Chapter 2: Constitution
In September 1949 the Constituent Assembly of India — the elected body of 299 members that wrote the Constitution between 1946 and 1949 — turned to a question that sounds technical and is not. How hard should it be to change the document they were writing?
Some members wanted the answer to be ‘very hard’. A constitution, they argued, is not an ordinary law. If a temporary majority in Parliament could rewrite it on an ordinary afternoon, it would guarantee nothing. Others warned of the opposite danger. India was about to become a republic of enormous size and poverty, and nobody in that room could see what the country would need in fifty years. A document that could not be corrected would one day have to be broken.
B. R. Ambedkar, who chaired the Drafting Committee, replied to the critics of the draft amendment article. He argued that the Assembly had deliberately refused to make amendment as difficult as the American procedure had proved to be, while still refusing to leave the Constitution at the mercy of a bare majority.
The compromise they settled on is Article 368. Most of the Constitution can be amended by a special majority of Parliament; the provisions that touch the states need the states to agree as well; a few matters can be altered by ordinary law.
That single article is a decision about how much the past should be allowed to bind the future.
Diagram
Fig. 2.0-1 Caption: The Constituent Assembly of India met between December 1946 and November 1949 to frame the Constitution. Brief: Archival photograph or line illustration of the Constituent Assembly in session in the Constitution Hall, New Delhi; label the President’s chair and the members’ benches; no party symbols or modern imagery.
2.1 The Meaning Of A Constitution
Every organised group that has to act together needs rules about how it will decide things. A school has them, a cricket team has them, and a state — a political community with a government and defined territory — cannot do without them.
A constitution is the body of fundamental rules that establishes the organs of government, distributes power among them, and defines the relationship between the government and the governed. It is the rulebook that other rules must obey.
Two definitions used widely in political science make the idea sharper. C. F. Strong described a constitution as a collection of principles by which the powers of the government, the rights of the governed, and the relations between the two are adjusted. K. C. Wheare described it as the whole system of government of a country — the collection of rules that establish and regulate it.
Why Wheare Widens The Definition
Wheare’s phrasing is deliberately wider than Strong’s, and the difference matters for the rest of this chapter. Wheare pointed out that some of these rules are legal, in the sense that courts will recognise and enforce them.
Others are not legal at all. They are conventions — settled practices that political actors follow because breaking them would be regarded as improper, even though no court will punish the breach.
The office of the Prime Minister in the United Kingdom is a convention of exactly this kind. It grew out of practice rather than statute, yet no British government could be formed without it.
Constitutional Law And Ordinary Law
A constitution is normally treated as the fundamental law of the land — the law against which every other law is tested, and which every other law must be consistent with. Ordinary law is law made by the legislature in its everyday law-making capacity.
Where this distinction is recognised, two consequences follow. Constitutional law is usually harder to change than ordinary law, and a court can strike down an ordinary law that conflicts with it.
2.1.1 What A Constitution Contains
Constitutions differ enormously in length. Even so, a reader who opens almost any of them will find the same broad matters dealt with, because these are the questions a political community cannot leave unsettled.
The main contents are set out in Fig. 2.1-1 and explained below it.
Diagram
Fig. 2.1-1 Caption: The recurring contents of a constitution, grouped by the question each one answers. Brief: A central box labelled ‘Constitution’ with six radiating boxes: Aims and objectives; Organs of government; Distribution of power between levels; Rights and duties of citizens; Citizenship; Amending procedure. Under each box, a one-line question in smaller type (‘What is the state for?’, ‘Who exercises power?’, and so on). Clean line diagram, no ornament.
Aims and objectives. Most constitutions open with a statement of purpose, usually called the Preamble, declaring what kind of political order is being established.
The organs of government. The constitution creates the legislature, the executive and the judiciary, states how each is composed and chosen, and lists the powers of each.
The relationship between the organs. It settles whether the powers of the organs are separated or fused, and what checks each may apply to the others.
