Indian Polity-1: Constituent Assembly & Preamble

Important Prelims MCQ Topics

Written / unwritten and codified / uncodified constitutions, Constituent Assembly – members, elections, meetings, committees, drafting Committee – members, Provisions of Constitution that came into immediate effect on 26 November 1949, contents of various parts and schedules, sources of various parts, Preamble – its relevance.

Note: Wherever the word ‘he’ is used in constitution, it is used to indicate person, a office holder regardless of the gender and should be viewed in broader sense as nothing sort of gender discrimination. Our documents follow the same pattern, so rather than using “He/she” repetitively, we have used the term ‘he’ for holders of various offices.

Introduction

The legal system of a country can be divided into two parts. First deals with the laws governing the state and the second deals with the laws by which the state governs. Constitutional law falls in the first category. It deals with the rules and norms from which the governmental organs draw their powers and functions. Thus constitutional law sets up machinery of the Government of a state and it defines the relations between different institutions and components of the government viz. executive, legislature and judiciary; and also the central, state / provincial and local governments.

Functions of the Constitution

The key functions of constitution are as follows:

  • Providing basic rules which allow minimal coordination among various organs of government and society as a whole.
  • Laying out fundamental principles according to government and its various organs are constituted and governed.
  • Basic allocation of power among various organs of government.
  • Giving certain powers to executive, judiciary and legislative and imposing certain limits on them
  • Giving certain rights to citizens and laying out their duties
  • Enabling the government to fulfill the aspirations of the society
First constitution of the world

Law is as old as our civilization. It is thought that Aristotle (circa. 350 BC) was the first to make a formal distinction between ordinary law and constitutional law; and he was the first one establishing ideas of constitution and constitutionalism. However, our own dharmshastras are even older to the Greek philosophers.

As far as written constitution is concerned, the first modern written Constitution is the “Fundamental Orders” of State of Connecticut in US. This is so famous that Connecticut is called Constitution State in America.

Similarly, the US Constitution came into force in 1789 and is first well known example of written constitution around the world. It was a trendsetter because written constitutions became popular after its adoption. This document had  only 7 articles and is hailed for its simplicity and brevity. It has been amended for 27 times up till now and first 10 amendments are called Bill of Rights.

What are written / unwritten and codified / uncodified constitutions?

Historically, of the key methods of classification of the constitution has been that if they are written or unwritten constitutions. Most countries have written constitutions for example India, Germany, France, US etc.  Examples of unwritten constitution include UK, New Zealand and Israel.

We note here that difference between written and unwritten constitutions is of degree and not of kind. This implies that a written constitution has proportionately more written and less unwritten elements while an unwritten constitution has less written and more unwritten elements.

In fact unwritten constitution is a misnomer.  The British constitution does not have document which can be called a “Constitution’ but it is embodied in the written form, within statutes, court judgments, and treaties. Besides, parliamentary constitutional conventions and royal prerogatives are other written sources of the British Constitution.

A further difference between these two is that while written constitution is a product of deliberate human action, the unwritten constitution is a result of growth. The written constitution is drafted by an agency (such as constituent assembly); unwritten constitution is a combination of customs and conventions which are not drafted by anybody in particular. Moreover, although UK constitution is labeled as unwritten in a single document, most of its constitutional rules are actually written down in many legislations. Due to this, in recent times, it had become fashionable to classify the constitutions as codified and uncodified ones. A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten. By this definition, India and US have codified constitutions. UK has an uncodified constitution because it is neither written nor its constitutional rules come from a single document.

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