This article is written by Ashna Kamuni of NALSAR University of Law, Hyderabad, an intern under Legal Vidhiya
Abstract
This paper offers a comprehensive analysis of the Indian constitution and its critical role in shaping the democratic framework of the nation. In addition, the study explores various classifications of constitutions, including written and unwritten constitutions, unitary and federal systems, and other forms and structures that constitutions can assume. The aim is to provide a clear understanding of the diverse nature of constitutions.
The paper begins by explaining the definition and importance of the Constitution in any democratic society. It then delves into different ways in which constitutions can be classified, such as by their form, content, and origin. Finally, the paper discusses the implications of the different classifications for the study of constitutions. This highlights the significance of understanding and analysing constitutions as a means of promoting effective governance and upholding democratic values.
Keywords: Constitution, Definition, Classification, Democracy, Law, Government, Citizens
Introduction- Definition & A Comprehensive Overview
A country’s constitution consists of a collection of established written principles that are universally agreed upon by its inhabitants. It serves as the highest legal authority, governing the interactions between individuals residing within a specific territory as well as the interactions between the populace and their governing body. The constitution fulfils various roles. It has been defined differently by various political thinkers and institutions.
The Constitution of India stands as the supreme legal framework governing the nation. It establishes the foundational principles of politics, outlines the organizational structure, processes, authorities, and responsibilities of governmental bodies, and enumerates essential rights, guiding principles, and civic obligations. Comprising 448 articles spread across 22 sections and accompanied by 12 schedules, the Indian constitution is a comprehensive document. It was formulated by the Constituent Assembly, duly elected by the Indian populace in 1946 with the mandate to draft a fresh constitution for the newly independent India.
A Nation’s administration and its ability to exist and function as a politico-legal body are fundamentally based on its constitution. They constitute a set of guidelines and norms that specify the underlying precepts that guide state governance. It explains the relationships between the three primary state institutions—the legislative, executive, and judicial branches. It lays out citizens’ rights and responsibilities and restricts the use of force. It hence becomes important for one to understand and analyse the conceptual details of “The Constitution”, what they entail, how they are brought into existence, different forms in which they can exist and their need and importance for a country.
Methodology and Objectives
The process of gathering secondary data entailed a comprehensive examination of a wide range of online resources, encompassing government portals, legal repositories, and scholarly writings were undertaken to establish a foundation for qualitative assessment. The objectives are listed hereunder:
- Define the term “constitution” and highlight its significance in a democratic society.
- Explore the various methods of classifying constitutions, including their form, content, and origin.
- Critically analyse India’s Constitution as a case study, focusing on its historical development, structural components, and democratic framework, with a particular emphasis on the Constituent Assembly’s contributions.
History
After the formation of nations by tribal communities, intellectuals began to argue that the structure and functioning of governmental institutions held greater significance than the personal traits of rulers. The Renaissance period saw the emergence of political philosophers who aimed to identify principles of constitutional design for more efficient and equitable governance. The idea of establishing a government on the bedrock of a natural state governed by inherent laws gained prominence, followed by a social order established through a social contract or agreement. The formulation of constitutions is rooted in fundamental principles of design, striving for an equilibrium of justice, freedom, and security.
It was discovered during Ernest de Sarzec’s excavations in Iraq in 1877 that the first known rule of justice was issued in 2300 BC by the Sumerian monarch Urukagina of Lagash. Citizens were provided privileges under this constitution, including protection from taxes and aid for the underprivileged. Later, written laws governed governments; the earliest known written law is the “Code of Ur-Nammu”[1]. Draco formalised Athens’ oral rules in 621 BC, and later in 594 BC the Solonian Constitution and in 508 BC a democratic constitution.
Later in the 17th-18th century, John Locke, Jean-Jacques Rousseau, and other Enlightenment philosophers created what is frequently referred to as the “enlightened constitution” model. According to the concept, constitutional governments ought to be transparent, accountable, flexible, stable, and representative of the people (i.e., they ought to uphold democracy).[2] Many countries enacted landmark constitutions following this like America, Venezuela, France etc.
The Significance and Necessity of a Constitution
The Constitution is a crucial instrument for a nation, outlining government authority, rights, and responsibilities, acting as a bulwark against tyranny and misuse of authority. The significance of the Constitution is of immense value, particularly evident during the period spanning from the 13th to the 15th centuries, characterized by noteworthy constitutional advancements in numerous European states as seen in the section above.[3]
It prevents arbitrary government actions and curtails the potential for excessive power and oppression, contrasting with despotic governments that operate without any higher law. A constitution ensures a balanced distribution of power. It serves as a framework for socio-economic development, inspiring laws that protect marginalized groups, preserve the environment and uphold labour rights. A constitution establishes the political and social foundation for a community, contributing to political stability and safeguarding its sovereignty. In democratic societies, a constitution ensures fair and transparent processes for selecting leaders, safeguarding citizens’ rights to vote, and freely express dissent. It also serves as a safeguard for citizens’ fundamental rights, preventing government actions that may compromise their interests. In conclusion, a constitution is indispensable in any modern democratic state. It safeguards democratic principles, limits government power, ensures a balanced system, and serves as a catalyst for social progress and a bulwark for human rights.