The distribution of power between levels. It states whether the state is unitary or federal, and in a federation it divides subjects between the national and regional governments.
Rights and duties of citizens. It defines the rights the citizen holds against the state, and the duties the citizen owes to it.
Citizenship. It lays down who belongs to the political community and how membership is acquired.
Tenure. It fixes the term of office of the institutions it creates, so that power is held for a stated period and not indefinitely.
The amending procedure. It states how the constitution itself may be changed, and by whom. Section 2.4 examines three such procedures in detail.
2.1.2 Why A State Needs A Constitution
The most common answer is that a constitution limits government. That answer is correct but incomplete, because a constitution does at least four distinct jobs at once.
First, it confers power. Before the Constitution came into force, no Indian Parliament, President or Supreme Court existed with those names and those powers. The document created them.
Second, it limits power. Because the constitution states what each organ may do, it also states, by implication, what none of them may do.
Third, it settles disputes about authority. When two organs of government each claim the last word, the question is answered by reference to the text rather than by force.
Fourth, it supplies continuity. Governments change every few years; the framework within which they compete does not. A citizen can therefore predict how power will be transferred long before knowing who will win.
This objection is worth holding on to. A constitution is a necessary condition of limited government, but the chapter will show repeatedly that it is not a sufficient one.
2.2 Written And Unwritten Constitutions
Constitutions are classified in more than one way, and the two classifications the syllabus takes up answer two different questions. The first asks where the constitution is to be found; the second, taken up in section 2.3, asks how easily it can be changed.
The first classification divides constitutions into written and unwritten. A closely related distinction is sometimes drawn between an enacted constitution, deliberately drafted and adopted by an assembly at a particular moment, and an evolved constitution, which has grown gradually out of custom, statute and judicial decision. Written constitutions are normally enacted; unwritten ones are normally evolved.
2.2.1 The Written Constitution
A written constitution is one whose provisions are set down in a single document, or in a small series of documents compiled in one place, and adopted at a definite time by a body created for the purpose.
The United States has one, drafted by the Philadelphia Convention in 1787 and in operation since 1789. India has one, framed by the Constituent Assembly and adopted on 26 November 1949. Japan, Canada, France, Germany and Switzerland all have written constitutions.
A written constitution is characteristically a deliberate act. A constituent assembly or convention debates, decides and then compiles its decisions into a text. Nothing about it is accidental, which is exactly what its defenders value.
Merits Of A Written Constitution
Definiteness. The powers of each organ are stated in a text that can be produced and read. Where the boundaries are clear, disputes between organs are fewer.
Clarity for the citizen. Anyone who wants to know what rights they hold, or how long a government may sit, can consult one document rather than reconstruct the answer from scattered practice.
Separation of constitutional from ordinary law. Because the two are distinguished, the core of the political order cannot be altered by the same casual vote that changes a tax rate.
Stability and continuity. Amendment normally requires special steps, so change tends to be considered rather than sudden. An orderly amending route also allows a constitution to evolve instead of being overthrown.
A basis for judicial review. Since the text is supreme law, courts can measure ordinary legislation against it and strike down what conflicts — a check on both legislature and executive.
A definite division of powers. In a federation, the text enumerates what the national and regional governments may each do, reducing overlap and jurisdictional conflict.
Educative value. A published document can be taught, distributed and quoted, which builds public awareness of the political order.
Demerits Of A Written Constitution
Rigidity. Special majorities, ratification requirements and multiple stages make amendment slow. A society may change faster than its constitution can be brought up to date.
Judicial supremacy. If courts are the final interpreters of the supreme law, judges acquire great power over policy, and can be accused of substituting their judgement for that of elected representatives.
Length and complexity. Modern written constitutions run to hundreds of articles and schedules, and their sheer bulk can produce the interpretive disputes that codification was supposed to prevent.
