CLASS VIII
POLITICAL SCIENCE
UNIT 13
KINDS OF CONSTITUTIONS
Students’ Manual
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Preface
Education plays the most important role in acquiring professional and social skills, and a positive attitude towards face the
challenges of life. Curriculum is a comprehensive plan of any educational programme. It is also one of the means for bringing
about qualitative improvement in an educational system. The Curriculum initiated by the Central Board of Secondary
Education-International (CBSE-i) is a progressive step in making the educational content responsive to global needs. It signifies
the emergence of a fresh thought process in imparting a curriculum which would restore the independence of the learner to
pursue the learning process in harmony with the existing personal, social and cultural ethos.
The CBSE has introduced the CBSE-i curriculum as a pilot project in a few schools outside India in 2010, in classes I and IX and
extended the programme to classes II, VI and X in the session 2011-12. It was further extended to classes III, VII and for Senior
Secondary classes with class XI in the session 2012-13. It is going to be introduced in classes IV, V, VIII and XII in the session
2013-14 in the schools outside India and in classes I, II and III in the schools within the country.
The Senior Secondary stage of education determines the course of life of a student. At this stage, it becomes extremely important
for students to develop the right attitude, a willingness to learn and an understanding of the world around them and to be able to
take the right decisions for their future. The senior secondary curriculum is expected to provide the necessary base for the
growth of knowledge and skills, and thereby enhance a student's potential to face the challenges of global competitiveness. The
CBSE-i Senior Secondary Curriculum aims at developing the desired professional, managerial and communication skills as
required in of the world of work. CBSE-i is for the current session offering curricula in ten subjects i.e. Physics Chemistry,
Biology, Accountancy, Business-Studies, Economics, Engineering Graphics, Home Science, Computer Science, Information
Practices, ICT, English, Mathematics I and Mathematics II. Mathematics at two levels caters to the differing needs of students of
pure sciences and commerce. The curriculum has been designed to nurture multiple intelligences like linguistic or verbal
intelligence, logical mathematical intelligence, spatial intelligence, sports intelligence, musical intelligence, inter-personal
intelligence and intra-personalintelligence.
The Core skills are the most significant aspects of a learner's holistic growth and learning curve. The objective of this part of the
core of curriculum is to scaffold the learning experiences and to relate tacit knowledge with formal knowledge. This involves
trans-disciplinary linkages that would form the core of the learning process. Perspectives, SEWA (Social Empowerment through
Work and Action), Life Skills and Research would be the constituents of this 'Core'.
The CBSE-i Curriculum evolves by building on learning experiences inside the classroom over a period of time. The Board while
addressing the issues of empowerment with the help of the schools administering this system, strongly recommends that
practising teachers become skil ful and lifelong learners and also transfer their learning experiences to their peers through the
interactive platforms provided by the Board. The success of this curriculum depends upon its effective implementation and it is
expected that the teachers will apply themselves to creating better facilities, developing linkages with the world of work and
fostering conducive environment, as per the recommendations of the curriculum document.
I appreciate the effort of Dr. Sadhana Parashar, Director (Academics, Research, Training and Innovation), CBSE, and her team
involved in the development of this document. I specially appreciate the efforts of (Late) Dr. Srijata Das for working tirelessly
towards meeting deadlines.
The CBSE-i website enables all stakeholders to participate in this initiative through the discussion forums. Any further
suggestions on improving the portal are always welcome.
Vineet Joshi
Chairman, CBSE
Acknowledgement
Advisory
Shri Vineet Joshi, Chairman, CBSE
CBSE Dr. Sadhana Parashar, Director
Noida (Academics, Research, Training and Innovation), CBSE
Ideators VI-VIII
Ms. Aditi Mishra
Ms. Guneet Ohri
Ms. Sudha Ravi
Ms. Himani Asija
Ms. Neerada Suresh
Dr. Rajesh Hassija
Dr. G.P. Bagoria
Ms. Neera Chopra
Ms. Preeti Hans
Ms. Neelima Sharma
Ms. Gayatri Khanna
Ms. Urmila Guliani
Ms. Anuradha Joshi
Mrs. Sonali Sinha
Ms. Uma Sharma
Mr. Manish Jaryat
Conceptual Framework
Shri G. Balasubramanian, Former Director (Acad),
Ms. Abha Adams, Consultant, Step-by-Step School,
Dr. Sadhana Parashar, Director
(Academics, Research, Training and Innovation), CBSE
Dr. Usha Sharma
Prof. Chand Kiran Saluja
Ms. Vijay Laxmi Raman
Ms. Asha Sharma
Ms. Avanita Bir
Ms. Deepa Shukla
Ms. Sunita Tanwar
Ms. Rita Bokil
Mr. Maneesh Jaryal
Ms. Monika Mehan
Ms. Seema Rawat
Prof. Om Vikas
Mr. Albert Abraham
Ms. Mallika Preman
CBSE-i
Class VIII- Political science
Unit-XIII Kinds of Constitutions
Students’ Manual
Contents
Introduction: What is a Constitution?
