BOOK SUMMARY

INDIAN POLITY BY M. LAXMIKANTH

Bonus Chapter: Concept Of Constitution

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 INDIAN POLITY: M. LAXMIKANTH SUMMARY

CONCEPT OF CONSTITUTION
 Derived from the Latin word “constituere” Means ‘to establish’ or ‘to set-up’.
 In the present sense,
o Refers to a set of principles, which specify the organisation and working of the government and the
relationship between the government and the people in terms of their rights and duties.
 The constitution also called as the:
o ‘Fundamental law of the land’
o ‘Supreme law of the state’
o ‘Basic law of the country’
o ‘Instrument of the government’
o ‘Rules of the state’
o ‘‘Basic structure of the polity’
o ‘Grundnorm of the country’

FUNCTIONS OF CONSTITUTION
Elliot Bulmer has very well identified the functions (or purposes) of a constitution.
 Declare and Define the boundaries of the political community
 Declare and Define the nature and authority of the political community
 Express the identity and values of a national community.
 Declare and Define the Rights and Duties of citizens
 Establish and Regulate the Political institutions of the community
 Divide or Share power between different layers of government or sub-state communities
 Declare the official religious identity of the state and demarcate relationships between sacred and secular
authorities
 Commit states to particular social, economic, or developmental goals. Example:
o Fundamental Rights such as - Article 17, 15, 16 etc.
o Directive Principle of State Policy:
- Secure to all workers a living wage and a decent standard of life
- Raise the level of nutrition and the standard of living of people and to improve public health
- Equal Pay for Equal work etc.
QUALITIES OF A GOOD CONSTITUTION

 Precise with no unwanted provisions

Brevity  Lengthy constitution with too many details creates confusion in the interpretation of its
clauses
Clarity  Specify its provisions in clear terms
 Complicated language reduce understanding
Definiteness  Definite meaning for its provisions
 Ambiguity increase the discretion of the judges in their interpretation
 Comprehensive in laying down the powers of the government as well as the rights and
Comprehensiveness duties of the citizens
 Will reduce the scope for controversies and litigations
Suitability  Reflect the needs and aspirations of the people
 Suitable to the historical, socio-cultural, economic and political conditions of the nation
Stability  Should facilitate political stability and should not allow easy tampering
Adaptability  Should be dynamic and not static - A living document.
 Should be able to adapt itself to changing situations and requirements

CLASSIFICATION
1. Evolved and Enacted
 Evolved constitution (Cumulative constitution) - Outcome of a slow and gradual evolutionary process.
o Provisions are contained in the form of conventions, practices, principles, and judicial decisions.

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 INDIAN POLITY: M. LAXMIKANTH SUMMARY

o Example - British Constitution

 Enacted Constitution(Conventional Constitution) - Deliberately made by a Constituent Assembly/Council or
promulgated by a king or parliament.
o Provisions are contained in the form of a book or a document.
o Example - American and Indian Constitutions

2. Written and Unwritten

 Constitutions are classified into:
o Written, like the American Constitution,
o Unwritten, like the British Constitution.
 Written Constitution (documentary Constitution or a Codified Constitution)
o Provisions incorporated in the form of a book or a document or a series of documents.
o Formulated and adopted by & body known as the constituent assembly or the constitutional convention.
o Examples - USA, Canada, Japan, France and India
 Unwritten Constitution (Non-documentary Constitution or an Uncodified Constitution)
o Not incorporated in the form book or a document
o Found in the form of conventions, practices, principles, charters, statutes, and judicial decisions. Product of
historical evolution and not deliberately formulated by a body.
o Example - UK, New Zealand and Israel

3. Rigid & Flexible

 Based on the method of amendment, the constitutions are classified into rigid and flexible constitutions.
 This classification was given by Lord James Bryce.
 Rigid Constitution- Inelastic Constitution
o Example - USA, Australia and Switzerland
 Flexible Constitution- elastic Constitution
o Example - UK and New Zealand'
 The Constitution of India is neither rigid nor flexible, but a synthesis of both.

4. Federal & Unitary

 Federal Constitution
o Provide for a division of power between the national government and the regional government
o Enables them to operate in their respective jurisdictions independently
o Example - USA, Switzerland, Australia, Canada, Russia, Brazil
 Unitary Constitution
o Provides for the concentration of power in hands of the national government.
o The regional governments operate as subordinate agencies of the national government
o Regional Government exercise only such powers which may be delegated to them by the national government.
o Example - UK, France, Japan, China, Italy, Norway
o The Constitution of India contains both federal provisions as well as the unitary provisions.
o Hence, it was described as quasi-federal by K.C. Wheare.
o Federal: Two Governments, Division of powers, Written Constitution, The supremacy of Constitution, The rigidity
of Constitution, Independent judiciary and Bicameralism.
o Unitary: A strong Centre, Single Constitution, Single citizenship, The flexibility of the Constitution, Integrated
judiciary, The appointment of state governor by the Centre, All-India services, and Emergency provisions.

5. Procedural & Prescriptive

 Procedural Constitution
o Defines the legal and political structures of public institutions and sets out the legal limits of government power
to protect democratic processes and
o fundamental human rights.
 Prescriptive Constitution
o It assumes (or attempts to impose) broad consensus on common societal goals
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 INDIAN POLITY: M. LAXMIKANTH SUMMARY

o That public authorities must strive to achieve

CONSTITUTIONALISM AND CONSTITUTIONAL GOVERNMENT

DIFFERENCE BETWEEN CONSTITUTION & CONSTITUTIONALISM

 A country may have the ‘constitution’ but not necessarily ‘constitutionalism’.
 Example - Dictatorship, where the dictator's word is law, can be said to have a ‘constitution’ but not ‘constitutionalism”.
o Germany during Hitler
o North Korea
 Constitutionalism recognises the need for government with power but, at the same time, insists that limitations should
be placed on those powers.
o Unlimited power → authoritarian, oppressive government.
o The constitution of a country imposes limitation upon governmental power only when a country have not only a
‘Constitution’ but also ‘Constitutionalism’.
 Constitutionalism - Polity governed by or under a constitution that ensure limited government and Rule of law :
o Oppose Arbitrary, despotic, authoritarian or totalitarian rule.
o Constitutional government → necessarily be democratic government.
 The real justification of the constitution finds place in having a “limited government” and of requiring those who
govern to conform to laws and rules.

DEFINITION
“Constitutional government means something more than a government according to the terms of a constitution. It means
government according to rule as opposed to arbitrary government; it means government limited by the terms of a
constitution, not government limited only by the desires and capacities of those who exercise power”. - K.C.Wheare

ELEMENTS
 Louis Henkin identified eight elements of Constitutionalism
1. Popular Sovereignty: Authority of the government is created and sustained by the consent of its people, through
their elected representatives (Rule by the People), who are the source of all political power.
2. Rule Of Law: By A V Dicey - Basic feature of constitution: Concept of ‘Equality before Law’ is an element of the Rule
of Law. Rule of Law has 3 fundamental principles -
a) Absence of arbitrary power
b) Equality before law
c) Primacy of individual rights is not applicable. The constitution is the source of individual rights.
3. Democratic Government (Responsible & Accountable Government)
4. Separation of Powers (Checks & balances)
5. An independent judiciary
6. Civilian control of the military
7. Public governed by the law and judicial control
8. Respect for individual rights

Student’s Note:

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