CONSTITUTIONAL LAW 1

INTRODUCTION

Topics covered: Meaning and nature of constitution, different types of constitution,

salient features of Indian constitution

CONSTITUTION

Definition

A Constitution is a document of people's faith and aspirations possessing a special legal

sanctity. It is the fundamental law of a country and all other laws and customs of the country in
order to be valid must conform to it. It sets out the framework and the principal functions of
various organs of the Government, as well as relations between the government and its citizens.

• The Constitution relates to the governance of the country & this governance is carried out
through institutions.

• The institutions are recognized & their places are defined under the rules of the Constitution.
• Governance involves 3 functions:

➢ Making of laws.(Legislature)
➢ Execution of laws.(Executive)
➢ Interpretation of laws & settlement of disputes.(Judiciary)

• It is not practically feasible to include everything related to the governance of the country in the
Constitution, but those that are included in the Constitution acquire supremacy.

Role and importance of constitution

1. Constitution is a set of principles.

2. It is the supreme or ultimate document of the country. There can’t be any document
superior to the constitution.
3. Other laws are subservient to the constitution.
 4. The essence of the constitution is its basic structure. The basic structure comprises
certain basic traits of the constitution which are supreme and can not be taken away or
derogated or altered.
5. The concept of constitution can be compared to the concept of grand norm given by
Kelsen and the concept of rules of recognition propounded by H L A Hart.

Difference between constitution, constitutional law,

constitutionality and constitutionalism.

Constitution

There are two views regarding the definition of constitution.

The narrow view is that the constitution is only the articles written in the constitution .
The wider view is that the constitution comprises not only the articles but also their practices.
Practices means how the constitutional functionaries behave in certain circumstances.

Wider view is more acceptable because articles are silent on some issues.

Eg. Appointment of Chief Justice of India.

Assent to bills by the Governor.

In both cases certain practices and conventions are to be followed.

So it can be concluded that the constitution is not only about articles but articles coupled with
practices and conventions.

Constitutional law

Articles, practices and conventions along with judicial decisions are together called
constitutional law.

Constitutionality

The validity of something on the terms of constitution is called constitutionality. Anything which
is not adhering to constitutional requirements is unconstitutional.

Constitutionalism

“ism” means ideology/belief/faith

Constitutionalism is the philosophy that any society can be organized on the basis of rules and
regulations.

Constitutionalism has two elements.

1. Supremacy of the constitution.

2. Possibility that society can be organized on basic rules and regulations.

• Constitutionalism also means the defining and restraining of the government’s power.

Indian constitution defines and restrains government’s power in the following ways:

1. Limitation on Power (Phrases like ‘Subject to the provisions of this Constitution’ in

Article 245 and ‘in accordance with this Constitution’ in Article 53 shows limitation on the
power.)
2. Denial of Power (Part III of the Constitution-Fundamental Rights)
3. Direction of Power (Part IV of the Constitution-Directive Principles of State Policy)
4. Distribution of powers
5. Accountability

Types of constitution

1. Written and unwritten constitution

An unwritten constitution is a type of constitution that is not contained in one single document.
This type of constitution is partially written and partly oral. Like common law and customary law,
an unwritten constitution grows from many years of practical experience and from the political
way of the people.

The British constitution is the best example of an unwritten constitution. It is not in one
document, but can be found in various sources, such as statutes, conventions and judicial
decisions.

As a result of being partly written and partly unwritten, the British Constitution relies on many
practices or conventions. That is, constitutional practices which are not legal rules, but are
accepted as binding by the British people.

On the other hand, a written constitution is a type of constitution that is contained in a single
document and can be easily procured and consulted on any issue covered by it.
A written constitution is usually rigid in nature because of its cumbersome mode of amendment.
Although it can actually be amended when found necessary.

2. Flexible and Rigid Constitution

A flexible constitution is a constitution, which can be easily amended or changed without a

cumbersome procedure. This type of constitution may be amended just like any statute, with a
simple majority of vote of the members of the parliament.

On the other hand, a rigid constitution is a type of constitution, which has cumbersome or long
amendment procedures. The procedure for amending a rigid constitution is different from the
procedure for enacting and amending the ordinary ordinary laws of the land.

The enactment or amendment of an ordinary law is usually by simple majority vote in the
relevant parliament that has authority to make or amend such law. However, the procedure for
amending a rigid constitution may include a two third majority vote of members of the central
government legislature, as well as a two-third majority vote in two-third of the state legislatures
in such a country, and sometimes ratification by the people in a referendum and so forth.

3. Unitary and Federal Constitution

A unitary constitution is one of the types of constitution which provides that governmental
powers should be concentrated on the single central government, which does not share powers
with other bodies in the country, but delegates powers to regional, local government and other
subordinate bodies.

Put in a different way, in a unitary constitution, all government powers are concentrated in the
central or national government as the only source of authority from which powers emanate.

A country operating a unitary system of government usually adopts a unitary constitution. The
constitution, though Supreme, is usually flexible and not rigid, as the government has power to
amend it as may be necessary.

On the other hand, a federal system of government is an association of free states where power
is constitutionally shared to the federal, state and local councils, and with each tier of
government exercising its constitutionally assigned powers and functions.

The powers of the different tiers of the government are usually spelt out in legislative lists of the
federal constitution.

4. Republican and Monarchical constitution

A republican constitution is a type of constitution that provides for the position of an elected
head of state for a fixed term of office who is usually known as President.
A Monarchical constitution, gives provision for a government led by a King, Queen, or Emperor.

A Monarchical constitution is actually a dynasty where the monarch is succeeded by his or her
child or other heir from generation to generation or from one ruling house to another.

