CONSTITUTION, CONSTITUTIONAL LAW AND CONSTITUTIONALISM

“The emergence of organized democratic tradition, constitutionalism, has taken root from
diverse beginnings. Its emergence was primarily influenced by the philosophical writings of
Locke, Hobbs, Rousseau and the like. Models of governance were created to adopt to the
particular traditions, cultures, norms and aspirations of the society that it was created to
represent”. Mrs. Cynthia Barrow Giles,University of the West Indies1 A civilization on the
march towards evolved forms of polity cannot deny itself a well thought out road map for
governance. Therefore, one could witness the evolution of ideas about Constitution and
Constitutionalism all along the corridors of human development from the era of the hunter-
gatherer to the modern man. Constitution- Historical Evolution of the Terminology The term
constitutionis a derivative of the Latin word ‘constitutio’, originally intended to mean
regulations and orders, such as the imperial enactments (constitutionesprincipis: edicta,
mandata, decreta, rescripta).2 Later, the term was adopted by canon law for important
decisions and declarations, especially a decree issued by the Pope, now popularly known as
an apostolic constitution. A constitution is a cluster of fundamental 1Kingston, (Edited with
Don. D. Marshall), Living at the Borderlines: Issues in Caribbean Sovereignty and
Development, (Ian Randle Publishers, 2003) 2 George Mousourakis, The Historical and
Institutional Context of Roman Law, (2003) p. 243 23 principles or assimilated established
precedents that control the governance parameters of a state or other organizations.3 These
rules together make up or circumscribe, i.e. constitute, the target organization, entity or
polity. When these principles are reduced in writing into a single document or set of legal
documents, those documents may be said to embody a written constitution; if they are
comprehensive unitary document, it is said to embody a codified constitution. There are some
constitutions like that of the constitution of the United Kingdomwhich are uncodified, but
consisting of numerous fundamental Acts of a legislature, court cases or treaties.4
Constitutions may be drafted for organizations; from sovereign states to companies and
unincorporated associations. A treaty which establishes an international organization is also
its constitution, in that it would define how that organization is constituted.For instance,in
order to work well with 25 Members, the European Union needed to be moreeffective, more
transparent, more democratic. Therefore the 25 have decided to replace the existing Treaties
with a Treaty establishing a Constitution for Europe, commonly known as the European
Constitution.5 Within states, a constitution defines the principles upon which the state is
based, the 3Erin McKean, The New Oxford American Dictionary, Second Edn., (May 2005,
Oxford University Press), ISBN 0-19-517077-6. P. 2015 4R (HS2 Action Alliance Ltd) v.
Secretary of State for Transport [2014] UKSC 3, [207] 5 The Treaty establishing a
Constitution for Europe comprises 448 articles divided into 4 parts 24 procedure in which
laws are made and by whom. Some constitutions, especially codified constitutions, also act as
limiters of state power, by establishing lines which a state's rulers cannot cross, such as
fundamental right. The term ‘Constitution’ is a generic term describing all kinds of normative
structures from the Magna Cartato the U.N. Charter.Constitution simply will mean a set of
fundamental principles according to which an organization or a State is governed. These set
of principles or rules constitute what the entity, i.e. Government or organization, is.
ThereforeConstitutions ‘simpliciter’ concerns different levels of organizations from sovereign
States to companies and unincorporated associations. A treaty which establishes an
international organization is also a Constitution as evidenced in the case of European Union.
Within a State, a Constitution defines the principles upon which the State is organized, the
procedure by which laws are made and by whom. Therefore, ‘Constitution can describe a
norm, a political condition, an object, the document itself or even a function6.’ In a very
generic sense, it may also mean the ‘make’ or composition which underlies the basic nature
of anything and hence can be applied to mean to be the body or the mind of a man. As Sir
Paul Vinogradoff says: 6Armin von Bogdandy, Principles of European Constitutional Law,
(Bloomsbury Publishing) P.169 25 The Greeks recognized a close analogy between the
organization of the State and the organism of the individual human being. They thought that
the two elements of body and mind, the former guided and governed by the latter, had a
parallel in two constitutive elements of the State, the rulers and the ruled.7 Out of the two
different meanings to which the word Constitution is applicable, the Greek Politeia conforms
to be one of the most ancient. The etymology of this terminology can be traced to the Greek
political thought especially that of Plato and Aristotle. It is a derivative from the word Polis
(City State). This can be interpreted as to compromise of the multifarious aspects which
portrays the State’s peculiar nature and includesits whole economic and social structure, as
well matters governmental in our modern sense. The interpretation of this terminology
Politeia cannot be compromised with the modern nation of a written Constitution because not
all the Greek States put the laws in writing. Further the Greeksneverdifferentiated between
ordinary and constitutional legislation. According to their perception, if a certain body has the
power to change the law, it had the power to change the laws controlling its own power and
membership; and at the extreme, even to abolish and set up a new governing body. 7 A
Discourse Concerning the Nature, Power, and Proper Effects of the Present Conventions in
Both Kingdoms (1689), in State Tracts, I, 220 26 The two definitions of constitution
expressed by the Greek Politeia and by the Latin constitutio and their inter relationship in
history are worth considering. This use of the term ‘constitution’ and the idea it conveys is in
reality one of the oldest, if not the very oldest, in the whole history of constitutionalism.
Whitelocke’s phrase the natural fame and constitution of the policy (i.e. polity) of this
kingdom, which is ‘juspublicumregni’ in reality includes two conceptions of a constitution
closely connected and at times combined, but nevertheless distinct in character. One appears
in Whitelock’s first words, ‘the natural frame of the state,’ and this idea seems as old as the
politeia of the Greeks, which we term as ‘constitution.’ The other conception is expressed by
Whitelocke’s other phrase, ‘jus publicumregni,’ the public law of the realm. In the medieval
period, the Church borrowed and applied the word ‘constitution’ to ecclesiastical regulations.
From thereon the usage of the term came back in the lateral medieval ages as applicable to
secular enactments of that time. The famous constitutions of Clarendon of 1164were referred
to as constitutions even then in reality they were ecclesiastical provisions only but
promulgated by secular authorities. Between 12th century and the beginning of 16th century
the word ‘constitution’ metamorphosed into the modern usage in phases by the developments
in England and France.However, the history of constitutionalism in the 16th and 17th
centuries turned out critical mainly a 27 history of some aspects of the English constitution.
The two outstanding features, the separation of Government and jurisdiction distinguish the
medieval constitution from the modern one. In the words of Sir Edward Coke, ‘The king by
his proclamation, or other ways cannot change any part of the common law, or statute law, or
the customs of the realm.8 But economic, social and intellectual developments had made
inevitable struggle between the jurisdiction and separation of power concepts. The latter
conceptualization may not be as ancient as the former, but is very old. Cicero, for example,
voices it in his De Re Publica in a passage which contains the first use of the word
‘constitution’ in its accepted modern sense. In commending a mixed form of government,
Cicero says, ‘This constitution (haecconstitutio) has a great measure of equability without
which men can hardly remain free for any length of time.’9 Further on he says, ‘Now that
opinion of Cato becomes more certain, that the constitution of the republic (constitutionem
rei publicae) is the work of no single time or of no single man.’10 Glanville frequently uses
the word ‘constitution’ for a royal edict. He refers to Henry II’s writ creating the remedy by
grand assize as legalisistaconstitutio, and calls the assize of novel disseisin both a recognitio
8Charles HowardMcILwain, Constitutionalism, Ancient and Modern, Revised Edition (Great
Seal Books, May 1947) 9A Collection of State Tracts (London, 1705), I, 106 10 Some
Remarks upon Government (written in 1689), in State tracts, I, 159, 160, 162 28 and a
constitutio.11Bracton, writing a few years after the statute of Merton of 1236, calls one of its
provisions a ‘new constitution,’12 and refers to a section of Magna Carta reissued in 1225 as
constitution libertatis.13 In France about the same time Beaumanoirspeaks of the remedy in
novel disseisin as unenouveleconstitucio made by the kings.14 At this time, and for centuries
after, ‘constitution’ always means a particular administrative enactment much as it had meant
to the Roman lawyers. The word is used to distinguish such particular enactments from
consuetudo or ancient custom. It is apparently never used in our modern sense, to denote the
whole legal framework of the state. It would require a very detailed examination of the legal
and political writings of several centuries to enable one to say with any confidence when this
modern notion of a constitution first appears. ANCIENT CONSTITUTIONALISM The
origins of constitutionalism can be traced to ancient Greece particularly in the writings of
Politics, Nicomachean Ethics, and Constitution of Athens by Aristotle. Aristotle states that
“the politician and lawgiver is wholly occupied with the city-state, and the constitution is a
certain way of organizing those who inhabit the city-state”. His general theory of
constitutions is set forth in Politics III. He described the concept of constitutionalism as the
“arrangement of the offices in a polis.” He 11 Ibid., p. 13 12 A Dissertation upon Parties
(1733-1734), in The Works of Lord Bolingbroke (1841), II, 88 13 Ibid., p. 105 14
Parliamentary History, XVI, 170. 29 distinguished the constitution and law from others on
the ground of stature, as a matter of permanence. Roman law expanded on Aristotle’s basics
including the notions of generalized equality, a universal regularity, and a hierarchy of types
of laws. In the Roman empire, the word Constitution, in its Latin form became the technical
term for acts of legislation by the emperor. Later the Church borrowed it and applied it to
