File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Constitution: Its Concept, Nature And Importance And Comparative Study Of Separation Of Powers In France And India

Constitution refers to a document which lays down the basic principles of a country, rights, duties and other obligations of its citizens. It acts as a guide to governance and guardian of the rights of people being a watchdog for the acts done by the government. It delegates power to various authorities and relegates the powers accordingly to make sure that a democracy does not turn into an autocratic rule or a dictatorship.

The main focus of any Constitution anywhere in the world is the welfare of people and proper functioning of the country. However, with changing times and technology, the Constitution also requires a change in order to be in consonance with the modern-day world.

The term "Constitution" has been derived from a Latin word called 'constitutio' which actually means rules, regulations and other orders forming several enactments or acts.

It is also derived from the verb "constitute" which means to set up, ordain, appoint, frame, form, make up or compose. The term constitution literally means the action of constituting, framing or establishing something.

A national constitution, therefore, is defined as: "the system or body of fundamental principles according to which a nation or state is constituted and governed.

  • Constitution refers to a document which lays down the basic principles of a country, rights, duties and other obligations of its citizens.
  • The Constitution acts as the foundation on which the basic framework of a state is laid down as to its government, the structure of the government and processes which are essential in governing a state.
  • The rules and the provisions laid out in the Constitution cannot be unilaterally changed, repealed or amended by any ordinary or simple legislative enactment.
  • Constitution means a well organised, enumerated and well-defined set of rights and fundamental principles which are followed thereby to govern a state.
  • The Constitution of any country depends upon the kind of government or the political order a country has. This is the prime reason that the term Constitution cannot have a universally applicable definition.

"The strength of the Constitution lies entirely in the determination of each citizen to defend it. Only if every citizen feels duty bound to do his share in his defence, are the constitutional rights secure." - Albert Einstein

Constitution is a compact document that comprises of a number of articles about the state, specifying how the state is to be constituted, and what norms it should follow. It specifies the basic allocation of power in the society.

It should not be imposed on the people by force but the people themselves must be involved in the formulation and promulgation of their constitution. It is important to involve the people in the process of making their constitution because a constitution should reflect their ideals, values, interests and aspirations.

The concept of Constitution is formed to balance freedom with restrictions to secure harmony and for that, the doctrine of proportionality is used by courts.

It comprises of four steps of analysis:
  1. Necessity:
    A legitimate purpose or necessity for the limitation of the right must exist. For example, some common well-accepted grounds are public order, public safety, and national security.
  2. Suitability:
    The proposed restriction on the right must be suitable to the purpose to be achieved. That is, the restriction must have some connection to the objective the state seeks to achieve.
  3. Minimal impairment:
    It must be established that there is no less restrictive way of achieving the goal of the government. The restriction is the least inconvenient method of achieving the goal of the government.
  4. Proportionality stricto sensu:
    At the end, overall balancing is conducted to ensure that there is no injustice. In this step, any undesirable outcomes resulting from the first three steps are rectified.

A national constitution, has therefore both political and legal dimensions:
  • In political terms, a constitution is the basic decision of a people on how it wants to live. It has been described as a socio-political framework through which the polity agree on who gets what, when and how. It is said to define "political space" and the relationship between the state and its citizens. It is a kind of a "power map" and "charter of government". It has been described as a social contract or covenant between the state and its subjects on the manner of governance and exercise of state power.
  • In legal terms, a constitution is the fundamental and supreme law of the country. It is the basic law from which all laws derive their validity. Therefore, any law which conflicts with the constitution has no legal effect. Constitutional law is supreme over the legislature.
Accordingly a constitution is regarded as having legal sanctity or being sacred. It deserves the highest respect and obedience from the leaders and the people alike. It represents the deepest norms and ideals by which the people govern their political life.
  • The rules that a Constitution provides are binding on everyone in that land and are to be considered as the parent law.
  • The rules will lay down the structure that a government is to have once formed as well as the rights and duties of citizens.
  • The rules will also have the characteristic feature of laying down the principles considering the political factors of the state.
  • The rules and the provision are accepted widely and are not considered to be against the public policy.
  • The rules of the Constitution are not easy to be repealed or taken down unless a majority is secured (in most of the cases) making it therefore different from the ordinary laws.
  • The rules are designed in a way so as to conform with the internationally recognized criterium for being the guardian of the human rights and the right of the representation of the people in a democracy.
Constitution holds utmost significance in the functioning of a country due to a variety of reasons such as:
  • It offers guidelines for governance, protect fundamental rights, and encapsulate societies' aspirational goals.
  • It ensures that those who make decisions on behalf of the public fairly represent public opinion.
  • It performs a definitive role in identifying the scope of government power, and in creating the institutional forms to be erected for its exercise.
  • A Constitution is the most elevated law of a country and mirrors the crucial standards on which arrangement of government and organisation of nation is based.

