CHAPTER 3: Concept of the Constitution
Comprehensive Revision Notes & Analytical Summary
1. Meaning and Legal Nature
The term 'constitution' is derived from the Latin word constituere, meaning 'to establish' or 'to set up'. In political
and legal discourse, it defines the overarching framework that regulates government organs, their distribution of
power, and their relationship with citizens in terms of rights and duties.
Key Legal Descriptors
A constitution is variously recognized as the 'fundamental law of the land', 'supreme law of the state', 'basic
law of the country', 'instrument of government', and the 'grundnorm of the country'.
Definitions by Political Scholars
R. N. Gilchrist
"The constitution consists of that body of rules or laws which determine the organization of government, the
distribution of powers to the various organs of government, and the general principles on which these powers
are to be exercised."
R. G. Gettell
"The fundamental principles that determine the form of a state are called its constitution. These include the
method of which the state is organised, the distribution of its sovereign powers... and the relation of the
government to the people."
K. C. Wheare
"The Constitution describes the whole system of government of a country, the collection of rules which
establish and regulate or govern the government."
Wade & Phillips
"A constitution is a document having a special legal sanctity which sets out the framework and the principal
functions of the organs of the Government of a State and declares the principles governing those organs."
2. Key Functions of a Constitution
Constitutional scholar Elliot Bulmer identifies eight core functions served by a constitution within a political system:
• Demarcates Boundaries: Declares and defines the boundaries of the political community.
• Establishes Authority: Defines the nature and authority of the political community.
• Expresses National Identity: Embodies the shared values, culture, and national identity of citizens.
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• Guarantees Rights & Duties: Formally declares citizen rights, liberties, and civic responsibilities.
• Regulates Institutions: Establishes and sets guidelines for public institutions and government branches.
• Divides Power: Allocates and shares authority across federal/regional tiers or sub-state entities.
• Defines Secular/Religious Status: Establishes official religious identity or demarcates sacred and secular
authority.
• Sets Socio-Economic Goals: Commits the state to key social, economic, or developmental objectives.
3. Essential Qualities of a Good Constitution
Quality Description & Significance
Brevity Should be concise and precise. Avoids redundant details that lead to legal
confusion and misinterpretation.
Clarity Provisions must be written in simple, unambiguous language to facilitate easy
comprehension.
Definiteness Maintains specific, clear meanings to reduce excessive judicial discretion or
arbitrary interpretation.
Comprehensiveness Thoroughly outlines powers of state organs and citizen rights to minimize legal
disputes.
Suitability Reflects the socio-cultural, historical, economic, and political context and aspirations
of the society.
Stability Ensures structural continuity and resistance to frequent political tampering, fostering
citizen trust.
Adaptability Acts as a dynamic "living document" capable of evolving alongside changing
societal needs.
4. Classification of Constitutions
A. Evolution-Based Classification
• Evolved (Cumulative) Constitution: The result of gradual historical growth, shaped by traditions, judicial
precedents, and long-standing conventions. Example: United Kingdom
• Enacted (Conventional) Constitution: Deliberately drafted and adopted at a specific time by a Constituent
Assembly or sovereign body. Examples: USA, India
B. Codification-Based Classification
• Written (Codified) Constitution: Systematically compiled into a single document or series of formal texts.
Examples: USA, India, Canada, Japan, France
• Unwritten (Uncodified) Constitution: Not consolidated into a single legal text; derived from statutes, court
decisions, and conventions. Examples: UK, New Zealand, Israel
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C. Amendment Procedure (Lord James Bryce Classification)
• Rigid (Inelastic): Requires a special, complex constitutional procedure to amend, distinguishing constitutional
law from ordinary law. Examples: USA, Australia, Switzerland
• Flexible (Elastic): Can be amended through ordinary legislative processes like standard laws.
Examples: UK, New Zealand
• Hybrid System: The Constitution of India represents a unique synthesis of rigidity and flexibility.
D. Power Distribution Model
• Federal Constitution: Power is constitutionally divided between central and regional governments, both
operating independently within their assigned spheres. Examples: USA, Switzerland, Canada, Russia
• Unitary Constitution: Concentration of supreme power in the central government; regional bodies act as
subordinate agencies with delegated powers. Examples: UK, France, Japan, China
• Quasi-Federal Framework: India contains both federal and unitary characteristics, famously characterized by
K. C. Wheare as "quasi-federal".
E. Archetypal Purpose (Elliot Bulmer)
• Procedural Constitution: Focuses on structuring legal/political institutions and placing limits on power to
safeguard rights.
• Prescriptive Constitution: Combines structural rules with mandatory common societal goals and
developmental ideologies.
5. Constitutionalism & Constitutional Government
Core Concept & Distinctions
Constitutionalism is the political doctrine of limited government. It represents the antithesis of arbitrary,
totalitarian, or absolute power.
Crucial Distinction: Constitution vs. Constitutionalism
A state can have a constitution without possessing constitutionalism. For example, a military regime or
authoritarian state may operate under a constitutional document, but if rulers hold unlimited, unrestrained
authority, constitutionalism does not exist.
Academic Definitions of Constitutionalism
Carl J. Friedrich
"Constitutionalism provides a system of effective restraints upon governmental action. It is a body of rules
ensuring fairplay, thus rendering the government responsible."
J. S. Roucek
"Constitutionalism means essentially limited government. It is the antithesis of government by the unrestrained
will of rulers."
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K. C. Wheare
"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."
S. P. Ybema
"A form of government can only be classified as constitutional when the rulers are subject to a body of rules
and principles, which limit the exercise of their power."
The 8 Pillars of Constitutionalism (Louis Henkin)
1. Popular Sovereignty: Legitimacy and authority reside fundamentally in the people.
2. Rule of Law: Universal supremacy of law over individual human discretion or arbitrary rule.
3. Democratic Government: Responsible, representative, and accountable political institutions.
4. Separation of Powers: Division of governmental power among executive, legislative, and judicial branches
with checks & balances.
5. Independent Judiciary: Courts protected from external political, executive, or legislative influence.
6. Civilian Control of Military: Armed forces strictly subordinate to elected civilian government authority.
7. Judicially Controlled Police: Police forces operating strictly under legal boundaries and judicial oversight.
8. Respect for Individual Rights: Inalienable protection of fundamental human rights and civil liberties.
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