By Shivansh Agrawal ~ Law College Dehradun, faculty of Uttaranchal University.

“The essence of the constitutionalism in a democracy is not merely to shape and condition the nature of majorities but also to stipulate that certain things are impermissible no matter how large and fervent majority might want them.”    – George Will

INTRODUCTION

Constitutionalism is the political philosophy based on which the idea that government authority is derived from the people and should be limited by the Constitution that clearly defines the functions of the government. The State, i.e. government is not free to do anything that they want because they are bound by the laws. In a democracy, constitutionalism has become an essential part of good governance. Constitutionalism is defined as the ‘Belief in the constitutional government’. A constitutional government refers to the government with a constitution or a government which is established according to the Constitution or the government acting according to the Constitution. 

It is not that having a constitution alone does not secure or bring the constitutionalism. Almost every country has a constitution, but it does not mean that all of them practice constitutionalism. That’s why constitutionalism is far more important than the Constitution. Modern political thoughts have distinguished ‘Constitutionalism’ and ‘Constitution’. A country may have the Constitution but not necessarily the constitutionalism.

HISTORICAL BACKGROUND

The roots of the Constitutionalism are from the 13th century. In the year of 1215, King John of England signed the document called Magna Carta. Magna Carta set specific limits on the king’s power. The practical importance of the Magna Carta has been exaggerated over the years, but Magna Carta set a precedent for limited government. Later in the year 1689, Bill of Rights was signed by King William III of England. The Bill of Rights outlines the rights of the English citizens, which placed limits on the monarch and Parliament.

FEATURES OF THE CONSTITUTIONALISM

A written constitution which has the following features is said to have constitutionalism: –

  • Sovereignty
  • Rule of Law
  • Separation of Powers
  • Independence of Judiciary
  • Judicial Review
  • Adult Suffrage
  • Dignity of the Individual

All the above-mentioned features of any constitution promote constitutionalism.

  • Sovereignty: –

Sovereignty means the independent authority of the State that means it has the power to legislate on any subject which is not subject to the control of any other State or any external power. According to the Cooley, “A State is Sovereign when there resides within itself a supreme and absolute power acknowledging no superior.” And the Preamble clearly defines the Sovereignty as “WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR…….”. The term Sovereign was added in the Constitution by the Constitutional (42nd Amendment) Act, 1976. 

  • Rule of Law: –

The Rule of law is the doctrine which states that the no man is above the law and every person is the subject to the jurisdiction of the ordinary court. Professor Dicey[1] wrote, “every official from the Prime Minister down to the constable or a Collector of taxes under the same responsibility for every act done without any legal justification as any other citizen”. The Supreme Court also explained the concept of Rule of Law as No person shall be subjected to harsh, uncivilized or discriminatory treatment even when the object is the securing of the paramount exigencies of land and order[2].

Prof. Dicey gave three meaning of the Rule of Law as:-

  1. Absence of Arbitrary Powers: – it means that the no man is above the law, or a man may be punished for a breach of the law, but he cannot be punished for anything else. The government cannot punish any individual on their own basis.
  2. Equality before law: – Every man is equal in the eyes of the laws irrespective of his rank or condition are is subjected to the ordinary law and jurisdiction of any court. 
  3. The constitution is the result of the ordinary law of the land: – This means that the source or rights of the individuals are not the written constitution but the rules as defined and enforced by courts. In India, only the first and second aspect of the rule of law is applicable, and the third is as the “The Constitution is the Supreme Law of the land and the legislature passes all the laws must follow the provisions of the Constitution”. This is the primary feature of the Constitution and Constitutionalism. In Modern time, the rule of law describes the absence of arbitrariness and the liberty of the one.
  • Separation of Powers: –

The concept of separation of power is mentioned under Part XI of the Constitution, which is titled a Relation between the Union and the States. Under Art. 245 and Art. 246 and in Schedule VII of the Constitution demarcate the separation of powers between the central and the State and shows the legislature relation between the Center and the State. Arts. 256-263 shows the Administrative Relations between the State and the Center. Under Art. 254 of there is any dispute between the Center and the State the Central law will prevail over the State. As the powers are divided between the central and the State, so there is no space to use arbitrary power. Generally, the matters of the national importance are placed under the List I of the Schedule VII, i.e. Union List and the matters with the regional significance are placed under the List II of the Schedule VII, i.e. State List and the List III, i.e. Concurrent List is for the matters in which the central government made laws but according to the requirements of the particular region to maintain the integrity and unity of the nation. 

  • Independence of Judiciary

The Constitution of India provides for setting up of an independent judiciary. The judges of the High Court and the Supreme Court are appointed by the Central Executive. The Constitution secures the tenure of the judges, and they cannot be removed before the expiry of their tenure except by the process of impeachment as described under the Constitution. Judiciary is not only the independent, but it is also the impartial as they are the custodian of the rights. Supreme Court in the case of the State of Bihar v. Shubhash Kumar[3] held that the Constitutional Courts check not only the constitutional validity but also the procedural part of the administrative action. Judiciary is independent as well as separated from the executive as described under the Art. 50 & Part IV of the Constitution of India.

  • Judicial Review: –

Judicial Review is the power of the courts to check the constitutional validity of any legislative acts which fall within their jurisdiction and the powers to refuse to enforce the act if found unconstitutional and void. Justice Khanna in the Keshvanandan Bharti[4] case said that Judicial Review has become an integral part of our constitutional system and has powers vested in Supreme Court and High Courts to decide about the Constitutional validity of all laws in the HCs and SC under provisions. Judicial Review is the interpretation of the judicial restraints on the legislative as well as the executive organs of the government. The Constitution is regarded as the Supreme Law, and for a statue to be valid it must be in all conformity with the constitutional requirements, and it is the judiciary to decide whether the enactment is constitutionally valid or not.

  • Adult Suffrage: –

Suffrage means the right to vote, and Adult Suffrage means that every individual who is above the age of 18 years has right to vote and choose their representative to the Legislature; this is described under the Art.326 of the Constitution .clause of the eighteen years was added by the Constitutional (61st Amendment Act),1989. The founding fathers of the Constitution on India abandoned the old system of the communal electorates prevailing the Government of India Act, 1935, and they incorporated the concept of the Universal Adult Suffrage.

  • Dignity of the Individual: –

The dignity of the individual is maintained for the promotion of the brotherhood, i.e. fraternity. Therefore the Preamble assures the dignity of the individual. The dignity of the individual is assured by securing the number of fundamental rights under Part III. By laying down the number of Directive Principles, securing to citizens, men and women equally the right to an adequate means of livelihood just and human conditions to work a decent standard of life.

Conclusion

Constitutionalism provides the basic platform for the rule of law, and it depicts the relationship between the rule of law and rule of person, which is safeguarded at the end by the rule of law. It is a vital component for the constitutional machinery. Constitutionalism is the philosophy of the Constitution, which imposes limitations on the exercise of powers.

References


  • [1] Dicey- Law of Constitution, pp.202-03 (10th ed.).
  • [2] Rubinder Singh v. Union of India, AIR 1983 SC 65.
  • [3] AIR 1997 SC
  • [4] Keshvanandan Bharti v. State of Kerela , AIR 1973 SC 1461.

 

Constitutionalism in India

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