Classifying Constitutions: An In-depth Analysis of the Categories
The topic at hand concerns the different classifications of constitutions based on their features and characteristics.
- One of the primary distinctions is between codified and non-codified constitutions. The former refers to a single, comprehensive document or a series of related documents that embody the Constitution, while the latter is a collection of historical precedents, constitutional conventions, statutory enactments, and customary practices.[4] The Indian Constitution is an example of a codified constitution, while the United Kingdom’s constitution is non-codified. Codified constitutions arise from significant political shifts and their legitimacy hinges on the adoption process. In such states, conflicts with statutes may lead to invalidation. Amending a constitution involves rigorous procedures. Uncodified constitutions, found in New Zealand and the UK, evolve over time through a blend of written and unwritten sources. These form the basis of governance, encompassing statutes, conventions, royal prerogatives, and customs.
- Another important distinction is between rigid and flexible constitutions. A rigid constitution is one that has a more complex and difficult amendment process compared to regular legislative procedures, while a flexible constitution is more adaptable to change.[5] The Indian Constitution is leaning towards rigidity, although it balances this with a two-thirds majority requirement in Parliament to amend it.
- The third classification is between unitary and federal systems. In a unitary system, power is concentrated in the central government, which then delegates authority to subnational entities, while in a federal system, power is distributed between the central and regional tiers. The Indian Constitution is a quasi-federal model, where the central government maintains a level of supremacy.
- Another important feature is the choice between parliamentary and presidential forms of government.[6] Presidential systems have a clear separation of powers between the executive and legislative branches, while parliamentary systems blend the two.
- Finally, constitutions can be classified as either prescriptive or procedural. A prescriptive constitution embodies the foundational ethos and objectives of the state and reflects common values and aspirations, while a procedural constitution delineates the legal and political framework of governmental institutions, prescribing limits on governmental authority. The Indian Constitution is an example of a constitution that exhibits characteristics of both prescriptive and procedural orientations.
These categories offer insights into the structural underpinnings and operational dynamics of constitutions within diverse political contexts and are therefore fundamental to understanding the nuances of different constitutional frameworks.
Impact of the Classifications: The distinction between written and unwritten constitutions can be used to understand the different ways in which constitutions are created and enforced. Written constitutions are typically more formal and explicit, while unwritten constitutions are more informal and implicit. This difference in form can have a significant impact on the way in which the Constitution is interpreted and applied. The distinction between federal and unitary constitutions can be used to understand the different ways in which power is divided between the central government and regional governments. In a federal system, power is divided between the two levels of government, while in a unitary system, power is concentrated at the central level. This difference in the distribution of power can have a significant impact on the way in which the government functions. The distinction between presidential and parliamentary systems can be used to understand the different roles of the head of state and the head of government. In a presidential system, the head of state and the head of government are the same person, while in a parliamentary system, the head of state is typically a ceremonial figure and the head of government is the leader of the majority party in the legislature. This difference in the roles of the head of state and the head of government can have a significant impact on the way in which the government is run. The classification of constitutions by their origin can be used to understand the historical forces that have shaped them. Autochthonous constitutions are developed domestically, while imposed constitutions are developed by a foreign power. The origin of a constitution can have a significant impact on its content and structure.
Charting India’s Constitution
In the year 1600, the British East India Company (EIC) arrived in India as a trading entity under the charter granted by Queen Elizabeth I. The company initially focused solely on commerce, devoid of any overt political ambitions. However, a pivotal turning point emerged following their triumph in the Battle of Buxar in 1764. Subsequent to this victory, the company, which had hitherto confined itself to trade, acquired Diwani rights encompassing Bengal, Bihar, and Orissa. This transformative development signified the EIC’s evolution into a territorial power. The company assumed administrative control over India until 1858 when the British Crown directly assumed governance in the aftermath of the ‘Revolt of 1857’. The British government continued to administer India until its attainment of independence on August 15, 1947.
The advent of Indian independence necessitated the formulation of a constitution. In 1946, the Constituent Assembly was convened with the mandate of drafting the foundational legal framework for the nation. The Drafting Committee, led by Dr. B.R. Ambedkar, played a central role in formulating the Constitution of India. Diligently, committee members incorporated the principles of justice, liberty, equality, and fraternity into the constitutional framework. The drafting process drew inspiration from various international sources.