8
Classification of Constitutions
10
Codified and Uncodified Constitutions
11
Rigid and Flexible Constitutions
12
CASE STUDY 1: The Constitution of the United Kingdom
15
CASE STUDY 2: The Constitution of India
19
Sources of Strain to Constitutional Government
23
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UNIT 13- KINDS OF CONSTITUTIONS
INTRODUCTION:
What is a Constitution?
All of us play various games. Some of us play indoor games like chess and carom; some others
play football, cricket, volleyball etc. When we play these games, we have to follow certain
rules. For example, if I am playing cricket and batting, and if the ball touches the stump behind
me, then I will be declared ‘out’. If I don’t follow such rules of the game, it would no longer be
cricket, even if I play with a ball and a bat. Thus, the rules of cricket constitute the game. In the
same way, various societies also work according to various rules, and these rules constitute the
society and differentiate it from other societies. In this lesson, we are going to learn about the
constitutive rules or laws of a country. These fundamental laws, which define or constitute a
country or a society, collectively form the constitution of that country.
In the modern world, most countries have a constitution. A constitution is seen as a
fundamental requirement for a just and free life for the people of a country.
Now, how does a constitution ensure that? We shall understand this with the help of an
example. As citizens of a country, and as human beings, all of us have certain basic rights.
What ensures that these rights are not abused, or violated arbitrarily?
We take here an example of a country ruled by a king without a constitution. The king is
generally a little indifferent about what the subjects are doing in their private lives. Thus he
does not interfere in matters like, who is living in which city of the country, or which religion
they are following, or what kind of dress they are wearing. However, the king is not bound by
any principle, to not interfere in such private matters of people’s lives. He does not interfere,
merely because he is not interested. If someday he changes his mind, he might start interfering.
So, the subjects, who are today living wherever they want to, and professing the religion of
their choice, and wearing the dresses they like, do not know whether they will be able to do the
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same the next day. This is because, their enjoyment of rights are contingent upon the whims of
the ruler, and not based on some principles about what rights of the people should be protected.
The freedoms of the people are very unstable in such a situation.
What saves us from such a situation? Can we have a mechanism of organizing power in a
society, where those in positions of authority will not be able to abuse their power? A rule
according to a constitution can save us from this situation.
A constitution lays out the ideals which form the basis of political power and actions in a
country. The constitution serves as a set of rules, on the basis of which the people in the
country want to be governed. A ruler, who acts according to a constitution, does not pose to the
people a threat of arbitrary
In brief: A constitution is the fundamental law of a country. It is a set of rules and
conventions, because
which define
what limits.
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constitution outlines the powers of the main organs of a government, namely, the legislature,
constitution.
the executive, and the judiciary. It also specifies the major rights guaranteed to the citizens by
a state.
During the seventeenth and the eighteenth centuries, when the English, American and the
French revolutions highlighted the need of respecting individual rights, the modern idea of
constitutional rule had originated
The modern definition of constitution is closely linked to the idea of constitutionalism.
Constitutionalism, in a basic sense, denotes the adherence of a government to the country’s
constitution, i.e., to take the highest law as the supreme authority. In a more substantive sense,
however, constitutionalism presupposes a constitution which guarantees effective checks on
absolute powers of government, so that liberties of citizens are not curtailed without adequate
reason.
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For us it is important to note this idea, as this is what distinguishes the modern constitutions
from the ancient idea of constitutions. In Aristotle, for example, we find a definition of a
constitution, which admits that even tyranny has its own constitution. In contrast to this, the
signifying mark of a modern constitution is its emphasis on control of arbitrary rule.
While the basic function of all constitutions is to define ways in which power has to be
exercised, the specific nature and content of constitutions of different countries vary
tremendously. Thus we have a variety of types of constitutions, which we will discuss a little
later.
Purpose of a constitution:
To avoid arbitrary, whimsical and tyrannous use of power
To limit the powers of the government
To protect the rights of people
To divide powers between different organs of the government and keep them in check
To advance a framework of values to organize social and political life
To provide legitimacy to those in power, to exercise the powers associated with political
office
Use Worksheet 1
CLASSIFICATION OF CONSTITUTIONS:
Depending on the historical evolution of political institutions in various countries, their
constitutions took specific shapes. To suit the specific requirements of a country too,
constitutions of a particular model was designed. Thus, constitutions of some countries are very
long, while some other countries have brief constitutions, some have been changed
comparatively frequently, others are rarely changed, some of them are contained in a single
document while some others refer to several documents.
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Though the purpose of all modern constitutions is to define governmental powers and codify
people’s rights, based on various differences, constitutions are classified into a few categories.
We shall discuss some of these typologies in the following.
Do you know?
India has the longest written constitution in the world with 395 articles,
twelve schedules and 98 amendments.
The United States of America has the shortest constitution with only seven
articles and 27 amendments
Codified and Uncodified Constitutions:
A codified constitution is one which is written down in a single document, and this document is
the only source of constitutional law in the country. For example, the constitution of the United
States of America.
An uncodified constitution is one which is not contained in one single document. It may be
spread out in several written sources and some parts of it may even be unwritten. Thus, under
an uncodified constitution, the constitutional law of the country comes from more than one
document and often also from unwritten sources. The constitution of the United Kingdom is an
example of an uncodified constitution. Parts of this constitution are unwritten, while the written
parts are spread out in statutes, court judgements and various treaties.
