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Constitution, Constitutionalism And Nature To Amend

The Constitution is the mother of all laws, the terms 'constitution' and 'constitutionalism' are interlinked, but there exist prominent distinctions between the two. From a layman's perspective, we can perceive it as constitutionalism encompassing constitution but to venture further into this spiral, we must acquaint ourselves with the meaning these seemingly simple terms carry and their different interpretations, and how the amendments are perceived in this context.

Constitution means a legal document having a special legal sanctity that sets out the framework and the principal functions of the organs of the government of a state and declares the principles governing the operation of those organs. (Wade and Philips - Constitutional Law)

There is no precise definition of constitutional law but generally, it is understood as the rules which regulate the structure of the principal organs of the government, the relation between such organs, and their respective principal functions.

When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are encompassed in a single comprehensive document, it is said to embody a codified constitution. The Constitution of the United Kingdom is a notable example of an uncodified constitution; it is instead written in numerous fundamental Acts of a legislature, court cases, or treaties.

All constitutions are the heirs of the past as well as the testators of the future. 'The very fact that the constitution of the Indian republic is the product not of a political revolution but of the research and deliberation of a body of eminent representatives of the people who sought to improve upon the existing systems of administration makes a retrospect of constitutional development indispensable for a proper understanding of the constitution.'

It's not imperative for a nation to have a written constitution as a nation can continue to exist without it, but not without constitutionalism.

"Constitutionalism is built on the simple proposition that the government is a set of activities organized by and operated on behalf of the people, but subject to a series of restraints which attempt to ensure that the power which is needed for such governance is not abused by those who are called upon to do the governing."

Constitutionalism is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".

The concept of constitutionalism, like almost all other social sciences concepts, has always been subject to or part of an evolutionary process. Therefore, we cannot point out any specific time or event that led to its creation or emergence, though a succession of such events may have led to the shaping and acquisition of an image as an outcome of the totality of those events or processes. Generally, they are shaped in the context of paradigm shifts in social and political structures.

The United Kingdom is perhaps the best instance of constitutionalism in a country that has an uncodified constitution. A variety of developments in seventeenth-century England, including "the protracted struggle for power between king and Parliament was accompanied by an efflorescence of political ideas in which the concept of countervailing powers was clearly defined," led to a well-developed polity with multiple governmental and private institutions that counter the power of the state.

India also recognizes the concept of constitutionalism and it becomes prominent in various landmark cases:
In I.R. Coelho vs. State of Tamil Nadu and Ors., the view taken by the Supreme Court - The principle of constitutionalism is now a legal principle that requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision-making. The protection of fundamental constitutional rights through the common law is the main feature of common law constitutionalism.

In Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr. It was held that "The constitutionalism or constitutional system of Government abhors absolutism - it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself." Constitutionalism is about limits and aspirations.

Further, as observed by Chandrachud, CJ, in Minerva Mills Ltd. - "The Constitution is a precious heritage and, therefore, you cannot destroy its identity"

As time advances, there is advancement in many fields like technology, business, and day to day work of our fellow citizens. Also, the development in different types of fields like eradication of poverty, better infrastructure, etc. needs new changes in laws which might make these developments fast and efficient. So the provision of amendment is there to ensure the required modifications in the Constitution as per the demand of the time and situations arising in the country.

An amendment means the process of altering or amending a law or document (such as a constitution) by parliamentary or constitutional procedure.

In rigid constitutions like the USA, the procedure of amendment is very complicated and difficult, The process of its amendment broadly involves the Proposal and Ratification. In the past 200 years, there have only been 27 amendments to the US Constitution so far.

The British Constitution, on the other hand, is unwritten and it doesn't require any rigid process to initiate amendments. Whereas the Indian constitution is a mix of both rigid and sufficiently flexible combination as its only a few provisions of the constitution that requires the consent of half of the state legislatures. The rest of the provisions can be amended by a special majority of the parliament.

The 105 constitutional amendments of the Indian constitution are testimonies to the very idea the constitution was made with and the provisions are such that they cater to our changing needs. This is how India continues to maintain the supremacy of the Constitution.

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