Functions Of A Constitution

There are certain functions of a Constitution that actually defines and establishes its supremacy over all other ordinary laws of such land. Some of those functions which are clearly visible in any Constitution of the world are as follows:
  1. A Constitution clearly lays down the rights and duties of its citizens or residents:
    • The Constitution secures the civil liberties of the citizens of a country where such Constitution is applicable. Along with the fundamental rights, it also provides for several other social, cultural, or economic rights to its citizens. There are a few rights which are also applicable to non-citizens.
  2. A Constitution describes and lays down the kind of the political structure a state will have and the authority that it will possess:
    • The Constitution declares the basic principles on which a state is to be governed and also in whom or in what the sovereignty will lie.
  3. A Constitution declares and comprehensively defines the boundaries of the country and the extent to which the Constitution and the sovereign powers shall apply:
    • The boundaries can be personal (defining citizenship) as well as territorial (claiming territories). Thus, it lays down rules or provisions for both inside and outside of the polity.
  4. A Constitution reveals the identity of a state in the International arena:
    • The Constitution defines the National symbols, National Anthem, National Flag, etc. It can make any proclamations about the identity of the nation based on its history, culture, or other attributes of identity.
  5. A Constitution can act as a source of power and authority to many of the organs of a government or the state administration:
    • A Constitution prescribes the powers, functions, and the composition of the organs and institutions that are established under its rules. Almost all of the Constitutions provide for some basic organs of the state such as the Executive Body, Legislative body, and Judiciary, and therefore, it also provides for their powers and composition as well as their role and authority and limitations as well as procedures of accountability.
  6. Constitution in its rules may also lay down for the delegation and division of powers into multiple layers of the government or any other subcategories:
    • Many Constitutions lay down how a government will function and how power must be shared, such as a country being a federal, quasi-federal, or a country having the power decentralized between different regions, provinces, etc.
  7. Constitution also makes clear the identity of a state based on the ideology it adheres to or any religious beliefs:
    • A Constitution may lay out how a country will be identified, be it through its religious ideology, adherence to a particular political idea. For e.g. Pakistan is considered as an "Islamic Republic of Pakistan" whereas India is a "Democratic Republic".
  8. Constitutions at many times also lay down the goals which are social, developmental, or economical in nature:
    • Many of those goals are also made judicially enforceable or binding on the government as a duty or an obligation.
  9. A Constitution may be in a written format or may be unwritten as well:
    For example, the Indian Constitution is well written and duly codified whereas the Constitution of England is not written or codified.

Separation Of Powers In India & France:

In France
France has witnessed the autocratic and tyrannical rulers who had control over the political and legal affairs of the State. Louis XIV has been one such ruler who concentrated all the authority and powers of law making, execution and adjudication upon himself. Montesquieu, the French philosopher in his work,

'spirit of laws' propounded the doctrine of separating the powers taking inspiration from the British constitutional values and stated that the liberty can only be attained when executive, legislature and the judiciary performs their duties separately to avoid despotism. This theory came into action with the adoption of separation of powers in the French Declaration. The same was adopted in the French Constitution of the 5th Republic, 1958.

The semi presidential form of Government in France has 3 organs of Government like that of USA, UK, India and Australia.
  • The executive branch consists of the President, Prime Minister, and his cabinet.
  • The bicameral Parliament comprises of the Senate and the National Assembly.
  • However, the Prime Minister is responsible to the Parliament. The President and Prime Minister share powers depending upon whether they come from the same party or not, that is cohabitation.
  • This system of governance, in practice, does not operate as per separation of powers norms, in strict sense. That is to say, each organ of the governance has evolved ways of interacting with one another.

For example, the head of state, i.e. President can dissolve one of the chambers and the judiciary is answerable to the legislature and the National Assembly can revoke the executive head of the Government, i.e. the Prime Minister.

In India
India's parliamentary form of Government makes the executive, i.e. the President, the head of the State and the Prime Minister, the head of the Government.
  • A quasi-federal structure with a strong centralized tendency on the basis of which India functions makes it dependent upon a sole authority of Constitution for its framework to exist as all the organs of the Government of India derive their power and authority from the Constitution.
  • The separation of powers doctrine is not mentioned in the Indian Constitution. It is present in a diluted form in the Indian context. A complete separation of power clause in the Constitution was also demanded and deliberated upon but to no avail, the absolute separation amendment was rejected at inception, given its likelihood to collapse the entire Constitutional arrangement.
  • Still, Article 50 of the Constitution reaffirms that judiciary and executive must be separated as a directive for the states to implement. Therefore, Independence of Judiciary is the cornerstone of the Constitution, but this independence is to be realized being confined to the 'four walls of the Constitution'.

It can be concluded that a Constitution is an indispensable institution for good and democratic government because without it power is on the loose. The aims and objectives of a Constitution are noble, democratic, just, humane, dynamic, progressive and relevant to our socio-economic and political transformation process. So, it must be a Constitution of the people, by the people and for the people.

Award Winning Article Is Written By: Ms.Nivedita
Awarded certificate of Excellence
Authentication No: JL47314304346-31-0723

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly