Written constitution is one which is found in one or more than one legal documents duly enacted in the form of laws. It is precise, definite and systematic. It is the result of the conscious and deliberate efforts of the people. It is framed by a representative body duly elected by the people at a particular period in history.
It is always promulgated on a specific date in history. The Constitution of India, for example, is a written constitution. It was framed by a representative Constituent Assembly and was promulgated on a definite date, i.e., 26th January 1950.
A written constitution is generally rigid and a procedure separate from that of enacting ordinary law is provided for its amendment or revision. In other words a distinction between constitutional law and ordinary law is maintained. The first is regarded as superior to the second. A written constitution may also be termed as an enacted constitution.
Modern written constitutions owe their origin to the charters of liberty granted by the kings in Middle Ages. But the first written constitution framed by a representative constituent assembly was that of the United States of America. This example was followed by France. During the 19th century a number of states framed their constitutions, all of which were written, with the exception of the constitution of England.
An unwritten constitution is one in which most of the principles of the government have never been enacted in the form of laws. It consists of customs, conventions, traditions, and some written laws bearing different dates. It is unsystematic, indefinite and un-precise. Such a constitution is not the result of conscious and deliberate efforts of the people.
It is generally the result of historical development. It is never made by a representative constituent assembly at a definite stage of history, nor is it promulgated on a particular date. It is, therefore, sometimes called an evolved or cumulative constitution. The constitution of England is a classical example of an unwritten constitution. It is mainly the result of historical growth.
The foundation of the English Constitution was laid in the 13th century by King John, who issued the first charter of British freedom known as the Magna Charta. Since then it has been in the process of making through conventions and usages.
Distinction between written and unwritten constitution is, however, not scientific. There is no constitution which is wholly written. Nor is there any which is completely unwritten. Every written constitution has an unwritten element in it and every unwritten constitution has a written element.
The constitution of the U.S.A. is a classical example of a written constitution. But even then it is overlaid with conventions and traditions. As for example, the Constitution of America provides for an indirect election of the President, but as a matter of convention, presidential election has become direct.
It was based on the theory of separation of powers and the President was given only, executive powers. But today, he is not only the ‘Chief Executive’ but also the ‘Chief Legislator’. Even in the Indian Constitution, which has been written so recently, conventions have grown.
Even though the Constitution gives discretion to the President and the Governor to appoint any person as Prime Minister and Chief Minister respectively, but convention has grown that the leader of the majority party is appointed so. In fact, no country in the world can have an absolutely written constitution. Since social and economic life of society is dynamic, the constitution is bound to change with changed requirements of the society and very often through convention rather than law.
The Constitution of England is typical example of an unwritten constitution. The major part of the constitution relating to the powers of the Monarch, the Cabinet, the Parliament and mutual relations between the various organs of the Government arc all the result of Conventions.