Constitutions and Constitutional Law

In International law State is considered to be a independent political unit with a defined territory, the members of which resist external aggression and maintain internal order. The initial idea of State was about maintaining Law and order within a defined territory. This is termed as “Police State”.

Max Weber defined state as

Human community that successfully claims the monopoly of the legitimate use of physical force in a given territory

In modern time, no state is content with just being a “Police State” and has transitioned towards Welfare states. It performs broad range of functions. So, modern scholars defined state as social group, members and subjects of which bind themselves through Constitution.

For the state to perform its functions, it need some basic or apex organs or instrumentalities through which it can act, as all people can not decide all the things all the time. The constitution is the document which create these instrumentalities and provide for their rules, how they would function and their relationship with each other.

Constitutional law is broad term, it includes constitution, statutory laws, judicial decisions and constitutional conventions. Constitution is a static document. It need to be interpreted and applied according to the facts and real world circumstances. These interpretations and Judicial decisions, along with statutory laws which apply the provisions of the constitution form the Constitutional Law.

The difference between Constitutional law and Ordinary law, which are made in the exercise of power conferred in the constitution, is in the source of legitimacy. Ordinary law derive their legitimacy from the Constitution while Constitutional laws are inherently legitimate due to their own nature.

The court in Keshavananda Bharti vs State of Kerela, held that ‘law’ under Article 13 do not bring Constitutional amendments under its fold. Justice KK Mathew distinguished between Constitutional and Ordinary law

The vital distinction between constitutional law and ordinary law in a rigid Constitution lies in the criterion of the validity of the ordinary law. An ordinary law, when questioned, must be justified by reference to the higher law embodied in the Constitution; but in the case of a Constitution, its validity is, generally speaking, inherent and lies within itself .