FL – 2 CONSTITUTIONAL LAW – 1

SEMESTER 1
AKSHARA B. FACULTY OF LAW
CONSTITUTION – Meaning
CONSTITUTION

the basic principles and laws of a

nation, state, or social group that
determine the powers and duties
of the government and guarantee
certain rights to the people in it
 Constitution

A Constitution is a document of people’s faith and aspirations possessing a

special legal sanctity.

It is the fundamental law of a country and all other laws and customs of the
country in order to be valid must confirm to it.

It sets out the framework and the principal functions of various organs of the
Government, as well as relations between the government and its citizens.

GOOGLESCHOLAR
What is Constitution?

Dr. Wheare definition

• Two different sense
• In broad sense – it implies whole system of the
government of a country , the collection of rules
which establish and regulate the govt.
• In narrow sense – rules and principles which are
usually embodied in one or more related documents.
Types of Constitutions
Types of Constitutions
Written Constitutions

Unwritten Constitutions

Unitary Constitutions

Federal Constitutions

Parliamentary Constitutions

Presidential Constitutions

Flexible Constitutions

Rigid Constitutions

Socialist Constitutions

Codified Constitutions

Uncodified Constitutions
Written Constitutions

codified form in a single document

Eg. the United States Constitution, the German Basic Law, and the Indian Constitution.

Articulate the fundamental principles, structures, and processes of government, providing

clarity, specificity, and permanence to the legal and political landscape.

explicitness and clarity.

written constitutions establish a foundation for governance that is transparent and accessible
to all citizens.

prevent ambiguity and dispute over the interpretation of fundamental laws, ensuring stability
and predictability in the functioning of government.
 Written Constitutions

embody a social contract between the state and its citizens, delineating the rights,
duties, and responsibilities of each party.

establish limits on the exercise of power and provide mechanisms for the protection of
individual rights. For example, the Bill of Rights in the United States

clear, comprehensive, and enduring frameworks for government.

Through their explicitness, enforceability, and adaptability, written constitutions

uphold the rule of law, protect individual rights, and promote stability and democracy
within societies.
 Unwritten Constitutions

evolve over time through a combination of historical precedent, legal conventions, and judicial decisions.

Eg. the United Kingdom, New Zealand, and Israel

constitutional principles are dispersed across various statutes, common law traditions, and institutional practices.

primary characteristic -flexibility and adaptability.

constitutional norms and practices emerge organically from historical developments and societal customs.

This flexibility allows to evolve gradually in response to changing circumstances and values, without the need for formal
amendment processes.

For example, in the United Kingdom, constitutional conventions such as the principle of parliamentary sovereignty and the
role of the monarchy have developed over centuries through custom and practice rather than explicit legal provisions.
 Unwritten Constitutions

the lack of codification in unwritten constitutions can also pose

challenges.

Without a single document to serve as a reference point, constitutional

norms may be subject to interpretation and dispute.

may lack specificity and clarity in certain areas, leading to ambiguity and
uncertainty in legal and political affairs.

foster a sense of continuity and tradition, reflecting the historical

evolution of legal and political institutions over time.

represent a unique approach to governance, characterized by flexibility,

adaptability, and historical continuity.
Unitary Constitutions

centralize governmental authority at the national level, with subordinate regional

or local governments deriving their powers from the central government.

This model is prevalent in nations with homogenous populations and centralized

administrative structures, such as France, Japan, and Italy.

ensure uniformity in governance, streamline administrative processes, and

facilitate centralized decision-making.

concentration of power in the hands of the central government.

the central government possesses authority over a wide range of policy areas,
including education, healthcare, and law enforcement.
Unitary Constitutions

promotes administrative efficiency and coherence, as it eliminates duplication of

government functions and ensures consistency in the application of laws and
regulations.

facilitate national unity and territorial integrity by promoting a common legal and
political framework across the entire territory of the state.

helps to mitigate regional disparities and promote solidarity among citizens from
different regions.

provide a centralized approach to governance that promotes administrative

efficiency and national unity.
 Federal constitutions
distribute governmental powers between central and regional authorities, creating a system of
shared governance and dual sovereignty.

Eg.United States, Canada, Germany, and Australia operate under federal systems.

foster diversity, accommodate regional differences, and provide safeguards against the
concentration of power at the national level.

One of the key features of federal constitutions is the division of powers between the central
government and state or provincial governments.

This division ensures that each level of government has its areas of jurisdiction, allowing for a
balance of authority and preventing the dominance of one level of government over the other.

mechanisms for cooperation and coordination between federal and regional authorities, ensuring
that governance decisions reflect the diverse needs and preferences of the population.
Federal constitution
promote regional autonomy and diversity by allowing states or provinces to
enact laws and policies tailored to their unique circumstances.

helps to address regional disparities and promote innovation and

experimentation in governance.

provide safeguards against the abuse of power by the central government, as

regional governments serve as checks on federal authority.

