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“THE WRITTEN CONSTITUTION AS LIMITATION UNDER DIFFERENT CONSTITUTIONS”
AUTHORED BY - ADV. SNEHA SITARAM BODAKE,
LLM Law College Pune
ABSTRACT
The constitution protects our rights all day and night. A constitution refers to a system of laws and principles that act as a basis for governance in a country. There are two types of the constitution one is written and the other is unwritten constitution The general idea of a constitution and of constitutionalism originated with the ancient Greeks and especially in the systematic, theoretical, normative, and descriptive writings of Aristotle. The Constitution of San Marino might be the world's oldest active written constitution since some of its core documents have been in operation since 1600, while the Constitution of the United States is the oldest active codified constitution. The first country to make a constitution is the USA India, the USA, France, Australia, Denmark, New Zealand, and Brazil is some of the countries that practice written constitutions. A written constitution has been written and contains all the facts in a book form that can be consulted at any time. It includes government and citizen responsibilities and rights, the type of constitutional order, and the laws governing and controlling the system. These constitutions are adaptable, which means they can be altered over time. The judiciary has more power and can use judicial review to uphold the Constitution. written constitutions are difficult to amend, thus introducing rigidity and conservatism. In a written constitution judiciary is quite conservative interpretations are merely to see whether a law conforms to the constitution or not. A written constitution is rigid and inelastic. It does not allow full scope for growth and development. A written constitution is not adaptable to the changing social and economic conditions. written constitutions are lengthy and complex and hence more challenging to design and implement. Constitutional Reform should be encouraged every ten or twenty years as the Constitutions are the product of a time and thinking of the existing people. Time changes as well as people. Anything with a rigid posture about the Constitution will be harmful to Constitutional Democracy. According to George Kousoulas. "The alternative to Constitutional change is revolution. An unalterable Constitution is the worst form of Tyranny. The aim of doing the research on this topic is to do a detailed study on written constitutions’ merits, demerits, and limitations created because of the written constitution
INTRODUCTION:
A Written Constitution is a Constitution that has been systematically and thoroughly written down and contained in a single text. A written constitution has been written and contains all of the facts in a book form that can be consulted at any time. It includes government and citizen responsibilities and rights, the type of constitutional order, and the laws governing and controlling the system. These constitutions are adaptable, which means they can be altered over time. The judiciary has more power and can use judicial review to uphold the Constitution
Though the motive forces which led to the adoption of a written constitution have varied in different parts of the world, the basic assumption underlying them broadly is the same (being derived from the American constitution), namely that a written constitution is a legal instrument, which sets up and limits the powers and functions of the different organs of the state. Since the organs of the state including the legislature or the ordinary law making body itself are thus set up by the constitution, it is a natural to regard the written constitution as a higher law, with reference to which the powers of the different branches of the body politic have to be tested, or circumscribed.1
Under unwritten constitution a court or a lawyer would have nothing to do with the rules of morality, whether founded on the unwritten constitution or usage or otherwise. It follows that there is no legal limitation to the sovereignty of the legislature even though a parliament may not, in practice, intend to violate these rules of constitutional morality. In the words of Dicey2
“A modern judge would never listen to a barrister who argued that an act of parliament was invalid because it was immoral, or because it went beyond the limits of parliamentary authority.” “If a legislature decide that all blue eyed babies should be murdered, the preservation of blue eyed babies would be illegal but the legislators must go mad before they could pass such a law”3 under written constitution since the powers of all the organs of the states are defined by the constitution
1 Dr Durga Das Basu ,Comparitive constitutional law , 355( 3rd edition, 2014)
2 AV Dicey , Law of Constitution P.63(10th Edn)
3 Quoted in Dicey, Leslie Stephens Science of Erhics, p. 81(10th edn)
it follows that under a written constitution no organ or branch of the government can claim omnipotence or sovereignty4 in the English sense. Under a written constitution healthy organs are non sovereign to borrow Diceys6 language. It means that none of them can exercise unlimited power but is limited and restrained by a superior law and that if any of those constitutional limits are transgressed, the relevant act of the government weather executive legislative or judicial, shall be ultra virus or unconstitutional.