2.2.2 The Unwritten Constitution
An unwritten constitution is one that is not embodied in a single enacted document, but is built up over time from customs, conventions, ordinary statutes and judicial decisions.
The word ‘unwritten’ is misleading, and it is worth clearing up at once. Much of such a constitution is written down; what it lacks is codification in one authoritative text adopted at one moment.
The United Kingdom is the classic example. New Zealand and Israel are usually placed in the same category, since neither has a single codified constitutional document.
In such systems Parliament typically holds a dominant position, because it can legislate on constitutional matters by the same procedure it uses for any other law. Conventions do a great deal of the remaining work.
Merits Of An Unwritten Constitution
Flexibility. The constitution can be adjusted by ordinary legislation, so it responds quickly to new social, economic or technological problems.
Evolutionary growth. It develops alongside the society it governs, absorbing changing values and practices instead of confronting them.
Scope for interpretation. Judges and legislators can adapt principles to circumstances, rather than being tied to the wording chosen by a drafting committee decades earlier.
Demerits Of An Unwritten Constitution
Uncertainty. With no single authoritative text, it can be genuinely hard to say what the constitution requires. This demands an unusually high level of political awareness from citizens.
Instability. Rules that can be changed by an ordinary majority can be changed whenever the majority changes. Precedents may be reinterpreted or quietly abandoned.
Weaker guarantees for rights. Where no entrenched text stands above the legislature, individual and minority rights rest largely on the legislature’s own restraint.
Blurred lines for the judiciary. Courts asked to infer unwritten principles carry a heavy burden, and the line between ordinary adjudication and constitutional decision becomes indistinct.
The two types can now be set side by side. Table 2.1 summarises a contrast that the sections above have already explained; it is a summary, not a substitute.
2.2.3 Is The Distinction Real?
Political scientists have long argued that the difference between the two types is one of degree rather than of kind. The evidence for that view comes from both directions.
No ‘unwritten’ constitution is wholly unwritten. British constitutional history is a sequence of written landmarks: Magna Carta in 1215, the Petition of Right in 1628, the Bill of Rights in 1689, the Parliament Act of 1911 and the Statute of Westminster in 1931.
Equally, no written constitution is wholly written. The Constitution of the United States runs to seven Articles and has been amended twenty-seven times, and much of the American system operates on practices the text never mentions.
The Cabinet that advises the President is one such practice. The Supreme Court’s power to declare an Act of Congress unconstitutional is another; it is not stated in the text, and the Court asserted it in Marbury v. Madison in 1803.
The honest conclusion is narrower than either extreme. Every constitution has a written core and an unwritten skin, and the classification tells you which of the two carries more weight in that country.
2.3 Rigid And Flexible Constitutions
The second classification asks a different question from the first. It does not ask where the constitution is written down, but how difficult it is to change once it exists.
The test is the amending procedure. Where the constitution can be altered only by a procedure more demanding than the one used for ordinary laws, it is rigid; where the two procedures are the same, it is flexible.
It is worth noticing at once that this classification does not simply repeat the last one. A written constitution need not be rigid: a unitary state may set down its constitution in a document and still allow Parliament to amend it by ordinary majority.
Two terms are needed before going further. A simple majority is more than half of the members present and voting. A special majority is a higher threshold, commonly two-thirds, and often carries a further condition such as a minimum share of the total membership.
2.3.1 The Rigid Constitution
A rigid constitution is one that can be amended only by a special procedure — a special majority, an additional stage, or the consent of bodies outside the national legislature.
The Constitution of the United States is the standard example. An amendment must be proposed by a two-thirds majority of both Houses of Congress and then ratified by three-fourths of the states.
Four features are characteristic of rigidity: a special rather than a simple majority; consideration in more than one stage, typically proposal followed by ratification; a requirement of ratification by the units in a federation; and, as a result, slow adaptation to changing needs.
Merits Of A Rigid Constitution
Certainty. The fundamental law is definite and known. Citizens can rely on it, and can be reasonably sure it will still say the same thing next year.
