What is Constitutional Law

This article is written by Vandana Shrivastava, an undergraduate student at the Institute of Law, Nirma University. The article analyses the notion of constitutional law and the principles and functions therein with a primary focus on the Preamble, Fundamental Rights, Directive Principles of State Policy, and the nature and structure of the Constitution. 

Introduction

Whenever a person first learns about the Constitution of India, there is always a statement attached to it- “The Constitution is a living document.” But why is it called so? Any Act or law which is inconsistent with the Constitution becomes invalid. It makes one wonder how the Constitution is so powerful and what makes the Constitution so supreme that anything not in accordance with it holds no value anymore. This article discusses the meaning of the Constitution, its importance from different perspectives and the intricacies associated therewith. It also elaborates upon the fundamental content of the Constitution- the Preamble, the Fundamental Rights, the Directive Principles of State Policy, the Writs, and its nature and structure.

The term “constitution” is a French term and refers to the set of fundamental rules and regulations that govern the functioning of a nation-state or any other organization. A state’s constitution is the supreme law of the land and thus requires higher standards of legitimacy and integrity. It outlines a state’s fundamental principles, administrative structures, procedures, and fundamental rights of individuals while defining the directions for a state’s development. 

“Constitutional law” is concerned with the interpretation and implementation of the Constitution and its underlying principles. It forms the basis for individuals’ access to particular fundamental rights, inter alia the right to life, the right to privacy, the freedom to move, and the right to vote. It lays down procedural conditions that must be met before a governmental entity can intervene with an individual’s rights, liberties, or property. Constitutional law also deals with subjects such as judicial review, fundamental duties, and the power to make laws, among other things. The Supreme Court of India has played a prominent role in interpreting the Constitution and the terms used therein and has, thus, contributed immensely towards constitutional law research. This contribution firstly defines the term ‘Constitution’, its scope, nature, and functions in a state. Further, the contribution analyses the principles of the constitution of India, including the preamble, fundamental rights and duties. The contribution also analyses the DPSP from the perspective of socialistic, Gandhian, and other principles, and concludes with an analysis of the structure and nature of the constitution of India.

What is a Constitution

Albert Venn Dicey, a constitutional theorist and a British Whig jurist, interpreted the term “Constitution” as consisting “of all rules which directly or indirectly affect the distribution or the exercise of sovereign power in the state, including all rules which define the members of the sovereign power, all rules which regulate the relations of such members to each other, or which determine the mode in which the sovereign power, or the members thereof, exercise their authority.” Thomas M.Cooley interpreted the expression “constitution” as “the body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.”

Modern constitutions incorporate their fundamental principles, ideologies, and governmental structure to clearly define their idea of democracy. It also confers fundamental rights upon its citizens and the general public within its territorial jurisdiction. A constitution is, thus, the most superior legislation that cannot be altered arbitrarily by conventional legislative reform. The substance and character of a constitution, as well as the manner in which it connects with the legal and political order, differ significantly between countries, and therefore, there is no standard and firm interpretation of a constitution.

Nonetheless, any commonly acknowledged broad definition of a constitution would characterize the term as a collection of fundamental legal regulations that:

• Has a binding nature on the states.
• Enlist the government structure and functions of the institutions,
• Lay down political principles and fundamental rights of a citizen, 
• are constructed on the pervasive public legitimacy, 
• Have a rigid nature, and
• Enhancing the international norms of a democratic social structure in respect of participation and human rights is a negligible prerequisite.

Scope of Constitutional Law

The function and authority of the institutions within the state as well as the interactions between citizens and the state come under the scope of constitutional law. The law of the constitution must thus be understood within the sociopolitical atmosphere in which it functions, since a constitution is a sentient, evolving organism that, at any given time, will symbolize the political and ethical ideals of the individuals it regulates. 

Nature of Constitutional Law

Constitutional laws can be both written and unwritten. Written constitutions, such as the Indian Constitution, act as the supreme law of the land. They are superior to all laws in force in a country at any point of time, so much so that a law which is in derogation of the constitution would be repealed. In the case of unwritten and flexible constitutions, the hierarchy between the constitution and ordinary laws ceases to exist. The most appropriate instance of the same is the Constitution of the United Kingdom. The Parliament of a country has the power to make amendments to the constitution through ordinary laws, empowering ordinary laws with the same status as that of the Constitution.

Functions of the Constitution

• It has the authority to proclaim and determine the political community’s boundaries. The political community’s boundaries will encapsulate territorial boundaries, i.e., the state’s geographical borders, as well as its claims to any other territory or extraterritorial rights, and also personal boundaries, i.e., the definition of citizenship. Therefore, a constitution commonly differentiates between individuals who are part of the polity and those who are not.
• It can proclaim and characterize the political community’s character and competence. It commonly prescribes the state’s foundational principles as well as the position of the state’s sovereignty. The functions of the different constitutions are mentioned as follows: 

• The French Constitution stipulates that “France is an indivisible, secular, democratic, and social Republic,” and that “National sovereignty belongs to the people, who exercise it all through their representatives and through referendums.” 
• The Indian Constitution stipulates in its Preamble, “We the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic.”
• The Ghana Constitution stipulates that the “sovereignty of Ghana lies with the people of Ghana, in whose name and for whose welfare the powers of government are to be exercised.”