Most modern states have written constitutions, and it is usually not difficult to recognise them. For a large number of research problems (but not all), these two characteristics offer significant analytical leverage. Identifying a state's constitution is a relevant issue. The Comparative Constitutions Project (CCP) uses a single operational definition in which we use a trio of criteria to determine whether a piece of legislation qualifies as a constitution.1 When determining whether a document is a constitution, the first criterion must be satisfied in order for it to be considered such. If the first criterion is not satisfied, the second and third criterion are used as backup criteria. Documents that are specifically referred to as a country's constitution, fundamental law, or basic law are considered to be constitutional.
Constitution making is a political act. Choosing the basic principles of constitutional design, endowing the document with legitimacy and ensuring its utility as a political artefact combines ‘science, art and craft’.5But constitution making, especially in a country like the UK, would necessitate deep changes for the legal and political culture,6 especially if the constitution replaced Acts of Parliament as the highest source of law. The doctrine of parliamentary supremacy, together with the rule of law and conventions, forms the backbone of the UK’s unwritten constitution. It has always been and remains a totemic issue in constitutional debates. As the highest source of
4 Kilbourn v. Thompson, (1880) 103 US 168 (199); powell v. McCormack, (1969) 395 US 486. 6
Dicey , Introduction to theLaw of constitution10th Edn. 92et seq.
5 Daniel Elazar, ‘Constitution-Making: The Pre-eminently Political Act’ in KG Banting and R Simeon (eds), Redesigning the State: The Politics of Constitutional Change in Industrial Nations (Macmillan 1985) 233.
6 Sotirios A Barber, Constitutional Failure (University Press of Kansas 2014) xvii: ‘constitutional reform must therefore be nothing short of cultural reform’.
law, Acts of Parliament may violate international law and fundamental rights and repeal constitutional statutes at will. The UK Supreme Court may have attempted to disaggregate parliamentary supremacy by intimating that, in the context of rights, the doctrine is ‘no longer ... absolute’,7 but in the context of the devolved governance structures, the same court has deemed Westminster’s power to legislate for Scotland and Wales to be ‘undiminished’.8 Martin Loughlin and Stephen Tierney argue that this dominant institutional conception of absolute legislative authority is a ‘primitive view’ that ‘rests on an inchoate appeal to the need for Westminster to hold on to untrammelled power [which] is inadequate and must be jettisoned’.9This primitive view is most incompatible with, and therefore most threatened by, the adoption of a written constitution. If it is retained, the UK will remain ‘incapable of being constitutionalised’.If it is repudiated, the culture of the matchless, flexible, political constitution will have been corrupted. Rooted in conservatism and anti-rationalism, and sceptical of the constitutional responsibilities of courts, opponents view the idea of a written constitution as ‘unnecessary,undesirable and un-British’.
As Roger Scruton has observed:
Conservatives in the British tradition are heirs to an island culture, in which custom prevails over reason as the final court of appeal ... When interrogated as to the just- ice or reasonableness of any particular part of their inheritance—be it the common law, the monarchy, the nature and workings of parliament, the Anglican Church and its nonconformist offshoots they tend either to shrug their shoulders, asserting that this is how things are because that is how they were, or else they take refuge in irony and self-mockery, confessing to the absurdity of a system whose principal merit is that nobody knows why it exists, and hence nobody quite knows why it shouldn’t.
Different kinds of limitation may be imposed upon the organs of the state by written Constitution while creating them.
7 R (Jackson) v Attorney General [2005] UKHL 56, [2005] 1 AC 262 [104]; also [107] (Lord Hope), [102] (Lord Steyn), [159] (Lady Hale). See also Axa General Insurance Ltd and Others v The Lord Advocate [2011]UKSC 46, [2012] AC 868.
8 The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64, [2019] AC 1022 [41].
9 Martin Loughlin and Stephen Tierney, ‘The Shibboleth of Sovereignty’ (2018) 81 MLR 986, 1015–16.
An overall limitation may be imposed in (substantive as well as procedural) in the matter of amending the constitution itself. we have already noticed the main features of such limitation.