The division of powers between central and regional authorities can lead to
jurisdictional conflicts and administrative complexities.

provide a framework for shared governance that accommodates regional

diversity and promotes cooperation between central and regional authorities.
Parliamentary Constitutions

represent a form of government where the executive branch derives its legitimacy and
authority from the legislative branch.

prevalent in parliamentary democracies such as the United Kingdom, Canada, India,

and Australia

emphasizes the principle of legislative supremacy and collective responsibility.

defining features -fusion of powers between the executive and legislative branches.

the head of government - the prime minister or chancellor, is a member of the

legislature and is chosen by the majority party or coalition in parliament.

The executive branch is accountable to the legislature and is subject to regular scrutiny
through mechanisms such as question periods and parliamentary debates.
Parliamentary Constitutions

government remains responsive to the will of the people as expressed through their elected
representatives.

promote consensus-building and cooperation among political actors.

Limitations - The fusion of powers between the executive and legislative branches can lead to
a concentration of power in the hands of the prime minister and cabinet, potentially
undermining checks and balances.

remain a popular model of governance worldwide due to their emphasis on accountability,

transparency, and consensus-building.

a framework for effective and responsive governance that reflects the will of the electorate.
Presidential Constitutions

the executive branch is separate from the legislative branch

the president serves as both the head of state and head of government.

Eg. United States, Brazil, Mexico, and many countries in Latin America, features a clear delineation of
authority between the executive and legislative branches.

separation of powers between the executive and legislative branches.

the president is elected independently of the legislature and serves a fixed term of office.

The president's powers are typically enumerated and limited by the constitution.

prioritize checks and balances and the protection of individual rights.

 Presidential Constitutions
The separation of powers between the executive, legislative, and judicial
branches ensures that no single branch can dominate the others, thus preventing
the concentration of power and potential abuse of authority.

judicial review, allowing the judiciary to interpret the constitution and

adjudicate disputes between branches of government.

provide clarity of authority and accountability to the electorate.

presidential constitutions provide a framework for clear, accountable, and stable

governance, characterized by the separation of powers and direct accountability
to the electorate.
Flexible Constitutions

unwritten or evolutionary constitutions

characterized by their adaptability and ability to evolve over time.

Unlike rigid constitutions, which require a special amendment process, flexible constitutions
can be amended through regular legislative procedures.

This flexibility allows for the gradual evolution of constitutional norms and principles in
response to changing societal values and circumstances.

promote political stability and consensus-building by accommodating diverse viewpoints and

interests.
 Flexible Constitutions

However, flexible constitutions also have their limitations.

The lack of formal amendment procedures can sometimes lead to uncertainty

and ambiguity regarding the constitution's interpretation and application.

offer advantages in terms of adaptability and consensus-building, allowing for

the gradual evolution of constitutional norms and principles over time.

challenges in terms of certainty and stability, flexible constitutions provide a

dynamic framework for governing modern societies.
Rigid Constitutions
stability and resistance to change.

require a special amendment process, which may involve supermajority requirements,

ensures that the fundamental principles and structures of the constitution remain stable and
enduring over time.

protect fundamental rights and principles from transient political majorities.

rigid constitutions promote legal certainty and predictability by providing clear rules and
procedures for amending the constitution.

rigid constitutions may be resistant to necessary changes and adaptations in response to evolving
societal values and circumstances.

offer advantages in terms of stability, predictability, and the protection of fundamental rights
and principles.
 Socialist Constitutions
Socialist constitutions represent a form of government based on socialist principles, such as
collective ownership of the means of production, social justice, and equality.

emphasize the role of the state in regulating the economy, redistributing wealth, and promoting
social welfare.

Socialist constitutions -former Soviet Union, China, Cuba, and Vietnam.

key features of socialist constitutions - social and economic rights, such as the right to
employment, housing, healthcare, and education.

guarantee these rights as fundamental principles of governance, obligating the state to provide
for the basic needs and well-being of all citizens.

emphasize the principle of social equality, striving to eliminate disparities in income, wealth, and
opportunity through redistributive policies and programs.
Socialist Constitutions

promote the collective ownership and control of key sectors of the economy, such as
industry, agriculture, and natural resources.

The state plays a central role in planning and managing economic development,
with the goal of ensuring that economic resources are allocated in a manner that
serves the collective interests of society as a whole.

Limitations - The centralized control of the economy by the state can sometimes
lead to inefficiency, bureaucracy, and lack of innovation.

represent a form of government based on socialist principles, emphasizing social

justice, equality, and collective ownership of the means of production.
 Codified Constitutions
Codified constitutions are those that are written down in a single document or a series of documents.

difficult to amend, and serve as the supreme law of the land.

outline the structure of government, the distribution of powers, and the rights of citizens in clear and concise
language.

clarity and accessibility.