• It demonstrates the national community’s identity and values. Constitutions, as nation-building mechanisms, may identify the national flag, national anthem, and other symbolism, as well as make assertions about the nation’s principles, history, and identity.
• It defines and declares citizens’ rights and responsibilities, mostly as a part of the fundamental rights. These essentially include the fundamental civil liberties necessary for a free and democratic society. For instance, equal protection of the law, freedom of thought, speech, association, and assembly; freedom of religion, due process of law and freedom from arbitrary arrest. Certain constitutions go far beyond the basic essentials to incorporate social, economic, and cultural rights, as well as minority community-specific collective rights. Some rights, such as the right to be free from torture and physical abuse, may apply to both citizens and non-citizens.
• It creates and administers a community’s political institutions, outlining the various government institutions, as well as their composition, authority, and responsibility, and the inter-relation among them. The legislative, executive and judicial institutions of a state are incorporated in almost all constitutions. There may also be a metaphorical head of state or institutions to assure the legitimacy of the political process, for instance, an election commission, and institutions to assure people in power’s accountability and transparency. Institutional provisions commonly contain mechanisms for democratic allocation, amicable transfer of authority, and restraint and removal of individuals who exploit authority or have forfeited the public faith.
• It has authority in cases where sovereignty between different tiers of government or sub-state entities is divided or shared. The constitution provides for the allocation of power between provinces, regions, and other sub-state entities. Many constitutions establish federal, quasi-federal, or decentralized systems. These can be geographically demarcated or defined by the cultural or linguistic communities. Geographical demarcation can be seen in federal states like Argentina’s constitution, the Indian constitution, and the Canadian constitution. Cultural or linguistic communities defined can be found in Belgium’s constitution, which formulates autonomous linguistic communities in addition to geographical regions.
• It can proclaim a country’s official religious identity and set boundaries across sacred and secular institutions. This is particularly meaningful in countries where religious and national identities are intertwined or where religious law has customarily regulated personal status and the adjudication of conflicts among citizens.
• It can constrain states to specific social, economic, or development aspirations. This could, perhaps, take the structure of judicially binding socio-economic rights; politically enforceable directive principles; or other declarations of commitment or purpose.

Legal, political, and societal structures and their intersection within the constitution

Constitutions, as legal, political, and social instruments, exist at the crossroads of legal, political, and societal structures. A constitution “marries power with justice,” ensuring that authority is exercised in a reasonable manner while preserving the rule of law and restraining arbitrariness in the exercise of power. It is the supreme law of the nation, and it establishes the requirements that conventional legislation should achieve.

Generally, the constitution endeavours to embody and mould society in different ways. It could be done by articulating the people’s communal identity and objectives or by proclaiming similar principles and values. These elements are most commonly seen in preambles and introductory pronouncements, but they can also be included in oaths and mottos, as well as on flags and other symbols instituted by the constitution. Other substantive constitutional provisions, such as those outlining socio-economic rights, cultural or linguistic policies, or education, might also fall under these social instruments.

A country’s decision-making structures are specified by the constitution, which recognises the supreme power of the text and distributes authority in a way that contributes to prosperous decision-making. The political elements outline how state institutions, i.e., parliament, executive, courts, head of state, local governments, independent organisations, and other institutions are incorporated, what authorities they have, and how they function.

Need for the constitution and Constitutional Law

Constitutions around the world ensure “the fair and impartial exercise of authority,” as well as “a harmonious and stable society; protection of individual and community rights; and promotion of appropriate resource management and economic growth.” Simply put, a constitution empowers lawful authorities to function in the public interest through the administration of key problems and the prevention of arbitrary power of leaders who otherwise would abuse their position. This is based on the principle of constitutionalism, which governs the legitimacy of government actions and requires the government to abide by the law of the land.

Without implementation and adherence to the law of a state, even the finest constitution cannot achieve all its goals on its own. Nations that have successfully established and maintained constitutional governments have typically been at the cutting edge of scientific and technological advancement, economic dominance, cultural growth, and human well-being. Conversely, nations that have failed to sustain constitutional government have generally struggled or failed in the past in terms of growth potential.

The constitution and constitutional law can be analogised with a basketball game between two teams. A match would hardly be impartial if the team in control of the ball could rewrite the law and choose its referee. One team always wins, while the other will eventually lose or quit playing entirely. Similarly, if rules were made up by the ruling party, faction, or group, and they were unmatched and unchecked by the power of the law, there would emerge a situation of chaos and disorder.

A democratic constitutional system can assume the role of the rules of a game while its protectors, such as a constitutional court of law, serve as the referee. They ensure that everyone has an equal opportunity to participate in the “political game.”

Constitutionalism is the absolute opposite of authoritarianism in this sense. Authoritarianism is a form of government in which the ruling authority is in charge of its laws. Many tyrannical states have existed throughout history that has not been governed by any higher law that imposes limitations on how they rule, such as defending citizens’ fundamental rights or ensuring their accountability to the people. Therefore, authoritarians rule for their own interests or for the benefit of a privileged minority who support the ruling class, rather than for the benefit of all citizens.

People opting for democratic constitutional government are opting out of despotism and the instability that comes with living under rulers who can act at their own will. They’ve decided that certain rights, beliefs, norms, institutions, and procedures are too fundamental to be left to the whims of those in power and that they should be enshrined in a way that makes them enforceable by the government. People in such a society live under a government with universal principles founded on broad public acceptance and are immune from the rulers’ arbitrary conduct.