This article is written by Divyanjali Mishra of 3rd Semester of Maharashtra National Law University, Aurangabad
ABSTRACT
This abstract provides a concise overview of the definition of a constitution and its various classifications. A constitution is a foundational legal document that shapes the governance of a nation, outlining principles, structures, and rules. The classification of constitutions is based on characteristics, form, and flexibility, leading to distinct types like written and unwritten, rigid and flexible, federal and unitary, and codified and uncodified constitutions. Understanding these classifications illuminates the diversity and significance of constitutional frameworks in different countries, reflecting historical, political, and cultural contexts. Constitutions, whether written or unwritten, rigid or flexible, federal or unitary, serve as the bedrock of a nation’s legal and political identity, ensuring the rule of law, protecting rights, and defining governance structures.
Keywords: constitution, classifications, constitutional framework.
INTRODUCTION
The idea of a constitution originated with the ancient Greeks and its striking references are found in the writings of Aristotle[1]. Constitution can be a specific written document, in some it is a collection of documents, statutes, and traditional practices that are being followed and accepted for governing people and political matters. Aristotle classified constitutions as good and bad ones. In the category of good came monarchy, aristocracy, and the mixed kind of constitution, and under the ambit of bad came- tyranny, oligarchy, and democracy[2]. A lot of scholars gave their insights on the constitution which includes, Hobbes’s thoughts on sovereignty, Rousseau and the general will[3], The social contract[4] theory, Sir James Mackintosh, George Cornwell Lewis, Leacock, and Austin[5].
HISTORY OF CONSTITUTION
The history of constitution is a complex and multifaceted one. Some of the ancient written legal codes and governmental structures date back to ancient Sumer and Egypt. Their written codes and laws paved way for more formal constitutions. The Ancient Greek city states like Athens and Sparts also developed some of the earliest democratic practices and written laws. The Roman Republic had a constitution known as the “Res Publica,” which had the element of both written and unwritten laws and traditions. The Magna Carta of England (1215) is considered one of the first constitutional documents. The Glorious revolution of 1688 resulted in the English Bill of Rights, which limited the monarchy’s powers and affirmed parliamentary authority.
Constitution of India is considered as one of the modern constitutions. Its roots lie in the British raj era. Various charters, acts enacted during that time by the crown and company, paved the way for today’s Indian Constitution. Indian Constitution had borrowed ideas from different constitutions of the world, German, U.S, Canada, Africa etc., and is now one of the largest written constitutional documents in the world[6].
The Constitution of India gives people in India certain rights which protect their dignity and freedom. In several cases such judgements have been given that laid down emphasis on the core values adopted in our constitution, the value of justice, liberty, equality and fraternity.
WHAT IS CONSTITUTION?
A constitution is a fundamental and supreme legal document that sets out the basic principles, structures, and functions of a government or organization. It serves as the foundation for the governance of a nation or entity, delineating the powers, rights, and responsibilities of various entities within the system. Constitutions are typically written documents, but they can also be unwritten or a combination of both. The great majority of modern constitutions set forth the fundamental rights of individuals, the structures and procedures of governance, and the fundamental principles of the state in a higher law that cannot be altered unilaterally by a regular legislative act. The standard term used to describe this higher law is known as the Constitution.
According to Lewis, the constitution is a system and distribution of sovereign power as a community or government. According to Austin, it fixes the structure of the supreme government and according to Leacock, ‘constitution is the form of government’.
In simple words we can conclude that:
- Constitution is the document enshrining the ideals of a nation.
- It is a form of a document, if written, or a collection of documents statutes, and traditional practices, that is considered as the supreme law to govern people.
- The Constitution can be written or unwritten.
- It is the fundamental law of the land.
WHAT IS THE NEED FOR A CONSTITUTION?
Not even the best constitution can construct a sewer or pave a road, run a clinic or give vaccinations, raise a child, or look after an elderly person. Constitutionalism is one of the greatest triumphs of human culture, despite these evident drawbacks, a constitution is a fundamental and essential document for the governance of a nation or entity[7]. Its need arises from several important purposes and functions that it serves in society. As George Washington righty said, “The Constitution is the guide which I never will abandon”[8]. There are various reasons why the Constitution is needed, some of them are described below:
- Establishing a Legal Framework
A constitution provides the legal framework within which a nation’s government operates. It defines the fundamental principles and rules that govern the country.
