KC Wheare Modern Constitutions (OUP 1960) Ch 1, 2, 3 and 4 pp 1-66

1. What is a constit tion! The word constitution has been used in two senses. One, as a document embodying the rules that regulate the government. The second, as a set of legal and extra-legal rules that establish and govern the government. These extra-legal rules include customs, understandings, practices etc. It is impossible to study the constitution as a mere set of rules as separate from the other general principles (both legal and non-legal) and other rules enacted by the legislature which are supplementary to the constitution. These laws are sometimes called organic laws. The constitution in many countries merely laws down the broad and general principles of various institutions. It is these organic rules that regulate how exactly they are constituted and how they function. g. !epresentation of people"s act governing elections in India. #nother important aspect of the usage of the word constitution in the broader sense is that it includes the interpretation given to the constitution by the $ourts that may supplement or modify certain of its provisions. %upremacy attributed to the constitution over other laws is a characteristic of most of the constitutions. This is in most cases evident from the fact that the amending procedure for the constitution is made more difficult than for other laws (in some cases this re&uires the cooperation of bodies outside the legislature). In most countries, laws that conflict with the constitution are void. %ome people even argue that countries li'e (ew )ealand whose constitution can be amended by the same process as any other law, does not have a constitution at all. The basic reason why many countries wanted to have a constitution is because they wanted to ma'e a fresh start (eg. India) and hence wanted to put down in writing at least the basic principles of their proposed form of government.

The reason why the procedure for amendment of the constitution is made more difficult than that for ordinary laws is because the ob*ective of the constitution is to limit the powers of the government. +ence the nature and extent of the limitation on the government to amend the constitution is indicative of the extent to which the constitution aims to limit the power of the government. This limitation to amend may also indicate that the framers of the constitution did not want it to be dealt with lightly and without proper care and caution. This may also because they wanted to maintain a certain 'ind of relationship between the executive and the legislature or because they wanted the *udiciary to have a position independent of both of these or because they wanted to grant some rights to the citi,ens that they did not want the legislature to ta'e away etc. -hen no restriction is found on amendment of the constitution it means either that the constitution is not given due importance or that it is treated with such great respect that it is respected without any legal restrictions on its amendment. The reasons for .ritain not having a constitution is that it never had a fresh start (which was earlier described as one of the reasons for the formation of a constitution) instead it had a restoration or going bac' to the old norms. -hy it did not have a constitution even at the time of union is because it was not a federal union i.e. the parliaments of the uniting provinces no longer existed. Though there was indeed a certain set of rights that were guaranteed to the uniting countries which was earlier considered to have been unamendable, all of these have been either amended or repealed. 2. "o# constit tions $a% &e c'assi(ied! $onventionally, constitutions used to be classified into written and un-written. .ut by the broad definition of what a constitution is, all countries have a written constitution (in the sense that it refers to a single document or a collection of documents containing the rules which govern the government). The author discards the classification of constitutions into written and unwritten and suggests that a better distinction would be between countries having a written constitution and no written constitution (constitution in the narrow sense).

(o country can have an unwritten constitution. .ritain certainly has a constitution, only difference being that it is not embodied into a single document and on the other hand is spread over a number of statutes, legislations etc. +ence it would be more appropriate to say that .ritain does not have a written constitution than to say that it has an un-written constitution. $lassification into rigid and flexible / depending on the amendment procedure. .ut how difficult it is to amend a constitution cannot be viewed merely as a function of how difficult or easy the legal procedures for its amendment are. It depends on the other hand on the political and social groups in a community. If a ma*ority overwhelming ma*ority of the population agree that there must be a change in the constitution, it will be done irrespective of how difficult the procedure for carrying it out is. +ence the author suggests that the classification into rigid or flexible should be based on how many times in practice the constitution has been amended. #nother classification is based on the competence of the legislature to amend the constitution. $onstitutions whose amendment is not within the sole competence of the legislature are said to be supreme $onstitutions. In cases where the constitution stipulates that it shall be amended only by a special ma*ority of the legislature, the constitution is supreme to that extent. (not to a great extent) .ased on the division of powers, constitutions are divided into federal and unitary. In a federal constitution, the powers are divided between a government for the whole country and a government for parts of the country which are independent of each other and both of which have limited powers. (one is subordinate to the other. .oth are co-ordinate. In a unitary constitution, the government of the whole country is the supreme law ma'ing body. It may by its own discretion permit other legislatures to ma'e laws, but it has the power to overrule all these laws0 these laws are subordinate. There are also constitutions that reserve different areas for legislatures of the whole government and provincial legislatures, but give certain limited powers to the government of the whole country over the provincial government. These constitutions are

called &uasi-federal constitutions. ( x. Indian constitution) # comparison of the practice of government in certain &uasi federal countries would show that some &uasi federal countries in practice act as unitary governments because they use their control over the provincial government most of the time. 1ederal constitutions are generally supreme and rigid to prevent the government of the whole country from altering the distribution of powers between the governments and converting it to a unitary constitution. # constitution by which the government of the whole nation is subordinate to the government of the parts is called a 2confederation". .ased on the method by which powers are divided between the various organs of the government. %eparation of powers in its extreme form would mean that the executive, legislative and *udicial powers of the government are confided in separate institutions and there is overlapping of neither functions nor persons. The variation in the degree of separation of powers between different constitutions is clear from the fact that while the #merican constitution does not provide for the 3resident (head of executive) to be a part of the congress, the Indian constitution re&uires that the ministers (heads of executive) must be members of the congress. It is not right to conclude that separation of powers is not possible in a parliamentary executive. It is important to remember that it is only the ministers or the heads of executive that are part of the legislature and the ma*ority of the executive including civil servants and other officers are not part of it. +ence a separation of powers between the legislature and the executive is very well possible in a parliamentary executive as well. In fact, the rule in presidential executives that no person holding an office in the government shall be a member of either house applies to parliamentary democracies as well *ust with the exception of ministers, though it is true that this exception ma'es a lot of difference.

.ased on who the head of the state is, constitutions can be classified into republican or monarchical. -here the head of the state is elected / republic. -here it is a hereditary ruler / monarchy. -hat we get out of a study of constitutions on this basis is little more than the fact that symbols of monarchy are not incompatible with free government and that symbols of a republic are very much compatible with autocracy. 3. What a constit tion sho 'd contain There are two schools of thought on what a constitution must contain / one group of people who believe that it must purely be a set of rules and another that it must be a statement of ideals, a confession of faith etc. The argument advanced in favour of a short constitution is that it is not a document meant to be read by the public. +ence only its basic ob*ectives need be mentioned and the rest should be deduced from the ob*ectives themselves. It is only obvious that a constitution which provides for a unitary government would be simpler and shorter than one which provides for a federal government. This is because in a unitary government, the constitution only has to lay out the functions of the legislature, executive and *udiciary and the mutual relations between the three. On the other hand a federal constitution needs to mar' out the spheres of functioning of the two governments, place limitations on the legislature and ensure its supremacy etc. The author suggests that it would be a good practice to provide only a single list for division of powers because the words in the list could be later interpreted in ambiguous ways and the confusion only doubles when you have more than a single list. +e also suggests that it would be better to list the powers of the provincial governments and leave the rest to the parliament since it is impossible to foresee what important areas might come up in the future.