Protection against hasty change. Because a passing majority cannot alter the fundamental law, the constitution is protected from frequent or ill-considered amendment.
Protection of minorities. Rights entrenched behind a special majority cannot be withdrawn by a majority that happens to win one election.
Suitability for a federation. A federation rests on a division of powers between two levels of government. If either level could rewrite that division alone, the bargain that holds the federation together would be worth very little.
Demerits Of A Rigid Constitution
Difficulty of necessary reform. A change that is plainly needed may still fail, because it cannot assemble the extraordinary majority the text demands.
Poor fit with rapid social change. A society developing quickly may find its constitution lagging behind problems its framers could not have imagined.
Pressure finds other routes. Where lawful amendment is blocked, change tends to arrive by judicial reinterpretation, or by political pressure outside the constitution altogether.
2.3.2 The Flexible Constitution
A flexible constitution is one that can be amended by the ordinary legislative process, so that constitutional law and ordinary law stand on the same footing.
The British constitution is the standard example. Parliament changes constitutional arrangements by passing an Act in exactly the way it passes any other Act.
Its characteristic features are the mirror image of rigidity: a simple majority; a single stage of consideration, often within one session; no requirement of ratification by units or by referendum; and rapid adaptation to new demands.
Merits Of A Flexible Constitution
Ease of amendment. The constitution can be adjusted at once in an emergency or when circumstances change, without an elaborate procedure.
It reduces the pressure for upheaval. A system that can be reformed lawfully gives its critics a route short of revolution.
It suits a society in rapid transition. Where economic and social conditions are changing quickly, a constitution that can keep pace does not become an obstacle to progress.
It absorbs conventions. Practices that have proved useful can be folded into the constitutional order as they emerge, giving continuity with the country’s political history.
Demerits Of A Flexible Constitution
Weak protection for minorities. What a majority can amend, a majority can amend against a minority, and no special threshold stands in the way.
Instability. Fundamental arrangements may be altered whenever the government changes, which makes long-term expectations harder to form.
Vulnerability to the mood of the moment. When amendment is easy, constitutional change can follow popular feeling rather than sustained argument.
Unsuitability for a federation. In a federal system, easy amendment allows one level of government to disturb the division of powers unilaterally.
Table 2.2 places the two side by side. The prose above carries the reasoning; the table only holds it in one view.
2.4 Amending Procedures: U.K., U.S.A. And India
An amendment is a formal change made to the constitution by the procedure the constitution itself lays down. Every state needs such a route, because no framers can foresee the problems of the next century.
The three procedures examined here are deliberately different from one another. Read together, they show that the choice of amending rule is a choice about where power finally lies.
2.4.1 Amendment In The United Kingdom
The United Kingdom has no single constitutional document, and therefore no special amending procedure. Parliament changes constitutional arrangements by passing an ordinary Act, in the ordinary way, by a simple majority.
Two consequences follow, and both are central to the British system. There is no legal distinction between constitutional law and ordinary law, and the courts have no power to invalidate an Act of Parliament for being unconstitutional.
This is the doctrine of parliamentary sovereignty — the principle that Parliament is the supreme law-making body, and that no Parliament can bind its successors. It makes the British constitution the clearest case of flexibility discussed in section 2.3.2.
A concrete illustration makes the point. The composition of the House of Lords, the second chamber of the British Parliament, was substantially altered by the House of Lords Act of 1999, which removed the right of most hereditary peers to sit and vote. No special majority was needed, and no court could set the change aside.
The United Kingdom is also a unitary state, in which the central government holds all constitutional authority. It may delegate powers to local councils, and it may take those powers back by ordinary legislation.
2.4.2 Amendment In The United States
The authority to amend the Constitution of the United States comes from Article V of that Constitution. The procedure has two stages, proposal and ratification, and each stage offers two alternative routes.
At the proposal stage, an amendment may be proposed by a two-thirds majority of both Houses of Congress — the House of Representatives and the Senate. Alternatively, if the legislatures of two-thirds of the states apply for one, Congress calls a convention to propose amendments. The second route has never been used.
At the ratification stage, the proposed amendment must be approved either by the legislatures of three-fourths of the states, or by conventions in three-fourths of the states. Congress chooses which of the two modes will apply, and may set a time limit.
The ratifying-convention route has been used exactly once, for the Twenty-first Amendment in 1933. All twenty-seven amendments so far have been proposed by Congress.
One further feature deserves notice. The President has no formal role in the amending process; the joint resolution carrying a proposed amendment is not sent to the President for signature. Amendment in the United States is a matter between Congress and the states.
FC 2.1 sets the two stages out as a single chain, with both branches shown at each stage.
Flowchart
FC 2.1 — Amending The Constitution Of The United States Under Article V Caption: The procedure has two stages, and at each stage the Constitution provides two alternative routes. Nodes: Amendment proposed → EITHER two-thirds majority of both Houses of Congress OR convention called by Congress on application of two-thirds of state legislatures (never used) → proposal stands → Congress selects the mode of ratification → EITHER approval by legislatures of three-fourths of the states OR approval by conventions in three-fourths of the states (used once, for the Twenty-first Amendment, 1933) → amendment becomes part of the Constitution; if the three-fourths threshold is not reached, the proposal fails and the Constitution is unchanged
The two thresholds — two-thirds and three-fourths — explain why the American Constitution is treated as the standard case of rigidity. An amendment must survive a national supermajority and then a supermajority of the states.
2.4.3 Amendment In India
The Indian procedure was designed against the two examples just examined. Its framers judged British amendment too easy and American amendment too difficult, and built a middle route.
Article 368, in Part XX of the Constitution, vests the power to amend in the Union Parliament. Parliament may, in exercise of its constituent power, amend the Constitution by way of addition, variation or repeal of any provision, following the procedure laid down.
The Procedure Step By Step
An amendment can be initiated only by introducing a Bill for the purpose in either House of Parliament. It cannot be initiated in a state legislature.
The Bill may be introduced by a minister or by a private member, and needs no prior permission from the President.
It must be passed in each House by a special majority — a majority of the total membership of that House, and a majority of not less than two-thirds of the members present and voting.
Each House must pass the Bill separately. If the two Houses disagree, there is no provision for a joint sitting.
If the Bill seeks to amend the federal provisions, it must also be ratified by the legislatures of not less than half the states, by a simple majority of members present and voting.
The Bill is then presented to the President, who must give assent. The President can neither withhold assent nor return the Bill for reconsideration.
On assent, the Bill becomes a Constitution Amendment Act, and the Constitution stands amended.
FC 2.2 shows the same procedure as a chain, including the branch that applies to federal provisions.
Flowchart
FC 2.2 — Amending The Constitution Of India Under Article 368 Caption: The route a Constitution Amendment Bill travels from introduction to assent, with the extra step required for federal provisions. Nodes: Bill introduced in either House of Parliament → passed by special majority in that House → passed separately by special majority in the other House (no joint sitting if the Houses disagree; the Bill fails) → IF the Bill amends federal provisions: ratified by legislatures of not less than half the states by simple majority; IF not: this step is skipped → Bill presented to the President → assent is obligatory → Constitution Amendment Act; Constitution stands amended
The Three Amending Routes
Taken together, the Constitution can be amended in three ways, and the difference between them is the whole reason India is called a synthesis of rigidity and flexibility.
By simple majority of Parliament. Certain provisions can be altered by an ordinary majority of members present and voting, outside the procedure of Article 368. Examples include the admission or establishment of new states, the formation of new states and alteration of their areas, boundaries or names, and the creation or abolition of Legislative Councils in the states.