Limitations may be imposed upon all the organs of the state by guaranteeing certain rights of the individual in a Bill of Rights or a list of fundamental rights, which when violated would render the relevant state act null and void
Limitations may be imposed upon the legislative body in the matter of enacting ordinary legislation.
Such limitations may be-
Written constitutions are frequently strict, with time-consuming modification procedures, which beg how to adapt them to changing demands and circumstances easily
10 Dr. Durga das basu,comparitive constitutional law ,3rd edition ,357.
All state organs are subject to restrictions imposed by the written constitution, which is a law. It only follows when a constitution is regarded as a legal document of a higher order than common law and serves as a formal restriction on the authority of all state organs established by the constitution, as in the US and India. Among the nations with written constitutions are Brazil, New Zealand, Australia, Denmark, India, the United States, and France. The Indian Constitution went into effect on January 26, 1950. The Constitution was the longest national constitution ever approved at the time of its ratification. It had 395 Articles, 8 Schedules, and was about 145,000 words long. The United States Constitution is the oldest continuously existing written charter of government in the world. It was drafted in 1787, ratified in 1788, and has been in effect since 1789.
The constitution is a set of regulations and laws that are controlled by the governmental bodies (judiciary, legislature, and executive) in order to safeguard and uphold individual liberties. It has to do with freedom and basic rights. A constitution can be defined in many ways. It is defined as the system of government. The constitution is a set of rules and laws governed by the government institutions(judiciary, legislature, executive) to protect the liberty of people and to respect them. It relates to fundamental rights and freedom.
According to K.C. Wheare, a constitution is “the whole system of government of a country, the collection of rules which established and regulates or govern to government”. Thomas Payne stated that “a constitution is not the act of government, but of people constituting a government without a constitution is a power without right. The constitution is a thing antecedent to a government and the government is only a creature of the constitution. Sir Ivor Jennings defines it as “if a constitution means a written document, the obviously Great Britain has no constitution. In
countries where such a document exists, the word has that meaning. But the document itself merely sets out rules determining the creation and the operation of government institutions, obviously, Great Britain has such institutions and rules. The phrase “British constitution is used to describe those rules”.
Everything that a government does is either lawful or unlawful dependent on the constitution. There are different classifications of the constitution. One way to classify it is written and unwritten. A written constitution is one that can be contained in either one or more documents with or without amendment, defining the basic rules of the state. It represents a codified constitution. USA, Ireland, India countries have a written constitution. On the contrary under an unwritten constitution, no constitution as such exists, only the law of the land. For example, UK has a written constitution
In the present environment, we're examining how courts in the U.S.A. and countries which have followed the American indigenous pattern, have applied the principle of Separation of Powers as a limitation upon the powers of the different organs of
Government as if it was written on the body of the Constitution as an express limitation.
The expression' Separation of Powers' is used in different senses, but in the realm of
indigenous Law, in ultramodern times," it means' separation of functions, and it's in that sense that we shall bandy its operation under the present caption. In short. the doctrine of separation of' functions' means that none of the three organs of the State- legislative, administrative and judicial, can convert or exercise any power which duly belongs to either of the other two," according to its Constitution Written or verbal Chapter 161
But before we launch upon that inquiry, it would be useful to refer to some contrary instances which illustrate what would happen if this principle is altogether ignored by a Constitutional system.
Instances of a complete absence of separation of powers are offered by the Socialist Constitutions of the U.S.S.R. (Now Russian Federation) and China. the U.S.S.R.
The Constitution of 1977 unequivocally declares that "all power under Constitution belongs to the Soviets of People's Deputies, who exercise such power on behalf of the people. As per art -2
"All power in the USSR belongs to the people. The people exercise state power through Soviets of People's Deputies, which constitute the political foundation of the U.S.S.R.
All other state bodies are under the control of, and accountable to, the Soviets of People's Deputies."
