1.

TYPES / CLASSIFICATION OF CONSTITUTIONS

1. Written Constitution
A Written Constitution is formally written, deliberately
framed, and systematically arranged in a single document
or a series of documents.
Key Sub-Points
• Deliberate Creation – It is consciously drafted and
adopted by a Constituent Assembly or similar body.
• Supreme Law – It enjoys constitutional supremacy; all
organs of government are bound by it.
• Definite & Certain – Provisions are precise and can be
quoted in courts as legal authority.
• Special Amendment Procedure – Can be amended
only by procedures prescribed within the constitution
itself.
• Comprehensive Structure – Clearly defines powers,
functions, limits, and inter-relations of institutions.
Examples
India, USA, Germany, Japan, France, Canada
2. Unwritten Constitution
An Unwritten Constitution is not codified in a single
written document but exists in customs, conventions,
judicial decisions, and statutes.
Key Sub-Points
• Product of Evolution – Develops gradually over
history, not framed at one point in time.
• Based on Conventions – Heavily dependent on
traditions, practices, and moral obligations.
• Partly Written – Some elements exist in statutes, but
no single authoritative document exists.
• Flexible Nature – Changes easily through practice
rather than formal amendment.
• Political Awareness – People know and obey the
constitution even without possessing it in written form.
Example
United Kingdom
3. Difference Between Written and Unwritten
Constitutions
(i) Form
• Written: Exists as a codified document
• Unwritten: Exists in customs, conventions, statutes
(ii) Method of Formation
• Written: Created by a Constituent Assembly
• Unwritten: Evolves gradually over time
(iii) Flexibility
• Written: Usually rigid
• Unwritten: Highly flexible
(iv) Legal Certainty
• Written: Definite and enforceable in courts
• Unwritten: Must be proved through sources and
precedents
⚠️Reality check: No constitution is purely written or
unwritten—both overlap in practice.
4. Flexible Constitution
A Flexible Constitution can be amended by the same
procedure as ordinary laws.
Key Sub-Points
• Simple Amendment Process – No special majority or
rigid procedure required.
• Adaptability – Adjusts easily to social and political
changes.
• Parliamentary Supremacy – Legislature has wide
powers to amend constitutional provisions.
Merits
• Quick response to emergencies
• Reduces chances of violent revolution
• Keeps the constitution updated and relevant
Demerits
• Risk of instability
• Can be misused by ruling government
• Unsuitable for federal systems
Example
United Kingdom
5. Rigid Constitution
A Rigid Constitution requires a special and difficult
procedure for amendment.
Key Sub-Points
• Special Majority Required – Often 2/3rd or higher
majority.
• People’s Will – Considered the fundamental will of the
sovereign people.
• Judicial Protection – Courts act as guardians of the
constitution.
Merits
• Political stability
• Prevents arbitrary use of power
• Ideal for federal systems
• Maintains constitutional continuity
Demerits
• Slow to adapt to social change
• Can hinder reforms
• May provoke revolts during crises
• Encourages excessive conservatism
Example
United States of America
6. Evolved Constitution
An Evolved Constitution emerges naturally through
historical growth rather than deliberate enactment.
Key Sub-Points
• Custom-Based – Draws authority from age-old customs
and conventions.
• Moral Binding Force – Followed due to public respect
and political morality.
• Legal Recognition – Some conventions later receive
statutory recognition.
Example
United Kingdom
7. Enacted Constitution
An Enacted Constitution is deliberately framed, debated,
and formally adopted.
Key Sub-Points
• Man-Made – Created by a Constituent Assembly or
Constitutional Council.
• Written & Systematic – Organized logically into
articles and schedules.
• Legal Authority – Comes into force after formal
enactment.
Examples
India, USA, Japan, China
8. Monarchical and Republican Constitutions
Monarchical Constitution
• Head of State is a Monarch
• Powers may be limited
• Example: Britain
Republican Constitution
• Head of State is an elected President
• Sovereignty rests with the people
• Example: India, USA
9. Presidential and Parliamentary Constitutions
Presidential
• President is Head of State & Executive
• Not accountable to legislature
• Example: USA
Parliamentary
• Prime Minister is executive head
• Accountable to legislature
• Example: India, UK
10. Federal and Unitary Constitutions
Federal Constitution
• Dual government system
• Division of powers
• Written and rigid
• Examples: India, USA
Unitary Constitution
• Centralised authority
• Single government
• Example: UK (though evolving due to devolution)
11. Political and Legal Constitutions
Political Constitution
• Parliamentary supremacy
• Accountability through politics
• Flexible
• Example: UK
Legal Constitution
• Judicial supremacy
• Courts enforce constitutional limits
• Constitution treated like sacred text
• Example: USA
2. What is Constitutionalism