Interesting facts
The Republic of San Marino, a tiny country surrounded by Italy, has a written but
uncodified constitution. Its constitution is distributed over a number of legislative
instruments.
The constitutions of Canada, New Zealand and United Kingdom are uncodified and
partially unwritten.
The constitution of the United States of America is the first codified constitution.
Today, most constitutions of the world are codified in the form of a single document.
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Codified constitutions are often the result of some dramatic political change, such as
revolutions, or decolonization after a successful freedom struggle. The constitution of the
United States of America was written in the Philadelphia Convention of 1787, after the
declaration of independence following the American war of Independence (1775-1783). It was
adopted in the year 1789, after ratification by eleven states.
Uncodified constitutions are generally evolutionary in nature. They evolve over centuries of
time through various laws and conventions. The constitution of the United Kingdom has
evolved over a long period of time through sources like the Magna Carta of 1215, Bill of Rights
of 1689, various Reform Acts, Parliamentary Act of 1911, etc.
The countries with a codified constitution generally give the constitution supremacy over laws
made by the legislature, also known as statute laws. The supremacy of the constitution over
ordinary statute law means, that if there is any conflict between a statute law and the codified
constitution, the whole or some part of the statute law can be declared ultra vires by a court. In
such an occasion, the statue law can be struck down as unconstitutional.
The countries with uncodified constitutions, on the other hand, are generally characterized by
the supremacy of the legislatures to pass any law and interpreting the constitution accordingly.
Further, to amend a codified constitution, often some difficult procedures are required to be
followed. We shall discuss about this more in the section about rigid and flexible constitutions
Rigid and Flexible Constitutions:
A rigid constitution is one which cannot be altered or amended by the legislature using the
normal procedures of ordinary law making, and can be amended only through a specifically
laid down procedure which is more difficult. In some cases the specific procedure requires
setting up of special bodies. The procedure may also require a special majority, i.e. the
favourable vote of a larger proportion of the members of the legislature, than required for
passing ordinary laws.
Example of a special majority: If a parliament requires the consent of 50%+1 10
member to pass a regular law, a special majority might be set at the consent of two
thirds of the members (about 66.67 %).
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Unit-XIII Kinds of Constitutions
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A rigid constitution is also known as an entrenched constitution. Most codified constitutions are
entrenched, or relatively difficult to amend. A codified constitution incorporates in its text, the
procedure to be followed for its amendment.
Example: The constitution of United States of America (USA) is a classic example of a rigid
constitution. In the article V of the constitution of USA, the procedure for its amendment is
detailed. While ordinary laws in the USA can be passed by a simple majority of the Congress,
the constitutional laws can be amended only by the agreement of two thirds majority of the
federal legislature (Congress) and three fourths of the states legislatures.
Useful to know:
The constitution of Switzerland is even more rigid than the constitution of USA. An
amendment to the constitution here needs to be approved, by the Cantons (i.e. the member
states of the Swiss federation) and the electorate through referendum. A referendum is a
process of direct voting, where the entire electorate is asked to either accept or reject a
particular proposal. Thus, in the Swiss system, for a constitutional amendment to pass, it
has to be approved by majority of all the voters casting their vote, as well as majority of
such votes in majority of Cantons.
A flexible constitution is one, which can be amended following the regular procedures of law
making. The constitution here is not given any higher legal status than the ordinary statutes. A
constitutional law and an ordinary law are placed on an equal footing here. Countries with a
flexible constitution are marked by parliamentary sovereignty. The principle of parliamentary
sovereignty holds that the sovereign parliament is not bound by the acts of its predecessors, and
thus it can make or amend any law which it deems fit.
An amendment to a flexible constitution can be made by a simple majority of the legislature,
and no special bodies are set up for this purpose. Constitution making authority and law making
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authority are, thus, not differentiated. In this set-up, no law is unconstitutional, if it is passed by
the parliament. Such flexibility of amendment is generally seen in uncodified constitutions.
Example: The constitution of United Kingdom is a typical example here. The British
Parliament is competent to pass, amend or repeal any constitutional law in an ordinary
legislative process. Constitutional laws and ordinary laws are treated alike in the British
context.
Merits of a rigid constitution:
i)
Protects people’s rights effectively: It protects the rights of citizens guaranteed by the
constitution, from being harmed by a temporary majority of the parliament, which might
choose to act in authoritarian ways.
ii)
Provides stability: It provides stability to the political system as frequent changes are
unlikely.
iii)
Suitable for a federation: As a federal set-up is marked by sufficient autonomy to the
member states, having a rigid constitution with clearly defined division of power helps its
operation. As the consent of the federating units is required for any amendment to the
constitutional structure of division of powers, thus, the units are placed on a safer place in this
set up.
Demerits of a rigid constitution:
i)
Not easily adaptable: A rigid constitution cannot easily adapt itself to changes in social
and economic conditions.
ii)
Not flexible: It cannot provide the flexibility that is required at times, especially in
times of urgency.
Merit of a flexible constitution:
i)
Adaptability: A flexible constitution can keep pace with time. It enables the
constitutional rules to easily adapt to the needs of changing society, economy and polity.
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ii)
More accommodative: A flexible constitution may discourage rebellions and
revolutions, as changes demanded by aggrieved parties can be comparatively easily
accommodated.