Extensive debates and discussions took place within the Constituent Assembly, addressing critical topics such as citizenship, fundamental rights, government structure, and the division of power between the central and state authorities. The Constitution of India was officially adopted by the Constituent Assembly on November 26, 1949, and subsequently came into effect on January 26, 1950, signifying India’s transition into a republic. The Indian Constitution is a comprehensive legal document that outlines the basic principles, structure, and functions of the Indian government. The Constitution is divided into 22 parts, 395 articles, and 12 schedules. It is the longest-written constitution in the world, reflecting India’s commitment to democratic principles and the rule of law.[7]
The Constitution of India is based on the principles of democracy, secularism, socialism, and federalism. It guarantees fundamental rights such as the right to equality, freedom of speech and expression, freedom of religion, and the right to life and liberty. The Constitution also lays down the framework for the functioning of the Indian government, including the legislature, executive, and judiciary. In addition to the fundamental rights, the Constitution of India also provides for the Directive Principles of State Policy. These principles aim to promote social and economic justice and ensure the welfare of the people. The Directive Principles are not enforceable by the courts but are considered fundamental in the governance of the country.
The Indian Constitution, adopted in 1950, has undergone over 100 amendments since its inception. It establishes a democratic framework, guarantees fundamental rights, and promotes social justice. The Constitution is a guiding force in India’s governance, safeguarding citizens’ rights and ensuring democratic institutions’ smooth functioning. It represents the unwavering resolve of the Indian people in their pursuit of self-governance and a just society, reflecting the changing needs and aspirations of the nation.
Case Laws Related to The Rise of The Constitution
Throughout history, many landmark court cases have challenged the Constitution and its fundamental principles. These cases have played a critical role in shaping the Constitution and ensuring that government actions are consistent with its fundamental principles. One such landmark case is Marbury v. Madison (1803),[8] and here judicial review was established. This principle means that the courts have the power to strike down laws that they deem to be unconstitutional. The significance of this principle lies in upholding the supremacy of the Constitution and ensuring that the government is accountable to its citizens. Similarly, McCulloch v. Maryland (1819)[9] affirmed the implied powers of the Legislature. This principle means that Congress can pass laws that are not explicitly enumerated in the Constitution but are necessary to carry out its enumerated powers. This principle has allowed the federal government to expand its authority and address new challenges that were not foreseen by the framers of the Constitution. Another landmark case that had a significant impact on the rise of the Constitution was Brown v. Board of Education of Topeka (1954).[10] This case declared that racial segregation in public schools was unconstitutional, and it played a pivotal role in the American civil rights movement. This decision affirmed the principle that all individuals are entitled to equal protection under the law. Overall, these landmark cases have contributed to the growth and evolution of the Constitution and democracy. They have transformed the fundamental principles, but they have also ensured that the government remains accountable to its citizens and that all individuals are entitled to equal protection under the law.
In India, post-independence and post the enaction of its own constitution many cases and legal precedents emerged resulting in forming “basic tenets of the constitution”. Initially, the court held that Parliament possessed absolute power to amend the Constitution, including the Fundamental Rights. However, in the landmark Kesavananda Bharati case[11] of 1973, the basic structure doctrine was introduced. This doctrine declared that certain fundamental features of the Constitution could not be altered even through amendments. Its purpose is to safeguard the Constitution’s core principles and prevent legislative overreach.
Several key cases have contributed to the development of the basic structure doctrine. In the 1951 Shankari Prasad case,[12] the Supreme Court upheld Parliament’s authority to amend the Fundamental Rights under Article 368. However, in the 1967 Golaknath case,[13] the court reversed its stance, declaring that Fundamental Rights were not subject to Parliament’s amending power.
The Kesavananda Bharati case marked a turning point in the evolution of the basic structure doctrine. The Supreme Court, while acknowledging Parliament’s “wide” power to amend the Constitution, emphasized that this power did not extend to destroying or undermining the basic elements or fundamental features of the Constitution. This case established the concept of a basic structure that cannot be altered through amendments.
The basic structure doctrine was further applied in the 1975 Indira Nehru Gandhi v. Raj Narain case. The Supreme Court, guided by the basic structure concept, struck down a clause of the 39th Amendment, passed during the Emergency Period, on the grounds that it undermined the Constitution’s basic features. This case highlighted the role of the judiciary in safeguarding the Constitution’s fundamental principles.
The 1980 Minerva Mills case further strengthened the basic structure doctrine. The Supreme Court struck down two amendments made by the 42nd Amendment Act 1976, declaring them violative of the basic structure. This case emphasized that the Constitution, not Parliament, was supreme. The basic structure doctrine acted as a safeguard against arbitrary amendments that could erode the Constitution’s core principles.