By special majority of Parliament. This is the general rule, and it covers most of the Constitution — including the Fundamental Rights and the Directive Principles of State Policy.
By special majority and ratification by half the states. This applies to provisions that touch the federal structure: the election of the President and its manner, the extent of the executive power of the Union and the states, the Supreme Court and the High Courts, any of the Lists in the Seventh Schedule, the representation of states in Parliament, and Article 368 itself.
The Constitution sets no time limit within which the states must give their consent under the third route.
A Limit The Text Does Not State
There is one further limit, and it does not appear in Article 368. In 1973 the Supreme Court held that Parliament’s amending power does not extend to destroying the basic structure of the Constitution — the core principles on which the whole document rests.
2.5 Summary
A constitution is the body of fundamental rules that establishes the organs of government, distributes power among them, and defines the relationship between the government and the governed.
C. F. Strong described it as the principles by which the powers of government, the rights of the governed and the relations between the two are adjusted. K. C. Wheare described it as the whole system of government, including rules that are not legal at all.
Some constitutional rules are enforceable in court; others are conventions, followed because breaking them would be improper rather than illegal. The office of the British Prime Minister is a convention of this kind.
A constitution is normally treated as the fundamental law: ordinary law is made under it and must conform to it, and is usually easier to change.
Constitutions generally deal with the same recurring matters — aims and objectives, the organs of government, the relations between them, the distribution of power between levels, rights and duties, citizenship, tenure, and the amending procedure.
A constitution does four jobs at once: it confers power, limits power, settles disputes about who has authority, and supplies continuity across changes of government.
Written constitutions are codified in one document and enacted at a definite time; unwritten ones are built up over time from custom, convention, statute and judicial decision. The United States and India have the first kind; the United Kingdom has the second.
Written constitutions offer definiteness, clarity, a separation of constitutional from ordinary law, stability, a basis for judicial review, a definite division of powers in a federation, and educative value. They risk rigidity, judicial supremacy, and unmanageable length.
Unwritten constitutions offer flexibility, evolutionary growth and interpretive room. They risk uncertainty, instability, weaker guarantees for rights, and a blurred line between ordinary and constitutional adjudication.
The distinction between the two is one of degree, not of kind. Britain has written landmarks from Magna Carta to the Statute of Westminster; the United States runs much of its system on practices its text never mentions, including judicial review.
Rigid and flexible is a separate classification, resting on the amending procedure. A rigid constitution requires a special procedure; a flexible one is amended like an ordinary law. A written constitution is not automatically rigid.
Rigidity gives certainty, guards against hasty change, protects minorities, and suits federations, where the division of powers must not be alterable by one level alone. It can also block needed reform and push change into judicial or extra-constitutional channels.
Flexibility gives adaptability and reduces the pressure for upheaval, but leaves minorities dependent on majority restraint and is poorly suited to a federation.
In the United Kingdom, Parliament amends the constitution by ordinary Act and simple majority; courts cannot invalidate an Act. This is parliamentary sovereignty, illustrated by the House of Lords Act of 1999.
In the United States, Article V requires proposal by two-thirds of both Houses of Congress or by a convention requested by two-thirds of the states, and ratification by three-fourths of the states, through legislatures or conventions as Congress decides. The President has no formal role.
In India, Article 368 in Part XX vests the amending power in Parliament. A Bill must pass each House separately by special majority, and federal provisions additionally require ratification by the legislatures of at least half the states. Presidential assent is obligatory.
The Constitution can therefore be amended in three ways — by simple majority, by special majority, and by special majority with state ratification. This mixture is why India is called neither rigid nor flexible but a synthesis of both.
In 1973 the Supreme Court held in the Kesavananda Bharati case that Parliament’s amending power cannot be used to damage or destroy the basic structure of the Constitution. The doctrine is judicial, not textual, and remains the principal limit on Article 368.
The Arguments In One Place
The chapter’s central claim is that a constitution is what makes limited government possible: by writing down who may do what, it converts raw political power into authority that can be questioned.