Demerits of a flexible constitution:
(i)
Puts citizens’ rights in danger: The ruling group may frequently amend the constitution
to fulfil its own interests. It may also deprive the citizens of their fundamental rights, by
amending the constitution in a way which allows arbitrary use of power by the government.
(ii)
Not suitable for a federation: It may create problems in a federal structure, as the
balance of power between the centre and the federating units may be disturbed by an easy
amendment of the constitution by the parliament.
(iii)
Lack of stability: With the possibility of frequent, and at times not well-thought-out,
changes to the constitution, the stability of the political system may be put at risk.
Use Worksheet 2
CASE STUDY 1:
THE CONSTITUTION OF THE UNITED KINGDOM
We have already discussed that the constitution of the United Kingdom has evolved over a long
period of time through various conventions, treaties, legal documents, court judgements and
numerous other sources. We have also discussed that it is an uncodified and flexible
constitution. In this section, we will discuss the British constitution in a little more detail.
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A map of the United Kingdom,
source: www.bbc.co.uk
Inception and Growth: As an uncodified framework of governance which developed over a
long period of time, the British constitution and its growth has to be studied in the context of
the evolution of political institutions in this land.
In what is now known as England, out of a number of small territories governed by tribal
rulers, a single sovereign King emerged in the 927 AD. In the Norman period after the Battle
of Hastings in 1066 AD, a Charter of Liberties (1100 AD) was granted by the king, which
addressed issues of abuse of royal power, and sought to bind the king to certain laws
regarding the treatment of church officials and nobles. This represents a step away
from absolute monarchy and a step towards constitutional government. The Magna Carta
(meaning, the Great Charter) of 1215 limited the king’s powers, and protected the liberties of
the barons.
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Country Profile: United Kingdom
The United Kingdom is made up of England, Wales, Scotland and Northern Ireland.
Scotland and Wales have a degree of political autonomy. A referendum for
independence of Scotland is due in September 2014.
David Cameron from the Conservative Party is the current Prime Minister, since May
2010. He heads a coalition government of the Conservative Party and Liberal
Democratic Party (which is the third party of United Kingdom)
The United Kingdom is a member of the European Union. But it is not a part of the
eurozone. The eurozone is an economic and monetary union, the member states of
which have adopted the euro (€) as their common currency and sole legal tender.
In the 13th century, King Henry III had to accept the existence of the first English parliament.
While the Tudor period (1485-1603) was not very significant in terms of strengthening
constitutional rule, in the Stuart period following this, a conflict between the parliament and
the monarch led to the English Civil War (1642-1651). As an outcome of the civil war, the
supremacy of the parliament was established, under the leadership of parliamentarian Oliver
Cromwell. The parliamentary supremacy, however, did not last long, and after the death of
Cromwell, the monarchy was restored. While Charles II, the first monarch after restoration
was open to compromises with the parliament, James II, the second king after the restoration
of the monarchy, came into a conflict with the parliament again, leading to the Glorious
Revolution of 1688. James II was overthrown as a result, and the powers of the king and the
parliament were redefined.
In February 1689, during the rule of the Hanover dynasty, the Parliament passed the Bill of
Rights. It proclaimed the legislative supremacy of Parliament and restricted the powers of the
Monarch. The constitutional monarchy in Britain was consolidated after the events of 16881689, and the basic structure of the British constitutional system was outlined. The evolution
of the constitution, however, continued through various legal instruments and conventions
even after that.
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Sources of the constitution of United Kingdom:
i)
Documents that express important constitutional principles: For example the
Magna Carta (1215), the Bill of Rights (1689) and the Act of Settlement (1701).
ii)
Constitutional conventions: These are unwritten rules and customs of political practice
that are usually accepted and observed. For example, the convention that the choice of the
prime minister should be made from the House of Commons.
iii)
Laws passed by the parliament: There are some statutes or laws, which have an
impact on the constitutional structure, on questions like relation between various organs of the
government, or on how are the citizens related to the government. For example, the Parliament
Acts of 1911 and 1949.
iv)
Common and case (judge-made) law: There are certain laws which are based on
claims of people from very old times. For example, the claim to the right of free speech and
free assembly. These laws are in practice determined and implemented by judges. Again, some
judgements of the court involve interpretation of important statutes on some unclear points, or
defining the scope and limitation of certain charters and statutes, which affect the constitution.
v)
Texts and commentaries by eminent experts on the constitution: There are certain
texts which interpreted the British constitution in such an influential way, that they are seen as
the part of the constitution itself. For example, Bagehot’s The English Constitution (1867), and
A.V. Dicey’s The Law of the Constitution (1885)
vi)
European Union laws: As a member of the European Union (EU), the EU law takes
precedence over laws of United Kingdom, and are applicable in the courts of United Kingdom.
This too has influenced the constitutional structure of the United Kingdom.
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Features of the constitution of United Kingdom:
(i)
Uncodified: The rules concerning the government of the country are not written in the
form of a single document.
(ii)
Unitary rather than federal: The parliament at Westminster makes laws for all parts
of the country. Though some parts of the country have greater powers devolved to them, they
too are subject to legislative supremacy of the parliament.
