Constitution

this explains concept of Constitution which contains meaning, definition,classification,characteristics of good constitution and brief introduction Constituent Assembly of India

1. United States Constitution 101 Constitution By Mr. Mahesh Jaiwantrao Patil Assistant Professor, Narayanrao Chavan Law College Nanded , Maharashtra, India Cell no.(91+) 09860816313

2. Main object of the Chapter To understand what is Constitution (including meaning and definition). To learn characteristics of Good Constitution. To learn Classification of the Constitution. To study the concept of Constitutionalism. To study Constituent Assembly of India.

3. Introduction Every state must have a constitution. Without a constitution, it is difficult to govern a state. History tells that since the origin of the state there had been some kinds of rules and regulations in some form to maintain the order and harmony in the state. In every state be it a democratic or despotic it is essential that such rules must be accepted which would decide the role and organization of political institutions in order to save the society from anarchy. In modern states these rules find expression in the form of a constitution

4. What is Constitution? The supreme law of the State. It is the foundation and source of the legal authority underlying the existence of the State. It provides the framework for the organization of the State Government. A constitution is a basic design, which deals with the structure and powers of the government. It also includes rights and duties of citizens. Sometimes it is found in an established body of rules, maxims, traditions and practices in accordance with which its government is organized and its powers are exercised.

5. the term Constitution is derived from Latin ‘Constitute’ which means ‘to establish’. The constitution is the basic document of a state. It is the fundamental rule of a state which regulates the distribution of powers within organs of government.

6. Definition Aristotle:- “constitution is the way in which, citizens who are the component parts of the state are arranged in relation to one another”. Woolsey: - defines a constitution as “the collection of principal according to which he powers of the government rights of the government and relations between the two are adjusted.” George Cornewell Lewis: d efines the constitution as “ the arrangement and distribution of sovereign power in the community or the form of the government”

7. Austin: defines constitution as, “that it fixes the structure of supreme government.” On the basis of above definitions we can say that a constitution is: - The fundamental law of the land May be written or unwritten. Deals with the composition and power of the government. Deals with the rights of citizens. Deals with the relationship between the government and governed. It is supreme law of the land & it must be followed by its components.

8. Need of the Constitution A constitution is needed for a variety of reasons. To curb the powers of the government by fundamental law. To protect the rights of individuals To establish the principle of ‘rule of law’. To save the state from anarchy. To define the operation of the sovereign power of the state. To limit present and future generations from arbitrary government.

9. Characteristics of Good Constitution Clarity or definiteness: Every clause of the constitution should be written in simple language. It should express its meaning clearly without leaving any scope for confusion. Brevity (Briefness):- The constitutions should not be lengthy. It should contain only important things and unimportant things should be left out. But the brevity should not lead to gap in Constitution having some issues unexplained.

10. Comprehensiveness: The constitution should be applicable to the whole country. If it is a federation then it must say the structure and power of the center and provincial government Flexibility: The constitution should not be too rigid to hinder the process of amendment when needed. Fundamental Rights: A good constitution must contain the fundamental rights of the people. In the constitution of countries like India, Russia, China, America and Japan such declaration have been made.

11. Independence of judiciary: Independence of judiciary is another quality of a good constitution. The judiciary should function freely and act as the guardian of the fundamental rights of the people without favour or fear. Directive Principles of State Policy: In a good constitution mention must be made of the directive Principles of the State Policy because, it helps the establishment of a welfare state. These principles also serve as a boon for the government.

12. Classification of the Constitution

13. Written & Unwritten Constitution: A written constitution is a formal document defining the nature of the constitutional settlement, the rules that govern the political system and the rights of citizens and governments in a codified form. A written constitution is normally supposed to mean a document or a collection of documents in which the basic rules regarding the main organs and institutions of government are clearly laid down. Example : The constitution of India was formulated and adopted by the constituent assembly. An unwritten constitution reflects the evolutionary nature of free documentation of the rules and regulations. First they are practiced and by a continuous practice, they become part of the construction. The constitution of Britain is the best example of An uncodified constitution is a type of constitution where the fundamental rules often take the form of customs, usage, precedent and a variety of statutes and legal instruments. ... A new condition or situation of government may be resolved by precedent or passing legislation.

