[Polity] Constitution: Meaning, Types and Importance of Constitution
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 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.
1. "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. -Woolsey
2. "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." -Jellinek
3. " 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." -Gilchrist
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.
Types of Constitution:
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 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 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.
(4) 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 in 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.
3. 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 a constitutional law or in 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.
(A) Merits of a Flexible Constitution:
(i) First, a major merit of the flexible constitution is its ability to change easily in accordance with the changes in the social and political environment of the society and state.
(ii) Secondly, it is very helpful in meeting emergencies because it can be easily amended.
(iii) Thirdly, because of its dynamic nature, there are less opportunities for revolt. The constitution has the ability to keep pace with the changing times. The people do not feel the need for revolutionary changes.
(iv) Finally, since the flexible constitution keeps on developing with times, it always continues to be popular and remains up-to-date.
(B) Demerits of a Flexible Constitution:
(i) First, a flexible constitution is often, a source of instability. Flexibility enables the government in power to give it a desired dress and content.
(ii) 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.
4. 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 proposal by a big majority of votes which is often followed by ratification by the people in a referendum.
The Constitution of United States of America is a very rigid constitution.
(A) Merits of a Rigid Constitution:
(i) First, a rigid constitution is a source of stability in administration.
(ii) Secondly, it maintains continuity in administration.
(iii) Thirdly, it cannot become a tool in the hands of the party exercising the power of the state at a particular time.
(iv) Fourthly it prevents autocratic exercise of the powers by the government.
(v) Finally a rigid constitution is ideal for a federation.
(B) Demerits of a Rigid Constitution:
(i) First, the chief demerit of a rigid constitution is that it fails to keep pace with fast changing social environment.
(ii) Secondly, because of its inability to change easily, at times, it hinders the process of social development.
(iii) Thirdly, it can be a source of hindrance during emergencies.
(iv) Fourthly, its inability to easily change can lead to revolts against the government.
(v) 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 whether a state should have a flexible or a rigid constitution, should be taken on the basis of 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.
In fact, a constitution must have both a certain degree of rigidity as well as an ability to change for keeping pace with the changing times. An 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.
5. Evolved Constitution:
An evolved constitution is one which is not made at any time by any assembly of persons or an institution. It is the result of slow and gradual process of evolution. Its rules and principles draw binding force from the fact of their being recognised as ancient, historical, time-tested and respected customs and conventions.
Some of these conventions get recognised by law and hence become enforceable while others are followed because these are supported by public opinion, their practical utility and moral commitment in their favour. Evolved Constitutions is the product of historical evolution and of political needs and practical wisdom of the people. The Constitution of Great Britain presents a key example of an evolved constitution.
6. Enacted Constitution:
An Enacted Constitution is a man-made constitution. It is made, enacted and adopted by an assembly or council called a Constituent Assembly or Constitutional Council. It is duly passed after a thorough discussion over its objectives, principles and provisions. It is written in the form of a book or as a series of documents and in a systematic and formal manner. The Constitutions of India the USA, Japan, China and most of other states are enacted constitutions.
Qualities of a Good Constitution:
1. Constitution must be systematically written.
2. It should incorporate the constitutional law of the state and enjoy supremacy.
3. It should have the ability to develop and change in accordance with the changes in the environment and needs of the people.
4. It should be neither unduly rigid nor unduly flexible.
5. It must provide for Fundamental Rights and Freedoms of the people.
6. It should clearly define the organisation, powers, functions inter-relations of the government of the state and its three organs.
7. It must provide for the organisation of a representative, responsible, limited and accountable government.
8. It must provide for:
(i) Rule of Law
(ii) De-centralisation of powers
(iii) Independent and powerful Judiciary
(iv) A system of Local self-government
(v) A Sound Method of Amendment of the Constitution
(vi) Process and Machinery for the conduct of free and elections
9. The Constitution must clearly reflect the sovereignty of the people.
10. The language of the constitution should be simple, clear and unambiguous
The Constitution must empower the judiciary with the power to interpret, protect and defend the Constitution and the fundamental rights and freedoms of the people against the possible legislative and executive excesses. These are the basic features which must be present in every good Constitution.
Importance of Constitution:
Each state has a Constitution which lays down the organisation, powers and functions of the Government of the State. The government always works according to the Constitution, no law or order of the government can violate the Constitution. Constitution is the supreme law and all government institutions and members are bound by it.
Constitution enjoys supreme importance in the state because:
1. It reflects the sovereign will of the people.
2. It lies down of the aims, objectives, values and goals which the people want to secure. .
3. It contains description and guarantee of the fundamental rights of the people.
4. It gives a detailed account of the organisation of the government. The organisation, powers and functions of its three organs of the and their interrelationship.
5. In a federation, the Constitution lays down the division of powers between the central government and the governments of the federating states/provinces. It is binding upon both the centre and the state governments.
6. It specifies the power and method of amendment of the Constitution.
7. It lays down the election system and political rights of people.
8. It provides for independence of judiciary and rule of law.
9. The constitution governs all and no one can violate its rules.
Every democratic Constitution guarantees to the citizens a protection against arbitrary governmental actions. A democratic state, like India, has a written and supreme constitution which binds all its people and their government.