What is a Constitution? Constitutionalism — KSLU Constitutional Law Notes

The Making of the Constitution

Foundational background — this is rarely a standalone exam question, but knowing how and when the Constitution was made lets you add dates, context and authority to almost every Unit 1 answer (salient features, the Preamble, federalism).

The Constitution did not drop from the sky on 26 January 1950. It was the product of nearly a century of colonial constitutional experiments and almost three years of painstaking debate by India’s finest legal and political minds. Understanding that back-story is what separates a thin answer (“India has a written Constitution”) from a rich one (“India’s written Constitution grew out of the Government of India Act 1935 and was framed by a Constituent Assembly over two years, eleven months and eighteen days”).

How the rulebook was built

A. The colonial ancestors. The British built India’s constitutional structure in stages, and two statutes matter most:

The Government of India Act, 1919 (the Montagu–Chelmsford reforms) introduced dyarchy in the provinces — a first, limited taste of Indian participation in government.
The Government of India Act, 1935 was the immediate model on which our Constitution was built. It provided for provincial autonomy, an (unrealised) all-India federation, and a detailed governmental machinery. A very large part of the Constitution’s structure — the federal scheme, the office of Governor, the emergency ideas and hundreds of administrative provisions — is drawn from it.

B. The Constituent Assembly. The body that framed the Constitution was constituted under the Cabinet Mission Plan, 1946. It first met on 9 December 1946, with Dr Rajendra Prasad as its permanent President. On 13 December 1946 Jawaharlal Nehru moved the Objectives Resolution — the statement of aims and values that later became the Preamble. The all-important Drafting Committee was chaired by Dr B.R. Ambedkar, remembered as the “chief architect” or “Father of the Constitution”.

C. The timeline. The Assembly took two years, eleven months and eighteen days. The Constitution was adopted on 26 November 1949 (now celebrated as Constitution Day) and came into force on 26 January 1950 — a date chosen to honour the Purna Swaraj (complete independence) declaration of 26 January 1930.

D. Sources — “borrowed” but not copied. The framers studied the world and adapted the best ideas to Indian conditions:

Government of India Act, 1935 — federal scheme, Governor, emergency provisions, most administrative detail.
United Kingdom — the parliamentary system, rule of law, single citizenship.
United States — Fundamental Rights, judicial review, an independent judiciary, the idea of a preamble.
Ireland — the Directive Principles of State Policy.
Canada — a federation with a strong Centre and residuary powers in the Union.

The originality lies in the synthesis: the framers wove these borrowed threads into a document suited to a vast, diverse, newly free nation. It began with 395 Articles and 8 Schedules and has since grown, by amendment, to over 470 Articles and 12 Schedules.

Dr B.R. Ambedkar (Constituent Assembly, 25 November 1949): “However good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.”

In Simple Terms: a constitution is only as good as the people who run it — which is exactly why constitutionalism (the next topic) matters as much as the text itself.

flowchart TD
    A["Govt of India Act 1919 (dyarchy)"] --> B["Govt of India Act 1935 (the model)"]
    B --> C["Cabinet Mission Plan 1946"]
    C --> D["Constituent Assembly first meets — 9 Dec 1946"]
    D --> E["Objectives Resolution (Nehru) — 13 Dec 1946"]
    E --> F["Drafting Committee (Ambedkar)"]
    F --> G["Adopted — 26 Nov 1949"]
    G --> H["Came into force — 26 Jan 1950"]

Case Laws

Berubari Union, In re (1960) — treated the Preamble as reflecting the ideals of the Objectives Resolution, a “key to the minds of the framers”.
Kesavananda Bharati v State of Kerala (1973) — held the Preamble (and hence the framers’ vision) to be a part of the Constitution and central to its identity.

Meaning, Kinds & Constitutionalism

In 1935 the British gave India the Government of India Act — a long, detailed “constitution”. It organised the government beautifully. It also let a foreign power rule millions without their consent. That is the whole lesson of this topic in one sentence: a country can have a constitution and still not be free. Having the rulebook is not the same as the rulebook actually limiting those in power. The second idea has a name — constitutionalism — and it is what the framers of 1950 were really chasing.

