Essay on the Demerits of a Written Constitution

Advertisements:

 


A written constitution is often rigid and unable to keep pace with the times. As such, the progress of the country is retarded. No one can say that a constitution enacted today would prove useful after fifty or one hundred years. There is always a danger of revolutions in a country with a written constitution, because it becomes outgrown and is no longer suitable to the existing requirements.

A written constitution is often rigid and the progress of the country is retarded. Dr. Garner, while commenting on the written constitution, has rightly said, "It tries to tighten the political life and national progress in a document for an indefinite period. It is like an attempt to fit a garment to an individual without taking into consideration his future growth and changes in size".

Prof. T.F. Strong has called the distinction between written and unwritten Constitution as false, imaginary and myth. Bryce has also said, "Though the distinction between the written and unwritten Constitution is necessary yet the word 'written' and 'unwritten' is not suitable for".

Thus he classifies the Constitution as 'Flexible' and 'rigid'. If there is no distinction between Constitution and ordinary laws in a country and the Parliament has been given the power to enact and amend the laws and if a similar procedure is adopted for both, then the Constitution is called flexible. Rigid Constitution is generally found in the countries where there is a clear-cut distinction between the Constitution and ordinary laws.

In these countries ordinary laws are made and amended by the legislature, but the Constitution is enacted only by the Constituent Assembly. A rigid constitution is amended through a special amendment process. It is considered as the Supreme Law and regarded as a sacred document.

The British Constitution is the best example of flexible constitutions. There is no difference between ordinary and constitutional laws in England. There Parliament is supreme and according to Dicey, the Parliament can enact and amend any law, ordinary or constitutional, without adopting any special procedure.

As Gamer says, "Those which possess no higher legal authority than ordinary laws and which may be altered in the same way as other laws whether they are embodied in a simple document or consist largely of conventions should then be classified as flexible, movable or elastic constitutions".

While defining rigid constitutions, Dr. Garner says, "Rigid constitutions are those which emanate from a different source, which legally stands over and above ordinary laws and which may be amended by different process".

There are many examples of rigid constitutions in the world. For example, Soviet Russia, Italy, West Germany, France, Denmark, Sweden, Norway, Japan, etc., have rigid constitutions but the Constitution of the U.S.A. is more rigid than of all these countries.

In America, the constitution is regarded as a sacred document. The American Congress cannot make any law contrary to the constitution. The American Supreme Court acts as the guardian of the constitution and it has the right to declare any law of the Congress null and void. There, a special procedure is adopted for the amendment of the Constitution.The Constitution of India is neither as flexible as the British Constitution, nor so rigid as the American Constitution. But it is midway, which means that it is more rigid than the British Constitution and less rigid than the American Constitution. Its process of amendment is less rigid than that of the American Constitution.

Thus the main distinction between the rigid and flexible constitution is the distinction of the process of amendment, which is decided by different assemblies. In a rigid constitution, by a higher law, the powers of the legislature are described in the constitution. But in a flexible constitution, the powers of the legislature are unlimited as is the case of the Constitution of the United Kingdom.

A rigid constitution is always a written document, but a flexible constitution is both written and unwritten. Prof. Strong is also of the view that it is not necessary that a written constitution should be rigid. Prof. Strong says, "It is true that a non- documentary constitution be other than flexible, it is quite possible for a documentary constitution not to be rigid".


Advertisements: