Note on Constitution, Constitutional Law and Constitutionalism:

The emergence of state in response to the authoritarian and

religious control of power has brought with it the complexities present in
the political system as well. Since then the major problems of the state
have been the maintenance of its sovereign power on the one hand and
the process of legitimizing its authority over the people on the other. The
responses of the states to these problems have been different and
distinct from time to time. After the World War II, many of the colonies
were granted independence by their masters and the newly emerged
independent states since then had to face additional problems in terms
of establishing a representative form of government that could be
sustained over a period of time. Natural calamities and man made
disasters have contributed to the miseries of the people world over that
led to the demand for more systematic organization of governmental
powers.

The states have been performing different functions, both essential

as well as optional depending upon the circumstances. The notions of
'laissez faire' and 'welfare' states emerged and underwent transformation
in terms of the capacity of the states in discharging them and the
legitimacy of having the sovereign power over the people in discharging
the minimal functions of the state. The experiences of the past and the
contributions of political thought led to the creation of an arrangement
between the governors and the governed in a civil society that can be
termed as social contract and ultimately in the form of legal term the
'constitution' for the states. The primary object of such an arrangement
is only to control the sovereign powers of the state as against the rights
and liberties of the individuals.

In other words, constitution is an instrument through which the

legitimization of the authority of various institutions of the state, elected
or nominated takes place. It is always not necessary to have a single
written document to conduct the affairs of the state. Great Britain has no
such written constitution although Britain had attempted the first ever
written Constitution in the modern period. Constitutions have also been
the subject of comparative study by Aristotle who had compared about
164 constitutions before arriving at the classic classification of the
states. Rich traditions, customs, practices, conventions and the
legislation passed by the Parliament from time to time form part of the
constitution in Great Britain. With the United States of America adopting
the first written constitution in 1789, many states followed the suit as
they felt that it is the most convenient technique of controlling the
powers of the state as and when the state powers are exercised against
the larger interest of the society.
 The term 'constitution' has been defined in different forms and by
different writers. Generally speaking, these definitions focus on the
institutions to be created, their powers and functions, their relationship
with each other, the rights and liberties of the people as well as the
ideals sought to be achieved by the governments as mandated in the
constitution. The central theme of these definitions remains the same,
centering on the concepts mentioned above. Some of these definitions are
mentioned here to substantiate the same.

Aristotle defined the constitution, the politeia, as 'the organization

of a polis, in respect of its offices generally, but especially in respect of
that particular office which is sovereign in all issues'. 1 Aristotle's concept
of politeia, translated as constitution, refers to the whole order of things
in a city. Hegel who so profoundly influenced the nineteenth century
political philosophy, entertained a very similar idea. Accordingly,
'constitution is the basic law, that is, embodies the basic legal
conceptions of the community, their outlook on life, insofar as it can be
embodied in general legal rules'. 2 In this sense, Aristotle's conception of
the constitution that 'it is a system of fundamental political institutions
and that any kind of regime has some kind of constitution' continues to
be repeated.3Herman Finer referred to St. John's definition of the term
constitution in his book. Accordingly, 'by constitution, we mean,
whenever we speak with Propriety and Exactness, that assemblage of
Laws, Institutions, and customs, derived from certain fixed principles of
reason...that compose the general system, according to which the
community hath agreed to be governed'. 4 Similarly A. V. Dicey quoted
George III who defined constitution as the most perfect of human
formations.5 He also referred to Holland's definition that says
'constitutional law, as the term is used in England, appears to include all
rules which directly or indirectly affect the distribution or the exercise of
the sovereign power in the state'.6

A constitution is a collection of ground rules of government and

society. These rules describe the basic structures of government, its
main powers and their limits, and its general relationship to society. a
1
Ernest Barker, Editor and Translator, The politics of Aristotle, Oxford University
Press, London, 1958, p.110.
2
Carl J. Friedrich, Constitutional Government and Democracy: theory and Practice
in Europe and America, Fourth Edition, Blaisdell Publishing Company,
Massachusetts, U.S.A, 1968, p.124.
3
ibid., at 101.
4
Herman finer, Theory and practice of Modern governments, Greenwood Press,
U.S.A, 1949, p.116.
5
A.V.Dicey, Introduction to the Study of the Law of the Constitution, Oxford
University Press, London, 1969, p.2.
6
ibid., at 23.

2
constitution, then, is a foundation structure which provides support for
the more detailed rules of everyday life. a constitution must first provide
for the creation of the basic organs and institutions of public authority.
Second, it must define the powers possessed by each of the public
institutions and in some respects define the relationships between these
various institutions. Thus a constitution assigns legal responsibility,
defines the limits of authority, and establishes the processes which must
be followed before this authority can be exercised. Furthermore, a
constitutional document must provide for a method of change, both of
political leadership and of the basic constitutional framework, the latter
by way of amendment to the Constitution.7

In the evolution of the concept of modern state, Constitution

becomes the link between the collective aspirations of the people as well
as the government created by them for that objective. The three
contractual theorists, Hobbes, Locke and Rousseau attempted to explain
this in their own way. This evolution of political institutions in one form
or another explains how the people have come froward to establish the
institutions called the state and the government. This establishment of
the civil society, in whatever name it is called, establishes the
relationship between the people and the government. Dorothy M. Pickles
captures this aspect in an effective manner. According to him, 'both the
government and the people agree to bind themselves, the one to act in
accordance with the wishes of the electorate and to accept the latter's
verdict on its performance, the other to change a government which does
not meet with its approval only in accordance with a procedure laid down
in advance. The form of agreement varies. There may be a written
constitution, or written laws, supplemented to a greater or less extent by
unwritten laws, conventions, traditions and customs. But the principle
remains the same. The last word remains with the people.' 8 This
approach places the constitution in the right perspective as the link
between the people and their agent, the government.

It may be useful to think of constitutions as 'power maps' for

political systems. That is, it is often the constitution of a nation that tells
us the political 'lay of the land', and that describes the manner in which
power is distributed among the many actors in the political environment.
We look to the constitution for an explanation of who has the power to do
what, what the limitations on power are in a given political system, and
what the relationships are between and among the many political actors
we may find in a given nation. The idea of a constitution as a
fundamental expression of the power relationships in a political regime
7
David W. Elliot, Introduction to Public Law, Fourth Edition, Canadian Legal Studies
Series, Captus Press, Ontario, Canada, 1997, Pp.11-12.
8
Dorothy M.Pickles, Introduction to Politics, University Paperbacks, Methuen & Co.,
Ltd., London, 1967, p.41.

3
dates back to the time of the Greek and Roman republics; constitutions
were the focus for comparison in Aristotle's major studies of political
systems.9 Thus Gregory S. Mahler agreed with the analysis based on
power as explained by Ivo D. Duchacek. 10 He went on to describe that if a
constitution, written or not, is perceived as a framework establishing the
skeleton of a political system, the manner in which it is constructed, the
means by which it will operate, then an ideology should be perceived as
the goals of that framework.11

These definitions tend to lead us towards not only the written

Constitution but unwritten portions of a Constitution like the rules,
conventions, customs, understandings, habits or practices as well that
may regulate the conduct of various functionaries working under the
Constitution. They are not laws in the strict sense of the term and they
cannot be enforced in a court of law. At the same time these unwritten
parts of the constitution certainly provide the sense of direction as well
as the meanings to the written provisions of the Constitution. That is
why the courts in many countries have, over a period of time, started
accepting the relevance of the constitutional conventions in interpreting
the provisions of the Constitution.

