This article is written by Adhila Muhammed Arif, a student of Government Law College, Thiruvananthapuram. This article seeks to explain what a constitution is and its relevance in the modern-day world.
This article has been published by Shoronya Banerjee.
Table of Contents
Introduction
In the words of B.R. Ambedkar, “Constitution is not a mere lawyer’s document, it is a vehicle of Life, and its spirit is always the spirit of Age.” The presence of a constitution has become extremely relevant in the modern-day world. It is extremely rare to find a country, particularly a democratic one, that functions without a constitution. In every country, the interests of the citizens must always be given their due weight and must be protected from arbitrary actions of those in power. It is crucial for a country to have its sovereignty intact to have political stability. That is, the relationship between the states and the subjects and also among the subjects, and the subjects should be properly defined. A constitution is essentially a tool to ensure the political stability of a state.
What is a constitution
A constitution is essentially the aggregate of the basic principles and laws of a political community, which is either a nation or a state, that determines the powers and duties of its government and the rights guaranteed to its citizens. It determines the structure and operation of government bodies and the political principles of the system. According to Lord Bryce, “the Constitution of a State or a nation consists of laws or rules that determine the form of its government and respective rights and duties of it towards the citizens and citizens towards the government.” Generally, all other laws are subordinate to the constitution. That is, all other laws must be in conformity with the constitution in order to be valid.
When a government is fully operating and limited according to the constitution, we could say that the system of that political society is a constitutional system. The concept of a government limited by a constitution is called constitutionalism. Constitutional systems are not always necessarily democratic as even non-democratic nations can have their own constitutions and abide by them. A political system that is non-democratic but practises constitutionalism is called constitutional oligarchy.
Types of constitution
The following are some of the different categories by which constitutions may be classified:
1. Written and unwritten
A constitution is usually codified in a single document or in different documents that can be collectively called the constitution. Most constitutions in the world are written, or codified in a single document. The Indian Constitution is a written constitution, i.e., it is codified into a single document. Some nations have unwritten or uncodified constitutions, for instance, the Constitution of the United Kingdom. In the United Kingdom, historical constitutional documents, judicial precedents of constitutional significance, parliamentary statutes of constitutional status, and constitutional customs and conventions are what collectively represent its constitution.
2. Rigid and flexible
Constitutions that are rigid are extremely difficult to amend while flexible constitutions are not. The amendment procedure for rigid constitutions is not the same as amending an ordinary law. The Indian Constitution is considered to be balanced between both flexible and rigid. That is, the constitutional amendment procedure in India, though separate, is not too hard. It simply requires a two-thirds majority of all the votes in the parliament.
3. Unitary and federal
A constitution is categorised into unitary or federal based on how the government’s powers are divided and the degree of centralisation of powers. In unitary systems, the central government is supreme and all the powers of the lower governments are delegated to them by the central government. In federal systems, on the other hand, there is a clear division of powers between the central government and the lower governments. The central government in a federal system cannot take away the powers of the lower governments. The Indian Constitution designed the Indian political system to be quasi-federal, i.e., there is a clear division of powers between central and state governments, with the Central Government being visibly much more powerful.
4. Parliamentary and presidential
Most countries in the world either have parliamentary or presidential forms of government, which are decided by their constitutions. In presidential governments, the executive branch is completely separate from the legislature, whereas in parliamentary governments, the executive branch is connected to the legislature. The Indian Constitution has designed India to have a parliamentary form of government.
5. Prescriptive and procedural
Constitutions can also be classified into procedural and prescriptive on the basis of nature and purpose. Procedural constitutions define the legal and political structures of government institutions and set out the limits of the government’s power. This is done in order to protect democratic processes and fundamental rights. In situations where the constitution-makers cannot reach a consensus on the values that the State must identify with or work towards, it is better to limit the constitution to a procedural document. An example of a procedural constitution is the Canadian Constitution, 1982. The Constitution of Canada does not envision a good society. It merely commits itself to settle disputes and policy issues. Prescriptive constitutions do not touch upon the concept of nation-building. Prescriptive constitutions, on the other hand, emphasise the state’s identity and goals. The constitution-makers envision some common values and aspirations and impose them on the State. The State must consider these values and goals while legislating on socio-economic matters. The South African Constitution, 1996 is an example of a prescriptive constitution. It is not necessary that a constitution should fit into any single category alone. Many constitutions have both prescriptive and procedural features. The Indian Constitution seems to contain both prescriptive and procedural elements.
Functions of a constitution
The following are some of the functions of a constitution:
1. Defining boundaries of the political community
A constitution defines the geographical and extra-territorial boundaries of the nation or state. It can also define and set criteria on who can be called a ‘citizen’ of that nation.
2. Defining basic structure authority of the political community
There are some essential characteristics of the political community, such as the form of government that are set out by its constitution, that is fundamental to its working. For instance, the Indian Constitution sets out the basic structure on which the Indian political system functions, which constitutes the secular nature of the constitution, separation of powers, federalism, democracy, a welfare state, etc.
