Understanding Constitutions: Definition and Types

1. A.V. Dicey defined a constitution as 'all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state.'
2. K.C. Wheare defined it as 'that body of rules which establish and regulate or govern the government.'

Its supreme legal character (Grundnorm / Lex Superior) stems from the fact that:

• It is the source from which all governmental organs (legislature, executive, judiciary) derive their existence and authority.
• Any ordinary legislative statute or executive decree inconsistent with the constitution is void and struck down by courts under judicial review.

Constitutionalism is a political philosophy that mandates 'Limited Government' (power bounded by law to prevent tyranny).

Difference between having a Constitution and Constitutionalism:

1. A country may have a written document called a constitution on paper (e.g., authoritarian or dictatorial regimes), but if the ruler exercises arbitrary power, suppresses civil rights, and ignores judicial oversight, there is NO constitutionalism.
2. Constitutionalism requires substantive institutional safeguards: separation of powers, an independent judiciary, free elections, entrenched fundamental rights, and the Rule of Law (Lex Rex).

1. Written Constitution: The fundamental principles and governance framework are formally codified in a single legal text drafted and enacted by a constituent assembly at a specific date (e.g., India, USA). It provides precision and legal certainty.
2. Unwritten Constitution: It is not codified in one single document. Instead, it consists of an organic accumulation of unwritten conventions, historic statutory charters, judicial precedents, and common law customs evolved over centuries (e.g., United Kingdom, New Zealand).

Note: Political scientists emphasize this is a difference of degree, as the British system includes written statutes (Magna Carta, Bill of Rights) and written constitutions rely on unwritten conventions.

1. Flexible Constitution: Can be amended by the regular legislative body using the same simple majority procedure used for enacting ordinary laws (e.g., United Kingdom).
2. Rigid Constitution: Requires a distinct, complex, and difficult legislative procedure for amendment, fundamentally separate from ordinary statutes (e.g., USA, Australia).

Necessity for Federations: In a federal state, powers are divided between the central government and regional states. If the constitution were flexible, the central parliament could unilaterally destroy state autonomy or abolish regional powers. A rigid amendment process prevents unilateral central alterations and protects the federal compact.

The Indian Constitution avoids the extreme rigidity of the US Constitution and the extreme flexibility of the British system by providing three amendment pathways:

1. Flexible Pathway: Certain provisions can be amended by simple majority in Parliament (creation of new states under Art. 3, citizenship, legislative councils under Art. 169).
2. Rigid Pathway (Article 368): Most provisions (Fundamental Rights, Directive Principles) require a special majority: a majority of total membership of each House AND a 2/3 majority of members present and voting.
3. Ultra-Rigid Pathway (Article 368): Federal provisions (Presidential election, distribution of legislative powers, representation of states) require a special majority of Parliament PLUS ratification by at least half of the State Legislatures. This allows India to adapt to socioeconomic changes while safeguarding its federal core.

The Basic Structure Doctrine was established by the Supreme Court of India in the landmark Kesavananda Bharati case (1973).

Significance:

1. It ruled that while Parliament has wide constituent power to amend any part of the Constitution under Article 368, it cannot alter, damage, or destroy the core 'basic structure' of the Constitution.
2. Core elements include: supremacy of the constitution, republican democracy, secularism, separation of powers, federalism, judicial review, and rule of law.
3. It serves as an ultimate judicial bulwark preventing an autocratic parliamentary majority from converting India into a dictatorship or one-party state.