The 1982-Constitution of China similarly declares (Art. 2)-
"All power in the People's Republic of China belongs to the people. The organs through which the people exercise state power are the National People's Congress and the local people's congresses at various levels. "
Even the Supreme Court (the highest court of the Republic) is "responsible and accountable to the National People's Congress and its Standing Committee" [Art. 128]. The National People's Congress is thus competent to exercise all powers of the Statelegislative, executive or judicial.
In sum, in the U.S.S.R. and China, the powers of the party in power are unlimited and if any of their acts be tyrannical, there is no prospect of getting relief from an independent judiciary.
The Constitution of the U.K. being unwritten, there are no constitutional limitations upon the plenary powers of the Legislature, which go by the name of 'Sovereignty of Parliament'. It is. therefore, competent for the Legislature to exercise executive or judicial functions of particular kinds, and if the Legislature so usurps or encroaches upon the functions 'properly' belonging to the other organs, there is no authority, including the Judiciary, to declare such act of the Legislature as violative of the doctrine of Separation of Functions, and hence, void.
Some scholars," following the observations of LORD PEARCE in Liyanage v. R. 12that for practical purposes, the principle of independence of the Judiciary, which dates from the Act of Settlement, 1701 guaranteeing security of tenure to the Judges of the superior courts, suggest that judicial power should be exercised by the Judges, independent of legislative or executive control.
In this sense. it may be said that the principle of judicial independence serves as an implied limitation upon the omnipotence of Parliament
The system of distribution of legislative powers between the Union and State Legislatures under the Indian Constitution is unique in so far as the enumeration of subjects in the 7th Schedule is three-fold-List I specifies the exclusive powers of the
Union Legislature; List II similarly gives an exclusive jurisdiction Legislature over the subjects enumerated in that List; List III, on the other hand, specifies certain subjects as concurrent. Most countries having a written Constitution provide immunity against self- incrimination, by laying down that no person accused of an offence shall be compelled to be a witness against himself [Art. 20(3) of the Indian Constitution]. With more or less similar phraseology, this right is guaranteed by the Fifth Amendment to the Constitution of the U.S.A.; Art. 38 of the Constitution of Japan.
In England, there was a time when an accused could be questioned to incriminate himself, under the inquisitorial methods adopted by the Star Chamber. It is against such methods that Judges evolved the
U.K. maxim of common law that "no man is bound to accuse himself" and that the court would protect him if he is compelled to do so.11 In course of time, the principle has been codified in some statutes, such as the Criminal Evidence Act, 1898, the Civil Evidence Act, 1968. But even in the absence of such statutory protection, the court would offer its protection against violation of this common law principle." so long as there is no statute to the contrary. But the Court would be powerless against any unfortunate invasion by the Legislature itself.
11 Triplex Co. V. Glass, (1939) 2 All ER 613 : Rio Corp. V. WEC (1978) 1 All ER 434 (HL R V. Coote: LR 4PC 599, 14 Elaboratory deals with in Authors limited Government and judicial review.
In a country like the U.S.A. or India, on the other hand, which has adopted a U.S.A. constitutional Bill of Rights, these 'fundamental' rights cannot be transgressed by any of the organs of the State, including the Legislature. If it does, the resultant act will be void, because the constitutional guarantee of these rights operates as limitations upon any form of state action. Thus, where a court convicts an accused upon his forced confession or compels him to make an incriminating statement, the order of the court would be quashed."
The very object of guaranteeing such rights is to place them beyond the majority for the time being in the Legislature" or the Executive" or even the Judiciary itself, and to enforce them as legal principles, through the Courts, against any of the organs of the State. i.e.. any official authority,12" which may violate these rights."
In India, as pointed out earlier, 'supremacy' of the Constitution has been described as a 'basic feature' of the Constitutional system."13
It means several things:
It means 'limited government', namely, that all the organs set up by the Constitution are vested with limited powers by the Constitution, so that none can claim unlimited power or legal omnipotence.
In other words
a) the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any Legislatore in India in the literal absolute sense"
12 Board of Education v. Barnette, (1943) 319 US 624 (637-38), Ex parte Virginia, (1880) 100 US 339 (347),
Hurtado
v. California, (1884) 110 US 516, Twining. NJ, (1908) 211 US 78: Sterlingv Constantin, (1932) 287 US 378; Ohio Bell
Co. Public Unities Commr (1938) 301 US 292 (304)
13 Indira Gandhi Raj Narain, AIR 1975 SC 2299 (paras 564, 575) BEG, 1: Kesavananda Sar ofKerala, AIR 1973 SC
1461, State of Rajasthan Union of India, AIR 1977 SC 1361 (paras. 35,44)
In the arena of constitutional law, the question of vires comes in because the Constitution, as the higher law, sets forth the limits of the powers of the different organs of the State. Any action of any of these organs becomes ultra vires or unconstitutional as soon as any of the limitations imposed by the Constitution upon that organ is transgressed.
Judicial review thus follows from the concept of the Constitution as a legal instrument, and that of a 'higher' order, as we have explained earlier. Under this system the Judiciary becomes: "the final judge of all acts purported to be done under the authority of the Constitution".
14 Indira Gandhi v. Raj Narain, AIR 1975 SC 2299 (paras. 564, 575) BEG, J. 3. Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, (BEG, J.): State of Rajasthan v. Union of India, AIR 1977 SC 1361 (para. 44, BEG, C.J.); Kesavananda v. State of Kerala, AIR 1973 SC 1461
As pointed out by GAJENDRAGADKAR, C.J., in the Reference case, all the foregoing categories of legal limitations, following from the express provisions of the Constitution, are present in our Constitution. Thus, though the "Legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution", and if any of these limits is transgressed by a law, the law must be struck down by the courts as void15
India
Constitution • Therefore, the system’s flexibility has been included in the modification methods
India have its own constitution which is in written form Written constitutions are frequently strict, with time-consuming modification procedures, which beg how to adapt them to changing demands and circumstances easily
The United States of America has the oldest written Constitution. It was written on September 17, 1787, approved on June 21, 1788, and signed on March 4, 1789. James Madison wrote the paper
15 Dr Durga Das Basu ,Comparitive constitutional law , 373( 3rd edition, 2014) 19 Difference between written and unwritten, Unacademy, Available at- https://unacademy.com/content/upsc/difference-between/written-and- unwritten-constitution/, last seen on- 5/05/23.
that served as a model for the US Constitution. He is regarded as one of America’s Founding Fathers.
The Magna Carta is thought to be the world’s oldest unwritten Constitution. On June 15, 1215, King John of
England signed a Bill of Rights for Nobles, which went into effect. It vowed to defend the nobility’ rights against the crown’s intervention. Later, the Magna Carta evolved into the United Kingdom’s unwritten Constitution.
A written constitution is one in which the duties and rights of governments and citizens, the structure of the constitutional arrangement, and the laws that regulate the entire system are all contained in a formal and legal book or a series of documents bound together as a book.
The essential objective of a written constitution is for it to be enacted and is perfectly framed and duly passed. Therefore, a specialized body is charged with drafting and adopting the written Constitution, which specifies the government’s fundamental organs and bodies.
The Indian and Australian constitutions drew on the US Constitution’s lessons and examples. Similar to the Australian constitution, the Indian Constitution established a judicial branch that was completely independent of the legislative and executive branches.
They Faithfully imitated The judicial review process to keep all public authority recipients within the constitution and other applicable laws in the Australian constitution. However, the Indian Constitution went far further. It included a Bill of Rights until recently seen as a notion alien to the sovereignty of Parliament, which was so important to the United Kingdom’s constitutional ideals. Despite these fundamental differences, India’s and Australia’s governments and judicial systems are quite similar.
About the Australian and Indian constitutions
The country’s supreme law is the Australian constitution, and it establishes the powers and structure of Australia’s three government pillars: judiciary, executive, and legislature.