(iii)
Flexible: It can be easily amended, and any change can be made by passing an act of
parliament. In recent times, however, a custom has developed that if any fundamental change
to the constitution is sought, it has to be subjected to a referendum, if the matter was not
already submitted to the electorate in a general election.
Discussion
The principle of parliamentary sovereignty and constraints upon it
We have briefly talked about parliamentary sovereignty earlier in the chapter. The principle
of parliamentary sovereignty has traditionally been seen as a major element of British
constitutionalism. According to this principle, the parliament has absolute and unlimited
authority over law-making. It implies, the parliament can make, amend or abolish any law,
and no other institution, including the executive and the judicial bodies, can override its
decisions. Further, the present parliament will always have supremacy over the former
parliaments, in the sense that enactments of earlier parliaments cannot stop the present
parliament from making any law in contradiction to it. On the reverse, the present parliament
can override any law made by the former parliaments.
In practice however, especially in the recent times, this principle could not be adhered to with
absolute strictness. One of the notable reasons for this is United Kingdom’s membership of
the European Union (EU). The member states of the EU require its member countries to
modify their domestic laws to make it compatible with the EU laws. For this reason, many
political voices in the United Kingdom are sceptical about the continued membership of the
country in the EU.
Others however point to the fact that, though a growing number of legislative powers
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are voluntarily delegated by the sovereign ‘Crown’ to the EU, the United Kingdom parliament
has also put in place a number of institutions to scrutinize EU legislation. Apart from that, in an
era of globalization and geo-political integration, the notion of national sovereignty too has
substantially changed, and parliament is no longer sovereign in many other policy areas, apart
from legislation, such as defence and trade.
CASE STUDY 2:
THE CONSTITUTION OF INDIA
The constitution of India is the outcome of in-depth political research and deliberations by a
body of eminent representatives of the Indian people, known as the Constituent Assembly. It
was drafted through deliberations in the Constituent Assembly, between December 1946 and
November 1949. The constitution was finally commenced from the 26th of January 1950.
A map of India,
source: www.wikimedia.org
Though it was drafted and adopted by a completely Indian Constituent Assembly, the final
outcome in the form of the Indian constitution drew substantially from some legal instruments
of the British colonial era and from other successful constitutions of the world. To understand
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the Indian constitution properly, thus, one has to look at some historical developments which
substantially influenced the deliberations in the Constituent Assembly.
Historical background:
The first time a codified structure of governance was made for India was through the
Government of India Act, 1858, when the British crown assumed sovereignty over India from
the East India Company. This Act, however, was dominated by the principle of absolute
imperial control. The first move towards a constitutional rule in the sense of limited
government was the Indian Councils Act, 1909. Through this Act, the representative and
deliberative powers of the provincial legislative councils were increased. Through the
Government of India Act of 1919, the central legislature was also made more representative,
and responsible governments, i.e. governments responsible to the Provincial Legislative
Council, were introduced in the provinces, without impairing the authority of the Governor, i.e.
the agent of the British rule in the province. The Government of India Act of 1935 is the
single most influential legal document for the independent Indian constitution. This Act for the
first time introduced a federal structure and divided legislative powers between the provincial
and the central legislatures. As a colonial instrument of rule, it however, though established a
diarchy at the centre, the representative of the British Crown, the Governor-General, was vested
with the executive authority, and the representative legislature was given very less power.
The Indian Independence Act of 1947, which facilitated the transfer of power from the British
hands to the Indians, provided that there would be two independent dominions, to be known as
India and Pakistan, and that the Constituent Assembly of each of these dominions would have
unlimited power to frame and adopt any constitution and to repeal any earlier Act made by the
British Parliament for India.
Country Profile
Prior to 1947, India was under the colonial rule of the British. The British entered India
first in the form of a trading company called the East India Company, and exercised
political and military control from about 1757, when the Nawab of Bengal was defeated
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by the company in the battle of Plassey. The company rule lasted till 1858, as in the
aftermath of the Sepoy Mutiny (1857), also known as India’s first war of independence,
the British government took over the rule of India through the Government of India Act,
1858. In 1947, India won independence through a long and non-violent struggle under
the leadership of Mahatma Gandhi, and the Indian National Congress.
The present day India is composed of 29 states (with the new state of Telangana carved
out of Andhra Pradesh in July 2013), and 7 union territories. While the whole of India is
ruled under the Indian constitution, the state of Jammu and Kashmir has its separate
constitution for the governance of the state.
The present Prime Minister of the country is Dr. Manmohan Singh from the Indian National
Congress party. He is heading a coalition government of the United Progressive Alliance,
composed of eight member political parties and with outside support of three political
parties.
The Constituent Assembly:
The Constituent Assembly to frame the independent Indian constitution met for the first time
on the 9th of December 1946, and reassembled again on the 14th of August 1947 as the
Constituent Assembly for India, after the dominion of Pakistan was separated from the former
territory of India.
Interesting facts
The Constituent Assembly took 2 years 11 months and 17 days to draft and
finalize the constitution of India
The members of the Constituent Assembly were indirectly elected by the members
of the Provincial Legislative Assemblies. Dr B.R. Ambedkar was the Chairman of
the Assembly.
The constitution was passed on the 26th of November 1949, and adopted on the
26th of January 1950
The members of the Constituent Assembly built the new constitutional structure on the basis of
existing institutions. The basic structure of the polity and the provisions regulating the relation
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between the central and the state governments, provisions of declaration of emergency, etc.
were taken more or less from the Government of India Act of 1935.
But the Assembly took a radical decision when it incorporated the provision of universal adult
franchise, i.e. voting right to every adult citizen irrespective of gender, class or education. This
was a remarkable achievement of the Indian constitution, seen in the context of established
democracies like the USA and the UK which gave voting rights too many sections of citizens
like the people of colour and women, only after long years of representative government.
The Assembly was also very creative in consulting constitutions from countries across the
world, and then to frame a constitution that is most suitable to the Indian context.
Features of the Indian constitution:
i)
Codified: The constitution of India is a codified constitution, and is the most detailed and
lengthiest written constitution in the world.
ii)
Partly rigid and partly flexible: The constitution of India occupies a unique place in the
scale of flexibility, as the procedure of amendment to the constitution is designed in an
innovative manner. There are some parts of the constitution which can be easily amended,
while there are some other parts, for the amendment of which a rigorous and special
procedure needs to be followed. Further, the Supreme Court of India through its various
judgements, have established that, any constitutional amendment which is contrary to the
‘basic structure’ of the constitution, would be null and void.
iii)
Drawn from various sources: The Indian constitution has generously borrowed ideas
from other constitutions of the world. The framers of the constitution have the credit of
gathering the best features of every existing constitution; modify them to avoid the faults
that are disclosed in their working in other contexts, and adapting them to the needs and
conditions of India.
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Discussion: The ‘Basic Structure’ debate
Until the Golak Nath vs. the State of Punjab (1967) case, the Supreme Court of India was
holding the view that any part of the Indian constitution could be amended by following the
procedures of amendment as provided in Article 368 of the constitution. In two earlier
judgements related to this issue, the Court gave judgements in favour of parliament’s right to
amend any part.
In the Golak Nath case, the Court held that the Fundamental Rights included in Part III of the
constitution cannot be amended by the parliament. The Court advanced the argument that, as
in Article 13 (2) of the constitution, which is a part of the Fundamental Rights section itself,
it is given that any law in contradiction with the Fundamental rights would be invalid, thus
an amendment, which is a law of parliament, to this section would be invalid.
Six years later, the issue was debated again in the Keshavananda Bharati vs. State of Kerala
(1973) case. The Supreme Court in this case held that though the parliament can amend any
part of the constitution including the Fundamental Rights section, such amendments should
not affect the basic structure of the constitution.
The doctrine of ‘basic structure’ was later invoked in the Minerva Mills vs. Union of India
(1980) case, to strike down a couple of sections of the Constitution (Forty-Second
Amendment) Act. In a judgement delivered in 2007, on the Ninth Schedule to the
constitution, the Supreme Court stated that the ‘basic structure’ is an “axiom of our
constitutional law”.
The Court has not given a complete list of what consists of the ‘basic structure’ of the
constitution. But from various judgements of the Court so far, a list could be drawn up.
Some of these features are the following:
(i)
supremacy of the constitution,
(ii)
rule of law,
(iii)
the principle of separation of powers,
(iv)
secularism,
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(v)
federalism,
(vi)
sovereign, democratic and republican structure,
(vii)
unity and integrity of the nation,
(viii) independence of judiciary,
(ix)
objectives specified in the Preamble to the constitution, etc.
Use- Worksheet 3
Sources of strain to constitutional government
We have discussed earlier in this unit that constitutions provide a framework of rule so that
arbitrary power is kept in check and people are able to enjoy their rights. Constitutions, apart
from being such a regulative document of dos and don’ts, also represent some values. The legal
framework of a constitution is underlined by normative goals that a country aspires to achieve.
In a codified constitution, such goals and values are generally mentioned explicitly in a
preamble.
Definition: A preamble to a constitution is an introductory statement which explains
the constitutions purpose and its underlying philosophy. It outlines the normative goals
to pursue which the constitution is adopted.
Thus, the idea of a constitution is also about bringing in change in a desired direction. In
pursuing these goals, however, constitutions often face some challenges. We shall briefly
discuss some of these constraints in the following:
(i)
Military coups and dictatorships: Many countries in the postcolonial world have
not been able to work with a stable constitution. India is an exception in that sense. In many
of these countries, even after adoption of a constitution in a Western model, military coups
have taken place and dictators came to power, who ruled arbitrarily. For example, Pakistan,
which became independent in 1947, adopted its first constitution nine years later, in 1956.
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But since then, the country has seen five successful military coups and three constitutions,
with periods of rule without a constitution by a few dictators.
(ii)
Neo-colonial and imperial strategy of some developed countries: Some developed
countries with an interest in the resources of some mineral rich countries get involved in the
internal politics of the country by various means, and try to topple an unyielding government
and replace it with a government and constitution which is easier to deal with and bargain for
their interests. For example, after the 2003 US invasion of Iraq, a new constitution has been
drafted in Iraq under a government appointed by the US, and with the presence of US
military in the country. The constitution is widely criticized as a façade, as a document that
would divide the Iraqis and serve the economic interests of the US, in terms of accessing the
rich reserves of oil in Iraq.