Again these definitions tend to lead us to the conclusion that if

there is a written constitution, it must be in the form of a single
document like that of the Constitution of the United States of America or
that of the Republic of India. This need not be true. A Constitution of a
country might have been written down as a single document or it may
consist of a series of documents. The best illustration that can be given
for such a constitution is the Canadian Constitution. The Canadian
Constitution includes three different categories of instruments. In the
first place, it includes the Constitution Act, 1982. In the second place, it
includes a list of 30 Acts and Orders that are provided in the Schedule to
the Constitution Act, 1982 like the Constitution Act, 1867 (the British
North America Act, 1867), its amendments, the Orders in Council, the
statutes admitting or creating new provinces or altering the boundaries
and the Statute of Westminster, 1931. In the third place, it comprises
the amendments which may be made to any of the instruments in the
first two categories.12 It is also possible to have a constitution that is not
written down in one or some of the instruments, but to be found in the
statutes passed by the Parliament and other unwritten practices followed
from time immemorial like that of the constitution of Great Britain.
9
Gregory S. Mahler, Comparative Politics: An Institutional and Cross National
Approach, Prentice Hall, U.S.A, 1992, p.31.
10
for details see Ivo D. Duchacek, Power Maps: comparative Politics of
Constitutions, Santa Barbara, California, U.S.A, Clio Press, 1973.
11
Supra, n.8 at 48.
12
Peter W. Hogg, Constitutional Law of Canada, Carswell, Toronto, 1998, p.6.

4
 A written Constitution is essentially a basic or fundamental
expression of the ideas and organization of a government that is formally
presented in one single document. In this sense, constitutions are codes
of rules which aspire to regulate the allocation of functions, powers, and
duties among the various agencies and officers of government, and define
the relationship between these and the public. 13 Oftener than not,
constitution is used to designate a written fundamental law of special
sanctity (usually a single document, but sometimes a group of
interrelated documents) outlining the structure of a governmental
system, fixing the powers of the legislatures and officers and courts,
guaranteeing liberties of persons and property, and laying down more or
less extensive and detailed principles and procedures to be observed in
managing the affairs of the state.14

The word 'Constitution' has, then, for modern political science, a

very distinct meaning, namely, that of a particular organization of
government. It is understood as the process the function of which it is
not only to organize, but to restrain. It is best to define constitution in
this sense...The total complex of effective restraints which makes up the
'constitution' of a given community will necessarily crystallize into more
or less familiar word patterns, such as 'legislative, executive and judicial
power', 'state's rights', 'due process', 'freedom of speech' and so forth.
These word patterns gradually become symbols of order and thus the
constitution becomes itself a political force. 15 Carl J. Friedrich had also
referred to Prof. Holcombe's observation in this regard to explain the
nature of written constitutions. According to Prof. Holcombe, 'the
fundamentals of state governments are predetermined outside of the
conventions by public opinion…In so far as this is true, and written
constitutional charters set forth the accepted moral standards, customs
and public opinion, they themselves constitute a political force of great
influence. In a sense this is obvious; for were it not so, there would be
little sense in making constitutional charters'. 16

Based on these definitions and observations, the term constitution

can be defined so as to include: (a) a written document (with exception to
Great Britain and Israel); (b) providing for the organization, structure,
powers and functions of the three branches of government (the
legislative, executive and judicial) as well as their relationship with each
other indicating the presence of separation of powers as well as checks
and balances respectively; (c) other constitutional authorities, their
13
S.E.Finer, ed., Five Constitutions, Harvester Press, Sussex, 1979, p.15.
14
Frederic A. Ogg and Harold Zink, Modern Foreign Governments, The Macmillan
Company, New York, U.S.A, 1949, p.23.
15
Supra, n.2 at 133.
16
Ibid., at 155.

5
structure, powers and functions; and (d) the rights and obligations of
both the individuals as well as the state. In this sense, the constitution is
provided a higher status than that of the statutes passed by the
legislatures from time to time. This approach also reiterates that the
government is only a creation of the constitution and that all the
branches and institutions are restricted from exercising their power
arbitrarily as against the real sovereign, the people of the country.
Constitution, in this process, is perceived as an instrument through
which the legitimization of the authority of various institutions, elected
or nominated, takes place. It is because of this the constitution is
regarded as the fundamental law or basic law of superior obligation. In
this regard, it is necessary to point out what makes the constitution
supreme. Herman Finer, while explaining the differences in the forms of
constitutions, had observed that ' they (constitutions) arise from the
attempt practically to secure the fundamentality of the constitution, and
this is sought in three things: in writing, in the amending process and in
judicial review. Mere writing does not secure the supremacy of the
constitution…Supremacy is shown and maintained chiefly in the
amending process, which everywhere is, except U.K, made formally and
really more difficult'.17