ecclesiastical regulations for the whole Church or for certain provisions. This term came back
in to use in the later middle ages as applicable to secular enactments also. Therefore, it is not
uncommon to find other words such’ lex’ or ‘edictum’ used in equivalent terms and at times
interchangeably with the term ‘constitutio’15. Constitutionalism in this era claimed
acceptance through religion and tradition. Constitutional frameworks were quoted to spring
up from divine sources while emerging laws of those days were legitimized as a return to the
“ancient constitution.” It was not until the fall of Holy Roman Empire due to the wars of the
Reformation that it became inevitable to look out for a new basis of order and stability. “Even
in an imposition of a new constitutional order, novelty could always be legitimized by
reference to an alleged return to a more or less fictitious “ancient constitution.” It was only in
Italy during the Renaissance and in England after the Reformation that the “great modern
fallacy” (as the Swiss historian Jacob Burckhardt called 15Amagi, Constitutionalism: Ancient
and Modern, 1975) 30 it) was established, according to which citizens could rationally and
deliberately adopt a new constitution to meet their needs.”16 CONSTITUTIONALISM IN
TRANSITION Modern conceptions of constitutionalism came from the theory of the social
contract in the writings of Thomas Hobbes, John Locke, and JeanJacques Rousseau. It was
from their postulates of natural rights and the proper functions of the government that modern
constitutionalism workings such as the American Declaration of Independence, Bill of
Rights, and the French Declaration of the Rights of Man and the Citizen were conceived. The
main focus of constitutionalism for Hobbes and Locke was to provide constitutional stability.
Hobbes declared that this buoyancy came from the citizens’ consent to grant power to a
sovereign in order to avoid a state of disorder and war that occurs in a state of nature; this
notion was called ‘radical rationalism’. Locke added to this by saying there is a two-
directional flow of accountability between the citizen and the sovereign. Individuals
acknowledge the judgments of a common judge in exchange for a government promise to
execute its trust faithfully. He further asserts that individuals have a right of revolution also
against a government, if it becomes unconstitutionally oppressive. Rousseau’s concern for
constitutionalism, however, was not restricted to constitutional stability. He was also
concerned with providing legitimacy through make comments, download and much more

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6. Quantum merit or quantum valebat (service or goods received): If the

Government enjoys the benefit of performance by the other party to the
contract, shall be bound to give recompense on the principles of Quantum
merit or quantum valebat. The principles as laid down in Sections 65 to
70 (Quasi-contracts) of the Indian Contract Act, 1872 shall also apply in
the Government Contracts also.
7. Depending upon the facts and circumstances, the Doctrine of Estoppel
may also apply in the Government Contracts under Article 299.
State of West Bengal v B.K. Mondal & Sons
Union of India v Rallia Ram
The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v Sipani
Singh and others
Promissory Estoppel
The Doctrine of Promissory Estoppel has been variously called ‘Promissory
Estoppel’, ‘Requisite Estoppel’, ‘Quasi-Estoppel’ and ‘New Estoppel’. It is a
principle evolved by equity to avoid injustice and though commonly named
‘Promissory Estoppel’, it is neither in the realm of Contract nor in the realm of
Estoppel. The true principle of ‘Promissory Estoppel’ seems to be that where
one party has by his words or conduct made to the other a clear and unequivocal
promise which is intended to create legal relations or effect a legal relationship
to arise in the future, knowing or intending that it would be acted upon by the
other party to whom the promise is made and it is in fact so acted upon by the
other party, the promise would be binding on the party making it and he would
not be entitled to go back upon it, if it would be inequitable to allow him to do
so having regard to the dealings which have taken place between the parties,
and this would be so irrespective of whether there is any pre-existing
relationship between the parties or not.
The Doctrine of Promissory Estoppel need not be inhibited by the same
limitation as estoppel in the strict sense of the term. It is an equitable principle
evolved by the Courts for doing justice and there is no reason why it should be
given only a limited application by way of defence.
M.P. Sugar Mills v State of U.P.
U.P. Rajkya Nirman Nigam Lt.d v Indure Pvt. Ltd. and others
The Liability of State in Torts / Suits and Proceedings – Art. 300