3. Defining authority of the political community
Most constitutions also declare on whom the sovereignty of the political community rests. The Indian Constitution in its Preamble has declared that the sovereignty of India rests on its people.
4. Defining ideals of the political community
There are certain ideals that the constitution-makers of a political community aspire for their land, such as justice, equality, fairness, etc., which are declared in the constitution. For example, the basic principles declared in the Indian Constitution are secularism, socialism, equality, etc.
5. Defining identity of the political community
Some constitutions may also define the national flag, anthem, emblem, and symbols that represent the nation-state.
6. Declaring and defining rights and duties of the citizens
Most constitutions declare certain basic or fundamental rights that are available for the citizens of the country. These are drafted with the objective of restraining the power that the State has over its subjects and its responsibility of protecting their dignity as individuals. Generally, they are basic liberties that are essential in a democracy. For instance, freedom of speech, freedom of religion, right to life, etc. Some constitutions have even declared rights that are specific to marginalised communities. Part III of the Indian Constitution declares and defines the fundamental rights guaranteed to all the citizens in India.
7. Establishing and regulating political institutions
Constitutions define the different organs of the government, their composition, their powers, the relationship amongst them, etc. It designs the legislature, the executive, and the judiciary, and how they should operate. There can also be institutions that ensure free and fair elections, transparency of the government, etc. It could also provide for elections and impeachment of those in power and their procedures.
8. Deciding on the division of powers between different levels of government
Constitutions design the form of government to be either unitary or federal. Many constitutions have declared their forms of government as federal or quasi-federal. In such political systems, it is necessary to have a fixed list of subjects for each level of government, so that there is stability in the political system and the Central Government does not overshadow the lower levels of the government.
9. Declaring the State’s relationship with religion
Most constitutions declare their nation-states as secular or as associated with a particular religion. The Indian Constitution has declared India to be a secular country. That is, the State does not favour any religion. In theocratic states, religious law decides on personal status and disputes between individuals.
10. Declaring the State’s commitment to certain socio-economic goals
The constitution-makers may also include certain developmental goals for the State to work towards for the welfare of its people. Part IV of the Indian Constitution contains the Directive Principles of State Policy, which essentially aims at ensuring that the people of India receive socio-economic justice.
Why do we need a constitution
The following are some of the reasons why it is good to have a constitution:
1. Preventing despotism
A constitution gives a foundational structure for its political community. It decides what form of government it should follow and its roles in the political community, along with the limitations on its authority. This helps in preventing the government from acting arbitrarily. This would prevent those in power from getting too powerful and oppressive. Constitutionalism is the opposite of despotism. Despotic governments are governments that are not bound by any higher law or a constitution. Such governments govern with the intent of securing their selfish interests, even at the cost of the basic human rights of their subjects.
2. Balanced government
A constitution helps in separating and distributing power or authority among the institutions of the government. It ensures that all these institutions are restricted in their power and also check and restrain each other. This prevents the domination of any institution over the others. It prevents the exercising of unchecked political power.
3. Constitution as a social instrument
Another crucial purpose of a constitution is to provide a framework for socio-economic development. Many constitutions across the world, particularly the Indian Constitution, have been significant in ensuring that marginalised groups receive equality and justice. The Directive Principles of State Policy in Part IV of the Indian Constitution have motivated the government to create laws that serve as instruments for protecting the environment, upholding labour rights, promoting free access of education to children, etc.
4. Stable government and protecting sovereignty
Since a Constitution serves the purpose of setting the social and political basis for a political community, it ensures political stability and keeps the community’s sovereignty intact. If a nation does not have a strong political structure, it is more vulnerable to the attacks of external powers. Thus, political communities that do not practice constitutionalism are more likely to crumble.
5. Upholding human rights and democratic values
Constitutions are of great importance in the modern democratic world. The constitutions in many democratic nation-states serve the purpose of ensuring that the procedure of selecting those in power is uncorrupt and fair. It also grants people their right to vote and freedom to express their criticism of those in power. Elections, representative government, and the right to criticise those in power are the fundamental characteristics of a democratic society. Constitutions also serve the purpose of guaranteeing the fundamental human rights of citizens. This is essential to ensure that the government does not function in a way that compromises the interests of its subjects.
Conclusion
To conclude, the presence of a constitution is relevant in any modern democratic State in order to ensure that the principles of democracy are always upheld. It serves the purpose of limiting the government and distributing and separating powers among different organs and institutions of the government. It has a huge role in maintaining a balanced government. Constitutions are also frameworks for socio-economic development and protecting and upholding human rights.
References
- https://www.idea.int/sites/default/files/publications/what-is-a-constitution-primer.pdf
- https://www.thehindu.com/opinion/columns/why-we-need-a-constitution/article24361253.ece
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