This approach to the study of the constitution leads us to the next

question as to what should be the contents of a constitution. Here also it
is pertinent to mention the observations made by Carl J. Friedrich as to
the nature and content of a constitution. According to him, 'constitution
is a technique (or a set of techniques) for the organizing and restraining
of the government, acts of arbitrary and tyrannical violence are much
less likely to occur under a constitutional government. Moreover, a well-
drawn Constitution will provide for its own amendment in such a way as
to forestall, as far as is humanly possible, revolutionary upheavals. That
being the case, the provisions for amendment form a vital part of most
modern constitutions…Constitutions are now rarely made without some
thought being given to this problem. But no matter how elaborate the
provisions for amendment may be, they should not be assumed to have
superseded the constituent power. The relation and the difference
between the amending power and constituent power is brought out with
particular vividness by the constitutional history of Switzerland… The
constitutional amending power proved sufficient to make necessary
changes… For the constituent group in the exact sense is to be
understood as that part of the community which is capable of wielding
the de facto residuary power of changing or replacing the constitution of
an existing political order by a new constitution'. 18 In other words, it
would be safe to observe here that the institutions created by the

17
Supra, n.1 at 156.
18
Supra, n.2 at 137.

6
constitution cannot have the power to destroy the constitution by their
actions. At the same time, it does not mean that the constitution cannot
be amended at all to keep strides with the changing social, economic and
political circumstances in the society. Under such circumstances, the
constitution can be amended in accordance with the procedures
prescribed in the constitution itself.

The Constitution, whether written or unwritten, contains several

functions to be performed by different agencies and institutions as well
as the objectives or ideology as approved by the framers of a particular
constitution. Even the first written constitution attempted in England in
1649 illustrated the presence of the objectives or the purposes for which
it was made. The Preamble of that constitution of 1649, apart from
indicating the objectives also indicated as to why the written
constitutions are desired. The Preamble of Oliver Cromwell's Constitution
that lasted only for four years mentioned that 'to take the best care we
can for the future, to avoid both the danger of returning into a slavish
condition and the chargeable remedy of another war. We are fully agreed
and resolved (there is the stuff of written constitutions), God willing, to
provide, that hereafter our representatives be neither left to an
uncertainty for times nor be unequally constituted, nor made unless to
the ends for which they are intended. In order where unto we declare and
agree'.19

Gregory S. Mahler attributed five different functions of the

constitution. According to him, 'several functions can be attributed to
those political structures that we call constitutions, whether they are
written or unwritten, whether they are followed or not, wherever they
may be found. First, they serve as an expression of ideology and
philosophy. Second, constitutions serve as an expression of the basic
laws of the regime. These laws play a central role in the regime and are
often so special that they can be modified or replaced only through
extraordinary amendment procedures. These special laws usually focus
upon the rights of citizens and so on. Third, constitutions provide
organizational framework for governments… Constitutions will discuss
power relationships among the actors in the political system, covering
the legislative process, the role of the executive in the policy formulation,
checks and balances among the actors, etc. Fourth, constitutions
usually say something about the levels of government of the political
system Finally, constitutions have an amendment clause'. 20

Based on these propositions, it can be observed that a written

constitution provides for the following:

19
Supra, n.4 at 120.
20
Supra, n.8 at 34-35.

7
1. A preamble specifying the objectives, broader ideologies, goals as well
as the source of the sovereign power;
2. The structure, powers and functions of the three branches of the
government at the national level;
3. The structure, powers and functions of the other constitutional
authorities or functionaries like the Election Commission, Public
Service Commission, Comptroller and Auditor General and the like;
4. The relationship among the three branches of the government (checks
and balances) on the one hand and their relationship with the other
constitutional functionaries or institutions on the other;
5. Provisions relating to the other levels of government within the
framework of the constitution. It should be kept in mind that it is
always not necessary to mention about the levels of government in
greater detail. The American Constitution speaks about the federal
units but does not specify the method and manner in which they have
to work. It is left to the independent constitution of each of the fifty
states. On the other hand, the Indian Constitution contains
provisions relating to the state governments and the local self
governments as well;
6. The rights and obligations of both the people and the governments. If
the constitution is silent about either of them or both of them, there
may be other amendments to the constitution and statues enacted
subsequently to ensure the same. The first ten amendments to the
Constitution of the United States of America called the 'Bill of Rights,
1792', the Canadian charter of Rights, 1982, Part III on Fundamental
Rights, Part IV on Directive Principles of State Policy and Part IV-A on
Fundamental Duties under the Indian Constitution are examples of
such rights and obligations imposed under the constitutions;
7. Procedure(s) to amend the constitution from time to time. Without
this the constitution would remain a static document and when
frequently used it might lead to other consequences; and
8. Provisions relating to the emergency powers to be exercised within the
framework of the Constitution.

