What is Unwritten Constitution?
- An Uncodified or Unwritten Constitution is a constitution that is not contained or documented in a single document. They made it by passing laws at different intervals of time.
- An unwritten constitution is flexible and easy to amend.
- An Unwritten constitution is also called an uncodified constitution.
- The understanding in Unwritten constitution comes through reading commentary by the judiciary, government committees, and legal experts who interpret the constitution on a case to case basis.
Seven Features of the Unwritten Constitution
Briefly let’s dive into the Seven Features of the Unwritten Constitution.
No Distinction Between laws in Unwritten Constitution
- In, Unwritten Constitution they made no distinction between the Constitutional laws & the laws outside it (Statutory laws).
- For example, In Britain, every enactment of Britain’s parliament becomes part of their constitution.
What are Constitutional and Statutory Laws?
Constitutional Laws regarding India, are those laws which are initially made and passed by Constitutional Assembly.
Example – Constitutional Laws include Fundamental Rights (such as Article 14, Article 15, and so on).
Anything which is legally enforceable is considered as law. Parliament passes such laws and these laws are known as statutory laws. Such laws are outcome of the constitution only.
Example of Statutory laws-
Motor Vehicle Act.
Indian Penal Code, 1860
Armed forces Special Power Act (AFSPA).
Right to Education act 2009
NOTE – Explanation is for understanding only.
Supremacy of the Parliament in Unwritten Constitution.
- In Unwritten Constitution, it is the parliament that is supreme. Since every act of parliament becomes part of their constitution.
Limited Powers of Judiciary in Unwritten Constitution.
- Here in Unwritten Constitution, Judiciary has limited powers and Legislators(law-making body) are supreme.
For Example, In Britain Judiciary cannot declare law/enactment of the parliament as unconstitutional or void. The laws made there are outcomes of the constant evolution.
Strengthened over period
- Unwritten constitution is not an enacted constitution. No single body had created it, rather it is developed over the long period.
Gives rise to unitary Setup
- Unwritten constitution gives rise only to a unitary system of government.
- Unwritten Constitution is always flexible because parliament can bring change at any point in time.
Parliamentary form of Government.
- The constitution which is not written may have a parliamentary form of government.
- For Example, Britain has a Parliamentary form of government.
Features of Britain’s Unwritten constitution
Britain’s Constitution is one example of an Unwritten Const. Unlike in most countries, they have not tried to codify such arrangements into a single document.
Additionally let’s read some features of the Britain’s Unwritten Const.
No Single Document
- British Constitution is not written in any single document. Politicians and lawyers have relied on constitutional authorities to locate and understand the constitution.
Parliament Enacts Law
- In Britain, whatever the Queen of Parliament enacts, it becomes law. The Parliament here, by using power of the Crown, enacts a law that no other body(Executive or Judiciary) can challenge.
- Parliamentary sovereignty is commonly regarded as defining principle of the British Constitution. This is an ultimate lawmaking power vested in a democratically elected Parliament to create or abolish any law.
Rule of Law
- The “Rule of law” concept came from England. A. V DICEY gave this concept.
- Rule of Law is a part of the basic structure along with Right to equality of the Constitution of India.
- It means “Law Is Supreme” i.e. Lex Supremus and absolute supremacy of the law against the arbitrary powers.
Aspirants can read more about “rule of law” from this linked article.
Separation of Powers
- They separated the powers among legislators, executives, and Judiciary. These are the three wings of the government.
- The separation is done in order to prevent the state from being oppressive and safeguarding individual liberty. But in Britain, the legislators have supreme control over lawmaking.
How they separated powers?
They separated among:
Why there is a need for the Separation of Powers?
The separation of power is done in order to avoid encroaching the rights of the citizens.
Let us understand with the help of examples:
NOTE – The explanation given below is for India, not for Britain.
Example when Judiciary can stop the legislature:
Suppose the government passed a law. Law states that the citizens have to share 3 months of their data from social sites (such as WhatsApp, Facebook) with the government for security reasons.
