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Introductory Note
Introductory Note
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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
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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
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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
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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
17
Supra, n.1 at 156.
18
Supra, n.2 at 137.
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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.
19
Supra, n.4 at 120.
20
Supra, n.8 at 34-35.
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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.
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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
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.
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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
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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.
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
26
Supra, n. 2 at 4.
27
Ibid., at 24.
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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.
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.
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1634), James Harrington (1611-1677) and Richard Hooker and John
Locke (1632-1704).32
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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