These propositions are not exhaustive. One may add any number of
other requirements as well. However, these propositions are very
important to keep the government going as well as to check the arbitrary
use of power by any other agencies or institutions created under a
constitution.

Against this backdrop, it would be possible to observe that the

Constitution provides for many important relationships not only between
the people and the government, but also among the different
functionaries and levels of government. However, it must be understood
with a rider. That is, whatever is provided in the constitution, though

8
final, may or may not be followed by the governmental agencies, in
practice. This aspect in fact brings the gap between the theory and
practice of any constitution in the world to day. This is because of the
reason that the efficacy of the written provisions depends upon the
people discharging different functions of the government. According the
Dorothy M. Pickles, 'of themselves, constitutions cannot guarantee
anything. Whether they work well or badly, depends much less on the
text of the constitution, on whether it is technically well or badly drawn
up, than on the spirit in which it is applied by the men whose function it
is to apply it.' Elaborating the nature of the constitution he observed that
'A constitution can only be a general framework, a statement of guiding
principles of government and of the machinery through which the
principles are to be applied. It cannot be a set of tramlines along which
governments are forced, willy-nilly, to proceed. Constitutions allow more
or less latitude for adaptation and improvisation. For ideas and needs
change with the generations and if they are not adapted to respond to
these changing needs, they become restrictive rather than liberating
influences. On the other hand, if a constitution is too easy to change, it
affords opportunities for unscrupulous governments to abuse both its
spirit and its letter'.21

Thus the Constitution as the basic document of a country need not

be perfect in every sense. It only indicates the exact nature of the
consensus arrived at in its drafting and acceptance by the framers of the
constitution. From this brief discussion on constitution, the focus now
must be shifted to understand the sources of a constitution. In the event
of the presence of a single written document of the constitution, that text
alone would form the substantive source of the constitution. If it is not,
then a series of statutes passed by the appropriate legislature would take
its place as the source of the constitution. The illustration of the
Canadian constitution mentioned earlier is one example. In United
Kingdom, the Bill of Rights 1689, the Act of Settlement 1701,
Representation of People Act and its amendments made from time to
time down to the Crown Proceedings Act 1947 would be the important
source of the British Constitution. Apart from this, wherever there is a
written constitution, certain other statutes passed by the legislature to
give effect to the provisions of the constitution would also form an
essential source of the constitution. For example, the Reorganization of
States Act 1955, the River Boards Act 1956, the River Water Disputes
Act 1956, the Judges (Inquiry) Act 1965 and the like would also be
considered as the sources of the Indian Constitution.

Apart from this, there are certain practices and customs that
revolve around the functionaries of the government or in maintaining

21
Supra, n.8 at 161.

9
relationships among them. These practices and customs are called as
constitutional conventions. These conventions exist predominantly in an
unwritten constitution. However, they do exist in all the written
constitutions as well because of the fact that all the aspects of
governmental functions cannot be captured in the written provisions of a
constitution. A.V.Dicey described them as constitutional conventions.
K.C.Wheare described conventions as a binding rule, a rule of behaviour
accepted as obligatory by those concerned in the working of the
constitution.22 Julius Stone described constitutional conventions as the
group ethical conviction which tempers power in a democracy. 23 C.F.
Strong, while explaining the force behind these conventions observed
that 'the force at the back of the law has always been a social force. The
social force by itself, however, is merely custom. Whenever a society,
however rudimentary, exists and there will develop customary ways of
carrying on social activities. A body of customs develop, forming a sort of
unwritten code enforced by some pressures such as parental or religious
authority, or the opinion of the community concerned. Some of these
customs may be found to have such a wide application for the general
welfare that some stronger pressure than mere social authority or
opinion is necessary to get them universally obeyed. These customs then
cease to be social and become political-in fact, laws- being enforced by a
constituted government'.24 Thus the constitutional conventions play a
very important role in the working of a constitution, even if it is a written
constitution. In other words, the constitutional conventions become an
unwritten part of the constitution as well as a source of the constitution.
The courts in India have acknowledged the importance of these
constitutional conventions in many a decision. 25

