Concept of the Constitution

Meaning

• Definition: The term 'constitution' originates from the Latin word "constituere," meaning 'to establish' or 'to set-up.'
• Function: A constitution specifies the organization and working of the government, and the relationship between the government and the people, outlining their rights and duties.
• Synonyms: 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, grundnorm of the country.
• Definitions by Experts:
  • Gilchrist: Rules determining government organization, power distribution among organs, and principles of power exercise.
  • Gettell: Fundamental principles determining the state's form, including organization, power distribution, governmental functions, and the relation between government and the people.
  • Wheare: The entire system of government of a country, the collection of rules that establish, regulate, or govern the government.
  • Wade and Phillips: A document with special legal sanctity that sets out the framework and principal functions of government organs, declaring governing principles.
• Functions (Elliot Bulmer):
  1. Declare and define the boundaries of the political community.
  2. Declare and define the nature and authority of the political community.
  3. Express the identity and values of a national community.
  4. Declare and define the rights and duties of citizens.
  5. Establish and regulate the political institutions of the community.
  6. Divide or share power between different layers of government or sub-state communities.
  7. Declare the official religious identity of the state and demarcate relationships between sacred and secular authorities.
  8. Commit states to particular social, economic, or developmental goals.

Qualities of a Good Constitution

1. Brevity: Precise and concise, avoiding excessive detail.
2. Clarity: Provisions specified in clear, understandable terms.
3. Definiteness: Provisions with definite meaning to minimize interpretive discretion.
4. Comprehensiveness: Covers government powers and citizen rights/duties to reduce controversies.
5. Suitability: Reflects the needs, aspirations, and conditions (historical, socio-cultural, economic, political) of the nation.
6. Stability: Facilitates political stability and resists easy amendment.
7. Adaptability: Dynamic and able to adapt to changing situations.

Classification of Constitutions

1. Evolved vs. Enacted:
   • Evolved: Gradual, based on conventions, practices, principles, and judicial decisions (e.g., British Constitution).
   • Enacted: Deliberately created by a constituent assembly or similar body, in a formal document (e.g., American and Indian Constitutions).
2. Written vs. Unwritten:
   • Written: Provisions in a formal document or series of documents, consciously formulated (e.g., USA, Canada, Japan, France and India).
   • Unwritten: Primarily based on conventions, practices, principles, charters, statutes, and judicial decisions; product of historical evolution (e.g., UK, New Zealand, Israel).
3. Rigid vs. Flexible:
   • Rigid: Requires a special procedure for amendment, distinguishing constitutional law from ordinary law (e.g., USA, Australia, Switzerland).
   • Flexible: Amended in the same manner as ordinary laws, without a special procedure (e.g., UK, New Zealand).
   • Indian Constitution: A synthesis of both rigid and flexible.
4. Federal vs. Unitary:
   • Federal: Divides power between national and regional governments, enabling independent operation in respective jurisdictions (e.g., USA, Switzerland, Australia, Canada, Russia, Brazil).
   • Unitary: Concentrates power in the national government, with regional governments as subordinate agencies (e.g., UK, France, Japan, China, Italy, Norway).
   • Indian Constitution: Quasi-federal (contains both federal and unitary provisions).
5. Procedural vs. Prescriptive
   • Procedural: 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.
   • Prescriptive: In addition to describing how the government functions, a prescriptive constitution assumes a broad consensus on common societal goals that public authorities must strive to achieve.

Constitutionalism and Constitutional Government

1. Meaning:

   • A country can have a 'constitution' without 'constitutionalism'.
   • Constitutionalism requires limitations on governmental power.
   • Rejects arbitrary, despotic, or authoritarian rule.

2. Definition:

   • Friedrich: A system of effective restraints upon governmental action.
   • Roucek: Limited government, the antithesis of government by the unrestrained will of rulers.
   • Wheare: Government according to rule, not arbitrary power; limited by the terms of a constitution.
   • Ybema: Rulers subject to a body of rules and principles limiting power.

3. Elements (Louis Henkin):

   1. Popular sovereignty
   2. Rule of law
   3. Democratic government
   4. Separation of powers
   5. An independent judiciary
   6. Civilian control of the military
   7. Police governed by law
   8. Respect for individual rights