1. Meaning of Constitutionalism
1.1 General Meaning
Constitutionalism, in its broadest sense, refers to a set of
ideas, attitudes, and patterns of behaviour based on the
principle that:
 Government authority derives from the Constitution
 Such authority is limited by a body of fundamental
law
 Power is not absolute but legally restrained
It emphasizes that law is superior to rulers, not the other
way around.
1.2 Scholarly Definitions
 According to David Fellman, constitutionalism is the
idea of limited government under a higher law.
 Political scientists describe it as a system that
contains institutional mechanisms to control power,
especially to protect minority interests.
In simple words: power exists, but with handcuffs on.
1.3 Essence of the Concept
  Constitutionalism is the antithesis of arbitrariness and
despotism
 A government that exceeds constitutional limits loses
legitimacy
 The purpose is to protect individual liberty, dignity,
and personality

2. Constitution as Fundamental Law

2.1 Nature of Constitutional Law
In genuine democracies:
 The Constitution lays down political, legal, and social
structures
 It is regarded as paramount or supreme law
 All other laws derive their validity from it
If constitutional law itself is weak or ignored, democracy
and rule of law collapse.
2.2 Separation of Powers
Modern constitutionalism rests on:
 Division of government into Legislature, Executive,
and Judiciary
 Separation does not mean isolation
 These organs function interdependently, yet
autonomously
This balance prevents concentration of power.

3. Constitutionalism as Limited Government

3.1 Core Principle
Constitutionalism means:
 Government can and should have powers
 But those powers must be legally limited
 Authority depends on obedience to constitutional
limits
3.2 Moral and Legal Framework
 The Constitution acts as a moral framework
 It reflects the will of the people
 Ideally, it is framed through consensus
No consent, no legitimacy. Simple math.

4. Constitutionalism: Minimal and Richer Sense

4.1 Minimal Sense
In the minimal sense:
 A constitution is merely a set of rules creating
government power
 Even an absolute monarchy can have a constitution
  Example: A ruler (Rex) with unlimited power—
whatever he decrees is law
Such a system is constitutional in form, but not in spirit.
4.2 Richer Sense
In the richer sense:
 Government powers are created and limited
 Authority depends on observing those limits
 Absolute rulers do not satisfy constitutionalism
True constitutionalism begins where power ends.

5. Uses of Constitutionalism
5.1 Descriptive Use
Descriptively, constitutionalism refers to:
 Historical struggles to secure consent of the people
 Recognition of rights, freedoms, and liberties
 Example: Evolution of the U.S. Bill of Rights
It explains how constitutional ideas developed.
5.2 Prescriptive Use
Prescriptively, constitutionalism tells:
 What a constitution ought to be
  That government must be legally limited
 Authority depends on respecting those limits
As Wil Waluchow notes, it is about what should exist, not
just what exists.

6. History of Constitutionalism
6.1 Hobbes vs Locke
 Hobbes supported absolute sovereignty
 Locke argued for limited sovereignty under a social
contract
 Locke’s view aligns with modern constitutionalism
6.2 Austin’s Critique
John Austin argued:
 Law is the command of a sovereign
 A sovereign cannot be legally limited
 Therefore, constitutional limits are logically
impossible
This creates a paradox:
If people are sovereign, they command themselves.

7. Important Features of Constitutionalism

7.1 Entrenchment
 Constitutional limits must be entrenched
 They cannot be easily changed at the will of
government
 Ensures stability and permanence
Without entrenchment, limits are illusory.
7.2 Writtenness
Two views exist:
 Some argue constitutions must be written
 Others accept unwritten constitutions (e.g., UK)
Key British constitutional documents:
 Magna Carta (1215)
 Petition of Right (1628)
 Bill of Rights (1689)

8. Elements of Constitutionalism
According to Louis Henkin, constitutionalism includes:
8.1 Power Structure
 Government according to the Constitution
 Separation of powers
 Sovereignty of the people
  Constitutional review
 Independent judiciary
8.2 Rights Protection
 Limited government
 Bill of Rights
 Control over police
 Civilian control of military
 Limited emergency powers
Together, these ensure strong but limited government.

