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Wednesday, January 1, 2014

Types of Constitution

Written or Unwritten

Constitution may be written like the U.S. Constitution or unwritten and based on conventions like the British. Our Constitution is written even though conventions also play a part insofar as they are in keeping with the provisions of the Constitution.

Rigid or Flexible


 Constitutions may be called rigid or flexible on the ground of the amending procedure being difficult or easy. Federal Constitutions are usually classified as rigid because of their difficult amending processes.  Our Constitution may be said to be a combination of rigid and flexible inasmuch as certain provisions of the constitution-e.g. Article 2, 3 and 4, and 169-can be amended like ordinary legislation by simple majority in the Houses of Parliament, other provisions can be amended under Article 368 by the Houses of Parliament by a special majority of 2/3rd of the members present and voting and a majority of the total membership in each House. Only in the case of a few of the provisions, in addition to a special majority in the two Houses of Parliament, an amendment would require the ratification of not less than one-half of the States. The fact that during 63 years, there were as many as 111 amendments disproves the charge of the rigidity of our Constitution.

Federal or Unitary


Constitutions are also divided between federal and unitary. The classical example of the first category again is the U.S. Constitution and of the second the U.K. Constitution. In a unitary constitution, all powers are vested in the Central Government to which the authorities in the units are subordinate and function as the agents of the Government at the Centre and exercise authority by delegation from the Centre. In a federal polity, usually, there must be a rigid, written constitution, it must be supreme and it must specifically divide powers between the federal government and the governments of the units-both exercising powers in their respective spheres in their own right and independently. In fact, in a classic federation, the federal government enjoys only those powers that are by agreement surrendered to it by the units. Also, there must be an independent supreme court as the arbiter of any disputes between the Union and the States.

India's Constitution has been variously described as quasi-federal, federal with a strong unitary or pro-centre bias, federal in structure but unitary in spirit, federal in normal times but with possibilities of being converted into a purely unitary one during Emergency, etc. The fact is that it is difficult to put our Constitution in any strict mould of a federal or unitary type; it has features of both. It can not be considered unitary because it provides, for example, for the distribution of executive and legislative powers between the Union and States and provisions affecting the powers of the States or Union –State relations cannot be amended without ratification by the States. It can not be considered strictly federal either because the residuary powers vested in the Union. As Dr. Ambedkar said, rigidity and legalism were the two serious weaknesses of federalism. The Indian system was unique in that it created a dual polity with a single Indian citizenship which could be both unitary and federal according to requirements of time and circumstances. Under Article 249, the Union Parliament can invade the State List. Under Articles 356 and 357, on the ground of failure of constitutional machinery in any State, all its executive and legislative powers may be taken over by the Union and under Articles 352 to 354, the Constitution can be converted into an entirely unitary one inasmuch as during Proclamation of Emergency, the executive and legislative powers of the Union extends to matters even in the State List. Finally, under Articles 2, 3 and 4 new States may be formed and areas, boundaries or names of existing States altered by the Union Parliament by ordinary law passed by simple majority votes.

Reasons for this unique unitary-federal mix are to be found in the constitution history of India, the sheer size of the country and in the nature of her complex diversities based on the religion, language, region, culture etc. Moving the Draft Constitution for adoption by the Constituent Assembly, the Chairman of the Drafting Committee, Dr. B.R. Ambedkar tried to explain the significance of using the term "Union of States" instead of "Federation of States" in the following words:

"The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation and that the federation not being the result of an agreement, not state has the right to secede from it. The federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source".

The text of the Constitution does not anywhere use the term 'federal' or 'federation'. The Supreme Court has spoken of the Indian Union as 'federal', quasi-federal' or 'ambhibian' meaning sometimes 'federal' and sometimes 'unitary' (State of Rajasthan v. Union of India, AIR 1977 SC 1361).
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