate agencies of the national government and
exercise only such powers which may be delegated
to them by the national government.
•Federal constitution is prevalent in the USA,
Switzerland, Australia, Canada, Russia, Brazil, and
some other states.
• Unitary constitution is prevalent in the UK, France,
Japan , China, Italy, Norway, and other states.
•The Constitution of India contains both the
federal provisions as well as the unitary
provisions. Hence, it was described as quasi-
federal by K.C. Wheare.
•5. Procedural and Prescriptive
•According to the constitutional scholar,
Elliot Bulmer, two broad constitutional
archetypes can be identified: the procedural
and the prescriptive.
•The difference between these two types of
constitutions relate to the nature and purposes
of the document itself.
•A procedural constitution defines the legal
and political structures of public
institutions and sets out the legal limits of
government power to protect democratic
processes and fundamental human rights.
•In addition to describing how the
government functions, a prescriptive
constitution assumes (or attempts to
impose) abroad consensus on common
societal goals that public authorities must
strive to achieve.
•CONSTITUTIONALISM AND CONSTITUTIONAL
GOVERNMENT
• Meaning
•The concepts of constitution and constitutionalism are
closely related to each other. But, there are a few
differences between them; like: The main difference
between constitution and constitutionalism lies in the fact
that the constitution is generally a written document,
created by the government (often with the participation of
the civil society), while constitutionalism is a principle and
a system of governance that respects the rule of law and
limits the power of the government.

•1. A country may have the 'constitution' but not necessarily

'constitutionalism', For example, a country with a
dictatorship, where the dictator's word is law, can be said to
have a 'constitution ' but not 'constitutionaIism’.
2. Constitutionalism recognises the need for government with power
but, at the same time, insists that limitations should be placed on
those powers. Unlimited power may lead to an authoritarian,
oppressive government which jeopardises the freedom of the people.
Only when the constitution of a country imposes limitation upon
governmental power, does a country have not only a 'constitution'
but also 'constitutionalism’.
3. The concept of constitutionalism is that ·of a polity governed by
or under a constitution that ordains essentially limited government
and rule of law as opposed to arbitrary, despotic, authoritarian or
totalitarian rule. Constitutional government should necessarily be democratic
government. Arbitrary power in the hands of any individual or institution -
even if conferred by a constitutional document - is a negation of the concept of
constitutionalism.
4. Constitutionalism desires a political order in which the power of the
government are limited. It is another name for the concept of a limited, and for
this reason, a "civilized" government. The real justification of the constitution
finds place in having a "limited government" and of requiring those who
govern to conform to laws and rules.
2. Definition
The concepts of constitutionalism and
constitutional government have been defined in
the following way:
Friedrich: "Constitutionalism provides a system
of effective restraints upon governmental action.
It is a body of rules ensuring fairplay, thus
rendering the government responsible”.
Roucek: "Constitutionalism means essentially
limited government. It is the antithesis of
government by the unrestrained will be of rulers.
Regardless of the actual form of effectiveness of
restraints, it assumes limitations on government
as opposed to arbitrary government”.
Wheare:"Constitutional government means
something more than a government according
to the terms of a constitution. It means
government according to rule as opposed to
arbitrary government; it means government
limited by the terms of a constitution, not
government limited only by the desires and
capacities of those who exercise power”.
ybema: “A form of government can only be
classified as constitutional when the rulers are
subject to a body of rules and principles, which
limit the exercise of their power”.
Constitutional government is the antithesis of
arbitrary rule”.
•3. Elements
•The constitutional scholar, Louis Henkin,
identified eight elements (features or principles) of
constitutionalism. These are mentioned below.
• Popular sovereignty
• Rule of law
• Democratic government (responsible and
accountable government)
• Separation of powers (checks and balances)
• An independent judiciary
• Civilian control of the military
• Police governed by law and judicial control
• Respect for individual rights
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