LAWET

Kaustav Ghosh

“Constitution is the collection of principles according to which the powers of government , the rights of the governed and relation between the two are adjusted”.

-Woolsey¹

Introduction:- In this world of technology and new invention everyone is well acquainted with the word ‘Constitution’. Specially those who are students of law, political science etc. knows what is Constitution and what is it all about. As a student of law I define Constitution as supreme document of a country and mother of all law. It decides the rights, power, duties and relation between governed and government. In fact when I was pursuing my master of law in Constitutional and Administrative Law, I found that the word ‘Constitution’ is a word comprising of very deep, wide and complex meanings. The term ‘constitution’ though derived from the Latin word ‘constitutio’ but originally came through french; which means regulation or body of principle². But here is another story. Some jurist and historians opines that Augustus, Emperor of Rome, calimed to have protected its subject, restored its republic from anarchy. According to his official autobiography ‘Res Gestae’ “he restored the administration of its republic to the jurisdiction of Senate and People. According to an official inscription the term ‘restituta’ is none other than today’s restored, may be well seen as the counterpart of the term ‘constituta’ and carry the translation of reconstituted”³. It can be defined in many ways. New Oxford American Dictionary, Second Edition defines it- “A Constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed.”⁴.Merrium Webster defines Constitution as “the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it”. Albert Ven Dicey, a great British Jurist and the propounder of the term ‘Rule of law’, have adopted positivist method. He quoted “Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law”⁵.

Thomas Paine said in his book ‘The Rights of Man’ that “A Constitution is a Thing antecedent to Government, and a Government is only the Creature of a Constitution. The Constitution of a Country is not the act of its Government, but of the People constituting a Government. It is the Body of Elements to which you can refer and quote article by article; and which contains the principles upon which the Government shall be established, the manner in which it shall be organized, the powers it shall have, the Mode of Elections, the Duration of Parliaments, or by what other name such Bodies may be called; the powers which the executive part of the Government shall have; and, in fine, every thing that relates to the complete organization of a civil government, and the principles upon which it shall act, and by which it shall be bound. A Constitution, therefore, is to a Government what the laws made afterwards by that Government are to a Court of Judicature. The Court of Judicature does not make the laws, neither can it alter them; it only acts in conformity to the laws made: and the Government is in like manner governed by the Constitution”⁶ The “law” that Paine hoped to see displace the king was
that declared by an elected, representative branch, acting in the interest of and with the authority of the people^.7

A constitution can be longest like India or shorter like United State of America, Monaco or like the Indonesian Constitution of 1945. It can be well codified like U.S.A, India or it can be like precedence based as it is in the United Kingdom. The Constitution of the Republic of San Marino may be the oldest codified still active constitution which came from the Statute of 1600. But the fact is being the supreme law of the Land, Constitution caries the emotion and the aspiration of a nation irrespective of its geographical location. As it has been said by the jurist-“if there is no constitution, there is no modern state.”⁸ But liberal and giving unlimited license to freedom may become detrimental to the nation. As Thomas Paine said-“That Constitution which would exclude the poor would be a mean one, and that which would exclude the rich would be a pride one. The former would be a private pilfering, and later a bold injustice,…in either case it is a theft.”⁹

Constitution framers usually keep it in its mind that without application of equity, justice, equality, good conscience and reasonable classification a just constitution cannot be made; this will guaranty and safeguard the rights of the citizen. Now, I have discussed and defined the term ‘Constitution’. But how and where it is build. A Constitution usually comes into life after many day’s toil of constitution framers in the Constituent Assembly. It is the Constituent Assembly where Constitution of a nation is drafted. A Constituent Assembly usually set up for drafting or revising the Constitution. Constituent Assembly is a body also known as Constitutional convention. According to Cambridge English Dictionary Convention is an agreement between states covering particular matters, especially one less formal than a treaty. Convention can be defined as a gathering of two or more persons, in general public, who meet at some arranged place and time in order to come to a conclusion for common agenda or interest. A constitutional convention is an informal and unwritten procedural agreement that is followed by the institutions of a state not enforceable in a Court of Law.¹⁰It is the place where the constitution makers draw the dream, aspirations of the millions, billions of people to make a codified, well written document which is known as Constitution. You may not agree about the term codified, but this article concentrates on India; and nowadays constitution usually given a codified form through out the world.

