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Unit 3: Constitutions and Constitutionalism

5. Usages and Customs: Finally, we may refer to numerous practices, precedents, usages and Notes
customs of the country that have their own effect on the provisions of the constitution. John
Stuart Mill calls them ‘unwritten maxims of the constitution’ and A.V. Dicey describes them as
‘conventions of the constitution’. These customs grow as a matter of practice and in due course
they are hardened into a custom. For instance, it is just a matter of English customary law that
the Prime Minister must be the leader of the party commanding absolute majority in the House
of Commons and that, he must tender his resignation if the House expresses its want of
confidence in him. Similarly, in the United States the Senate has developed the practice of
ratifying all appointments made and all foreign treaties signed by the President.
That the President and the Vice-President must come from different regions of India (like north
and south) and the Governor of a State must not be a domicile of that State in which he is
appointed are some of the usages of the Indian constitution.
The role of these factors may be seen in the development of any constitution of the world. The
basic point is that the rules of the constitution change from time to time as per the requirements
of the state. Macaulay’s caution has a sense that if a constitution is not changed according to
the needs of the time, it would lead to the outbreak of a serious revolt destroying the constitution
itself. Hence, every constitution must provide some mechanism by which necessary changes
maybe effected. Mulford says that an unamendable constitution “is me worst tyranny of time,
or rather the very tyranny of time. It makes an earthly providence of a convention which has
adjourned without day. It places the scepter over a free people in the hands of dead men, and
the only office left to the people is to build thrones out of their sepulchers.”

3.2 Kinds of Constitution

Writers have used different bases to present a typological study of political constitutions with the
result that, like political systems, constitutions have their own forms in accordance with the
grounds taken into consideration by them. Hence, considered as an ‘instrument of evidence’, they
have been classified as cumulative or evolved and conventional or enacted constitutions. Then, in
view of the breadth of written provisions, they have been described as written and unwritten
constitutions. The process of amending a constitution may be used as another basis on which they
may be termed rigid and flexible constitutions. Finally, they use the basis of concentration versus
distribution of powers and then categories them as unitary and federal constitutions. We may thus
study different kinds of constitutions and their respective merits and demerits.
In the first place, we take up the case of evolved and enacted constitutions. The constitution of a
state may be a deliberate creation on paper formulated by some assembly or convention at a
particular time; or it may be found in the shape of a document that itself is altered in response to
the requirements of time and age; it may also be in the form of a bundle of separate and scattered
laws assuming special sanctity by virtue of being the fundamental law of the land. Or, again, if it
may be that the bases of a constitution are fixed in one or few fundamental laws of the land, while
the rest of it depends for its authority upon the force of custom. A look at the constitutions of the
world shows that, for most of them, the constitution “is the selection of the legal rules which
govern the government of the country and which have been embodied in a document.” However,
Britain affords the peculiar case where the constitution is not in the form of a document; it is a
growth, not a make. Here the definition of Bolingbroke applies: “By a constitution we mean,
whenever we speak with propriety and exactness that assemblage of laws, institutions and customs,
derived from certain fixed principles of reasons... that composes the general system, according to
which the community has agreed to be governed.”

It is very seldom that the Senators oppose some nomination or some treaty. It is
called ‘Senatorial courtesy’.

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