- Protection of Rights
Constitutions protect the fundamental rights and freedoms of citizens. They outline the rights that individuals are entitled to and the limitations on government authority to infringe upon those rights. The Constitution of India protects fundamental rights.
- Limiting Government Power
A constitution places limits on the power of the government. It establishes a system of checks and balances that prevents any one branch of government from becoming too powerful and abusing its authority.
- Rule of Law
It establishes the rule of law, ensuring that all individuals and entities, including the government, are subject to the law. This helps prevent arbitrary actions and ensures that legal principles guide decision-making.
- Democratic Governance
Constitutions often define the structures and procedures for democratic governance, including the conduct of elections, the roles and powers of elected officials, and the mechanisms for peaceful transitions of power.
- Social and Political Stability
A constitution provides a stable and predictable foundation for the functioning of the state. It helps prevent political chaos, instability, and conflicts by outlining the rules and procedures for resolving disputes.
- Protection of Minorities
Constitutions include provisions that protect the rights and interests of minority groups, ensuring that they are not marginalized or discriminated against.
- Property Rights
They define and protect property rights, which are crucial for economic development and individual security.
- Legal Clarity
A constitution provides legal clarity by setting out the structure of the government, its functions, and the division of powers. This clarity is essential for the smooth operation of the state.
- International Relations
A constitution can outline a nation’s stance on international relations and agreements, helping to maintain consistency in foreign policy.
- Adaptation to Change
Constitutions can be amended or revised to adapt to changing circumstances and societal needs. They provide a legal mechanism for making changes to the governance structure.
- Citizen Participation
They often include provisions for meaningful citizen participation in the political process, such as through voting, activism, and engagement in public affairs.
- Institutional Integrity
A constitution ensures the integrity of institutions like the judiciary and law enforcement agencies by defining their roles, functions, and powers.
- Accountability
It establishes mechanisms for holding public officials accountable for their actions, including provisions for impeachment, legal action, or other forms of accountability.
- Guidance for Future Generations
A constitution serves as a guiding document for future generations, providing a clear vision for the nation’s governance and values.
A Constitution, thus becomes necessary to provide a stable, just, and organized framework for the functioning of a society. It protects rights, limits government power, and sets the rules for democratic governance, thereby contributing to the well-being and prosperity of a nation.
A constitution typically lies at the center of the interaction between legal, social, and political life, while we can say a constitution is a legal, social as well and political instrument.
CLASSIFICATION OF CONSTITUTIONS
Constitutions can be classified into various categories based on their form, source, and flexibility. Some constitutions may exhibit elements of multiple classifications, such classifications are also influenced by the historical, political, and legal contexts of each nation. Here are some common classifications of constitutions:
- Written and Unwritten Constitutions
A written constitution is codified and exists in a single, formal document or a series of documents. The evolution of the written constitution lies in the American War of Independence (1775-83) and the French Revolution (1789)[9]. Examples include the United States Constitution and the Indian Constitution. An unwritten constitution, also known as an uncodified constitution, does not exist in a single, comprehensive document. Instead, it is based on a combination of historical documents, statutes, conventions, and judicial decisions. The United Kingdom’s constitution is a prominent example of an unwritten constitution.
In most of the states, one can find both written constitutions and Bills of Rights. These constitutions, be they written or unwritten, protect the individual rights of the citizens and provide a direction for peaceful governance.
- Rigid and Flexible Constitutions:
This classification is based on whether a constitution can be amended or not. If it can be, then we call it a flexible constitution and if it cannot, then we call it a rigid one. A rigid constitution can be amended or revised only through a special and often more elaborate procedure than the one used for ordinary legislation. Amendments to rigid constitutions are typically more difficult to achieve. A flexible constitution can be amended or revised through the same procedure as ordinary legislation. This makes it easier to adapt to changing circumstances. The United Kingdom’s constitution is an example of a flexible constitution. Indian constitution is a blend of both, rigidity and flexibility.
