An Introduction to Constitution!

Constitution

The term Constitution is derived from the Latin Word “Constitution” which means “To Establish”.

It is a document containing the fundamental principles, rules to determine and regulate between the Government and the people.

According to Austin, Constitution fixes the structure of the Supreme Government.

According to Leacock, Constitution is a form of Government.

According to Harbor,

We say that, A Constitution is:

The ultimate law of land,

It may be written or unwritten form,

Deals with the power of the Government, Rights of the Citizen and the relationship between the Governments.

The fundamental law has to be followed by all.

Main Features of Constitution

It is the body of rules may be written or unwritten.

It determines the power of the organization of the government and also the privileges of the ruled.

It also lays down certain rules of the organization of the government, their rules and mutual relationship.

It may be compromised in a single document or in various documents.

It may be in detailed form or it may be short.

Kinds/ Types of Constitution:

1. Written and Unwritten Constitution
2. Rigid and Flexible Constitution
3. Unitary and Federal Constitution

Written and Unwritten Constitution

Written Constitution:

A written constitution is one, which is written down in a form of a single or several documents.

The constitution in most of the countries is written like USA, Australia, India etc.

The constitution of India is the lengthiest written constitution in the world.

Merits:

A written constitution clearly democrats the function of each organ of the government and hence the conflict can be avoided.

It clearly describes the basis on which the constitution has been enacted and thus the people know about their basic rights.

Written constitution is essential in the form of federation.

As there is clear division of powers particularly in the federal government, it results into hormonal relations among them.

Demerits:

A written constitution is generally not in a position to keep a pace with the time and thus fails to go ahead with the progress of the nation.

Since, it fails to go ahead with social, economic and political progress of the nation, it is found to do revolution at one stage.

It does not provide the development of conventions of the constitution which is necessary for a healthy constitution.

   

Un-written Constitution:

An unwritten constitution is one, which is not embodied in a document.

Generally an unwritten constitution consists of a number of customs, traditions, usages etc 

Eg: UK.

Merits:

It keeps pace with the time as well as the customs and the conventions are developed in such a way that is necessary for national progress.

Since, the national progress is smooth, the changes of revolution is very remote.

Demerits:

It is a type of constitution which is most unsuited to the federation which cannot work on the basis of presumptions and conventions but works on the basis of written proposals that is embodied and agreed in the constitution.

Rigid and Flexible Constitution:

Rigid Constitution:

A rigid constitution is one, which requires a special, complex and more technical procedure for its amendment.

A rigid constitution is definite and is more stable. Eg: USA, India etc

Merits:

It is suited to all the types of government and can work in almost all the circumstances.

It is a stable document and guarantees the stability.

Demerits: 

Since it is difficult to amend the constitution, it cannot keep a pace with the national progress.

Since it is inelastic, it knows only to breaking down rather than bending which is almost correct.

Flexible Constitution:

A flexible constitution is one which can be changed by an ordinary process.

If the constitutional law of the state can be framed, amended or repealed in the same way as the ordinary law, the constitution is flexible. Eg: Britain

Merits:

Since it can be easily amended there are no possibilities of revolution.

It is a type of constitution adoptable under own circumstances as such that most of them is suited to a progressive and advancing nation.

Demerits:

A revolutionary political party in power may amend the constitution in such a way that it may tend to bring a constitutional revolution and thus shatter the whole social, economic and political system of the society.

The flexible constitution is mostly suited to aristocratic rather than democratic form of government.

Unitary and Federal Constitution:

Unitary constitution is one, which sets up one Central government and all the powers are vested in it.

The state government acts as a subordinate to the Central government. 

Eg: Britain constitution

A federal constitution is one, which provides the distribution of powers between the central and the state government. Eg: American Constitution.

Characteristics of Constitution:

1. Definiteness
2. Comprehensiveness
3. Stability and Flexibility
4. Suitability
5. Provision of Rights and Duties

Definiteness:

A good constitution must be definite.

It must be very clear in a document so that everybody can understand what the constitutional law of land is.

It should not be ambiguity and obscurants of language, so that while interpreting there should be no conflicts.