14. Flexible and Rigid Constitution: the classification of the constitution should be based on the method of amendment to the constitution. In a flexible constitution there is no distinction between ordinary law and constitutional law. Both the enacted in the same way and their source is also same. Constitution may be written or largely based on conventions. They are amended in the same way. No special procedure is required for amending the ordinary or constitutional law. The constitution of Britain is a classic example of a flexible constitution. Parliament in Britain is sovereign. In Britain constitutional changes can be made by following the same way as an ordinary law is enacted. The courts have no authority of review.

15. Rigid constitutions are those, which require a special procedure for the amendment of the constitution. The constitutions of USA, Australia and Switzerland are the example of a rigid constitution. The rigid constitution is above the ordinary law and can be changed by a procedure, which is different from the procedure of ordinary law, thus making it difficult to change. The objective is to emphasize that the constitutional law embodies the will of the sovereign, and it should be treated as sacred document. American constitution is the best example of a rigid constitution. The American congress cannot make any law contrary to the constitution. The American Supreme Court acts as the guardian of the constitution and it has right to declare any law of the congress null and void. The constitution of India is neither so flexible as the British constitution not so rigid as the American constitution. But it is midway, which means more rigid than British constitution and less rigid than American constitution. A rigid constitution is always written.

16. Unitary & federal constitution: A unitary state is a state governed as a single power in which the central government is ultimately supreme and any administrative divisions (sub-national units) exercise only powers that the central government chooses to delegate. The majority of states in the world have a unitary system of government. A unitary system is governed constitutionally as one single unit, with one constitutionally created legislature. This means that all powers of the Government are centralized in one Government that is Central Government. The most famous example of Unitary Constitution is UK. In Unitary Constitution the provinces are subordinate to the centre. A federal constitution is one which sets up a system of federalism within a country.  Federalism is a political system in which the national government and the smaller governments (states or provinces) each have their own powers that are specified by the constitution.  In such a system, neither level of government has the ability to infringe on the rights of the other level of government. US Constitution which gives specific rights and powers to the state governments and other rights and powers to the national government.

17. Quasi-Federal Constitution: It combines the features of a federal government and the features of a unitary government which can also be called the non-federal features. Because of this, India is regarded as a semi-federal state or Quasi federal state. The Supreme Court of India also describes it as “a federal structure with a strong bias towards the Centre ”.

18. Constitutionalism Introduction: it is modern concept that desires a political order governed by laws and regulations. It stands for the supremacy of law and not of the individuals. It insists limited government. It also stands for the existence of a constitution in the state, since it is the instrument of government, or the fundamental law of land, whose objects are to limit the arbitrary action of government, to guarantee the rights of the governed, and to define the operation of the sovereign power.

19. Meaning It is the idea, often associated with the political theories of John Locke and the "founders" of the American republic, and equated with the concept of "Rule of Law", that government can and should be legally limited in its powers, and that its authority depends on enforcing these limitations. Government in which power is distributed and limited by a system of laws that the rulers must obey. The principle that insists on organization and working of the state according to a constitution so

20. that no organ or office holder of the state is allowed to use arbitrary power. A constitution not only provides for a frame work of government but also prescribes powers of various of government and the limits of those powers.

21. Constituent Assembly of India It was in 1934 that the idea of a Constituent Assembly for India was put forward for the first time by M.N.Roy , a pioneer of communist movement in India and an advocate of radical democratism . In 1935, the Indian Nat ion al Congress (I NC), for t h e first time, officially demanded a Constituent Assembly to frame the Constitution of India. In 1938, Jawaharlal Nehru , on behalf the INC declared that ‘the Constitution of free India must be framed, with out outside interference, by a Constituent Assembly elected on the basis of adult franchise. The Cabinet Mission consisting of three members arrived in India on March 24, 1946.

