This article is written by Mrinalini Menon of 2^nd semester of DES Shri Navalmal Firodia Law College, an  intern under Legal Vidhya

ABSTRACT

Constitution is the basic framework which indicates the basic rules, laws and regulations adhering to which the other functional bodies and the citizens function. It is the supreme set of rules, regulations and laws that establishes the framework of a political system like a government or an organization. It not only has a legal meaning but also a layman aspect. The reason behind that is it was created majorly for the people and in order to protect their rights. It acts as a foundational pillar for governance and provides the framework for how power is exercised, distributed and limited within a state, institution, organization, country or a nation.

A constitution basically puts out the basic construction of a government, its division of powers among the governing bodies which mainly comprises of the executive, legislative and judicial branch or body, rights and duties of the people and their relationship with the government.

Since the term constitution is a very broad and vast concept it cannot be confined to a few certain meanings and conclusions. It varies from country to country and from one society, people or community to another. Thus, in order to understand such a vast concept, it is necessary to classify it which makes it simple for everyone to understand. The reason why even a layman should understand the concept of constitution is because it lays down the rights that the citizens have and can exercise and the duties that they are supposed to carry out or perform as responsible citizens of the nation.

Keywords: Constitution, citizens, government, organization, legislative, judicial, community, layman.

HISTORY

As far as the etymological evolution is concerned ‘Constitution’ is a term that was introduced or derived through the French and Latin word “constitutio” which was used during the earlier times to denote the general rules and regulations. The general conceptualization of constitution and the idea of constitutionalizing was introduced during the Greek era majorly through the works and words of Aristotle. It was a mere term that evolved with time, it began gaining a wider meaning and life when it was used in the canon law to state all the important laws that were to be followed though it was on the religious front.

Since time immemorial mankind has been on a constant run to thrive and survive in this world. The reason why it was easier at that time for everyone to reside without any commotion was the less population and the availability of resources in a quantity which was more than enough. But with the expeditiously growing populace it became a necessity to set down certain rules and regulations.

One of the alarming reasons of the evolution or introduction of constitution was because of the rise of dictatorship and the misuse of powers by a single ruler, which was the common system during the earlier times. In order to remove this people raised their voices in the form of protests and strikes.

NEED FOR A CONSTITUTION

Constitution is not a concept that has been going on since time immemorial. Certain events that took place that made the formation of a constitution the need of the hour for a lot of people and rulers. The earliest or foundational commencement was through the ‘American Revolution’ in the year 1776. There are a lot of reasons for establishing a constitution in a nation or a country. Few of the major reasons for the above said line are as follows:

1. Establishing a Proper Governance Structure: A necessary factor for any government or an organization is a strong foundational base. The absence of such a figure would lead to the scattering of power and misuse of the same. People or authorities would start acting on their whims because of the lack of set and written rules and regulations.
2. Rule of Law: A rule of law is established due to the constitution. It basically means that the government, governing authorities and other organizations are bound by the law that is set out by the constitution. Even the judicial power is bound as the laws of the constitution are something that takes a lot of time and proper reasoning to be changed and in most of the cases it doesn’t.
3. Protection of Rights and Freedom: During the British colonial era though everyone had some kind of freedom it was not what the need of the hour was. That freedom and their rights at that time were neither protected nor stable. It kept on changing according to the convenience of the Britishers. This showcased the need of protection for the rights and freedom from being governed or ruled by a single authority.

NEED FOR A CONSTITUTION

Constitution is not just confined to stating the laws of a nation or a state but any functioning body in this world has a set of conditions which has to be followed and this system or group of conditions is known as ‘constitution’. It deals with the structure and powers of the government and even lays down the rights of the citizens. It is often misapprehended as a set of written documents. To a certain extent it might be correct but it is not the same case for all the countries. There are a lot of countries that have different ways of representing or setting out their adjudications. A fact of utmost importance that has to be kept in mind is that constitution is an ever-evolving concept. During the formation of any constitution the major process is borrowing or modifying an already existing work.

Men and nation co-exist in a way that it influences each other in many different aspects which undeniably calls for the juridical constitution in order to unite both the entities under one particular will in order to make sure that the stability and peace between these two remain intact and undisturbed[1].

Even the Indian constitution is borrowed from various other countries. Dr. B.R. Ambedkar has proudly stated that the Constitution of India has been framed after ‘ransacking all the known constitutions in the world’. India was under the clutches of the British Empire for over 100 years. On the midnight of 14^th and 15^th August the British rule came to an end and India gained independence, though it was through the unfortunate event of partition between India and Pakistan.