Comprehensiveness:

A good constitution should be comprehensiveness so that the duty and the responsibility of the state, its functions, powers and functions of all the department of government along with their mutual relations should be clearly elaborated.

Stability and Flexibility:

The constitution should neither be too Rigid as to change nor be too flexible as to incorrect several changes which may cross the basic trend of the constitution in the course of time.

The best constitution is one which combines both the elements of Rigidity and flexibility in their aspect.

Suitability:

A good constitution must represent the need of time as well as the condition of the country and should be suitable for the social, political and economic necessity of the people.

Provision of Rights & Duties:

A good constitution should provide a safeguard to the rights of the people.

It should remind the duties and the obligations of the citizens towards the country.

Salient Features of Constitution:

1. Lengthiest Constitution
2. Parliamentary form of government
3. Unique blend of Rigidity and Flexibility
4. Fundamental Rights
5. Directive Principles of the State Policy (DPSP)
6. A federation with strong centralizing tendency
7. Adult Suffrage
8. Independent Judiciary
9. Secular State
10. Single  Citizenship
11. Fundamental Duties
12. Judicial Review      

Lengthiest Constitution:

The Indian constitution is the lengthiest and the most detailed of all the written constitutions of the world.

The American constitution consisted of only 7 Articles, but the Indian Constitution consists of 448 Articles, 25 parts and 12 schedules.

Parliamentary form of government:

The constitution of India establishes a Parliamentary form of government both at the Centre and the State, it follows the British Model.

The President is the constitutional head of the state.

The real executive power is vested in the council of ministers whose head is Prime Minister.

In the American Constitution, it establishes a Presidential type of Government based on the separation of powers.

The President is the Real Executive,

All the executive powers are vested in him.   

Unique blend of Rigidity and Flexibility:

A Rigid Constitution is one which requires a special method of amendment to change of any of its provision, while in Flexible constitution is one in which any of its provisions can be changed by an ordinary legislature process.

Fundamental Rights:

The fundamental rights are incorporated in Part-3 of the Constitution.

These rights are the prohibitions against the state.

The state cannot make a law which can take away any of the rights mentioned in part-3.

Directive Principles of State Policy:

The Directive Principles of the state policy in Part-4 of the constitution that set out the aims and the objectives to be taken up by the states.

A federation with strong centralizing tendency:

Indian constitution being a federal constitution, it acquires a unitary character during the time of emergency.

Adult Suffrage:

Under the Indian constitution, every man and women above 18 years of age has been given a right to elect the representatives for the legislature.

Independent Judiciary:

Independent and impartial judiciary with a power of the judicial review has been established under the constitution of India for the protection of the rights of the people.

Secular State:

It treats all the religions equally.

Article – 25 to 28 of the constitution gives a concrete shape to this concept of secularism.

It guarantees to every person the freedom of conscience and the right to profess, practice and propagate the religion.

Single Citizenship:

Through the constitution of India is federal and provides for dual polity i.e., centre and State, but it provides for a single citizenship for the whole of India.

Fundamental Duties:

The constitution (42nd Amendment) Act 1976, has introduced a code of 10 Fundamental Duties of the citizens under Article 51A.

1. To abide by the constitution and respect its ideal and the institutions, the national flag and the National Anthem.
2. To cherish and follow the noble ideals.
3. To uphold and protect the sovereignty, unity and Integrity of India.
4. To defend the country and render the National Service when called upon to do so,
5. To promote the harmony and Brotherhood amongst all the people of India.
6. To preserve the heritage of our composite culture.
7. To protect and improve the national environment including forest, lakes, rivers, wildlife etc.
8. To develop the scientific temper, humanity etc
9. To safeguard the public property.
10. To strive towards excellence in all the fields.

 Judicial Review:

Judicial review is the power of the courts to pronounce upon the constitutionality of the legislative courts.

If the provisions of the statutes are found to be violating of any of the articles of the constitution, then it would strike down the said provisions by the government.

In the case 1 L. Chandra Kumar

V

    Union of India 

The Supreme Court held that the power of the judicial review of the legislative action has vested in the High court under the Article 226 and in the Supreme Court under Article 32, is the part of the basic structure of the constitution.

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