(iii)
Vestiges of hierarchical and feudal culture: The continued influence of some
hierarchical ideas and practices, even in countries with a constitution guaranteeing equal
rights to everyone, is not uncommon. In these cases, though the constitution aims to protect
the rights and freedoms of every individual, the influence of a hierarchical culture is so heavy
that these freedoms are not effectively enjoyed by many people. For example, we can talk of
the influence of the hierarchical caste system in India, and racism in the US, which, despite
the constitutional guarantee of equal rights and liberties of citizens, lead to unequal treatment
of some people.
Use Worksheet 4
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Glossary
1. Abuse: change the basic purpose or function of something
2. Accommodative: willing to adjust to differences in order to obtain agreement
3. Adaptable: adjustable
4. Amend: to make better, rectify
5. Arbitrary: based on preference or impulse, and not based on rational or principled
grounds
6. Autonomy: independence
7. Axiom: a saying that is widely accepted as true
8. Baron: a baron is a lowest ranked nobleman in the British nobility, which is
composed of a few privileged social classes separated from the large masses.
9. Charter: a grant of authority or rights
10. Codify: systematize
11. Commentaries: written explanation or criticism or illustration that is added to a book
12. Constitute: to compose or form
13. Constitutive: something which constitutes
14. Constraints: things which hold back something
15. Contingent: uncertain because of uncontrollable circumstances
16. Contradiction: opposition between two conflicting forces or ideas
17. Convention: something which is regarded as an example to be followed
18. Curtail: reduce or restrict
19. Decolonization: the action of changing from colonial to independent status
20. Deliberations: careful considerations
21. Developed countries: a developed country is a country which has highly developed
economy and advanced technological infrastructure in comparison to other less
industrialized countries.
22. Dictatorship: a form of rule where the ruler has the power to do whatever he or she,
or they want to do, unrestrained by laws.
23. Dyarchy: a form of government having tow joint rulers
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24. Emphasis: special importance or significance
25. Entrenched: established firmly and securely
26. Federation: a political unity formed out of a number of separate states or provinces
so that each member retains the management of its internal affairs
27. Ideal: something that one hopes to attain
28. Legitimacy: acceptance of a government by the people as trustworthy
29. Military coup: a sudden and decisive change of government by use of force of the
military establishment
30. Neo-colonial: a policy whereby a major power uses economic and political means to
perpetuate or extend its influence over underdeveloped countries or areas
31. Null and void: invalid
32. Overthrown: brought down
33. Polity: a society that has an organized political structure
34. Postcolonial: relating to the time following the establishment of independence in a
colony
35. Predecessors: one who precedes in time, or one who came earlier
36. Ratification: confirmation
37. Referendum: The act of a legislative bill being referred for final approval to a
popular vote by the electorate
38. Repeal: cancel officially
39. Restore: return to original position
40. Statue: an act passed by a legislative body
41. Substantive: meaningful, considerable
42. Third party of United Kingdom: The United Kingdom is a mainly two party
political system, with a third party playing a minor role
43. Topple: make something fall down
44. Treaties: A written agreement between two states or sovereigns
45. Typologies: classification according to a general type
46. Tyranny: the cruel and unjust use of power or authority
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47. Ultra vires: beyond the legal power or authority of a person or body
48. Unyielding: someone who is not willing to give in
49. Vestiges: traces, shadows
50. Whims: a sudden desire
51. Whimsical: determined by chance or whim rather than by necessity, reason or
principle
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WORKSHEETS
Worksheet 1
Q1. Answer the following questions briefly:
a)
What is a constitution?
b)
What is the meaning of the term ‘constitutionalism’?
c)
What is the purpose of a constitution? (Give at least four points)
Q 2. Fill in the blanks:
a)
A______________ ensures that the basic rights of the people are not violated
arbitrarily.
b)
A constitution is a set of _______________________.
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c)
d)
An idea closely linked to the modern definition of constitution is ________________.
A constitution limits the _______________ of a government.
Q4. Choose the most appropriate answer:
(i)
A country needs a constitution because:
a)
b)
c)
d)
It leads to increase in food production
It ensures that the government acts non-arbitrarily
It develops fellow feeling among citizens
It allows the state to interfere in people’s lives
(ii)
A constitution:
a) Is the fundamental law of a country
b) Is the order of a country’s king
c) Asks people to be obedient
d) Does not have influence on the social life of a country
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Worksheet 2
Q1. Match the pairs from the rows given below:
a)
b)
c)
d)
e)
Constitution of USA
Codified constitution
Flexible constitution
Rigid constitution
Uncodified constitutions
i)
ii)
iii)
iv)
v)
easily amendable
first codified constitution
contained in a single document
evolutionary
suitable for a federation
Q2. Fill in the blanks:
a) When a constitution is written down in a single document it is called a
______________ constitution.
b) Uncodified constitutions may be spread out in several _____________ and some parts
of it may be _______________.
c) The constitution of the United States of America is both __________ and
_____________.
d) The constitution of the United Kingdom is ________________ and ______________.