22. A constituent assembly is a body of representatives which is composed for drafting a constitution. Recently Nepal’s constituent assembly has drafted its constitution recently. Drafting the constitution is the only function of a constituent assembly. Once the constitution is ready and adopted; the assembly is dissolved. Further, since members of constituent assembly are representatives (elected or unelected). It is a form of representative democracy. Idea of Constituent Assembly: The idea of Constituent assembly of India was first put forward by Manabendra Nath Roy or MN Roy in 1934. In 1935, it became the official demand of INC. It was accepted in August 1940 in the August Offer however, constituted under the Under Cabinet Mission plan 1946. It was first elected for undivided India but after partition, some of its members ceased to exist as a separate constituent assembly was created for Pakistan. Elections of Members of Constituent Assembly: Members of Constituent Assembly were indirectly elected. During British Era, India had provincial assemblies like the current legislative assemblies of states. The members of the Constituent assembly were indirectly elected by the members of the provincial assemblies by method of single transferable vote system of proportional representations.

23. COMPOSITION OF THE CONSTITUENT ASSEMB LY The Constituent Assembly was constituted in November 1946 under the scheme formulated by the Cabinet Mission Plan . The f eat u res of t h e schem e were: Initially, its total membership was kept 389. After partition, the Constituent Assembly of India had 299 representatives. These included 229 members from provinces and 70 from princely states. There were total nine women members also. The membership plan was roughly as per suggestions of the Cabinet Mission plan. The basis of divisions of seats was “population” roughly in 1:10 Lakh ratio. Objectives Resolution The historic Objectives Resolution was moved by Jawaharlal Nehru on 13 December 1946. It defined the aims of the assembly and enshrined the aspirations and values behind the Constitution making. On the basis of the Objectives Resolution, India’s Constitution gave institutional expression to the fundamental commitments: equality, liberty, democracy, sovereignty and a cosmopolitan identity. The preamble of the constitution of India is derived from Objectives Resolution.

24. Different committees of the Constituent Assembly A number of committees were created by constituent assembly to perform different tasks related to framing of constitution. Most important among them was drafting committee headed by Dr. B R Ambedkar , which had to draft the constitution. Chairman of other important committees were as follows: Rajendra Prasad was chairman of Committee on the Rules of Procedure Committee; Steering Committee: Rajendra Prasad, Finance and Staff Committee and Ad hoc Committee on the National Flag. Jawaharlal Nehru was chairman of Union Constitution Committee, Union Powers Committee and States Committee (this committee was there for negotiating with states). Sardar Patel was chairman of Provincial Constitution Committee and Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas

25. Some of the other committees and their chairmen were as follows: Committee on the Functions of the Constituent Assembly – G.V. Mavalankar . Order of Business Committee – Dr. K.M. Munshi . House Committee – B. Pattabhi Sitaramayya . Special Committee to Examine the Draft Constitution – Alladi Krishnaswamy Ayyar . Credentials Committee – Alladi Krishnaswamy Ayyar . Other members of drafting Committee: -The drafting committee of the constituent assembly was made of total seven members including chairman Dr. B R Ambedkar . The six other members were as follows: N Gopalaswamy Ayyangar , Alladi Krishnaswamy Ayyar , Dr K M Munshi , Syed Mohammad Saadullah , N Madhava Rau (NMR was Diwan of Mysore state and had replaced B L Mitter who had resigned due to ill-health. He strongly opposed to the imposition of Hindi language as the lingua franca for India) T T Krishnamachari (TTK had replaced D P Khaitan who died in 1948. He was one of the members of Nehru cabinet and served as Union Minister for two times) .