- Supreme and Subordinate Constitutions:
While not entirely, there are numerous similarities between this constitutional category and the division of states into federal and unitary governments. A state with unrestricted legislative authority for the governing body is said to have a supreme constitution. On the other hand, a subordinate constitution is one in which the authority of a higher authority limits its powers.
- Federal and Unitary Constitutions:
A federal constitution divides powers and responsibilities between a central (national) government and subnational entities, such as states or provinces. Federal constitutions establish a federal system of government, with separate levels of government that have their spheres of authority. Examples include the U.S. Constitution, the Australian Constitution, and the Constitution of India. A unitary constitution concentrates power at the national level, and subnational entities (if they exist) derive their authority from the central government. The United Kingdom’s constitution is an example of a unitary constitution.
- Written and Customary Constitutions:
As mentioned earlier, a written constitution is formally documented in single or multiple written texts. A customary constitution is unwritten and is based on long-established traditions, customs, and practices. It relies on historical precedents and conventions rather than a formal written document. Some nations may have a combination of written and customary constitutional elements.
- Republican and Monarchical Constitution:
A monarchical constitution is a form of government in which a hereditary monarch, often referred to as a king or queen, serves as the head of state. The powers and role of the monarch are typically defined by a constitution or a set of laws and traditions. Monarchical constitutions can vary in terms of the extent of the monarch’s powers, ranging from absolute monarchies, where the monarch holds significant authority, to constitutional monarchies, where the monarch’s powers are largely ceremonial and symbolic.
A republican constitution is a form of government in which the head of state is not a monarch but is typically elected by the citizens or appointed through some form of political process. Republics are characterized by the absence of hereditary monarchy, and power is typically vested in elected officials, often including a president.
WHAT ARE ESSENTIALS OF A GOOD CONSTITUTION
A strong constitution lays the groundwork for a country’s legal and political institutions and provides the essential framework for that country’s government. A constitution needs to have a few fundamental characteristics to be successful and long-lasting. The wording of the Constitution ought to be explicit, exact, and clear. To prevent misinterpretation, it should be simple enough for both individuals and legal specialists to understand. The fundamental liberties and rights of its people, including the freedom of expression, religion, assembly, and the right to a fair trial, must be guaranteed and upheld by a good constitution. To prevent the concentration of power in one branch and to maintain checks and balances, it should clearly define the division of powers among the legislative, executive, and judicial parts of government[10].
The rule of law should be enshrined as a core value in the constitution. The law must apply to all people and things, including the government. A good constitution should uphold democratic values and include procedures for orderly handovers of power as well as frequent, fair, and free elections. Minority groups’ rights and interests should be safeguarded, and measures to prevent marginalization and discrimination against them should be included.
The constitution ought to be adaptable enough to take new issues and conditions into account. To guarantee that it remains relevant over time, it should have provisions for alteration or revision. It is important to define and safeguard property rights precisely to promote economic growth and give residents a sense of security. The constitution should ensure the independence of the judiciary to guarantee that the legal system can uphold the rule of law without interference. It should allow for meaningful public participation in the political process and decision-making, including through mechanisms like referendums and citizen initiatives.
The Constitution should provide procedures for impeachment or legal action against public officials who misuse their authority to hold them accountable for their deeds. A strong constitution in the current day ought to take social and environmental concerns into account as well, demonstrating the country’s dedication to social welfare and sustainable development. To promote collaboration and avoid confrontations, federal systems should include a constitution that strikes a balance between the national government and subnational organizations. Encourage voting, activity, and engagement as ways to promote active citizen participation in the democratic process. To ensure accountability and combat corruption, measures for transparency in government activities, decisions, and financial concerns should be established. To uphold international norms, harmonize the constitution with international human rights treaties and accords.
To successfully guide the nation’s government while safeguarding the rights and interests of its citizens, a good constitution should represent the ideals and aspirations of the country it rules. It should also be flexible and up for periodic review to stay current in a world that is evolving.
CASES DEALING WITH THE INDIAN CONSTITUTION
The Supreme Court is the apex body that saves the rights of the citizen. There had been several landmark judgements where the Supreme Court laid down judgements that protected the rights of the citizens and emphasized on values inscribed in the preamble of our constitution.
