1.3 Classification of Constitutions
1.3.1 Written vs. Unwritten Constitutions
In the context of Indian constitutional law, the classification of constitutions into written and unwritten categories helps in understanding the nature and form of the Constitution.
(1) Written Constitution:
Explicitly Codified: A written constitution is one that is explicitly codified into a single formal document or a set of documents. In the case of India, the Constitution is a written document consisting of a preamble, 448 articles (as of my last update in January 2022), and several schedules and amendments.
Comprehensive and Detailed: It is comprehensive and detailed, laying down the framework of government, delineating the powers of different branches, defining fundamental rights, directive principles, and other important provisions.
Rigidity and Amendment Procedures: Written constitutions tend to be more rigid in nature, requiring specific and often elaborate procedures for amendments. In the Indian context, certain provisions are amendable by a special majority of Parliament, while others necessitate the approval of a majority of states as well.
Formal Document of Reference: The written nature of the Indian Constitution serves as a formal reference point for all laws and governmental actions, making it the supreme law of the land.
(2) Unwritten Constitution:
Lacks a Single Codified Document: An unwritten constitution does not exist in a single formal document but is a collection of laws, customs, conventions, and judicial decisions that have evolved over time. India does not follow an unwritten constitution; its constitutional provisions are explicitly laid down in a written document.
Relies on Conventions and Practices: Unwritten constitutions often rely on traditions, customs, conventions, and historical practices that are not explicitly written down but are integral to the functioning of the government. India, however, relies primarily on its written Constitution for governance.
Flexibility and Evolution: Unwritten constitutions are more flexible and can adapt to changing circumstances as they are not bound by a rigid formal document. In contrast, the Indian Constitution, being written, requires a formal amendment process to accommodate changes.
1.3.2 Rigid vs. Flexible Constitutions
In Indian constitutional law, constitutions are often classified based on their flexibility or rigidity, which refers to the ease or difficulty in amending the constitutional provisions. The distinction between rigid and flexible constitutions plays a significant role in understanding the amendment procedures and adaptability of the constitution to changing circumstances.
(1) Rigid Constitution:
Complex Amendment Procedures: A rigid constitution, like that of India, entails a relatively complex and stringent amendment process. Specific provisions within the Constitution are designated as ‘rigid’ or ‘amendment-protected,’ requiring more elaborate procedures to alter them.
Special Majority Requirement: Amendments to certain parts of the Indian Constitution demand a special majority in both houses of Parliament. Additionally, some amendments necessitate ratification by at least half of the state legislatures.
Protection of Core Principles: The rigidity of the Indian Constitution ensures the protection of its core principles, such as federalism, fundamental rights, and the basic structure doctrine. These elements are safeguarded against easy modification, preserving the foundational framework of the Constitution.
(2) Flexible Constitution:
Easier Amendment Procedures: Flexible constitutions allow for easier and more straightforward amendment processes. Provisions can be amended or altered with relative ease, often requiring a simple majority vote or less stringent procedures.
Adaptability to Changing Circumstances: The flexibility of such constitutions enables them to adapt quickly to changing societal needs, political dynamics, or emerging challenges. Amendments can be swiftly introduced without cumbersome procedures, facilitating quick adjustments.
Less Protection for Core Principles: The flexibility may potentially lead to a lack of robust protection for core principles or fundamental rights. This could result in frequent changes that might undermine the stability and consistency of the legal framework.
In the case of India, the Constitution is considered rigid to a significant extent due to the elaborate amendment procedures prescribed for certain essential provisions. This rigidity is intended to ensure stability, preserve essential features, and protect foundational principles, including federalism, fundamental rights, and the basic structure of the Constitution.
The Indian Constitution strikes a balance between rigidity and flexibility. While some parts require stringent procedures for amendments to protect fundamental aspects of governance and rights, other provisions allow for more straightforward changes to accommodate evolving needs. This balance ensures stability while allowing for necessary adaptations to meet the evolving requirements of the society and the nation.