The term ‘Constitutional convention’ was first used by British legal scholar A. V. Dicey in his 1883 book, ‘Introduction to the Study of the Law of the Constitution’–

“The one set of rules are in the strictest sense “laws”, since they are rules which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims know as the common law) are enforced by the courts….The other set of rules consist of conventions, understandings, habits, or practices that—though they may regulate the conduct of the several members of the sovereign power, the Ministry, or other officials—are not really laws, since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the “conventions of the constitution”, or constitutional morality.”¹¹

Canadian scholar Peter Hogg wrote in the book ‘Constitutional Law of Canada’ wrote–

“Conventions are rules of the constitution which are not enforced by the law courts. Because they are not enforced by the law courts they are best regarded as non-legal rules, but because they do in fact regulate the working of the constitution they are an important concern of the constitutional lawyer. What conventions do is to prescribe the way in which legal powers shall be exercised. Some conventions have the effect of transferring effective power from the legal holder to another official or institution. Other conventions limit an apparently broad power, or even prescribe that a legal power shall not be exercised at all.”¹²

Geoffrey Marshall in his book ‘Constitutional Conventions’ (1984) wrote-

“Conventions are rules that define non-legal rights, powers and obligations of office-holders in the three branches of Government, or the relations between governments or government organs. Conventions in most cases can be stated only in general terms, their applicability in some circumstances being clear, but in other circumstances uncertain and debatable. They are distinguishable from rules of law, though they may be equally important, or more important. They may modify the application or enforcement of rules of law.”¹³

I have described part by part that what is constitution, what is convention and what is constitutional convention. Now the question is what is the role and why, how constitution convention is playing a role in making a nation. In this article the discussion may be limited to Indian context. Simply we can say that it is a gathering of people’s representative in Parliament or any such law making sovereign body for framing body of principles which will dictate the governed and government principle and how a Government and its body will be carried on. There is a difference between organized convention by nation state or member state for making treaty and constitutional convention which has the sole purpose of drafting a constitution for its own nation. Convention for adopting memorandum is also different .But in this research I have tried to explain how constitutional convention plays an important role and by which a new nation is born and this time our main focus is India.

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1)https://gfgc.kar.nic.in/hiriyadka/GenericDocHandler/210-dff1ff6a-f4ad-42be-b272-b3c6a806c475.pdf

2) Mousourakis, George (December 12, 2003). The Historical and Institutional Context of Roman Law. Ashgate. ISBN9780754621140

3)Maddox, Graham. “A Note on the Meaning of `Constitution’.” The American Political Science Review 76, no. 4 (1982): 805–9. https://doi.org/10.2307/1962972.

4)The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pp., 2005, Oxford University Press, ISBN 0-19-517077-6.

5)’The Rights of Man’ by Thomas Paine, London J.M.DENTS Sons Ltd. p-48

6)Introduction to the Study of the Law of the Constitution [Eighth Edition, 1915] (LibertyClassics, 1982), p. 116.

7)Georgetown Public Law and Legal Theory Research Paper No. 11-07; HeinOnline — 89 Va. L. Rev. 1416 2003

8)Shigong, Jiang. “Written and Unwritten Constitutions: A New Approach to the Study of Constitutional Government in China.” Modern China 36, no. 1 (2010): 12–46. http://www.jstor.org/stable/27746947.

9) Pennsylvania Packet, December 1, 1778, Italics Paines, retrieved from Meng, John J. “The Constitutional Theories of Thomas Paine.” The Review of Politics 8, no. 3 (1946): 283–306. http://www.jstor.org/stable/1404421 on 22nd May, 2022.

10)All Answers ltd, ‘Constitutional Conventions Preserving Legal Structure of Government’ (Lawteacher.net, May 2022) https://www.lawteacher.net/free-law-essays/constitutional-law/constitutional-conventions-preserving-legal-structure-of-government-constitutional-law-essay.php?vref=1 accessed 22 May 2022

11)Wellman, Carl. Constitutional Rights -What They Are and What They Ought to Be. Germany: Springer International Publishing, 2016.

12)Russell, Peter. Federalism and the Charter: Leading Constitutional Decisions. Ukraine: McGill-Queen’s University Press, 1989.

13.Marshall, Geoffrey., Hopkins, David. Constitutional Conventions: The Rules and Forms of Political Accountability. United Kingdom: Clarendon Press, 1998.