Constitution: meaning, kinds and constitutionalism - Constitutional Law I

Where this sits. Unit I of Constitutional Law I opens with the meaning and definition of a Constitution before it reaches the Preamble, citizenship and Article 12. Everything later in the paper — Article 13, the amending power, the basic structure — is an application of the idea introduced here, so it repays reading properly rather than memorising.

1. What a Constitution is

A Constitution is the body of rules by which a State is governed: it creates the organs of government, distributes power among them, and fixes the limits of that power. Two definitions are worth carrying into the examination hall.

K.C. Wheare described a Constitution as the whole system of government of a country, the collection of rules which establish and regulate or govern the government. The emphasis is on system: not one document, but the entire arrangement by which a country is governed.

A.V. Dicey put it differently, as those rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State. Dicey's emphasis is on power — who holds it, and how it is exercised.

Put the two together and a Constitution does three things at once. It constitutes the organs of the State, bringing legislature, executive and judiciary into legal existence. It distributes power among them, and in a federation between the Union and the units. And it limits that power, by declaring what the State may not do at all. The third function is where this topic becomes interesting, and it is the seed of constitutionalism.

Constitution and ordinary law

A Constitution is not simply the oldest statute on the shelf. It is the source from which every other law draws its validity, which is why Article 13 renders inconsistent laws void, and why the Constitution cannot be amended by the ordinary legislative process that produces other statutes. Where an ordinary law and the Constitution collide, the Constitution prevails and the law falls.

2. Kinds of Constitution

The classifications overlap; a single Constitution belongs to several categories at once. Examiners usually want the pairs, an example of each, and India's position.

Written and unwritten

A written Constitution is contained in a document or a set of documents deliberately enacted at an identifiable moment — India, the United States. An unwritten Constitution is scattered across statutes, judicial decisions and conventions that have accumulated over time, the United Kingdom being the standing example.

The distinction is one of degree, not kind. No written Constitution is wholly written: much of how India is actually governed — the Council of Ministers' collective responsibility in practice, the conventions surrounding a Governor's discretion — rests on convention. Equally, no unwritten Constitution is wholly unwritten; the Magna Carta and the Bill of Rights 1689 are written instruments. The better description is codified and uncodified.

Rigid and flexible

The test is the procedure for amendment, not the frequency of amendment. A rigid Constitution requires a special procedure — a special majority, or ratification by the units. A flexible Constitution can be altered by the ordinary law-making process, as in the United Kingdom, where no Parliament can bind its successor.

Be careful with a common error: India is often called rigid, but Article 368 provides three routes. Some provisions are amendable by a simple majority, others by a special majority of each House, and a third category needs a special majority plus ratification by the legislatures of not less than one-half of the States. The Indian Constitution is therefore partly rigid and partly flexible, and the frequency with which it has been amended shows that rigidity was never absolute.

Federal and unitary

In a federal Constitution power is divided between a central government and units, each supreme within its own sphere, with the division guaranteed by the Constitution itself and policed by the courts. In a unitary Constitution all power vests in the centre, which may devolve authority but can also withdraw it.

India has the marks of a federation — a written Constitution, a division of legislative power in the Seventh Schedule, an independent judiciary to arbitrate. It also carries strong unitary features: a single citizenship, Governors appointed by the Union, Parliament's power to legislate on State subjects in the circumstances of Articles 249 and 250, and above all the emergency provisions and Article 356. Wheare's description of India as quasi‑federal is the usual shorthand.

The Supreme Court's own position is that federalism is not merely descriptive but part of the basic structure. In S.R. Bommai v. Union of India, 1994 INSC 111, (1994) 3 SCC 1, the Court held that federalism and secularism are basic features, and that a proclamation under Article 356 is open to judicial review. That case is the answer to any question asking whether India's federalism is real or nominal.

Other pairs worth a line each

Evolved and enacted. An evolved Constitution grows by custom and precedent (the United Kingdom); an enacted one is framed by a body at a moment in time, as the Constituent Assembly framed India's.
Monarchical and republican. The test is whether the head of State holds office by inheritance or by election. India is a republic, which the Preamble declares.
Presidential and parliamentary. Whether the executive is separate from and not answerable to the legislature (United States), or drawn from it and collectively responsible to it (India, United Kingdom).