Another important source of the Constitution is the judicial

decisions in interpreting the provisions of the Constitution. Whenever the
provisions of the constitutions are found vague or giving two or more
meanings or conflicting with other provisions of the constitution, the
decisions given by the highest court of the land set right the conflicts.
Once the highest court gives such an interpretation, they continue to
guide similar situations till they are specifically overruled by the superior
court. As such, the precedents established by the superior court would
also become the source of the constitution. Apart from these sources, the
proceedings in the drafting of the constitution, the amendments made to
22
K.C.Wheare, Modern Constitutions, Oxford University Press, Bombay, 1984,p.122.
23
Julius Stone, Social Dimensions of Law and Justice, Maitland Publications Private
Limited, Sydney, 1966, p.624.
24
C.F.Strong, Modern Political Constitutions, M.G.Clarke & ELBS, London, 1973,
Pp.5-6.
25
M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395; Ram Jawaya Kapoor v.
State of Punjab, AIR 1955 SC 549; Shamsher Singh v. State of Punjab, AIR 1974 SC
2192; U.N.R.Rao v. Indira Gandhi, AIR 1971 SC 1002; and Supreme Court
Advocates on Record Association v. Union of India, 1993 (Supp) SCALE 1.

10
the constitution from time to time and the reports of important
commissions and committees would also serve as sources of the
constitution. However, in the interpretation of the provisions of the
constitution, it would also be possible for the courts to refer to the
decisions delivered by the superior courts in other countries as well
depending upon their importance and relevance.

Constitutional law, therefore, includes along with the text of the

Constitution, the statutes passed by the legislature, enormous amount of
rules, regulations, bye-laws, orders and notifications issued under each
of the statutes, constitutional conventions or customs having the force of
law and judicial decisions. England may not have a written Constitution
in the strict sense, but it has a well developed constitutional law. India
has both a written Constitution and constitutional law as well.

Along with this, there is also the need to understand the meaning
of the phrase 'constitutionalism'. As the governments created by the
constitution are limited governments as explained earlier, they are also
called as 'constitutional governments'. In this context, the phrase
constitutionalism generally would mean the refinement of the
government. As such, constitutionalism provides the setting for social,
economic, political and technological changes to be absorbed in to the
political system without disturbing the constitutional balance. In the
words of Carl J. Friedrich, constitutionalism is an achievement of the
modern world. It is a very recent achievement and it has by no means
become stabilized. Indeed it is a complex system of providing for orderly
change, and there is no reason for assuming that the need for change
will come to an end in the immediate future. 26 Constitutionalism has
been traced in its relation to liberalism, to rationalism and to
individualism. The central theme of constitutionalism seems to lie in its
constant attempt to improve the performance of government so that it is
able to deliver goods. In this sense, constitutionalism by dividing power
provides a system of effective restraint upon governmental action. In
studying it, one has to explore the methods and techniques by which
such restraints are established and maintained.27

In this sense, there exists a distinction between constitution and

constitutionalism. A state may have a good constitution but the same
state may have an authoritarian regime indicating the absence of
constitutionalism there in that state. In other words, constitution
provides for the powers and functions of the government along with the
restriction imposed on them in its text whereas constitutionalism
attempts to realise those restrictions in practice. The aim of

26
Supra, n. 2 at 4.
27
Ibid., at 24.

11
constitutionalism can be best described as a constant and ongoing
attempt to establish a responsible government in every possible manner.
A written constitution, independent judiciary with powers of judicial
review, the doctrines of rule of law and separation of powers, free
elections to legislature, democratic government, fundamental rights of
the people, federalism are some of the principles and norms which
promote constitutionalism in a country. 28 In yet another sense, it may be
observed that constitutionalism brings out the distinctions in the
government of a state based on its functioning in theory and in practice
as well as consequences arising out of such distinctions.

