What a constitution is and why societies need one

Detail

1. What a constitution is

• A constitution is the set of basic rules by which a state is formed and run.
• It shares power among the organs of government: the legislature, the executive and the judiciary.
• It puts limits on that power.
• It states the goals of the society.

• It is the highest law of the land.

• NCERT (Class 11) defines it as "the document or set of documents" that does these jobs. So a constitution does not have to be a single book.

• Britannica describes a constitution as the basic organising principle of a state, covering the rules and practices that govern it. It may be one written document (USA) or a mix of documents, statutes and traditional practices (UK) [7].
• Class 7 calls the Constitution a "rulebook".
• In kabaddi, a referee applies rules that both teams have accepted. Without those rules the game falls apart.

• In the same way, a constitution gives rules that citizens and governments accept in advance.

• What most constitutions contain (Class 7):

• the three organs of government and the checks and balances among them, meaning each organ can limit the others;
• the rights of citizens, and their duties;

• the society's long-term goals.

• The President's oath:

• Before taking office, the President swears to "preserve, protect and defend the Constitution and the law" (Article 60) [4].
• In the same oath, the President promises to devote themselves to "the service and well-being of the people of India" [4].

2. Why societies need one: the five functions (Class 11, "Constitution: Why and How?")

NCERT starts with a thought experiment. Imagine a varied group of people who must live together. What rules would they need? The answer gives five functions of a constitution.

(i) Basic rules that everyone knows and that can be enforced → coordination and assurance

• Coordination means that people can plan their lives around each other because the same rules apply to all.
• Assurance means trust that other people will obey the rules too.
• Without such rules, each group fears the others, and living together becomes unstable.

(ii) Who decides, and how the government is formed

• A constitution names who holds the power to make decisions. The possible deciders are:
• a monarch;
• a single party, as in the old Soviet Union;

• the people, acting through elected representatives.

• In India, Parliament makes most laws. The Constitution says how Parliament is formed.

(iii) Limits on government

• The main tool is fundamental rights, which are basic rights that the government cannot take away by ordinary law.
• NCERT's examples:
• no arbitrary arrest, meaning arrest without a lawful reason;

• freedom of speech, conscience, association and trade.

• These rights can be cut back only in emergencies that the constitution itself names. The government cannot decide on its own when an emergency exists outside those rules.

(iv) Enabling government to meet the society's hopes

• A constitution does more than restrain government. It also gives government the power and the duty to bring about a fairer society.
• NCERT calls India's Constitution the "finest example" of this among twentieth-century constitutions.
• The "Enabling provisions" box gives two comparisons:

Country	Enabling provisions (NCERT)
South Africa	Housing, health care, protection from unfair discrimination, conservation
Indonesia	A national education system, care of poor and destitute children

(v) Expressing the people's identity

• A constitution states a people's political, moral and national identity. It records the values the people agree to live by.
• The contrast NCERT draws:
• German identity was built on ethnicity, meaning shared descent.
• Indian citizenship is not based on ethnicity. It is open to people of every religion, language and descent.

3. Codified and uncodified constitutions

• A codified constitution is written as one compact document. India and the USA have codified constitutions.
• An uncodified constitution is not collected in one document. It is spread across:
• statutes, which are laws passed by Parliament. UK examples (NCERT): Magna Carta 1215, Bill of Rights 1689, Parliament Acts 1911 and 1949. Britannica also lists the Act of Settlement 1701 and the Representation of the People Acts, which widened the right to vote [7];
• conventions, which are settled practices that are followed but are not written down as law;

• case law, meaning court rulings.

• Exam trap: "uncodified" is not the same as "unwritten".

• Large parts of the British constitution are in fact written down.

• For this reason, scholars prefer the term "uncodified" to "unwritten" [7].

• Britannica also calls the British constitution flexible, because ordinary legislation can change it [7].

4. Constitutionalism: having a constitution is not enough

• Non-democracies have constitutions too. In Class 11 exercise 3(b), the statement "only democracies have constitutions" is false.
• Constitutionalism is the idea that a higher law really does decide and limit what the government can do [7].
• It aims to stop arbitrary government by fixing who may rule, how they may rule and for what purposes [7].
• It works through three tools: rights, the separation of powers (dividing power among the organs so that no single organ holds all of it) and judicial review (the power of courts to strike down laws and actions that break the constitution).

• So even a government with a large elected majority cannot act arbitrarily.

• A state may have a written constitution and still lack constitutionalism. Such a document is a "paper" constitution: the rules exist on paper, but nobody enforces them against those in power.

5. Supremacy of the Constitution

• A constitution "constitutes government in the first place". In other words, it creates the institutions of government.
• Why does the Constitution rank above Parliament? (Class 11, exercise 2)
• Right reason: it lays down how Parliament is formed and what powers Parliament has.
• Wrong reasons: that it came before Parliament, or that it cannot be amended. It can be amended under Article 368.