3. Constitutionalism

Constitutionalism is the doctrine that governmental power must be limited by law, and that those limits are enforceable. It is not a synonym for having a Constitution. Its usual formulation is limited government: the governed are protected not by the goodwill of those who govern, but by legal restraints they cannot lawfully escape.

The line that earns marks. Every State that has a government has a Constitution of some sort. Not every State has constitutionalism. A Constitution that confers unlimited power on a ruler, or one whose guarantees cannot be enforced against the State, is a Constitution without constitutionalism.

The elements usually listed are a written Constitution as fundamental law, separation of powers so that no single organ is judge in its own cause, the rule of law, an independent judiciary with the power of judicial review, justiciable fundamental rights, free elections, and in a federation a guaranteed division of powers.

Constitutionalism in the Indian Constitution

India's claim to constitutionalism does not rest on the Preamble's promises alone; it rests on the fact that those promises are enforceable against the State. Article 13 makes laws inconsistent with fundamental rights void; Articles 32 and 226 make the guarantee reachable; and the amending power itself has been held to be limited.

That last point is the heart of the topic, and it was settled through a line of cases.

In I.C. Golak Nath v. State of Punjab, 1967 INSC 45, AIR 1967 SC 1643, an eleven-judge Bench held that Parliament could not amend the Constitution so as to take away or abridge fundamental rights. The protection was real but brittle, because it rested on placing fundamental rights wholly beyond amendment.

The position was recast in Kesavananda Bharati v. State of Kerala, 1973 INSC 91, (1973) 4 SCC 225. A thirteen-judge Bench — the largest ever constituted — held by a majority of 7:6 that Parliament's power to amend under Article 368 is wide but not unlimited: it does not extend to altering the basic structure of the Constitution. Golak Nath was overruled, yet the limitation survived in a more durable form, because it no longer depended on freezing any particular Article. This is the single most important authority in the paper.

The doctrine was then applied to the amending power itself. In Minerva Mills Ltd. v. Union of India, 1980 INSC 142, (1980) 3 SCC 625, the Court struck down clauses (4) and (5) of Article 368, inserted by the Forty-second Amendment, which had purported to place amendments beyond judicial review and to declare the amending power unlimited. The reasoning is worth remembering as a sentence: a limited amending power is itself a basic feature, so Parliament cannot use that power to make itself unlimited. The Court also held that the balance between fundamental rights and the directive principles is part of the basic structure.

Finally, in I.R. Coelho (dead) by LRs v. State of Tamil Nadu, 2007 INSC 28, (2007) 2 SCC 1, a nine-judge Bench held that laws placed in the Ninth Schedule after 24 April 1973 — the date of the judgment in Kesavananda — are not immune from challenge, and may be tested against the basic structure. The Ninth Schedule, in other words, is not a place where a law can be put beyond the Constitution.

4. Pulling it together

The three parts of this topic are one argument. A Constitution constitutes, distributes and limits power. The kinds of Constitution describe how different systems perform those functions. Constitutionalism asks whether the third function — limitation — is real. India answers yes, and the proof is that the Supreme Court has told Parliament there are amendments it cannot make.

How this is examined

The topic appears in two shapes. As a short note, usually on constitutionalism, on kinds of Constitution, or on the distinction between a written and an unwritten Constitution. As an essay, usually inviting you to discuss whether merely having a Constitution secures constitutionalism, or to classify the Indian Constitution and justify the classification.

Three things to get right whatever the shape of the question:

Give a definition and attribute it. Wheare and Dicey are enough; a definition without a name attached reads like a paraphrase.
Take a position on India rather than listing features. India is quasi-federal, and partly rigid and partly flexible — say so, then justify it.
Carry at least Kesavananda and Minerva Mills into any answer on constitutionalism. An answer that describes limited government without showing where an Indian court enforced the limit is an answer about theory only.

Now go and read the questions themselves: Constitutional Law I past question papers.