The evolution of the basic structure doctrine through these landmark cases has been instrumental in protecting the Constitution’s fundamental principles and preventing their erosion through amendments. It has established the judiciary as a crucial guardian of the Constitution, ensuring that certain essential features of the Constitution remain intact and that legislative actions do not undermine the core values enshrined in the Constitution.
Conclusion
In conclusion, this paper has provided a comprehensive analysis of the definition and classification of constitutions. Through a detailed examination of the different ways in which constitutions can be classified, such as by their form, content, and origin,[14] this paper has shed light on the similarities and differences between constitutions from different countries and the evolution of constitutions over time. Overall, the different classifications of constitutions can be used to better understand the similarities and differences between constitutions from different countries, as well as the evolution of constitutions over time.
In retrospect, this research paper has traversed the intricate landscape of constitutionalism, delving into its fundamental essence and various classifications. From written and unwritten constitutions to the distinctions between unitary and federal systems, each category illuminates the diverse approaches nations adopt in shaping their governance structures. Additionally, the exploration of procedural and prescriptive constitutions underscores the nuanced interplay between legal and aspirational frameworks. Furthermore, a comprehensive examination of the Indian Constitution reveals its pivotal role in shaping the destiny of a nation. Crafted under the stewardship of Dr. B.R. Ambedkar and the dedicated Drafting Committee, it stands as an exemplar of democratic ideals, incorporating principles of justice, liberty, equality, and fraternity. The influence of international documents and ideologies, coupled with extensive debates within the Constituent Assembly, underscores the depth of contemplation invested in its formulation. With its adoption on January 26, 1950, the Indian Constitution heralded a new era, marking India’s transformation into a republic. Its enduring legacy is manifest in the democratic framework, safeguarding of fundamental rights, and commitment to social justice. Today, it remains a cornerstone of India’s governance, a testament to the nation’s commitment to self-rule and equitable societal progress. In broader terms, this research paper has shed light on the pivotal role constitutions play in shaping the political, legal, and social landscapes of nations.
Whether written or unwritten, unitary or federal, procedural or prescriptive, these foundational documents serve as the lodestar guiding a nation’s trajectory. The Indian Constitution, in particular, stands as a beacon, illuminating the path towards a more just and egalitarian society. [15]As we reflect on the nuanced classifications and the profound impact of the Indian Constitution, it becomes evident that constitutionalism is not a static concept but a dynamic force that evolves alongside the societies it governs. With this understanding, we are better equipped to appreciate the intricate tapestry of governance structures that underpin nations around the world.
[1] S.N. Kramer, Ur-Nammu Law Code, 23, JSTOR, 40-51 (1954).
[2] Herbert John Spiro, Constitution- Politics and Law, Encyclopedia Britannica (Sep. 29, 2023), https://www.britannica.com/topic/constitution-politics-and-law/Europe.
[3] Shakshi Gupta, Importance of Constitution, TOI (Feb. 26, 2023, 23:42 IST), https://timesofindia.indiatimes.com/readersblog/myopinionsmyviews/importance-of-constitution-50928/.
[4] DK, Codified vs. Uncodified Constitutions: Pros and Cons, Owlcation (Jun. 1, 2023, 6:34 PM), https://owlcation.com/social-sciences/what-is-a-constitution.
[5] Pasquale Pasquino, Flexible and Rigid Constitutions, Cambridge University Press, 85-96 (2015), https://www.cambridge.org/core/books/abs/rationality-democracy-and-justice/flexible-and-rigid-constitutions/036A86B816F32D13E229A86CA9C12F14.
[6] Gonzalo Villata Puig, Parliamentary versus Presidential Government, 74 JSTOR, 9-11 (2002).
[7] Jagran Josh, https://www.jagranjosh.com/general-knowledge/indian-constitution-parts-schedules-and-articles-at-a-glance-1473768121-1 (last visited Nov. 4, 2023).
[8] Marbury v. Madison, 5 U.S. 137 (1803).
[9] McCulloch v. Maryland, 17 U.S. 316 (1819).
[10] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
[11] Kesavananda Bharati v State of Kerela, (1973) 4 SCC 225.
[12] Sri Sankari Prasad Singh Deo v Union of India, (1951) AIR 458.
[13] Golaknath v. State of Punjab, (1967) AIR 1643.
[14] Encyclopedia Britannica, https://www.britannica.com/topic/constitutional-law/Judicial-review-in-the-United-States (last visited Nov. 3, 2023).
[15] Om Birla, Our Constitution: A Sacred Document, Hindustan Times (Nov. 25, 2021, 8:41 PM), https://www.hindustantimes.com/opinion/our-constitution-a-sacred-document-101637853090888.html.
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