What is a Constitution?

Think of a constitution as the owner’s manual and rulebook for a country, rolled into one. Before a group plays any serious game, someone writes down the rules: who may do what, how you win, what is a foul, and who settles disputes. A constitution does exactly this for a nation.

Formally, a Constitution is the fundamental (supreme) law of a State that:

Establishes the organs of government — who makes law (legislature), who enforces it (executive), and who interprets it (judiciary). It creates these offices the way a company’s charter creates its board.
Distributes and limits their powers — it says how much power each organ has and, just as importantly, how much it does not have. A power not given is a power withheld.
Defines the State–individual relationship — the rights a citizen holds against the government (in India, Part III).

Because it is the supreme law, every ordinary law must conform to it; a law that clashes with the Constitution is void. That supremacy is what makes it different from an ordinary statute your legislature can pass on a Tuesday.

Kinds of Constitution

Constitutions are sorted along two main lines. Do not just memorise the labels — notice what each pair is really measuring.

Written vs Unwritten — is it in one document? A written constitution is enacted and set down in a single formal document at a known moment (India, 1950; USA, 1787). An unwritten constitution is scattered across statutes, conventions and court decisions built up over centuries (the United Kingdom). “Unwritten” does not mean invisible — it means never codified into one text.
Rigid vs Flexible — how hard is it to change? A rigid constitution needs a special, harder procedure to amend (a super-majority, or ratification by states) so it cannot be changed on a whim (USA). A flexible constitution can be amended by the ordinary law-making process, like any other statute (UK).

💡 EXAM TIP — “Is the Indian Constitution rigid or flexible?”

The trap. Candidates pick one side and defend it. The examiner wants you to see it is both.

What to write. Some provisions change by a simple parliamentary majority (e.g. admitting new states); most need a special two-thirds majority under Art 368; a few also need ratification by half the state legislatures (federal provisions). So the Constitution is a blend of rigidity and flexibility.

Why it scores. It shows you understand Art 368’s three amendment routes, which is exactly the distinction the question is probing.

Constitutionalism — the idea that government is limited

Here is the heart of the unit. Constitutionalism means that the powers of government are not absolute but are limited by the Constitution. It is the difference between a rulebook that organises power and a rulebook that restrains it.

A constitution can exist without constitutionalism. An authoritarian state may have a fine-looking constitution on paper while its rulers ignore every limit. The document is there; the restraint is not.
Constitutionalism is that restraint in action. It is delivered through devices such as the rule of law (everyone, including the government, is under the law), separation of powers (no single organ holds all power), judicial review (courts can strike down illegal State action), and fundamental rights (a zone the State cannot invade).

A worked example makes the difference concrete:

🧩 WORKED EXAMPLE — Constitution vs Constitutionalism

Facts. Country X has a written constitution creating a President, a legislature and courts. The President also has the power to jail critics without trial and no court may question him.

Rule. Constitutionalism requires effective limits on government power — rule of law and judicial review.

Apply. Country X has a constitution (the organs exist on paper) but no constitutionalism (power is unchecked; the President is above the law).

Conclusion. The mere existence of a constitution guarantees nothing; constitutionalism is the presence of enforceable limits. India’s Constitution supplies those limits — Fundamental Rights + judicial review.

Constitutionalism (the core idea): government conducted “in accordance with, and subject to, the limitations imposed by a Constitution” — the antithesis of arbitrary power.

In Simple Terms: those who govern must play by the rules and can be stopped when they break them. No one, however powerful, is above the Constitution.

flowchart TD
    C["A written Constitution exists"]
    C --> Q["Are those in power actually LIMITED by it?"]
    Q --> Y["YES — rule of law, judicial review, FRs enforced<br/>= Constitutionalism (limited government)"]
    Q --> N["NO — rulers ignore the limits<br/>= Constitution WITHOUT constitutionalism"]

Case Laws

[C-1] Kesavananda Bharati v State of Kerala (1973) — the Constitution is supreme and even Parliament’s amending power is limited by its basic structure; the strongest judicial expression of constitutionalism in India.
A.K. Gopalan v State of Madras (1950) — early view of limited government; later widened, but shows the courts policing the limits from the start.

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