Australia’s six self-governing British colonies held several conventions between 1891 and 1898, during which they drafted the constitution. Final approval came in a series of referendums between 1898 and 1900. A slightly modified version of the final draft, on the other hand, enacts section 9 of the Commonwealth of Australia Constitution Act 1900, a British Parliament act. On 9th July 1900, the act received royal assent; on 17th September 1900 proclaimed and came into force on 1st January 1901. The constitution made the six colonies states within the new federation.16
The High Court’s constitutional interpretation shaped Australian law. There are many unwritten constitutional conventions and ideas from the Westminster system incorporated into the constitution, and the textual provisions and concept of responsible government are one of these. Although the High Court and some academics believe that the 1900 act derived its legal power initially from the UK Parliament, the High Court and several academics now believe that it derives its legal authority from the Australian people. The Statute of Westminster and Australia Act 1986 are key constitutional documents.
The referendum can only amend the constitution, as per section 128. According to this, a “double majority” — a majority of state and national voters – is required to make amendments. There have only been eight amendments passed, with the most recent in 1977, contributing to the low number of successful amendments. Replacement of the monarchy with a republic, the inclusion of a preamble, and the inclusion of an Indigenous voice in the government are just some of the ongoing debates regarding further amendments.
16 Unacademy, The Australian constitution, Available at - https://unacademy.com/content/bpsc/studymaterial/polity/the-australian-constitution-and-the-indian-constitution/,
last seen on – 15/05/23
The Indian constitution is the supreme law. It establishes powers, fundamental principles, procedures, and duties of government, as well as duties, rights, and directive principles of citizens. It’s the world’s longest written constitution. Rather than parliament, a constituent assembly created it, and its people adopted it in its preamble, giving it constitutional supremacy. Parliament cannot amend the constitution.
In 1949, the Indian Constituent Assembly passed it, and it took effect on 26th January 1950. The replacement of the Government of India Act of 1935 with the Indian Constitution made India a Republic. According to the Constitution, Article 395 repealed prior British parliament acts. India’s constitution day is 26th January.
The Indian constitution provides equality, citizens justice, and liberty while promoting fraternity. A helium-filled container in New Delhi’s Parliament contains the original 1950 constitution, and the 42nd amendment act in 1976 added the Preamble words
“secular” and “socialist” during the Emergency.
A Written Constitution is a Constitution that has been totally and completely written down and contained in a single textbook. A written constitution has been written and contains all of the data in a book form that can be consulted at any time. It includes government and citizen liabilities and rights, the type of indigenous order, and the laws governing and controlling the system. These constitutions are adaptable, which means they can be altered over time. The bar has further power and can use judicial review to uphold the Constitution Though the motive forces which led to the relinquishment of a written constitution have varied in different corridor of the world, the introductory supposition underpinning them astronomically is the same( being deduced from the American constitution), videlicet that a written constitution is a legal instrument, which sets up and limits the powers and functions of the different organs of the state. Since the organs of the state including the council or the ordinary law making body itself are therefore set up by the constitution, it's a natural to regard the written constitution as a advanced law, with reference to which the powers of the different branches of the body politic have to be tested, or circumscribed. Overall we can say that The American Constitution is the base for the written constitution, which is a legal instrument that limits the powers and functions of the different organs of the state. It's seen as a advanced law, as it allows for the testing of the powers of the body politic. Under verbal constitution, a court or a counsel would have nothing to do with the rules of morality, whether innovated on the verbal constitution or operation or else. It follows that there's no legal limitation to the sovereignty of the council indeed though a congress may not, in practice, intend to violate these rules of indigenous morality. In the words of Dicey “ A ultramodern judge would noway hear to a 6barrister who argued that an act of congress was invalid because it was immoral, or because it went beyond the limits of administrative authority. ” still, the preservation of blue eyed babies would be illegal but the lawmakers must go frenetic before they could pass such a law ” “ If a council decide that all blue eyed babies should be boggled.It follows only when such constitution is treated as a legal instrument of a higher order than ordinary law, and acts as a legal limitation upon the powers of all the organs of State which are setup by the Constitution, as in the U.S and India
Books Referable:
Authors: ADV. SNEHA SITARAM BODAKE
Registration ID: 102578 | Published Paper ID: 2578
Year :April - 2024 | Volume: 2 | Issue: 16
Approved ISSN : 2581-8503 | Country : Delhi, India