9. Constitutionalism and Democracy

9.1 Relationship
 Authoritarian regimes are inherently unconstitutional
 Constitutionalism is based on people’s sovereignty
 Democracy is the only consensual form of
governance
9.2 Core Idea
 Elections alone do not create democracy
 Democracy exists when power is exercised on behalf
of the people
 Without democracy, constitutionalism cannot survive
10. Constitutionalism and Rule of Law
10.1 Rule of Law
 Supremacy of law over rulers
 Equality before law
 Government bound by law
10.2 Safeguards
 Judicial review
 Separation of powers
 Habeas corpus
 No retrospective legislation
Rule of law protects constitutionalism, and
constitutionalism strengthens rule of law—a mutual
dependency.

11. Constitutionalism in India

11.1 Constitutional Framework
 India has a written Constitution
 Governed by rule of law
 Constitutionalism is expected in governance
11.2 Practical Challenges
 Excessive bureaucratization
  Alienation of rulers from the ruled
 Persistent inequality
 Colonial mindset in administration
India has the structure, but the spirit struggles.

12. Judicial Recognition of Constitutionalism

12.1 I.R. Coelho v. State of Tamil Nadu
 Constitutionalism is a legal principle
 Government power must not destroy democracy
 Protection of fundamental rights is central
12.2 Rameshwar Prasad v. Union of India
 Constitutionalism abhors absolutism
 Based on rule of law and objectivity
12.3 Minerva Mills Case
 Constitution is a precious heritage
 Its identity cannot be destroyed

13. Criticisms of Constitutionalism

13.1 Anarchist Critique
 Murray Rothbard argued constitutions fail to restrain
governments
  Courts expand state power instead of limiting it
13.2 Democratic Critique
Jeremy Waldron argues:
 Constitutionalism can be undemocratic
 Courts may override popular will
 People risk being disenfranchised by their own
constitution

14. Conclusion
Constitutionalism promises limited government, but:
 Constitutions cannot enforce themselves
 Interpretation lies with courts
 Separation of powers can be weak in practice
In India:
 Criminalization of politics
 Administrative corruption
 Rising public frustration
If unchecked, these threaten democracy itself.
Constitutionalism survives not on paper—but in practice,
vigilance, and public conscience.

3. Salient Features of the Indian Constitution

1. Written and Lengthiest Constitution in the World
(a) Written Constitution
 The Indian Constitution is primarily written, framed at
a definite time and adopted as a single document.
 Drafted over 2 years, 11 months, and 18 days.
 Adopted: 26 November 1949
 Came into force: 26 January 1950
(b) Lengthiest Constitution
 Contains:
o 446 Articles
o 22 Parts
o 12 Schedules
 Comparison:
o USA – 7 Articles
o Australia – 128 Articles
o Canada – 147 Articles
(c) Written vs Unwritten Constitution
 UK is regarded as an unwritten constitution, but in
reality:
 o It contains written elements (statutes, judicial
decisions, charters)
 Indian Constitution also contains unwritten conventions
(d) Scholarly View
 K.C. Wheare:
“No constitution is wholly written or wholly unwritten…
the distinction has lost much of its significance.”

2. Parliamentary Form of Government

(a) British Model Adopted
 Executive is drawn from and responsible to the
Legislature.
 Council of Ministers holds office as long as it enjoys
legislative confidence.
(b) Position at the Centre
 President – Nominal Head
 Prime Minister & Council of Ministers – Real executive
authority
 President acts on ministerial advice (Articles 74 & 75)
(c) Position in States
 Governor – Nominal head, nominee of the Centre
 Chief Minister & Council of Ministers – Real executive
power
(d) Distinction from Presidential System
India USA
Coordination of organs Separation of powers
Executive accountable Executive independent

3. Mixture of Rigidity and Flexibility

(a) Rigid Constitution
 Special procedure for amendment
 Example: USA
(b) Flexible Constitution
 Amendable by ordinary legislation
 Example: UK
(c) Indian Position – A Balanced Blend
 Article 368 governs amendments
 Three methods:
1. Simple majority (e.g., formation of new states)
2. Special majority of Parliament
3. Special majority + ratification by ½ of States
(d) Thinkers’ Views
 Friedrich: Flexibility enables adaptation
 Bryce: Flexibility allows bending without breaking
(e) Constituent Assembly Justification
 Detailed provisions necessary for:
o Judiciary
o Elections
o Public Services
(CAD Vol. XI, pp. 839–40)

4. Fundamental Rights (Part III: Articles 14–32)

(a) Nature
 Essential for development of personality
 Inspired by US Bill of Rights
(b) Enforcement
 Article 32 – Right to constitutional remedies (itself a
FR)
 Article 226 – Remedy before High Courts
(c) Basic Structure Doctrine
 Kesavananda Bharati v. State of Kerala
(AIR 1973 SC 1461)
o Fundamental Rights cannot be destroyed or abrogated
(d) Doctrine of Waiver
 Does not apply to Fundamental Rights

5. Fundamental Duties (Article 51A)

(a) Origin
 Inserted by 42nd Constitutional Amendment Act, 1976
(b) Purpose
 Rights and duties are co-relative
 Citizens must respect:
o Constitution
o National symbols
o Unity and integrity
(c) Present Status
 11 Fundamental Duties

6. Directive Principles of State Policy (Part IV: Articles

36–51)
(a) Nature
 Non-justiciable (Article 37)
  Fundamental in governance
(b) Source
 Borrowed from Irish Constitution
(c) Objective
 Establish economic democracy
 Promote welfare state
(d) Judicial Interpretation
Paschim Banga Khet Mazdoor Samity Case
Welfare of people is primary duty of Government

7. Centralised Federation
(a) Federal Structure
 Division of powers between Centre and States
(b) Unitary Tilt During Emergency
 Centre can legislate on State List
 Executive control over States
 Financial arrangements alterable
(c) Result
 Federal in normal times
 Unitary during emergencies
8. Universal Adult Franchise
(a) Article 326
 Voting rights to every citizen 18 years and above
(b) Features
 No discrimination based on:
o Caste
o Religion
o Sex
o Property
(c) Significance
 “One person, one vote.”
 Bold democratic experiment despite illiteracy

9. Independent and Impartial Judiciary

(a) Importance
 Rights meaningless without remedies
 Judiciary enforces Fundamental Rights
(b) Judicial Review
 A basic feature of the Constitution
(c) Case Laws
 S.P. Gupta v. Union of India (AIR 1982 SC 149)
 Supreme Court Advocates-on-Record Case
 Kumar Padma Prasad v. Union of India
(AIR 1992 SC 1213)
 Bombay HC v. Shirish Kumar Patil
(AIR 1997 SC 2627)
(d) Judges’ Status
 Judges are not government servants
 Independence is constitutionally guaranteed

10. Secular State

(a) Constitutional Position
 Word “Secular” added by 42nd Amendment (1976)
(b) Meaning
 No state religion
 Equal respect for all religions
(c) Case Laws
 Kesavananda Bharati Case
 S.R. Bommai v. Union of India (AIR 1994 SC 1918)
  Aruna Roy v. Union of India (AIR 2002 SC 3176)
(d) Constitutional Reflection
 Articles 25–30
 Article 51A

11. Single Citizenship

(a) Indian Position
 Only citizenship of India (Article 5)
(b) Contrast with USA
India USA
Single citizenship Dual citizenship
One allegiance Dual allegiance
(c) Significance
 National unity
 Equal rights across India

[Link] Enshrined in the Presamble

PREAMBLE OF THE INDIAN CONSTITUTION

1. Meaning and Nature of the Preamble
(a) Introductory Part of the Constitution
The Preamble is the opening statement of the
Constitution. It introduces the philosophy, spirit, and
objectives on which the entire constitutional framework
rests. Like a compass, it does not move the ship, but it
shows the direction.
(b) Statement of Constitutional Philosophy
It reflects the ideals, aspirations, and values that the
framers intended the State to pursue—justice, liberty,
equality, fraternity. It captures the soul of the Constitution
in a few carefully chosen words.
(c) Non-Justiciable but Significant
The Preamble is not enforceable in a court of law. No one
can file a case solely based on the Preamble. However, its
importance lies in interpretation, not enforcement.
(d) Expression of Popular Sovereignty
The words “We, the People of India” indicate that the
ultimate source of authority is the people, not Parliament,
not the States, not any external power.