The strongest position against it is that words do not restrain anyone by themselves. Amending majorities can rewrite the text, and governments can ignore it, so restraint comes from institutions and citizens willing to enforce the document.
The two classifications in this chapter are attempts to manage that tension. Rigidity tries to place the fundamental law beyond an ordinary majority; flexibility accepts majority control in exchange for the ability to adapt.
India’s answer was to refuse to choose, applying different thresholds to different provisions — and the basic structure doctrine then added a limit that the framers had not written down at all.
2.6 Key Terms
Amendment — a formal change made to the constitution by the procedure the constitution itself lays down.
Basic structure — the core principles of the Constitution which, following the Supreme Court’s ruling of 1973, Parliament may not damage or destroy by amendment.
Constitution — the body of fundamental rules that establishes the organs of government, distributes power among them, and defines the relationship between the government and the governed.
Convention — a settled political practice followed because departing from it would be regarded as improper, although no court enforces it.
Enacted constitution — a constitution deliberately drafted and adopted by an assembly or convention at a particular time.
Evolved constitution — a constitution that has grown gradually out of custom, statute and judicial decision, with no single moment of adoption.
Flexible constitution — a constitution that can be amended by the ordinary legislative process, so constitutional and ordinary law stand on the same footing.
Fundamental law — the supreme law of the land, against which every other law is tested and with which every other law must be consistent.
Ordinary law — law made by the legislature in its everyday law-making capacity, under and subject to the constitution.
Parliamentary sovereignty — the principle that Parliament is the supreme law-making body, that its Acts cannot be invalidated by the courts, and that no Parliament can bind its successors.
Preamble — the opening statement of a constitution, declaring the purposes and objectives of the political order being established.
Rigid constitution — a constitution that can be amended only by a procedure more demanding than the one used for ordinary laws.
Simple majority — more than half of the members present and voting in a House.
Special majority — in Article 368, a majority of the total membership of a House together with a majority of not less than two-thirds of the members present and voting.
Unwritten constitution — a constitution not embodied in a single enacted document, but built up from customs, conventions, statutes and judicial decisions.
Written constitution — a constitution whose provisions are codified in one document, or a compiled set of documents, adopted at a definite time.
2.7 Points To Ponder
If a constitution can be amended by the very Parliament it is supposed to restrain, in what sense does it restrain Parliament at all?
Britain has no codified constitution and yet has kept limited government for centuries. Does this suggest that a written text matters less than political habits?
The basic structure doctrine was created by judges and appears nowhere in the Constitution. Can a limit on constitutional amendment be legitimate if the constitution itself never stated it?
Every rigid constitution allows a past generation to constrain a future one. On what grounds could the framers of 1949 claim authority over voters born in 2010?
If a constitutional rule is honoured for two hundred years and then quietly abandoned, has the constitution been amended, or merely broken?
Would a constitution that could never be amended be more secure, or more likely to be discarded altogether?
2.8 Objective Questions
- A constitution that can be amended by the same procedure used for ordinary laws is described as — [1 mark]
- written
- rigid
- flexible
- enacted
- The power to amend the Constitution of India is contained in — [1 mark]
- Article 368 in Part XX
- Article 5 in Part II
- Article 51A in Part IVA
- Article 356 in Part XVIII
- Under Article V of the Constitution of the United States, a proposed amendment becomes part of the Constitution only when it is ratified by — [1 mark]
- a simple majority of both Houses of Congress
- two-thirds of the states
- three-fourths of the states
- the President, after Congress has approved it
- Country ‘P’ has a bicameral legislature and a written constitution. Its central government may not alter the powers of its provinces without their consent. Country ‘P’ is most likely — [1 mark]
- a unitary state with a flexible constitution
- a federation with a rigid constitution
- a unitary state with an unwritten constitution
- a federation with a flexible constitution
- Assertion: A federation ordinarily requires a rigid constitution. [1 mark] Reason: The division of powers between the national and regional governments must not be alterable by one level acting alone.