Q3. Choose the correct option:
i)
Supremacy of the constitution over statute laws is generally a feature of:
a) An uncodified constitution
b) A codified constitution
c) All counties with a constitution
d) European countries
ii)
A constitution is classified as rigid or flexible depending upon:
a) Whether it is brief or detailed
b) How well it is practiced
c) The procedure of its amendment
d) To what extent it protects people’s rights
iii)
A rigid constitution:
a) Provides stability
b) Easily adaptable
c) Makes functioning of the government easier
d) Does not provide for a clear division of powers
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iv)
The constitution of the United States of America was adopted in the year
a) 1789
b) 1889
c) 1688
d) 1947
v)
This country has the longest written constitution in the world:
a) United Kingdom
b) United States of America
c) Germany
d) India
vi)
Codified constitutions generally
a) Follow an easy procedure of amendment
b) Follow a difficult procedure of amendment
c) Are characterized by parliamentary supremacy
d) Are more flexible
Q4. Answer the following questions briefly:
a) What is meant by a codified constitution? Give an example.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
b) What is meant by an uncodified constitution? Give an example.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
c) Define a rigid constitution.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
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_____________________________________________________________________
_____________________________________________________________________
d) Why is the constitution of the United States of America classified as a rigid
constitution?
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
e) Define a flexible constitution.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
f) Why is the constitution of the United Kingdom classified as a flexible constitution?
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
Q5. Mention two merits and two demerits each of rigid and flexible constitutions (mention
very briefly)
Rigid constitutions
Merits
1.
Flexible constitutions
Demerits
1.
Merits
1.
Demerits
1.
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2.
2.
2.
2.
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Worksheet 3
Q1. Fill in the blanks:
a) In the United Kingdom, in the year 1689, legislative supremacy of Parliament was
proclaimed and the powers of the Monarch were restricted by a document named the
____________________.
b) The constitution of the United Kingdom is __________ rather than federal.
c) The principle of parliamentary supremacy in the United Kingdom is affected by the
country’s membership to the ___________________________.
d) _______________________________ was the chairman of the Constituent Assembly
of India
e) A remarkable achievement of the Constituent Assembly of India was its decision to
offer ___________________________ at the moment of independence.
f) The constitution of India is partly ___________ and partly _____________.
Q2. Answer the following questions briefly:
a) Name three important documents in the evolution of the constitution of the United
Kingdom.
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
b) What do you understand by the principle of ‘parliamentary sovereignty’?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
c) What is the ‘basic structure doctrine’ as pronounced by the Kesavananda Bharati
case of 1973? Write three components of the basic structure of the Indian constitution.
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
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___________________________________________________________________________
___________________________________________________________________________
d) Write five features of the Indian constitution which could be counted as part of the
‘basic structure’ of the constitution.
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Q3. List down the various sources of the constitution of United Kingdom:
Sources of the
Constitution
of the United
Kingdom
Q4. Write two features each of the British and the Indian constitutions. Compare and contrast
the two constitutions on the basis of these features.
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
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___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
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Worksheet 4
Q1.Fill in the blanks:
a) The constitution of Pakistan has remained very unstable due to impact of frequent
__________________________.
b) Too much interference of a _____________ in the process of constitution making and
working of constitutions may be a strategy of neo-colonialism and imperialism.
c) The continued influence of ________________________ ideas and practices defeat
the purposes of a constitution.
Q2. Match the following:
a) Preamble
i)
b) Pakistan
ii)
c) Constitution of Iraq
iii)
d) Racism and casteism
iv)
Frequent military coups and
dictatorships
Pressure from the presence of US
military forces
Non- availability of rights
guaranteed by constitution, in
practice
explains purpose and philosophy
of a constitution
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References
Books and articles:
1. Basu, DD, Introduction to the Constitution of India, New Delhi: Wadhwa, 2006 (reprint).
2. Bellamy, R, ‘Constitutionalism’ in Clarke, PB & Foweraker, J (eds.) Encyclopedia of
Democratic Thought, London: Routledge, 2001.
3. Gauba, OP, Constitutionalism in a Changing Society, New Delhi: Gitanjali Publishing House,
1984.
4. Hemberger, S, ‘Constituion’, in Krieger, J (ed.) The Oxford Companion to Politics of the World,
Oxford: Oxford University Press, 1993.
5. Holmes, S, ‘Constitutionalism’, in Lipset, SM (ed.) The Encyclopedia of Democracy, Volume I,
London: Routledge, 1995.
6. Kesselman, M, Krieger, J, & Joseph WA (eds.), Introduction to Comparative Politics: Political
Challenges and Changing Agendas, Boston: Wadsworth, 2010.
7. Kopstein J & Lichbach M (eds.), Comparative Politics, Interests, Identities, and Institutions in
a Changing Global Order, Cambridge: Cambridge University Press, 2005.
8. Mehta, US, ‘Constitutionalism’, in The Oxford Companion to Politics in India, New Delhi:
Oxford University Press, 2010.
9. Walker, N, ‘Constitutionalism’, in Axtmann, R (ed.) Understanding Democratic Politics: An
Introduction, London: Sage, 2003.
10. Watts, D, British Government and Politics: A Comparative Guide, Edinburg: Edinburg
University Press, 2006.
Websites:
www.bbc.co.uk
www.Indiacode.nic.in
various other internet resources
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