In this informative article, we will delve into the concept of a constitution and its significance. Let’s explore the meaning of a constitution and how it shapes the governance of a nation.
Overview
The word constitution finds its roots in the Latin word ‘constitutio’, which translates to “to establish”. It represents an agreement that forms the basis of a system. The first recorded use of the word dates back to the time of Henry II of England. Essentially, a constitution can be defined as a set of rules and orders that govern a society.
An apt example to understand the role of the Constitution is to consider it as the birth certificate of a nation. Just as a child is identified through a birth certificate, a politically organised society (nation-state) is established and identified through a constitution.
The constitution may be referred to as the statute of laws, the supreme law, or the fundamental law of a country. Although it does not encompass all laws, it does explicitly mandate that all laws must comply with a superior concept of law: the constitution itself.
Laws that are not directly mentioned in the constitution are known as statutory laws made by the legislature. On the other hand, laws that are clearly described and formulated within the constitution are called constitutional laws.
The process of constitution making involves extensive research and the establishment of specified rules to suit the needs of a particular society. Its primary purpose is to prevent autocracy and dictatorship. For example, India has its own constitution which is widely respected and followed by its citizens.
The Constitution plays a vital role in protecting individual rights and providing means to deal with various types of discrimination. It gives individuals the right to assert their personality and fight against any unjust treatment by using the rights contained within it.
Therefore, the Constitution can be aptly called the “law of laws”.
The Significance of a Constitution
The creation of a constitution is very important because it establishes a common set of norms, an ideal home, through which the various elements of society can interact harmoniously with one another.
A constitution provides the fundamental structure of a nation’s polity or system of governance. It outlines the complex relationships between the legislature, the executive, and the judiciary.
In addition, a constitution outlines the relationship between the state (which includes the legislature, the executive, and the judiciary) and its citizens, serving as a guiding document.
The ideals and aspirations of the people find expression throughout the constitution, especially in its preamble. Thus, the constitution serves as a reflection of society, highlighting its flaws and aiming to remedy them. These may include issues such as language, caste discrimination, and injustices against women and minority groups, both linguistic and religious.
The constitution provides legitimacy to the state and its functions, such as taxation. In a democratic nation, the government cannot exercise absolute power. Therefore, legally enforceable limits are placed on the government through the constitution to prevent autocracy or despotism.
Consequently, the constitution serves as the platform for enforcing these limits on the state’s authority.
Constitutionalism
Constitutionalism comprises a complex set of ideas based on the principle that the powers of government are not absolute. Instead, they are governed by a set of laws or a supreme law known as the constitution. The legitimacy of government depends on its observance of these laws.
The Rule of Law
Although many individuals have contributed to the theory of the rule of law, Dicey’s contribution is particularly influential. The rule of law includes many components, but at its core, it refers to rule by law.
- Supremacy of Law: The governance of a country is not governed by the arbitrary whims of the ruler but by the principles of law. The rulers too are subject to the law. As the Supreme Court has aptly stated, “However high you may be, the law is above you; the law is the king of kings.” This concept is in keeping with the sentiment expressed in the Upanishads, which mention the Dharma of the king. Consequently, the governance of the country must be in accordance with the law and cannot be arbitrary, thereby preventing the arbitrary exercise of power.
- Equality before Law: Dicey stated that all segments of society are equally subject to the law of the land, which is administered through the ordinary courts. While modern practice may deviate from strict application, particularly in relation to affirmative action or positive discrimination, it aligns with evolving social norms.
Equal Application of Law through Ordinary Courts
However, in contemporary times, there are many forums with judicial functions beyond those of ordinary courts as envisioned by Dicey.
For example, quasi-judicial forums such as the CAT, ITAT and tribunals exist alongside ordinary courts. Some exceptions to legal equality exist in the Indian Constitution. For example, during their tenure, the President and Governors enjoy immunity from criminal proceedings as per Article 361. Some experts such as A.G. Noorani criticise this criminal immunity, considering it an unwise imitation of British practice where courts cannot prosecute the ruler.
In contrast, in India, both the President and the Courts are creations of the Constitution, which makes such provisions ambiguous. Noorani argues that these provisions can be abused, allowing politicians facing criminal charges to be appointed as governors. Another exception is diplomatic immunity, which violates the concept of formal equality.
Additionally, Section 499 of the IPC covers contempt of court, but legislators speaking in the House are exempt from these laws due to parliamentary privilege.
Conclusion
In conclusion, a constitution serves as the bedrock of a nation’s governance, setting forth a common set of norms and ideals. It ensures the rule of law, equality, and limitations on the state’s authority. The constitution’s significance lies in its power to shape society, address its faults, and grant legitimacy to the state and its actions. By understanding the importance of a constitution, we can appreciate its role in fostering an orderly and just society.
