What is Constitution

WHAT IS CONSTITUTION?

Though there is no definite definition of Constitution, still following are the general understanding of it.
‘Constitution’ is sacred and most supreme document of land which comprises of set of rules and regulations in the form of articles which provides framework through which the state will run.
It also provide guidance for policy formation in any sphere of state relations.

Constitution is Fundamental law of the land.

Every state have different state of laws for different aspect
Crime – Indian Penal Code , Criminal Procedure Code (CrPC)
Civil Issue – Civil Procedure Core 1908
Land – Transfer of Property Act
No law/ Act can contravene the constitution in any manner , if any law/ Act become inconsistent with the constitution. The sais Act or the portion of Act become null and void because the Constitution is the fundamental law of law , and every Act/Law has to derive its power from it

“Legus legum” – law of all laws

Constitution gives us the framework of polity, the so-called ‘Trinity’ of our state- Legislature, Executive and Judiciary.

Constitution provides the norms that govern the relationship within the trinity.
Determines the relationship between the state and the citizens.

It is not a static document. Constitution is an organic one. It GROWS through:
Amendments
Judicial interpretations (decision)
Conventions (not written or codified, non-punishable by law if it’s violated)- like in UK
Statutes or laws made by the Legislature

Constitution allows coordination and assurance: A constitution provides a set of basic rules that allow for coordination amongst members of a state .
Specification of decision making powers: A constitution specifies who has the power to make decisions in a state. It decides how the government will be constituted.
Limitations on the powers of government: A constitution sets some limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them but as according to the procedure established.

It imposes legally enforceable restrictions on the state. It also gives legitimacy to the state and its actions.
A written constitution is essential for a federal set up because the rights and liabilities of the Centre and the state is well defined , as no one can encroach them.
Aspirations and goals of a society: A constitution’s purpose is to enable the government to fulfil the aspirations of a state and create conditions for a just society.
Ex – Directive Principle of State Policy

Countries may have Constitution but not CONSTITUTIONALISM
For Example
North Korea and Myanmar both have constitution but not have constitutionalism
The concept of constitutionalism is a mechanism that provides legitimacy to a democratic government.
A system of government based largely on the ideals of western liberal democracy, the essence of which is restrictions and limitations on the absolute powers of the state. It is envisaged in the writings of J.S. Mill, Dicey, James Madison, Montesquieu etc
The concept of constitutionalism has been recognised by the Supreme Court in Rameshwar Prasad v. Union of India.
The Court stated, “The constitutionalism or constitutional system of Government abhors absolutism – it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.”
In IR Coehlo v. State of Tamil Nadu, the Court held that Constitutionalism is a legal principle that requires control over the exercise of governmental power to ensure that the democratic principles on which the government is formed shall not be destroyed.

Rule of Law
- The presence of rule of law means that the government does not belong to men but to the laws.
- Dicey lays down three essential components of Rule of Law:
- Nobody is to be punished except for a specific breach of law that is established in an ordinary legal manner before ordinary courts of law.
- No one is above the law.
- Courts play a vital role in protecting the rights and freedoms of an individual.
Independent Judiciary
- The independence of the Judiciary is the essence of any liberal democracy and the foundation of a free society.
- The Judiciary is the upholder of Rule of law and if its independence is taken away, it puts the entire rule of law in jeopardy.
- The Constitution also envisages the separation of the judiciary from the Executive under Article 50.
Civilian control of the military
- Apart from these features, constitutionalism envisages that the control of the military should be in the hands of a civilian government
- So that the military does not interfere in the democratic decision making or attempt a military coup.

Right to life, liberty, expression, residence etc., can also be considered as the components of constitutionalism.
The western idea of constitutionalism is negative in orientation as it principally seeks to restrict, limit and disempower the state.
Ideally, the state must also be empowered adequately to enable it to deliver on the governance agenda.
Thus, the right balance has to be struck between the needs of checking operation and preventing chaos in the society.