“ Constitutional Law “
Q1:- What is a difference between a Written and an unwritten Constitution ?Explain With Examples. (Annual Papers 2010)
Ans:- Before we discussed about written and unwritten constitution .Its more important that what is the constitution. “A constitution down the general and the fundamental principle on which the powers of state are to be exercised.” “In this sense constitutional law is often described as the fundamental law of the land, Its main object is to reconcile the conflict between the Government and the governed and to define the orbit of the sovereignty.”
“Definition of Constitution”
“According to Black’s Law Dictionary.”
“The organic and fundamental law of a Nation or State which may be written or unwritten, Establishing the character and conception of its Government, lying the basic principles to which its life is to be conformed, organizing the Government, and regulating the distributing and limiting the function of its different departments and prescribing the extent and manner of the exercise of sovereign powers.
“Classification of Constitutions”
Though some Classical writers classified constitution into three categories, namely monarchy, aristocracy and democrat. Such classification is extremely unsatisfactory in the modern context. For that matter no two constitutions can be classified on any single basis. This classification has to be on the basis of different aspects of the constitution. It may be on the basis of the sovereign power being exercised by one Governments often we would classify constitution to be either unitary or federal or it may be on the nature of the procedure for amending the constitution, then we would classify them to be either rigid or flexible.
It may be on the basis as to whether the rules of constitutional law are contained in a single document or not then we would classify constitution of those which accommodate the principle of parliamentary sovereignty or those which contain the principle of judicial supremacy. We might classify on the nature of the executive. The executive may be Parliamentary or Presidential.
“Kinds of Constitutions”
In the history of the constitution and development, there have been different varieties of the constitutions in the different parts of the world and hence constitutions may be classified differently.” The Orthodox Classification is of the Written and Un written Constitutions, which is hardly satisfactory.” It would be more accurate to call them “Enacted” and “evolved” Constitutions. So now we described the Written And Unwritten Constitution.
1- “Written Constitution”
The Written Constitution is also called rigid Constitution so the meaning of it “A rigid Constitution is one under which certain Law (Ordinarily Known as Constitution or Fundamental Laws) cannot be changed in the same manner as Ordinary Law. They Can be Altered or amended by the special machinery provided in the Constitution itself.
“Examples”
The Written or Rigid Constitution. The Constitution of France, the United States and Belgium are instances of rigid or written Constitution.
2- “Unwritten Or Flexible Constitution”
Unwritten Or Flexible Constitution is that one under which every description can legally be changed with the same manner by one and the same body or parliament.”
Meaning A flexible Constitution is likely to be unstable due to its capacity to undergo constant changes.
“Examples”
Unwritten or flexible Constitution. The English Constitution, With the Supremacy of Parliament is an instance of a flexible or unwritten Constitution.
“Differences between Flexible or unwritten Constitution and Rigid or Written Constitution.”
“There are five points of distinction between the two.”
These are
1- “As to possibility of changing it”
“A ‘Flexible’ Constitution is one under which every Law of every description can legally be changed with the same case and in the same manner by one and the same body or Parliament.” “While A’ Rigid’ Constitution is one under which certain Law, generally known as Constitutional of Fundamental Laws, cannot be changed in the same manner as ordinary Laws.”
2- “As to ‘Fundamental’ and ‘Ordinary’ Law.”
In a Rigid Constitution, there is a distinction between ‘Fundamental ‘ and ordinary Laws. The fundamental or Constitution Laws are Laws which deal with the framework of the Constitution, and these cannot be changed or amended in the ordinary process of law-making. In other words, a “Rigid” Constitution is one which is founded on fundamental written Laws; a “ Flexible “ Constitution is one in which all Laws can be altered by the same machinery. Law are said to be fundamental which deal with the framework of Constitution, and which can be altered only by a special machinery, provided by the Constitution for that purpose. The English Constitution is Flexible; any Constitutional Law, as for example, the Law governing the succession to the throne, can be and has been altered by Parliament by the ordinary legislative process. The American Constitution is rigid; changes in the Constitution can be effected only by the motion of two-thirds of each House of Congress, with the ratification of the legislatures of three-fourths of the States comprising the Union.
A Flexible Constitution need nod be written. Though, in practice, much of it may be found in writing; rigid Constitution must necessarily be embodied in a written instrument. In a rigid Constitution, some power must exist with authority to judge the validity of legislation; in flexible Constitution, the Law – Making power is subject to no control of this kind.
3- “ As to the sovereignty of the Legislature”
In Rigid Constitution, the Legislature is a non- sovereign Law – Making body, its powers being defined by the fundamental Law embodied in the Constitution which it cannot alter. In a fundamental Law embodied in the Constitution which it cannot alter. In a flexible Constitution, on the other hand, the Legislature is sovereign in as much as it has the power of making, altering, or repealing Laws of any description including the Constitution it self ; it is a legislative as well as a’ Constitution’ body.
4- “As To Power of Courts to Pronounce on Validity etc. of Law”
In a rigid Constitution, Law passed by the Legislature may be declared ultra vires or invalid by the courts if they are repugnant to the Constitutional Law. In a flexible Constitution there is no authority, judicial or otherwise, which can declare Law passed by the Legislature as ultra vires or unconstitutional.’ Thus, in the U.S.A. if an act of the Congress contravenes any provisions of the federal Constitution, the Supreme Court may declare it as ultra vires. In England, no court possesses any power to question the validity of an act of Parliament.
5- “As to Rights of Individuals”
Lastly, in a rigid Constitution 9 Such as the U.S.A.) the rights of individuals as against the state are defined by and flow from the written Constitutional document, While in a flexible Constitution the Constitution itself is based upon individuals rights as defined by the ordinary law of the land.
Could you please tell me in detailed, "the difference between constitution and constitional law"
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