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AL-AMEEN COLLEGE OF LAW
LALBAGH MAIN GATE, HOSUR ROAD, BANGALORE
II SEMESTER 5 YEAR B.A.LLB (MAJOR-MINOR) PAPER-
POLITICAL SCIENCE
ORGANIZATION AND INSTITUTION
UNIT-
Q.1 Define Constitution. Explain briefly the types of Constitution.
Ans: SYNOPSIS
Introduction
Meaning and Definition
Types of Constitution
INTRODUCTION
Constitution is the supreme law of each State. It lays down rules regarding the organization, powers and functions of government. It also defines the basic features of the State and the relation between the citizens and the State. A country is run by the government, judicial bodies, its people, and most importantly by the Constitution. The constitution serves as the backbone of the country. Without it, the Law and Jurisdiction will not hold up and fall apart in no time, but they are meant to stand strong. The constitution is the embodiment of fundamental
regulations and principles according to which the country, state, and its people are supposed to work.
The term "Constitution" got its name as the word constitution means accumulation and gathering of various aspects. Similarly, the Constitution we are talking about also is an accumulation of many things that make up the organization of the Legal bodies of any nation. All the rules and principles that are to be established are worked up and wrote down in one place making all the things one single crafted manuscript. The Document formed after this whole procedure is known as the Constitution. But despite all of this information, we still have a question in our mind that why is the constitution important, so let's discuss further on the topic. A country is run by the government, judicial bodies, its people, and most importantly by the Constitution.
The constitution serves as the backbone of the country. Without it, the Law and Jurisdiction will not hold up and fall apart in no time, but they are meant to stand strong. The constitution is the embodiment of fundamental regulations and principles according to which the country, state, and its people are supposed to work. The term "Constitution" got its name as the word constitution means accumulation and gathering of various aspects. Similarly, the Constitution we are talking about also is an accumulation of many things that make up the organization of the Legal bodies of any nation. All the rules and principles that are to be established are worked up and wrote down in one place making all the things one single crafted manuscript. The Document formed after this whole procedure is known as the Constitution.
CONSTITUTION: MEANING AND DEFINITION
It embodies the constitutional law of the state. It enjoys the place of supremacy. The government is fully bound by its provisions and works strictly in accordance with its provisions. A written constitution can be amended only in accordance with a settled process of amendment written in the constitution itself. It is a duly passed and enacted Constitution. The Constitutions of India, the USA, Germany, Japan, Canada, France, Switzerland and several other states, are written constitutions.
2. Unwritten Constitution: An unwritten constitution is one which is neither drafted nor enacted by a Constituent Assembly and nor even written in the form of a book. It is found in several historical charters, laws and conventions. It is a product of slow and gradual evolution. The government is organised and it functions in accordance with several well settled, but not wholly written rules and conventions. The people know their Constitution. They accept and obey it, but do not possess it in a written form. An unwritten constitution cannot be produced in the form of a book.
However, an unwritten constitution is not totally unwritten. Some of its parts are available in written forms but these do not stand codified in the form of a legal document or a code or a book. According to Garner, ―an unwritten constitution is one in which most and not all, rules are unwritten and these are not found in any one charter or document.‖ The Constitution of the United Kingdom is an unwritten constitution.
3. Flexible Constitution: A Flexible Constitution is one which can be easily amended. Several political scientists advocate the view that a flexible constitution is one in which the constitutional law can be amended in the same way as an ordinary law.
Constitutional amendments are passed in the same manner by which an ordinary law is passed.
British Constitution presents a classic example of a most flexible constitution. The British Parliament is a sovereign parliament which can make or amend any law or constitutional law by a simple majority. Laws aiming to affect changes in a constitutional law or in any ordinary law are passed through the same legislative procedure i.e., by a simple majority of votes in the legislature. Similarly, a Constitution is flexible when the procedure of amending it is simple and the changes can be made easily.
4. Rigid Constitution: The Rigid Constitution is one which cannot be easily amended. Its method of amendment is difficult. For amending it, the legislature has to pass an amendment bill by a specific, usually big, majority of 2/3rd or 3/4th. For passing or amending an ordinary law, the legislature usually passes the law by a simple majority of its members.
