- The difference between written and unwritten constitutions is not rigid.
- No constitution is fully written or fully unwritten.
- Written constitutions also include unwritten conventions.
- Unwritten constitutions contain many written laws and rules.
- Hence, the distinction between them is relative, not absolute.
Definitions [1]
Definition: Constitution
- "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
- "The term Constitution signifies the arrangement and distribution of the sovereign power in the community or the form of the government." - Lewis
- "The Constitution is a body of judicial rules which determine the supreme organs of the state, prescribe their modes of creation, their mutual relations, their spheres of action and finally the fundamental place of each of them in relation to the state." - Jellinek
- "The Constitution of a state consists of all rules which directly or indirectly affect the distribution or exercise of sovereign power in a state." - Dicey
- "The Constitution of a state is that body of rules or laws, written or unwritten which determine the organisation 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
- "Constitution is a collection of norms by which the legal relations between the government and its subjects are determined and in accordance to which the power of the state is exercised." - Gettell
- "Constitution is the fundamental law of the state, containing the principles upon which government is founded, regulating the division of sovereign powers and directing to what persons of each of these powers is to be confined and the manner in which it is to be exercised." - Cooley
- "A Constitution is the basic law of a state which outlines the framework and procedures of government, defines its powers and functions, provides how constitutional changes may be made and in a democracy, usually guarantees the citizens certain protections against arbitrary governmental actions. Whether in so called written or unwritten forms, a constitution serves as the formation of a state's political institutions and practices." - R.W. Brewester
Key Points
Difference Between Written and Unwritten Constitution
| Basis | Written Constitution | Unwritten Constitution |
|---|---|---|
| Form | Written in a single document or book | Not contained in a single document |
| Method of Origin | Deliberately made and enacted by a Constituent Assembly or representatives | Evolves gradually through customs, conventions and traditions |
| Flexibility | Generally less flexible | Generally more flexible |
| Amendment | Amended by a special procedure mentioned in the constitution | Changes through conventions; no formal amendment procedure |
| Examples | India, USA | UK |
Ten Provisions Amended by the Rigid Method
- Articles 54 & 55 – Election of the President.
- Article 73 – Executive power of the Union.
- Article 162 – Executive power of the States.
- Article 241 – High Courts in Union Territories.
- Chapter IV, Part V – Supreme Court of India.
- Chapter V, Part VI – High Courts in States.
- Chapter I, Part XI – Legislative relations between Union and States.
- Seventh Schedule – Union, State and Concurrent Lists.
- Representation of States in Parliament.
- Article 368 – Amendment procedure itself.
Key Points: Kinds of Constitution> Written Constitution
- A written constitution is a constitution that is written in a single document or a set of documents.
- It is carefully drafted, formally adopted, and has a special legal authority.
- It clearly defines the structure, powers, and functions of government organs.
- The government must work strictly according to the constitution, and it can be amended only by a prescribed procedure.
- Countries like India, the USA, Germany, Japan, and Canada have written constitutions.
Key Points: Kinds of Constitution> Unwritten Constitution
- An unwritten constitution is not written in a single document or book.
- It develops gradually over time through customs, conventions, and practices.
- It is based on historical documents, laws, judicial decisions, and conventions.
- The constitution is not enacted by a constituent assembly and has no special amendment procedure.
- The United Kingdom is the best example of an unwritten constitution.
Key Points: Amendment Procedure of Constitutions of UK
- The British Constitution can be amended by a simple majority of Parliament.
- No distinction between constitutional law and ordinary law
- House of Commons plays the decisive role
- Parliament can amend the Constitution partially or wholly, even by passing a single law.
- Amendments are made cautiously due to strong public opinion and traditions
- The amendment process has two stages: the Proposal Stage, where the amendment is introduced, and the Ratification Stage, where it is finally approved.
Key Points: Concept of Constitution
- A Constitution is the supreme law of the land that lays down the basic structure of the state.
- It defines the organisation, powers, and functions of the government.
- The Constitution regulates the relationship between the government and the people.
- It guarantees the rights and duties of citizens.
- All governments—democratic or authoritarian—function according to their constitutions.
- The Constitution may be written or unwritten, but it is fundamental to governance.
- No authority or institution can violate the Constitution, as it represents the sovereign will of the people.
Key Points: Contents of a Modern Constitution
- A good constitution must be clearly written and be the supreme law of the land.
- It should be neither too rigid nor too flexible.
- It must guarantee fundamental rights and freedoms.
- It should clearly define the powers and limits of government organs.
- It must ensure rule of law and an independent judiciary.
- It should reflect the sovereignty of the people and provide for free and fair elections.
Key Points: Qualities of a Good Constitution
- It should be systematically written
- It must be flexible enough to change with social and political needs
- It should guarantee the Fundamental Rights and Freedoms of the people.
- A responsible, accountable and transparent government.
- It should include provisions for decentralisation, local self-government and free & fair elections.
- Language should be simple, clear and unambiguous.
Key Points: Written and Unwritten Constitutions: Not a Rigid Distinction
Key Points: Kinds of Constitution> Flexible Constitution
- A flexible constitution is one that can be easily amended, just like ordinary laws.
- The British Constitution is the best example of a flexible constitution.
- Its main merit is that it can change according to social and political needs.
- It is useful in emergencies, as quick constitutional changes are possible.
- It helps in avoiding revolutions by adjusting to public opinion and changing times.
- However, it may lead to instability and misuse of power, especially in federations.
Key Points: Kinds of Constitution> Rigid Constitution
- A rigid constitution is one that cannot be easily amended and requires a special and difficult procedure.
- Constitutional law is superior to ordinary law, and any law against it is invalid.
- Its main merit is that it provides stability and continuity in administration.
- It prevents the misuse of power and checks the autocratic actions of the government.
- A rigid constitution is suitable for a federal system, as it protects division of powers.
- However, it may fail to adapt to changing social and political needs and can cause rigidity during emergencies.
Key Points: Demerits of Rigid Amendment Method of US Constitution
- Slow and Rigid Process.
- Not fully Democratic.
- Undue importance to small states.
- The Congress dominates the Process.
Key Points: Amendment Procedure of Constitutions of
- Article 368 (Part XX) of the Constitution deals with the amendment procedure of the Constitution of India.
- The power to amend the Constitution lies mainly with the Union Parliament.
- The Constitution can be amended by three methods: simple majority, special majority, and special majority with ratification by states.
- An Amendment Bill can be introduced in either House of Parliament and requires the President’s assent.
- All amendments are subject to judicial review, and Parliament cannot change the Basic Structure of the Constitution.
Amendment by Simple Majority of Votes in Parliament
- Some provisions of the Indian Constitution can be amended by ordinary law passed by a simple majority in both Houses of Parliament.
- An Amendment Bill can be introduced in either House of Parliament.
- The Bill becomes law after being passed by both Houses and assented to by the President.
- This is considered the most flexible method of amendment.
- It applies to provisions relating to the formation of new States and alteration of boundaries (Articles 2 and 3).
- It also covers matters like citizenship, parliamentary procedure, privileges, salaries, delimitation of constituencies, and Legislative Councils.
- This method shows that the Indian Constitution is partly flexible and partly rigid.
Key Points: Description of Two Special Methods of Amendment of Constitution of India
- First Method: Amendment by a Special Procedure which involves 2/3rd Majority in each of the two Houses of the Parliament (A Specified and Frequently used Method of Amendment)
- Second Method: Amendment of some Parts of the Constituion by 2/3rd Majority in both Houses of the Parliament and Ratification by at least half of the several State Legislatures