The result will be:
Some people will fight against this law on grounds of the Right to Privacy and in the end, Judiciary can declare the law void and unconstitutional.
The passed law will be declared unconstitutional because it is against the privacy of people.
Example when legislators can stop executives:
Take the ARMED FORCES SPECIAL POWER ACT (AFSPA).
Under AFSPA, officers can arrest anyone.
They even have an order to shoot someone under suspicion and also the inquiry against officers cannot happen normally.
Not always, but many times, officers misuse AFSPA,.
In certain cases, legislators can punish them.
Example when legislators exercise power over judiciary:
Judiciary is integrated and independent in India, but only the Parliament can remove any judge from his/her office. This is because of ‘checks and balances‘ in India.
You can read about how Judges can be removed in India in this linked article:
Can executives have powers over judiciary?
Not absolutely, but President has some say in the appointment of the Chief Justice of India & other Judges in the Supreme Court under clause (2) of Article 124 of the constitution.
So we can say that the executive has some influence over Judiciary.
NOTE – The explanation is for understanding only.
- There is existence of a unitary state in Britain, meaning Center/Parliament having ultimate powers and ‘the states’ are just the implementing arms of the centre.
- Britain’s Parliament is very flexible in making constitutional reforms.
Example for Britain parliament flexibility.
- The flexibility of Britain constitution is clear from many constitutional reforms since 1997, including the abolition of most hereditary peers in the House of Lords, introducing codified rights of individuals for the first time in the Human Rights Act 1998, and Devolution to Scotland, Wales and Northern Ireland.
- Arguably, however, these recent constitutional reforms may have made the constitution less flexible in some respects.
Advantages of the Unwritten Constitution
- This is evidently the biggest advantage of the unwritten Const. It is flexible enough to meet the present and future demands of the country.
Easy to amend
- Amending or making constitutional reforms in Unwritten Constitution is very easy.
- When there is an urgent need for the constitution to be amended, it may be possible only if the constitution is unwritten.
Less Delay in Governmental Activities
- An Unwritten const. is also helpful because it does not give rise to unnecessary litigation. The absence of litigation will reduce the government’s accountability and will provide better stability.
- Government can exercise their powers to bring changes smoothly possible because of less restraint.
Disadvantages of Unwritten Constitution
Uncertainty in Unwritten Constitution
- An unwritten Const. is usually unclear. It does not contain rules and regulations which guide the state in one document,
- Many times there is uncertainty what the law actually is. Hence, it becomes subjected to individual opinion and the interpretation may have a negative impact.
State can become Authoritarian
- If the Civil Society is not active, then it might encourage the infringement of the rights of citizens, who are not aware enough to know about the position of the law.
People are Unaware of Rights and Duties
- Due to absence of education and awareness among the people, an unwritten constitution does not allow individuals to know their rights, duties and obligations. This is one of the biggest disadvantages of having an unwritten constitution.
Can Encourage Dictatorship
- It may encourage dictatorship through manipulation and exploitation of its imprecise and unwritten provisions. As already stated, where the constitution is not written, the laws are what parliament declares. The law might not based on any legal principle or statute.
Example of countries with an unwritten constitution
- The British, who ruled India for nearly 2 centuries, do not have the constitution in written form. The Parliament can change the laws made by Parliament in Britain according to the time and circumstances.
- Israel, which became independent in the year 1948, does not even have its own written constitution. Although the exercise to make a constitution in Israel was started here after the country became independent, but they could not create it because of differences in parliament.
- New Zealand, the beautiful island in the South-Western Pacific Ocean, also does not have a written constitution. It has an unwritten constitution, based on which the justice and administrative system runs here. They conduct governance in New Zealand-based on laws made earlier.
- We always hear certain kinds of strange laws in Saudi Arabia, but the country does not have a written constitution of its own.
- They took here the Decision after considering the things written in the Quran as the highest.
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