UNIT-1 A. Definition of Constitution and its Classification Constitution is the supreme law of each State. It lays down rules regarding the organisation, powers and functions of government. It also defines the basic features of the State and the relation between the citizens and the State. Constitution: Meaning and Definition: In lay terms, a constitution is a set of rules which governs an organisation. However, to a Constitutional lawyer, the term constitution in reference to a sovereign means as follows. Thomas Paine and Dc Tocqueville: according to them Constitution means the aggregate of only those written principles which regulate the administration of the state. In the sense that, if the Constitution cannot be produced in a visible document, it cannot be said to be a Constitution at all. According to Lord Bryce –“Constitution is the aggregate of laws and customs under which the life of the state goes on.” According to K.C. Wheare, Hood Phillips and Gilchrist, the term “Constitution” is used to denote all written and unwritten principles regulating the administration of the State. Professor KC Wheare defines the constitution of a state as: “... The whole system of government of a country, the collection of rules which establish and regulate or govern the government.” Aristotle defines a Constitution as “the way of life the state has chosen for itself “. Such a definition is very ancient and no clear characteristics of a Constitution can be found in it. According to C.F Strongs, “A Constitution may be said to be a collection of principles according to which the powers of the government, the rights of the governed and relation between the two are adjusted.” Constitution is refers as a body of agreed rules and principles starting how the power of governing a country are given and how these powers are to be exercised. In simple words, we can say a Constitution is the constitutional law of the state. Constitutional law enjoys the position of being the supreme and fundamental law of the state. It lays down the organisation and functions of the government of state. The Government can use only those powers which the Constitution grants to it. According to Woolsey “Constitution is the collection of principles according to which the powers of the government, the rights of the governed and the relations between the two are adjusted. According Jellinek “Constitution is a body of judicial rules which determine the supreme organs of state, prescribes their modes of creation, their mutual relations, their spheres of action and the fundamental place of each of them in relation to state.” According to Gilchrist “Constitution of a state is that body of rules or laws, written or unwritten which determine the organisation of government, the distribution of powers to the various organs of government and the general principles on which these powers are to be exercised.” On the basis of these definitions it can be said that the Constitution is the sum total of the constitutional laws of the state. It lies down: (1) Organisation and powers of the government; (2) Principles and rules governing the political process; (3) Relations between the people and their government; and (4) Rights and duties of the people. The government of state gets organised and works in accordance with the provisions of the Constitution. People get their rights protected from the constitution. No one, not even the government, can violate the Constitution. Importance of Constitution: • To maintain the smooth functioning of modern welfare state, there is a need of a set of codified rules which determines or will determine the form of government, the relationship between the citizens and government in order to sustain and flourish. • It is the constitution which establishes these relationships and lays down the objectives of the state which it has to achieve. It also describes the rights and duties of the citizens and also limit the powers of the government(s). • It facilitates the minimal coordination among the members of a society by specifying who has the power to make decisions in a society and also decides how the government will be constituted. • Thus, a constitution is considered to be the basis for the governance of the country both in terms of goals and objectives as well as their structures and functions. Types of Constitution: Many writers are of the view that there are two types of Constitutions-evolved and enacted. An evolved constitution is the result of the historical development. It is not framed at a particular time. For example, the British Constitution has neither been enacted by any special Constituent Assembly at a particular time nor has the Monarch given it to the people. Constitutionally, England is still an absolute kingship, but in practice her position is different. In practice all the powers are in the hands of the Cabinet and the Monarch has only nominal powers. This is the result of the centuries’ long struggle of the British people against their Monarchs. For example, till Tudor period, the British Monarchs were quite absolute. The Stuart Kings wanted to become more powerful and thus, a civil war broke out during their regime which resulted in the success of the British Parliament. The Stuart King Charles I was awarded death penalty. When again James II tried to enhance his powers arbitrarily, the Glorious Revolution took place against him in 1688. After-words when William and Mary became the rulers, they had to sign the Bill of Rights. During the period of George I and II, the Cabinet system developed in England. When George III tried to establish his self-rule, he could not succeed. During the regime of Queen Victoria, Constitutional or Limited Monarchy was established in England. Since the rule of Queen Victoria, till today, the British Constitution has developed very much and the conventions have contributed a let to its development. Enacted constitutions are framed at a particular time, like the American Constitution which was framed by a Constituent Assembly after the declaration of Independence. In France, the first constitution was framed in 1830, the second in 1848, the third in 1871, the fourth in 1946 and the fifth in 1958. After Second World War, new Constitution of India was completed on November 26, 1949 and it was introduced on January 26, 1950. (2) Legal and No Legal Norms Sometimes the constitutions are classified in this way also. The written elements of the constitution constitute legal constitution and when the conventions and decisions of the courts are added to it, it becomes the real constitution. For example, the Constitution of America can be read in a few hours, but one cannot get real and complete information about the constitution in this way. Real knowledge can only be acquired when besides the constitution; we study the decisions of the judges, and also customs and conventions. The Constitution of America was very rigid, but because of conventions and a liberal interpretation of the constitution by the judges, it has become quite viable. Written and Unwritten 1. 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 deliberately 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 in accordance with its provisions. A written constitution can be amended only in accordance with a settled process of 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. 2. 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 in accordance with 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 an unwritten constitution. Difference between Written and Unwritten Constitutions: (1) A written constitution is written in the form of a book or document, whereas an unwritten constitution is not written in such a form. (2) A written constitution is a 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. (3) 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.