Contemporary political scientists give a distinct meaning to the term constitution and say that it is the process by which governmental action is effectively restrained.
It is a “technique of effective regularized restraint upon governmental actions” as Carl Friedrich puts it. “As a political process”, he adds, “The constitution can be described as analogous to the rules of a game insuring fair play.
This is the meaning of the word ‘constitution’ in its functional sense, as distinguished from its meaning in law, in history, and in medicine.” A constitution, therefore, defines and thereby limits public power. Its basis is belief in a limited government and consequently “genuine constitutions” determining effective limitations can exist only in non-totalitarian countries.
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In a totalitarian dictatorship the power exercised by its governing group is unlimited and unrestrained whereas the exercise of political authority in a democratic government is limited by a constitutional framework which protects certain areas of personal and group life from governmental interference and provides that governmental powers shall be exercised in accordance with the known procedures.
Carter and Herz, accordingly, conclude that “Formal appearances notwithstanding, totalitarian regimes do not have” genuine constitutions. At least such regimes may enjoy merely a self-limitation 011 the part of the ruling group.
And in any case whatever rules exist “are forever provisional, changeable, revocable, they do not have the nature of generality, reliability and thus calculability which the rules of law elsewhere possesses.”
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Constitutions, according to Michael Curtis are “usually regarded as of higher validity than other rules thus bestowing legitimacy on those who claim to wield power according to constitutional rules. Constitutions reflect different aspects of the life and behaviour of the community.”
There is nothing like a ‘constitution’ and a ‘genuine constitution’. The emphasis of the contemporary writers is on constitutionalism rather than on constitution. This is made clear by Carter and Herz themselves.
They say, “Genuine constitutionalism is likewise absent when constitutions are forever made and remade, changed and abolished so as to fit the political needs of the respective holders.” When a constitution is in flux there may not be constitutionalism, but the constitution is there.
India amended her constitution nineteen times in six years and the forty-second amendment alone covered 59 clauses of the existing Constitution and the forty-fourth amendment also did not lag behind.
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Article 31 has been amended and ream ended five times in this process. Now there is a rapid succession of amendments; a total of 74 and many more are awaiting completion of the process.
All these definitions differ from one another in some way. But when we analyse them one point becomes clear, that the province of the constitution is government, not the State as a whole. It deals with the fundamental concerns of government and as there are different kinds of governments there are different kinds of constitutions.
But every State, no matter what form of government it has, must have a constitution. It is impossible to contend that the State with an autocratic government exists without a constitution or that the framework of government is not a constitution unless “the community hath agreed to it”, or unless it guarantees “rights” and “privileges” to the people.
If the State with a democratic government has a constitution, so has the State with an autocratic government. There can be no State without a constitution, and every State that ever existed has had a constitution of some kind.