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Unit 3: Constitutions and Constitutionalism

popular uprisings. Third, it is resilient with the result that it can absorb and also recover from Notes
shocks that may destroy a written constitution. It looks like the natural out-growth of a national
life. Its demerits are: First, it leads to the situations of instability. The provisions of such a constitution
may change at the spur of the moment and so they are always in a state of flux as per the emotions,
passions and fancies of the people. Second, it also leads to a state of confusion. Controversies often
arise over different provisions of the constitution having their place in the usages and customs of
the country. Third, such a constitution may suit a monarchical or an aristocratic system, it certainly
does not suit a democracy where people are generally suspicious of constitutional prescriptions.
We have thus seen the implications as well as the merits and demerits of written and unwritten
constitutions. But two important points should be made at this stage. First, a written constitution
is generally preferred to an unwritten constitution. Hence, leaving aside the case of the British
constitution, all constitutions of the world pertain to the category of a written constitution. Second,
the difference between a written and unwritten constitution is one of degree and not of kind. Both
constitutions are written, one in detail and the other in brief. But a deeper study shows that the
distinction between the two is of a superficial nature. The boundary line between the two is not
only hazy, it is blurred. It is a fact that all written constitutions are overlaid, with customs over a
period of time and many rules are reduced to writing in a country having an unwritten constitution.
Wincare well suggests: “The classification of constitutions into written and unwritten forms should
therefore be discarded. The better distinction is that between countries which have a written
constitution and those which have no written constitution.”
After this, we may pass on to the study of rigid and flexible constitutions. Here the basis of
distinction is the process of amendment. If it is very simple and convenient, the constitution is
flexible. Its best example is the British constitution. Any new law made by the Parliament adds a
new rule to the constitution. Thus, it is obvious that there is no distinction between an ordinary
law and a constitutional law in a country having a flexible constitution. As Garner says: “Those
which possess no higher legal authority than ordinary laws and which may be altered in the same
way as ether laws, whether they are embodied in a single document or consist largely of conventions,
should then be classified as flexible, movable or elastic constitutions.” To take the case of England,
we may say that there is no special procedure for making a constitutional law. A bill must be
passed by both the Houses of Parliament by simple majority and then assented to by the monarch.
Dicey is right in holding that “strictly speaking, there is no constitutional law in Great Britain.”
Opposed to this is rigid constitution. Here the process of amendment is quite difficult. A special
procedure has to be followed to make a change in any rule of the constitution. Thus, a bill must be
passed by the Parliament by special majority (as 2/3 majority) and then it must also be approved
either by the provincial (regional) governments or by the people in a referendum or both. Obviously,
here we find a clear distinction between a constitutional law and an ordinary law, the former
having higher sanctity than the latter. It is required that the ordinary law must be in conformity
with the constitutional law of the land, otherwise it could be invalidated by the courts on the
ground of being ‘unconstitutional’. The constitutions of USA, Switzerland, France and Australia
fall in this category. Thus, Garner says that rigid constitutions are those which emanate from a
different source, which legally stand over and above ordinary laws and which may be amended
by a different process. Dicey also defines it as one under which certain laws generally known as
constitutional or fundamental laws cannot be changed in the same manner as the ordinary laws.”
A flexible constitution has its merits. First, it has the quality of adaptability. It may be easily
changed as per the requirements of the time, particularly during the times of national and
international crises. Second, it enables the people to seek a change in the rules of the state without
preferring to adopt revolutionary, means. Last, it is an excellent mirror of the national mind. It is
representative of the needs and thoughts of the people. It can feel and record the pulse of the
people and their urges and aspirations with comparative ease. But it has its demerits too. First, it
is always subject to the winds of instability. Crafty politicians may take advantage of the situation
and thereby make changes according to their whims and caprices. Second, it is not suitable to
people who lack political education and training. Politically indifferent or backward people would
not be able to check their selfish leaders from changing the constitution just for the sake of some

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