What is a Meta - Constitution or a Metaconstitution?

Constituent Assembly

Unwritten parts of the Written Constitution or Meta Constitution

A Meta Constitution lays down the outer boundaries of a constitution. The constitution lays down the inner boundaries and the unwritten part extend those inner boundaries. Thus, a clear knowledge of Meta Constitution is most important.

Meta Constitution is materialized from the abstractions of the Higher Law or Natural Law. The courts interprets the constitutional silences, constitutional gaps, constitutional blanks, constitutional contradictions, constitutional asymmetries and abstracts provisions from the higher or natural law. These are generally set of accepted axioms, maxims or principles.

In AK Gopalan’s case, Justice Beg gave a dissenting opinion:

“Every constitution is an embodiment of highest positive law and also a reflection of higher law which may include principles of natural justice, ethical principles, or common law principles which can be recognized by the courts.”

Thus, these principles also become the part of the constitution immediately and this part ipso facto becomes a part of the written law. It becomes an accretion to the existing constitution and therefore becomes a part of the constitution and determines its outer boundaries.

It is important to remember that every discipline or a subject has a Meta Theory. There is always something behind it. E.g. when we drive a car, it has an engine. When we put on ignition, we drive the car. But, the principle on which the engine of the car works is the Meta Theory of that discipline. The knowledge of this Meta theory makes a difference. If the person does not know the Meta Theory of the engine, we call the person a ‘Mechanic’ and if he knows the Meta theory, we call the person an ‘Engineer’.

Therefore, any student of law who does not know the Meta Theory of the Constitution will be considered to be merely a technician and the person who knows the Meta Theory will be considered to be an Expert in the field of law.

Sometimes, the constitutions itself expressly recognize unwritten parts to it. The ninth amendment to the American Constitution lays down:

“Enumeration in the Constitution of certain rights of the people shall not be construed to deny other rights to the people which are retained by them.”

The rights that are not mentioned are derived from the higher law. Some constitutions impliedly allow the additional rights to the people. These rights are abstracted by the courts from the higher law. The generality of the rights makes it possible to add to those particular that are defined in the constitution. The courts have developed a whole new bill of rights in its jurisprudence. In the next post, we shall discuss of the Meta-provisions that are present in our constitutional jurisprudence.

(This short note was prepared while taking notes in the class of Professor I.P. Massey.)