2. Historical Background of the Preamble

(a) Objective Resolution of Jawaharlal Nehru
The Preamble is based on the Objective Resolution,
introduced by Jawaharlal Nehru on 13 December 1946
and adopted on 22 January 1947. This resolution laid
down the broad goals of the Indian State.
(b) Role of the Drafting Committee
While drafting the Preamble, the committee decided to
retain only essential principles and shift detailed
provisions into the main body of the Constitution.
(c) Modifications from the Objective Resolution
• “Sovereign Independent Republic” → “Sovereign
Democratic Republic”
• The word Fraternity was added to emphasize national
unity
• Independence was dropped as it was considered implicit
in sovereignty
(d) Sovereign Constituent Assembly
After the transfer of power, the Constituent Assembly
became fully sovereign, reflected in the phrase “give to
ourselves this Constitution”.

3. Purpose and Functions of the Preamble

(a) Source of Authority
It declares that the Constitution derives its authority from
the people of India, rejecting any colonial or external
source of power.
(b) Declaration of Goals
It lays down the rights, freedoms, and form of
government which the Constitution seeks to establish.
(c) Aid to Interpretation
When constitutional provisions are ambiguous, courts
may refer to the Preamble to understand the intent behind
those provisions.
(d) Moral and Political Guide
Though not legally enforceable, it acts as a guiding star
for governance and constitutional morality.

4. Judicial Interpretation of the Preamble

(a) A.K. Gopalan v. State of Madras
The Court held that the Preamble cannot override clear
constitutional provisions. Article 21 could not be
expanded using the Preamble.
(b) Berubari Union Case
The Supreme Court ruled that the Preamble is not a
source of power and not a part of the Constitution (this
view was later reversed).
(c) Kesavananda Bharati v. State of Kerala
This landmark case gave the Preamble its true
constitutional status:
 It is part of the Constitution
 It reflects the basic structure
 It is crucial for interpretation
(d) State of Rajasthan v. Basant Nahata
The Court clarified that the Preamble can be used only
when language is ambiguous, not when the meaning is
clear.

5. Scope and Limitations of the Preamble

(a) Not Supreme over the Constitution
In case of conflict, specific constitutional provisions
prevail over the Preamble.
(b) No Independent Powers
The Preamble cannot grant powers to the legislature,
executive, or judiciary.
(c) Interpretative Role
Its true value lies in resolving doubts, not creating rights.

6. Whether the Preamble is Part of the Constitution

(a) Berubari Case View
Held that the Preamble is not part of the Constitution,
only an aid to interpretation.
(b) Kesavananda Bharati View
The majority held:
1. The Preamble is part of the Constitution
2. It is amendable under Article 368
3. Its basic features cannot be destroyed
This is the current and settled position.

7. Amendment of the Preamble

(a) Power to Amend
The Preamble can be amended under Article 368, but
subject to the Basic Structure Doctrine.
(b) 42nd Constitutional Amendment, 1976
Inserted:
• Socialist
• Secular
• Integrity
(c) Limitation on Parliament
Parliament cannot alter the core identity of the
Constitution embodied in the Preamble.

8. Principles Enshrined in the Preamble

(A) “We, the People of India”

• Declares popular sovereignty
• Constitution enacted in the name of the people
• Power flows from bottom to top, not top to bottom

(B) Sovereign
• India is internally supreme and externally
independent
• No external authority controls Indian policy
• Internally, power is distributed among legislature,
executive, judiciary

(C) Socialist
• Commitment to social and economic justice
• Not rigid state socialism
• Allows private property with social welfare orientation
Cases:
• Excel Wear – balance between private ownership and
social justice
• D.S. Nakara – socialism means dignity from cradle to
grave
• Air India Statutory Corporation – egalitarian social
order

(D) Secular
• No state religion
• Equal respect to all religions
• Freedom of conscience guaranteed
Cases:
• St. Xavier’s College – secularism is neutrality
• I.R. Coelho – secularism flows from Fundamental
Rights

(E) Democratic
• Government by elected representatives
• Free and fair elections
• Rule of law + minority protection
Cases:
• Mohan Lal – democracy is governance by
representatives
• ADR Case – informed voters essential for democracy

(F) Republic
• Head of State is elected, not hereditary
• Political power belongs to the people
• Equality before law

9. Objectives of the Preamble

(A) Justice – Social, Economic, Political

• Social justice: elimination of inequalities
• Economic justice: fair distribution of wealth
• Political justice: equal political participation

(B) Liberty
• Freedom of thought, expression, belief, faith, worship
• Negative liberty: freedom from state interference
• Positive liberty: conditions for self-development

(C) Equality
• Equality before law
• Equal opportunity
• Abolition of untouchability and titles

(D) Fraternity
• Sense of brotherhood
• Unity with diversity
• Dignity of the individual