Carl J. Friedrich had observed that 'in the course of development

of modern governments, it has become increasingly clear that a political
order may be organized in such a way that power may be wielded
effectively any yet be restrained in its exercise …Constitutionalism came
to mean this conviction, and to constitutionalize a government meant to
subject it to such restraints. It was, of course, always understood that
such restraints must not prevent the government from operating well'.
Adding to the developments, he had also observed that 'the rise of
modern constitutional government has been accompanied by the
establishment of an increasing number of federal schemes. The parallel
is so striking that federalism must be considered one of the most
important aspects of constitutionalism. Federalism must be seen as a
dynamic process and not merely as a static design'. 29

Constitutionalism sees the government as the servant of society,

not its master. The government may exercise authority and even use
coercion but it does so according to rules set out in the constitution and
abides by judicial interpretation of its actions. 30 All constitutions are
ultimately a manifestation of an underlying attitude or spirit of
constitutionalism. This is the belief that government is not the master of
society but an instrument within it. It exercises the powers of authority
and coercion for the general welfare by doing things that other agencies
cannot do; but it is still part of society, not elevated above it. It is, to use
another expression, a limited state.31 This idea of the restriction of the
powers of the king or the governor by law has been advocated even
during the evolution of the constitution itself. Sir Edward Coke (1552-

28
M.P.Jain, Indian Constitutional Law, Fourth edition, N.M.Tripathi Private Limited,
Bombay, 1987, p.4.
29
Supra, n. 2 at 125, 188.
30
Robert J. Jackson and Doreen Jackson, Contemporary Government and Politics:
Democracy and Authoritarianism, Prentice Hall Canada Inc, Ontario, Canada, 1993,
p. 168.
31
Mark O. Dickerson and Thomas Flanagan, An Introduction to Government and
Politics: A Conceptual Approach, Methuen Publications, Toronto, Canada, 1982, p.
43.

12
1634), James Harrington (1611-1677) and Richard Hooker and John
Locke (1632-1704).32

Once the constitution is written down specifying the relationship

between the governor and the governed as well as the required
organizational set up for the government, the constitution becomes the
basic law of the land. However, questions challenging the constitution
and its source have been raised time and again in almost all the
countries. The binding nature of the Constitution, entered into by the
people at a given point of time, over the subsequent generations has also
been questioned. Edmund Burke, in his Reflections on the French
Revolution, has given the best possible response to such a question.
According to him, 'state is like a partnership agreement, not only of the
people who lived and gone, but also between those who are to come into
the society in the future'.33 Other writers have referred to the same by
describing the constitution as a living document.

According to Carl J. Friedrich, 'constitution embodies a system of

power relationships which has been effectively institutionalised. No
countervailing power or other amorphous influence, no matter how
effective, satisfies the requirements which the concept of a constitution
meant to denote. The ideological justifications for such a system, as well
as the thoughts associated with its practice, embody the meaning of
constitutionalism. Although some of these ideological and behavioural
projections have treated a Constitution as a static given, as something
which never or very rarely changes, a Constitution is, on the contrary, a
living system. To be sure, the basic structure or pattern may remain even
though the different component parts may undergo significant alteration.
How very different is the American Congress today than it was after
1787; how profound are the alterations which the British Parliament has
undergone during the same period! And yet, both still constitute vital
parts of the evolving constitution. 34 Julius Stone and Jerome Hall have
also made significant contributions to this concept of living constitution.
Thus the constitution, however old, would continue to be the supreme
law of the land taking the changes that take place with in a given society.

32
Michael Curtis, ed., The Great Political Theories, Vol.1, Avon Books, New York,
1981, Pp.357-360.
33
Edmund Burke, Reflections on the French Revolution, .. p.
34
Supra, n. 2 at 29.

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