- Both Assertion and Reason are true, and Reason is the correct explanation of Assertion.
- Both Assertion and Reason are true, but Reason is not the correct explanation of Assertion.
- Assertion is true, but Reason is false.
- Assertion is false, but Reason is true.
- Assertion: In the United Kingdom, the courts may set aside an Act of Parliament that conflicts with the constitution. [1 mark] Reason: The United Kingdom does not distinguish constitutional law from ordinary law.
- Both Assertion and Reason are true, and Reason is the correct explanation of Assertion.
- Both Assertion and Reason are true, but Reason is not the correct explanation of Assertion.
- Assertion is true, but Reason is false.
- Assertion is false, but Reason is true.
- Match the items in Column A with those in Column B: [1 mark]
| Column A | Column B |
|---|---|
| a. Philadelphia Convention | i. 1931 |
| b. Statute of Westminster | ii. 1787 |
| c. Kesavananda Bharati case | iii. 1999 |
| d. House of Lords Act | iv. 1973 |
Fill in the blank: A majority of the total membership of a House, together with a majority of not less than two-thirds of the members present and voting, is called a ________ majority. [1 mark]
State whether the following statements are true or false: [1 mark]
- Presidential assent to a Constitution Amendment Bill in India is obligatory.
- Every written constitution is necessarily rigid.
- The convention route for proposing amendments in the United States has never been used.
2.9 Check Your Concepts
Define a constitution. [2 marks]
State any two matters that almost every constitution deals with. [2 marks]
What is meant by a convention in constitutional practice? Give one example. [2 marks]
Differentiate between a rigid and a flexible constitution on the basis of their amending procedures. [3 marks]
Give reasons why a written constitution is said to provide a firmer basis for judicial review than an unwritten one. [3 marks]
Explain, with one example each, any two merits of an unwritten constitution. [4 marks]
Evaluate the claim that a constitution, by itself, limits the power of government. [4 marks]
‘The distinction between written and unwritten constitutions is one of degree rather than of kind.’ Examine this statement with reference to both the United Kingdom and the United States. [6 marks]
Describe the procedure for amending the Constitution of India under Article 368, and explain why the Constitution is described as neither rigid nor flexible. [6 marks]
Compare the amending procedures of the United Kingdom and the United States, and state one merit and one demerit of each. [6 marks]
2.10 Source & Passage-Based Questions
- Read the passage and answer the questions that follow. [4 marks]
In 1999 the British Parliament passed an Act that removed the right of most hereditary peers to sit and vote in the House of Lords. The Act was passed by a simple majority, using the same procedure Parliament uses for any other law. No court could examine whether the change was constitutionally permissible.
a. Which type of constitution does this episode illustrate? Give one reason for your answer.
b. Name and explain the doctrine that prevents British courts from invalidating such an Act.
c. State one risk that this method of constitutional change carries.- Read the passage and answer the questions that follow. [4 marks]
A Bill is introduced in the Lok Sabha proposing a change in the distribution of subjects between the Union and the states in the Seventh Schedule. It is passed by both Houses by the required special majority and is then sent for the assent of the President.
a. Identify the step that has been left out of this description, and state why it is required.
b. Can the President return this Bill to Parliament for reconsideration? Give a reason.
c. What does this procedure suggest about the place of the states in the Indian constitutional order?- Study the following statement and answer the questions that follow. [6 marks]
A commentator writes: ‘The Constitution says Parliament may amend any provision. Since 1973, however, the courts have said that some provisions cannot be destroyed. The judges have therefore rewritten the Constitution from the bench.’
a. Name the doctrine the commentator is referring to, and state what it holds.
b. Explain one argument in support of the commentator's criticism.
c. Explain one argument against it.
d. What can this statement, taken by itself, not tell you about the doctrine?