The supreme court emphasized that amendments made by the parliament contradictory to the basic structure of the constitution will be declared void[11].
Supreme Court protected the right inscribed in Article 21 protects the Right to go abroad and the same was held in Maneka Gandhi v. Union of India[12]. Supreme Court upheld the constitutional validity of 27% reservation for the OBCs with certain conditions[13]. To protect the dignity of the sex workers and also to protect workers facing sexual harassment at workplace, Supreme court of India brought out guidelines popularly known as Vishaka guidelines[14].
Through various other judgements, Supreme Court had been protecting and upholding the Constitution of India. The Supreme Court of India had been using its powers to control and protect the infringement of the rights, duties and liberties of the people of India, upholding the law and preserving the sovereignty and integrity of the constitution[15].
CONCLUSION
In conclusion, a country’s constitution is the cornerstone of its governance and is an essential and ultimate legal document. It lays forth the fundamentals of the country’s political and legal institutions, as well as the rights and obligations of citizens. It also determines the government’s structures and functions. A constitution is necessary to ensure the rule of law, limit the power of the government, safeguard individual rights, and provide stability. It is essential to defining a country’s identity and directing its development. The kind of constitution a country chooses frequently reflects its political situation, history, and culture. In the end, a country’s constitution acts as the framework for its governance and is vital in determining the rights and obligations of its people, the boundaries of governmental authority, and the fundamental values of democracy and fairness.
[1] Kenny A., J.P. and Amadio, Anselm H., Aristotle, ENCYCLOPEDIA BRITANNICA (Nov. 3, 2023, 4:32 PM), https://www.britannica.com/biography/Aristotle.
[2] Spiro, H. John., Constitution, ENCYCLOPEDIA BRITANNICA (Nov. 3, 2023, 5:41 PM),
https://www.britannica.com/topic/constitution-politics-and-law.
[3] Munro, A., General will, ENCYCLOPEDIA BRITANNICA (Nov. 3, 2023, 5:50 PM), https://www.britannica.com/topic/general-will.
[4] Britannica T. Editors of Encyclopedia, Social Contract, ENCYCLOPEDIA BRITANNICA (Nov. 3, 2023, 6:21 PM) https://www.britannica.com/topic/social-contract.
[5] LEGAL PAATH SHALA, https://legalpaathshala.com/definition-of-constitution-and-its-classification/ (last visited Nov. 4, 2023).
[6] National Archives Editors, The Constitution: How Did it Happen? NATIONAL ARCHIVES (Nov. 9, 2023, 10:29 AM) https://www.archives.gov/founding-docs/constitution/how-did-it-happen.
[7] Elliot Bulmer, What is a constitution? Principles and Concepts, IDEA (Nov. 4, 2023, 12:10 PM), https://www.idea.int/sites/default/files/publications/what-is-a-constitution-primer.pdf.
[8] IOWANS FOR TAX RELIEF FOUNDATION, https://itrfoundation.org/never-abandon-the-constitution/ (last visited Nov. 4, 2023).
[9] Editors of politicalscience, Classification of Constitution, POLITICALSCIENCE (Nov. 4, 2023, 3:30 PM), https://www.politicalscienceview.com/classification-of-constitution/#google_vignette.
[10] Elliot Bulmer, What is a constitution? Principles and Concepts, IDEA (Nov. 4, 2023, 12:10 PM), https://www.idea.int/sites/default/files/publications/what-is-a-constitution-primer.pdf.
[11] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.
[12] AIR 1978 SC 597.
[13] Indra Sawhney v. Union of India (1992) SCC 217.
[14] Vishaka & ors v. State of Rajasthan AIR 1997 SC 3011.
[15]Ishaan Jain, The Role of the Supreme Court of India as a Protector and Warden of the Constitution, LAWSTREET JOURNAL (Nov. 9, 2023, 1:31 PM) https://lawstreet.co/speak-legal/the-role-of-the-supreme-court-of-india-as-a-protector-and-warden-of-the-constitution#:~:text=One%20of%20the%20primary%20roles,the%20legal%20structure%20of%20India.
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