Constitution is of different types in terms of the timeline. There are pre-modern, modern and democratic constitutions[2].

1. Pre – modern Constitution: There are a lot of evidences or documents that were discovered during various excavations that show the existence of constitution in the ancient or pre- modern era which dates back to 1877. Whereas Aristotle was the first person to make an actual, clear and practical distinction between ordinary law and constitutional law. He further established the idea of constitution and constitutionalism. Even in India there are a lot of evidences of how the concept of constitution was prevalent even during that time. One of the finest examples is the ruling period of Ashoka wherein the Edicts of Ashoka are almost similar to the constitution of a country.
   1. Modern Constitution: The kingdom of Sweden adopted the 1634 Instrument of Government which is considered to be the first written constitution that was adopted by a modern state. This was the time when the American Revolution took place. The American revolution took place because of the agitation of the British colonies. The adoption of the constitution took place mainly during the year 1776 and 1777.
   1. Democratic Constitution: The modern constitution was created as a result of the sudden need of the hour but it was not something that was completely or nearly perfect. That just laid a foundation for all the amendments in order to create a stronger constitutional framework.

CLASSIFICATION

Constitution can mainly be classified into the following types:

1. Written and Unwritten
2. Rigid and flexible
3. Enacted and evolved
4. Unitary and federal

1. Written and Unwritten Constitution

Constitution is mainly classifying as written and unwritten as some countries prefer documenting their laws into a single file or book whereas others prefer having the set of rules but still not putting them into pages. That does not mean the rules of the unwritten constitution are invalid or not followed. They are thoroughly and religiously followed and even more so open to changes. Unlike the written one the unwritten constitution lacks codification and compilation. The examples of written constitution include those of India and the USA. The first written constitution is that of the USA which came into existence in 1787 and was enacted on 1789 whereas the largest written one is that of India. On the other hand, the first country to have an unwritten constitution is Britain.

• Rigid and Flexible Constitution

A rigid constitution is one the amendment of which is very difficult. It means that making any changes in such type of constitution is a lengthy and time taking procedure. Whereas in a flexible constitution the amendment is very easy unlike the case in the rigid one. In a flexible constitution any change that has to be made only requires a simple majority voting but in the case of a rigid constitution there is a requirement of a special majority. USA is a fine example of a rigid constitution which has had only 27 amendments from the time the constitution was made which is around 230 years. U.K. is a country having a flexible constitution the amendment of which is an easy process. The Indian constitution is one which is neither completely rigid nor completely flexible and has had around 100 amendments in 65 years.

• Enacted and Evolved Constitution

A constitution that is framed by a specific body within a specific time is known as an enacted constitution and the Indian constitution is a fine example of that. It was made or formed by a constituent assembly and it took almost 2 years, 11 months and 18 days to be completed. Thus, the Indian constitution can be a fine example of an enacted one as it was created by a specific body and was done during a specific time. An evolved constitution is one which is not created by a specific body and it grows according to or as per the needs and regulations of the hour.

The U.K. constitution is an evolved constitution as it can be changed and amended with time as society and the societal norms and regulations changes.

• Unitary and Federal Constitution[3]

In a unitary constitution there is no division of power between the different bodies that govern the nation or that constitutes a government. In such a constitution the power is at the hands of a single entity, in other words the power is concentrated to a single body. Unlike a unitary constitution the federal constitution has the provision of division of power between the governing bodies which means that there is a division of power between the center and the state. The U.K., Afghanistan, Bangladesh, China and Sri Lanka are a few fine examples showcasing a unitary constitution. U.S.A, Nepal, Pakistan and Brazil are a few examples of nations or countries that follow a federal constitution. U.S.A has one of the best federal constitutions among all. In the case of the Indian constitution the power is divided between the center and state so under this condition it can be categorized as a federal constitution but when compared to that of U.S.A it can be concluded that the constitution of U.S.A is more federal than that of India.

Recent Developments in Constitutional Law

Within the past few years there have been a lot of changes in the constitutional law of India. As we all know that law is a concept that keeps on evolving with the society and the changing times. Even though constitution is something that cannot be amended there are a few exceptional provisions for the same. The basic framework of the constitution cannot be changed but few parts of the same can be amended when and where required.