A rigid constitution is considered to be the most fundamental law of the land. It is regarded as the basic will of the sovereign people. That is why it can be amended only by a special procedure requiring the passing of the amendment proposal by a big majority of votes which is often followed by ratification by the people in a referendum. The Constitution of United States of America is a very rigid constitution.
5. Evolved Constitution: An evolved constitution is one which is not made at any time by any assembly of persons or an institution. It is the result of slow and gradual process of evolution.
Constitution is the supreme law of each State. It lays down rules regarding the organization, powers and functions of government. It also defines the basic features of the State and the relation between the citizens and the State. A country is run by the government, judicial bodies, its people, and most importantly by the Constitution. The constitution serves as the backbone of the country. Without it, the Law and Jurisdiction will not hold up and fall apart in no time, but they are meant to stand strong. The constitution is the embodiment of fundamental regulations and principles according to which the country, state, and its people are supposed to work. The term "Constitution" got its name as the word constitution means accumulation and gathering of various aspects. Similarly, the Constitution we are talking about also is an accumulation of many things that make up the organization of the Legal bodies of any nation. All the rules and principles that are to be established are worked up and wrote down in one place making all the things one single crafted manuscript. The Document formed after this whole procedure is known as the Constitution. But despite all of this information, we still have a question in our mind that why is the constitution important, so let's discuss further on the topic. A country is run by the government, judicial bodies, its people, and most importantly by the Constitution.
CONSTITUTION: MEANING AND DEFINITION:
In simple words, we can say a Constitution is the constitutional law of the state. Constitutional law enjoys the position of being the supreme and fundamental law of the state. It lays down the organization and functions of the government of state. The Government can use only those powers which the Constitution grants to it.
- ―Constitution is the collection of principles according to which the powers of the government, the rights of the governed and the relations between the two are adjusted. - Woolsey.
- ―Constitution is a body of judicial rules which determine the supreme organs of state, prescribes their modes of creation, their mutual relations, their spheres of action and the fundamental place of each of them in relation to state.‖ - Jellinek
- ‖ Constitution of a state is that body of rules or laws, written or unwritten which determine the organization of government, the distribution of powers to the various organs of government and the general principles on which these powers are to be exercised.‖ – Gilchrist
Qualities of a Good Constitution:
- Constitution must be systematically written.
- It should incorporate the constitutional law of the state and enjoy supremacy.
- It should have the ability to develop and change in accordance with the changes in the environment and needs of the people.
- It should be neither unduly rigid nor unduly flexible.
- It must provide for Fundamental Rights and Freedoms of the people.
- It should clearly define the organization, powers, functions inter-relations of the government of the state and its three organs.
- It must provide for the organization of a representative, responsible, limited and accountable government.
Introduction
A State is unitary when it is governed constitutionally as one single unit, with one constitutionally created legislature. All power is top down. In federal system, power is divided between federal units. A unitary State is a sovereign State governed as one single unit in which the Central government is supreme and any administrative divisions (subnational units) exercise only powers that the Central government chooses to delegate. Thus, while in a federal State, both the Central government and State governments derive their authority from the same Constitution, in a unitary State, the State governments derive their authority as delegated by the Central government.
Definition:
Some leading political thinkers defined unitary form of government as follows:
A.V.DICEY: ―Habitual exercise of supreme legislative authority is by one central power‖
GARNER: ―Where the whole power of government is conferred by the constitution upon a single central organ‖
C.F.STRONG: “ Two important qualities of the Unitary Government‖.
They are:-
i. The supremacy of the central government;
ii. The absence of the subsidiary sovereign bodies.
The distinction between subsidiary law-making bodies and subsidiary sovereign bodies is the distinction between the local authorities in a unitary state and constituent units in a federal state.
K.C.Wheare : A constitution, Unitary and highly centralised on paper , may be almost federal in practice;
A federal constitution may be, in practice, Unitary, as indeed are the so-called federal constitutions of Mexico, Venezuela, Brazil and Argentina‖.