Legal anchors

Provision	What it says	How it makes the Constitution supreme
Art. 13(1)	Laws in force before 26 January 1950 are void to the extent they conflict with Part III (Fundamental Rights) [3]	Laws made before 1950 must also give way to fundamental rights
Art. 13(2)	The State shall not make any law that "takes away or abridges" fundamental rights. Any such law is void "to the extent of the contravention" [3]	Only the part of a law that breaks a right is struck down. The rest of the law can survive. This is the doctrine of severability
Art. 13(3)	"Law" includes an ordinance, order, bye-law, rule, regulation, notification, and a custom or usage having the force of law [3]	Even executive orders and customs can be tested against fundamental rights
Art. 13(4)	"Nothing in this article shall apply to any amendment of this Constitution made under article 368". Added by the 24th Amendment Act, 1971 [3][5]	Constitutional amendments are kept separate from ordinary "law"
Art. 245	Parliament and state legislatures make laws "subject to the provisions of this Constitution"	Every law-making power comes from the Constitution and is limited by it
Arts. 32 and 226	Citizens can approach the Supreme Court (Art. 32) and the High Courts (Art. 226) for remedies	These articles give effect to judicial review
Third Schedule	Union and state ministers, MPs, MLAs and judges of the Supreme Court and High Courts swear to "bear true faith and allegiance to the Constitution of India as by law established" [2]	Office-holders swear loyalty to the Constitution, not to Parliament or a ruler
Art. 60	The President swears to "preserve, protect and defend the Constitution and the law" [4]	The head of state is bound by the Constitution

• Background to Art. 13(4) (Golak Nath, 1967 → 24th Amendment, 1971):
• Before I.C. Golak Nath v. State of Punjab (1967), the Supreme Court had held that Parliament could amend any part of the Constitution, including fundamental rights [6].
• In Golak Nath, the Court reversed this view by a 6:5 majority. A constitutional amendment was treated as "law" under Art. 13, so it could not take away fundamental rights [6].

• Parliament responded with the 24th Amendment Act, 1971:

  • it inserted Art. 13(4);
  • it added Art. 368(3): "Nothing in article 13 shall apply to any amendment made under this article";
  • it made clear that Art. 368 contains both the power to amend and the procedure for doing so [5][6].

• Constituent Assembly history:

• Art. 13 was debated as Draft Article 8 on 25, 26 and 29 November 1948 [3].

• The Third Schedule was adopted on 26 August 1949 [2].

• Contrast with the UK: in Britain, Parliament is sovereign, so no court can strike down an Act of Parliament. In India, Parliament itself is created by the Constitution and works within its limits. (See §10 of the parent note.)

Prelims Hooks

• The correct reason the Constitution is superior to Parliament is that it lays down how Parliament is formed and what powers it has. "It came first" and "it cannot be amended" are both wrong.
• "Only democracies have constitutions" is false. The concept that separates democracies is constitutionalism, not simply having a constitution.
• The UK's constitution is uncodified, not unwritten. Its written parts include Magna Carta 1215, the Bill of Rights 1689, the Act of Settlement 1701 and the Parliament Acts 1911 and 1949 [7].
• Art. 13(3) defines "law" to include custom or usage having the force of law, along with ordinances, bye-laws and notifications [3].
• Art. 13(4) and Art. 368(3) were inserted by the 24th Amendment Act, 1971, after Golak Nath (1967) was decided by a 6:5 majority [5][6].
• Oath matches:
• Art. 60 (President): "preserve, protect and defend the Constitution and the law" [4].

• Third Schedule (ministers, MPs, MLAs, judges): "bear true faith and allegiance to the Constitution of India as by law established" [2].

• Enabling provisions box: South Africa = housing, health care, protection from unfair discrimination. Indonesia = national education, care of destitute children.

• Identity: NCERT's example of ethnic national identity is Germany. Indian citizenship is non-ethnic.

Mains Points

• Constitution vs constitutionalism: a written text is not enough. Real limits on power come from enforceable rights (Arts. 13, 32, 226), the separation of powers and an independent judiciary. Without these, a constitution becomes a "paper constitution", as many authoritarian states show.
• Limiting vs enabling: India's Constitution both restrains the State (Part III, Fundamental Rights) and empowers it to change society. NCERT calls it the "finest example" of an enabling constitution. The tension between the two shows in the Golak Nath (1967) → 24th Amendment (1971) clash over whether Parliament can cut back fundamental rights through amendments [5][6].
• Codified vs uncodified: a codified constitution gives certainty and allows judicial review of laws. An uncodified one, like the UK's, is easier to change but rests on parliamentary sovereignty and conventions. India's codified Constitution suited a diverse, newly independent country that needed assurance across groups (the coordination and assurance function).
• Constitution and identity: a civic, non-ethnic idea of citizenship, unlike the ethnic German model, is the base of Indian unity in diversity. It is a useful GS-II argument on secularism and citizenship debates.