By consolidating fundamental laws and principles into a single document or set of documents, codified constitutions
provide a clear and comprehensive framework for governance that is easily understood by citizens and officials
alike.

This clarity helps to prevent ambiguity and dispute over the interpretation of constitutional provisions, ensuring
that the constitution remains a stable and reliable guide for government.
 Codified Constitutions

include provisions for their own amendment and interpretation.

This allows for changes to be made to the constitution in response to evolving circumstances
and values, while still maintaining the integrity of the constitutional framework.

offer advantages in terms of clarity, accessibility, and stability, providing a clear and
comprehensive framework for governance.

codified constitutions serve as essential tools for ensuring the rule of law and protecting the
rights of citizens.
Uncodified Constitutions

unwritten or flexible constitutions

not contained in a single document but instead evolve over time through a combination of statutes, common
law, conventions, and judicial decisions.

Eg. the United Kingdom, New Zealand, and Israel, where constitutional principles are dispersed across various
sources of law and institutional practices.

prioritize parliamentary sovereignty, meaning that parliament is the supreme legal authority and can enact,
amend, or repeal any law.

This principle ensures that the constitution remains responsive to the will of the people as expressed through
their elected representatives, allowing for changes to be made to constitutional norms and principles through
ordinary legislative processes.
Is Indian Constitution Federal?
Is Indian Constitution Federal?

whether Indian Constitution is federal or unitary.

Some characterized it as federal, while others treated it

as unitary.

Some others have taken a compromising view. According

to them, it has both federal and unitary characteristics.
Unitary Constitution

the powers of the

Government are centralized The provinces are
in one government viz., subordinates to
Central Government. the centre.
Federal Constitution

there is a division
of powers between
the Federal and
the State
Governments and
both are
independent in
their own sphere.
Opinions

Dr. K.C. Wheare in his

book ‘Federal
Government’
characterized the Indian
Constitution as quasi- Jenning also characterized it
federal. as federal with strong
centralizing tendency.
Example - American Constitution

federal Constitution.

It establishes dual policy or dual form of Government i.e., the Federal

and the State Government.

The powers of both the Central and the State Governments are divided
and both are independent in their own spheres.

The existence of co-ordinate authorities independent of each other is the

gist of the federal principle.
Federal features of Indian Constitution

Distribution of Powers.

Supremacy of the Constitution.

Written Constitution.

Rigidity.

Authority of Courts.
Distribution of Powers

Federation means the

distribution of the power
of the States among a
the Central Government and State
number of coordinate
Governments.
bodies, each originating
in and controlled by the
Constitution.
Supremacy of the Constitution

The Supreme Constitution is The written Constitution is

essential if Government is to be essential if Federal Government is
federal. to work well.
Written Constitution

The Constitution must

also necessarily be a
written Constitution.
Rigidity
For a federation, it is necessary that power to amend the Constitution
should not be given exclusively to centre or regional units.

Both must participate in the process of amendment.

A Constitution of a country is considered to be a permanent document.

It is a supreme law of the land.

This supremacy of the Constitution can only be maintained if the

method of amendment is rigid.
Authority of Courts

In a federal state the legal supremacy

of the Constitution is essential for the
existence of the federal system.
The independent and impartial
authority of courts is essential for the
federal structure of the Constitution.
Constitution of India possesses the essential features of
a federation, it differs noticeably from the typical
federal system of the world in certain ways

Parliament’s Power to form new States and alter boundaries of existing

States

The Parliament of India may form new States, it may increase or diminish
the area of any State and it may alter the boundaries or name of any State.

The Constitution does not protect the territorial integrity of the States.

Parliament can by unilateral action, increase or diminish the area of any

State.
Appointment of Governors.

The Governors of the States are appointed by the

President (Articles 155 and 156) and answerable to
him.

This is, however, not a matter of much

significance, for, the Governor is only the
constitutional head of the States who shall
normally act on the advice of his ministers
Parliament’s power to legislate in the
national interest

Under article 249, Parliament is

empowered to make laws with respect
to every matter enumerated in the
State list if the Rajya Sabha passes a
resolution by 2/3 majority that it is
necessary in the national interest.
Emergency Provisions

The Constitution envisages three types of emergencies—

(a) Emergency caused by the war or external aggression or

armed rebellion (Article 352);

(b) Emergency caused by the failure of Constitutional

machinery in States (Article 356);

(c) Financial emergency (Article 360).

When the proclamation of emergency
is in operation the Parliament is
empowered to make directions to any
State and Parliament is empowered to
make laws with respect to any matter
enumerated in the State List.
Kuldip Nayar v. Union of India, AIR 2006
SC 3127

the Supreme Court of India also

observed that federal principle is
dominant in our Constitution and that
federal principle is one of the basic
features of our Constitution.