Merits Of Unitary Form Of Government
a. Suitable for small countries.
b. There is no conflict of authority and responsibility.
c. A unitary government will make prompt decisions and take speedy action.
d. A unitary government is less expensive.
e. Amendments to the constitution are easy.\
f. There is unity, uniformity of law, policy and administration.
De-Merits of Unitary Form Government
a. It is not suitable for big countries.
b. The central government will have to tackle so many complex problems that lead to administrative delay.
c. The central government will not concentrate on local problems, local interest and initiative.
scenario. Does anybody find the reason behind this? India is only the country with the highest document of laws and has framed the world‘s lengthiest, bulkiest and most detailed constitution of the world. But still India is dependent on these constitutional conventions for the proper functioning. Why this is so? The reason is very simple to understand. The main purpose in order to have the constitutional convention is that these conventions ensure that the legal framework of the Constitution retains its flexibility to operate in tune with the prevailing constitutional values of the period. Although conventions are not legally enforceable in the court and the sanction behind these conventions is moral and political, yet some conventions of the constitution which set the norms of behavior of those in power or which regulate the working of various part of the constitution and their relation to one another may be as important if not of greater significance as the written word of the constitution itself
MEANING AND DEFINITIONS OF CONVENTIONS
Conventions are those unwritten rules of political conduct which have got the approval of the people and have become part and parcel of political constitution. Though no punishment is given on the violation of conventions, yet the people obey these because of their utility.
The various scholars have given the definitions to clarify the meaning of conventions:-
According to ANSON, ―Conventions are the customs of the constitution.‖
According to J.S. MILL, ―Conventions are unwritten maxim of the constitution.‖
Another scholar who defined well the aspect of these conventions was Peter Hogg and he defined it as follows-
―Conventions are rules of the constitution which are not enforced by the law courts. Because they are not enforced by the law courts they are best regarded as non-legal rules, but because they do in fact regulate the working of the constitution, they are an important concern of the constitutional lawyer. What conventions do is to prescribe the way in which legal powers shall be exercised. Some conventions have the effect of transferring effective power from the legal holder to another official or institution. Other conventions limit an apparently broad power, or even prescribe that a legal power shall not be exercised at all‖
Importance of Conventions in U.K
The constitution of the United Kingdom (hereinafter ‗UK‘) is unique in both implementation and development, having unwritten aspects which are mostly composed of conventions and lacking a single written document unlike many other countries in the world. Constitutional conventions also exist in countries with written constitutions but they have particularly played an important role in the parliamentary systems of the Commonwealth that follow the Westminster model. In the absence of a codified constitution, an understanding of the conventions is crucial since they help to determine how the constitution operates in practice.
Conventions are essential to the study of the UK constitution since many important parts of the constitution are regulated not by law but by convention. Dicey described the conventions as ―customs, practices, maxims and precepts, which are not enforced or recognized by the courts‖. However, Jenning argued that the
been stable for so long, having a democracy, transparency and well-established governance. Although the main advantage of the UK constitution is its flexibility, there are benefits of codified constitutions. Firstly, the rigidity of codified constitutions may provide a greater protection of basic rights and freedoms especially for minorities. Under the principle of parliamentary supremacy, rights and freedoms of citizens could be curtailed when there is an abuse of power. Secondly, the ease of access by members of the public adds another level of importance to because citizens should be entitled to understand the law that governs them
If a codified constitution was to be introduced in the UK, it would require an immense amount of drafting. Determining the precise content would be immensely problematic. Some conventions may not be suitable for incorporation at all because of a conflict between their indeterminate nature and the need to express them in a precise lexis. However, a codification of the conventions would minimize the dangers of uncertainty by giving a greater legitimacy and authority. The absence of a written constitution has given rise to criticism of the UK as being an elective dictatorship because the Parliament is dominated by the government with the help of a majoritarian first-past-the-post electoral system, the Parliamentary Acts of 1911 & 1949 and Salisbury Convention which dictates that House of Lords cannot reject bills on the second and the third reading. A codification of the constitution would thus result in a constitutional supremacy rather than a parliamentary supremacy, establishing a greater check on the power of the government. Moreover, when conventions become becomes a part of the constitution and are thereby enforceable by the courts, this shift would impinge upon the concept of the separation of powers by overextending the jurisdiction of the judiciary
In general, constitutional conventions should not be incorporated into a written constitution because it would result in a loss of flexibility and diminish the principle of separation of powers. This is so even if the codification could secure greater certainty and legitimacy. Under the UK constitution, conventions play a key role by limiting the powers of the legislature to protect the fundamental rights of individuals and to ensure the functioning of a healthy democracy. Given the fact that constitutional arrangements in the UK have provided a basis of good governance for several hundred years and that drafting of a codified constitution entails immense complications, the UK should retain its current system. However, there are two aspects that do require urgent consideration. Firstly, the ways in which greater checks on the executive should be reassessed. Secondly, the content and significance of the constitution should be promoted to the public to further the accountability of the executive, ultimately reflecting the essence of a democracy.