There are actually two subdivision of a Monarchical constitution namely:

Absolute monarch:

This is a type of Monarchical constitution where the monarch has absolute powers and he is the
absolute ruler. He ruled by divine right and his powers were not limited by the constitution if any.
CZAR NICHOLAS II of Russia, EMPEROR HAILE SELASSIE OF Ethiopia and Shah of Iran
were absolute rulers.

Constitutional Monarch:

This is a type of Monarchical constitution where the monarch is a ceremonial head of state and
a symbol of the nation with only limited powers.

Eg. Queen of England, emperor of Japan.

5. Presidential and parliamentary constitution

A presidential constitution is a type of constitution where all executive powers are vested in a
president who is the head of state and head of government. The president may exercise the
executive powers of government either directly by himself or through the vice president, minister
or other officers in the public service of the country.

The power of the president is to maintain the constitution and to apply all the laws made by the
parliament for the time being in force.

On the other hand, a parliamentary constitution is a type of constitution where all the executive
powers of the government are vested in a Prime Minister, who is the head of government and
the head of the majority party, but is not the head of state.

In countries where this type of constitution is practiced, the head of state who exercises only
ceremonial functions may be a monarch, or a president, who is the figurehead, symbol of the
state and the Father or mother of the nation as the case may be.

Salient features of Indian constitution

Before making the present Constitution, the framers examined Constitutions of various countries
of the world and also the working of the Government of India Act, 1935. They liberally borrowed
appropriate provisions from Constitutions of many countries of the world. The Constitution so
adopted has the following salient features-

1. The Lengthiest Constitution in the World.-

Constitutions are classified into written, like the American Constitution, or unwritten, like the
British Constitution. The Constitution of India is the lengthiest of all the written Constitutions of
the world. It is a very comprehensive, elaborate and detailed document.
The Indian Constitution originally consisted of 395 articles divided into 22 Parts and 9
Schedules.

2. Parliamentary Form of Government.-

The Constitution of India has opted for the British Parliamentary system of Government rather
than the American Presidential System of Government. The Parliamentary system is based on
the principle of cooperation and coordination between the legislative and executive organs while
the Presidential system is based on the doctrine of separation of powers between the two
organs.

3. Unique Blend of Rigidity and Flexibility.-

The Constitution of India is neither rigid nor flexible but a synthesis of both. A rigid Constitution
is one that requires a special procedure for its amendment while a flexible Constitution is one
that can be amended in the same manner as ordinary laws are made.

4. Fundamental Rights.-

Part III of the Indian Constitution guarantees six fundamental rights to all the citizens-
(a) Right to Equality (Articles 14-18);
(b) Right to Freedom (Articles 19-22);
(c) Right against Exploitation (Articles 23-24);
(d) Right to Freedom of Religion (Articles 25-28);
(e) Cultural and Educational Rights (Articles 29-30);
(f) Right to Constitutional Remedies (Article 32).

The Fundamental Rights are meant for promoting the idea of political democracy. They operate
as limitations on the tyranny of the executive and arbitrary laws of the legislature.

5. Directive Principles of State policy.-

The Directive Principles of State Policy contained in Part IV of the Constitution set out the aims
and objectives to be taken by the state in the governance of the country. They can be classified
into three broad categories, Socialistic, Gandhian and Liberal-intellectual.

6. Fundamental Duties.-

By Forty-second Amendment Act, Part IVA has been added to the Constitution which
enumerates certain fundamental duties of the citizens. Originally, ten duties were enlisted in
clause (a) to (j) of article 51A. Clause (k), which imposes duty on parents/wards has been
added by the Constitution (86th Amendment) Act, 2002.

7. A Federation with Strong Centralizing Tendency.-

The term 'federation' has nowhere been used in the Constitution. Article 1 describes that India
"is a Union of States" which implies two things: Firstly - Indian federation is not the result of an
agreement by the States; and Secondly - no State has the right to secede from the federation.
The Constitution of India establishes a federal system of Government. It contains all the usual
features of a federation viz., two governments, division of powers, written Constitution,
Supremacy of the Constitution, rigidity of Constitution, independent judiciary and bicameralism.

8. Adult Suffrage.-

In India every person, male or female, who has obtained the age of 18 years, is entitled to vote
in elections to Parliament or State Legislatures. Originally this age limit was 21 years but after
the 61st Amendment Act, 1988 it was reduced to 18 years.

9. An Independent Judiciary.-

Independence of Judiciary is essential for impartial adjudication of disputes between individuals,

between Union and State, between Union/State and individuals, between Union and States or
between States inter se. The Supreme Court stands at the top of the integrated judicial system
in the country. Below it, there are High Courts at the State level. This single system of courts
enforces both the Central laws as well as the States laws.
The Supreme Court of India is a federal court, the highest court of appeal, the guarantor of the
fundamental rights of the citizens and the guardian of the Constitution.

10. A Secular State.-

The Constitution of India stands for a secular State. Hence, it does not uphold any particular
religion as the official religion of the Indian State. The term 'Secular' was added to the Preamble
of the Indian Constitution by the 42nd Amendment Act, 1976. Articles 25-28 of the Constitution
give concrete shape to this concept of secularism.

11. Single Citizenship.-

In most of the federation, people have double citizenship, citizenship of the Union and
citizenship of one of the several States which form the Union. Every citizen is the citizen of India
and enjoys the same rights of citizenship no matter in which State he resides.

12. Separation of Powers.-

This doctrine was for the first time properly formulated by the famous Jurist Montesquieu in his
Escript Des Lois and exercised great influence on the French legal system. Doctrine of
separation of powers implies that powers of the three organs of the government viz., Legislative,
Executive and Judiciary should be kept separate from each other.

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