• 99^th amendment of the constitution: This was implemented in the year 2014 and it talks about the appointment of judges and the National Judicial Appointment Commission[4]. The constitution alludes to the procedure of appointment to then judges in SC and HCs in article 124 and 217 respectively. Before this amendment the Chief Justice of India was only at a consultation position when it came to then appointment of judges and the final decision was of the president. The President of India was in no way obligated to accept or adhere to the opinion of the CJI. In order to resolve this tussle a National Judicial Appointment Commission was formed to for the above-mentioned procedure and the same provision was also added to the constitution through this amendment.
• 100^th amendment of the constitution[5]: This amendment broadly deals with the treaty between Bangladesh and India. The Indo-Bangla agreement was signed on May 16,1974 to solve the border demarcation problems between both the nations. The land boundary agreement which was earlier not agreed to was accepted by the parliament in the year 2015 through the 100^th constitutional amendment.
• 101^st amendment of the constitution: In the year 200 itself, the talks of GST and other tax reforms was started under the government and leadership of Atal Bihari Vajpayee. The unified or centralized taxes were not applied on goods during that time, in place of which the states and center applied a lot of indirect taxes which in turn burdened the taxpayers. In order to reduce the cascading effect of taxes and to simplify the tax administration the parliament made or implemented the 101^st constitutional amendment in the year 2016.
• 102^nd amendment of constitution: This amendment was made in the year 2018 and inserted Article 338B and 342A in the existing articles. Article 338B deals with the structure, duties and powers of the National Commission for Backward Classes. It also specifies the composition and the duties of the commission in power[6]. Whereas Article 342A says that the President, in consultation with the governor, would specify the socially and educationally backward classes. 
• 105^th amendment of constitution: This amendment is the last amendment to our constitution which came into effect on 15^th August, 2021. Officially it is known as The Constitution (One Hundred and fifth Amendment) Act, 2021 and also as OBC. This amendment majorly restores the power of states to identify the Socially and Economically backward classes and amended the Article 338b, Article 342A and added Article 366(26C) in which the Socially and Economically Backward Classes (SEBC) has been defined.

Cases related to the rise of Constitutional Law

1. Enrick v Carrington (1765)[7]: In this particular case the defendants were said to have trespassed the property of the claimant in order to search for sedition papers under the order of the ruler. As a conclusion it was held that the claimant has the right to prevent anyone from trespassing their property.
2. Marbury v Madison (1803)[8]: This was the first case to establish the concept of judicial review. It was established by Chief Justice John Marshall to prevent the concentration of power on any single branch of the federal government. It was through this case that the constitution of the U.S. was categorized as ‘rigid’ and ‘written’ constitution.

Minerva Mills Ltd. v. Union of India (1980)[9]: This was one of the most famous cases in India that discussed about the structure and framework of the constitution. As a final judgement it was held that certain basic features of the constitution cannot be amended by the Parliament like democracy, secularism and the rule of law as these are the basic structures of the constitution.

CONCLUSION

Though constitution is a body of rules that cannot be changed or tampered with easily it is still designed as a flexible set that can be modified according to the societal changes. This scenario of a changing society was foreseen by the leaders of the nation long ago while they created this sacred document which guides us till date.

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[1] Immanuel Kant (Translated by), The Philosophy of Law, 161 (1^st edition)

[2] Constitution, Wikipedia, https://en.wikipedia.org/wiki/Constitution,  last seen on 06/08/2023

[3] Indian Constitution: Federal or Unitary, Legal Service India, https://www.legalserviceindia.com/legal/article-1528-indian-constitution-federal-or-unitary.html, last seen 04/09/2023.

[4] National Judicial Commission Bill, 2022, Drishti ias, https://www.drishtiias.com/daily-updates/daily-news-analysis/national-judicial-commission-bill-2022, last seen 04/09/2023.

[5] What is 100th Amendment of Indian Constitution?, Byjus Exam prep, https://byjusexamprep.com/upsc-exam/what-is-the-100th-amendment-of-the-indian-constitution, last seen 04/09/2023.

[6] 102 Amendment of the Indian Constitution, examarly, https://blog.examarly.com/upsc/102-amendment-of-indian-constitution/, last seen 04/09/2023.

[7] Enrick v Carrington, LawTeacher, https://www.lawteacher.net/cases/entick-v-carrington-1765.php, last seen on 06/08/2023

[8] Marbury v Madison (1803), National Archives, https://www.archives.gov/milestone-documents/marbury-v- madison#:~:text=With%20his%20decision%20in%20Marbury,Government%20from%20becoming%20too%20 powerful. , last seen on 06/08/2023

[9] Minerva Mills Ltd. v. Union of India (1980), Indian Kanoon, https://indiankanoon.org/doc/1939993/ , last seen on 06/08/2023