Q.5 Amendment of Constitution of U.S.A
Ans: SYNOPSIS
❖ Introduction
❖ Amending the U.S. Constitution
INTRODUCTION
An amendment is a change or an addition to the terms of a contract, a law, or a government regulatory filing. Any such document can be amended with the consent of the parties involved. Amendment, in government and law, an addition or alteration made to a constitution, statute, or legislative bill or resolution.
- Amendments proposed by Congress or convention become valid only when ratified by the legislatures of, or conventions in, three-fourths of the states (i.e., 38 of 50 states).
Amendments Proposed by Congress
To date, Congress has submitted 33 amendment proposals to the states, 27 of which were ratified. The 27th Amendment, which prevents members of Congress from granting themselves pay raises during a current session, was ratified in 1992 —202 years after it was first submitted to the states. The following steps must be completed for an amendment proposed by Congress to be added to the United States Constitution.
Step 1. Passage by Congress. Proposed amendment language must be approved by a two-thirds vote of both houses.
Step 2. Notification of the states. The national archivist sends notification and materials to the governor of each state.
Step 3. Ratification by three-fourths of the states. Ratification of the amendment language adopted by Congress is an up-or-down vote in each legislative chamber. A state legislature cannot change the language. If it does, its ratification is invalid. A governor‘s signature on the ratification bill or resolution is not necessary.
Step 4. Tracking state actions. Proposed amendments must be ratified by three- fourths of the states in order to take effect. Congress may set a time limit for state action. The official count is kept by Office of the Federal Register at the National Archives. Legislatures must return specific materials to show proof of ratification.
Step 5. Announcement. When the requisite number of states ratify a proposed amendment, the archivist of the United States proclaims it as a new amendment to the U.S. Constitution. Actual certification is published immediately in the Federal Register and eventually in the United States Statutes-at-Large.
State legislatures often call upon Congress to propose constitutional amendments. While these calls may bring some political pressure to bear, Congress is under no constitutional obligation to respond. The U.S. Constitution does not contain a provision requiring Congress to submit a proposed amendment upon request by some requisite number of states.
AMENDMENT BY CONSTITUTIONAL CONVENTION
In addition to constitutional amendments proposed by Congress, states have the option of petitioning Congress to call a constitutional convention. Legislatures in two-thirds of states must agree, however. While the convention process has yet to be triggered, efforts to do so are not new. In fact, they may be ―as old as the republic.‖ Unofficial sources report convention applications being filed as early as
- Interest in a U.S. constitutional convention has peaked and waned several times over the decades. In the early 1900s, direct election of senators was a hot topic. In the 1940s and 1950s, federal taxing power was the focus of many applications. Two issues came close to triggering conventions during the 1960s to 1990s—apportionment and a balanced federal budget.
The current wave of interest began around 2010. Its focus is not a single issue nor is it being driven by one organization. Various groups are pushing their viewpoints—be they conservative, liberal, populist or progressive—and are urging action. On the one hand, legislation calls for a convention on a broad array of
