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This article is written by Neha Choudhary of Gitarattan International Business School, an intern under Legal Vidhiya

ABSTRACT

In a democratic country like India, citizens of the country are guaranteed certain rights and liberties which cannot be encroached upon by the government. Every citizen enjoys certain rights enshrined in the Constitution of India where peoples’ liberties have been given priority over the states and thus government cannot intrude in the lives of the people except under certain circumstances. Constitutionalism is an evolutionary philosophy that is an essential aspect of a democratic setup. The doctrine of Constitutionalism ensures that the rights and liberties of the citizens of the country are fundamental goals of a state. It also ensures that the powers of the government are in limited control and prevents the conversion of a democratic setup into a dictatorial or authoritative setup. In the process of Constitutionalism, the needs of the government are not neglected however; the powers of the government are restrained to prevent authoritative rule of the government.

Keywords: Democracy, Authoritative and Dictatorship Government, Liberty, Violation, Arbitrary.

INTRODUCTION

Freedom, liberty, justice, and equality are the pillars of the Constitution of India explicitly enshrined in our Constitution. The legitimacy of these pillars and a democratic government are essential for the mechanism of Constitutionalism. The significance of Constitutionalism surpasses the value of having a drafted Constitution. There are various concepts and principles that have evolved over time for the better implementation of Constitutionalism. There are disparate powers that are being conferred to governmental bodies, however, Constitutionalism ensures that these powers are not exercised arbitrarily and there are certain built-in limitations to these powers so that the fundamental freedom enjoyed by the citizen of the country is not violated by the sovereign organs.

There is no explicit definition mentioned of Constitutionalism but it is an idea or notion which restricts the scope of powers of the government so that the dignity and personality of the citizens are not compromised in any manner. The limitations are prescribed by the Constitution of India either by expressly guaranteeing rights to the citizens which are enshrined in Part III of the Constitution or by imposing restrictions on the authorities of the state for example the concept of “Due Process of Law” and “Procedure Established by the Law”, the concept of Checks and Balances, Rule of Law and even the Procedure for Amendment under Article 368 restricts the power of the government. The Constitution of India plays an imperative role while defining the scope of powers beneath which the governmental organs have to function; however, it would be arbitrary if the powers are exercised beyond specified provisions.

The fundamentals of the Constitution are based on three pillars i.e. legislature, executive, and judiciary where the legislature is empowered to introduce the law, the executive implements the law and the judiciary ensures the proper implementation of these laws. In India, the legislature makes the law, and its powers are restricted by Article 13 of the Constitution, which state that no law shall be made if it is inconsistent with the fundamental rights guaranteed by Part III of the Constitution of India.

It can be asserted that Constitutionalism is the basis of the ground reality as it shows the practical implementation of the liberties and freedoms envisaged by the Constitution and thus visibly portrays the system followed in a country i.e. democracy and therefore the concept can be defined as an antithesis of dictatorship. Not just India is following the methodology of Constitutionalism but the United States and Germany through their Constitutional framework are pursuing the principles of Constitutionalism and confining the powers of the government against discretionary actions.

Since the inception of Constitutionalism, John Locke has been associated with the ideology as he was one of the prominent proponents of the theory of the limited state, which is in fact contradictory to the theory coined by Thomas Hobbes, who leaned more towards State Absolutism.

According to Michel Rosenfeld, there is “no accepted definition of Constitutionalism but, broadly, modern Constitutionalism requires imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights”. Similarly, according to McIlwain, Constitutionalism means “legal limitation on government. It is the antithesis of arbitrary rule. Its opposite is a despotic government, the government of will instead of the law. According to Magna Carta 1215, Constitutionalism implies the method of limitation of governmental powers and thus it restricts the power of England’s King John.[1]

Additionally, the idea of Constitutionalism serves as a tool that serves credibility to democratic government. It cannot be mistaken with the legitimacy of the actions taken by government authorities and should not be. The importance of Constitutionalism outweighs that of a written Constitution. Most nations, with a few exceptions, have Constitutions, but this in no way implies that they adhere to Constitutionalism. According to the idea of constitutionalism, the authority of a government is determined by a set of laws or a Constitution. The constitutionalist philosophy lends legitimacy to a democratic government. Therefore, the term “constitutionalism” refers to the constraints that a Constitution places on a government.

Table of Contents

COMPONENTS OF CONSTITUTIONALISM

There are certain components and principles which lay down the basis of the concept of Constitutionalism. These principles have evolved over time for the better implementation of the methodology. The basic components are: –

Constitution: The Constitutional framework of a country is the basic component of Constitutionalism as it mentions the powers which the governmental organs can exercise and also imposes restrictions on those powers. According to A.V. Dicey, it is the Constitution which directly or indirectly affects the power of the state, however, it doesn’t imply that the presence of the Constitution is necessary for the application of Constitutionalism, for example, Britain does not have a written Constitution, yet it is more liberal than India. The Constitution of India through its provisions emphasizes the restrictions conferred on the states for example under Article 21 of the COI, the state shall make laws that are fair and reasonable and must adhere to the “Due process of Law”. The Constitution prevents the arbitrary actions of the states against the citizens of the country. Moreover, the powers of the states under the Constitution have been divided amongst three lists i.e. union list, state list, and concurrent list which suffice the allocation of powers amongst the respective legislatures. Thus it is indispensable to function within the prescribed ambit otherwise it would be inconsistent with the Constitution.
Separation of power: A division of powers, not a concentration of powers, is what Constitutionalism is known for. Separation or division of powers refers to how the executive, legislative, and judicial branches of a state’s government are given a portion of its overall authority. These branches are also expected to operate within the constitutionally specified parameters. Additionally, it indicates that different governmental structures, such as the federal and state governments, are split in terms of authority. As a result, it restricts several governmental organs.
Individual Rights – The highest pedestal of Constitutionalism are the rights of the citizens enshrined in the Constitution. By acknowledging these rights in Part III of the Constitution, the Indian system of government accords them with the respect they merit. These individual rights have not only been protected by the courts but have also been interpreted in a manner where their effect and implementation have widened. These fundamental rights are enforced by the judicial system.
Judicial setup: Another important component of Constitutionalism is the third pillar of the Constitution i.e. judicial system which ensures that there is proper discharge of the laws made by the legislature. Judicial setup plays a key role in restricting the power of the state and ensures Constitutionalism. The classical example would be the case of Kesavananda Bharati V. State of Kerala and Anr.[2] in which the courts restrained the parliament’s power to make amendments of the basic structure of the Constitution. The court restricted the powers of government to amend the basic structure of the Constitution.
Rule of Law: The basic elements involved in this principle of Constitutionalism are equality before the law, restraint on frivolous powers, and domination of the rights of the individual. These elements imply that there shall be no discrimination amongst the citizens of the country based on caste, religion, sex, place of birth, etc. and each and every citizen shall be considered equal before the law and shall be accustomed to the rights enshrined under the Constitution. It also states that the state shall not exercise its powers arbitrarily and no person shall be punished except for the breach of law. Thus, the rule of law is momentous to Constitutionalism.
Limited state: The ultimate goal of Constitutionalism is a limited state; thus, if the state’s powers are constrained by the provisions enriched under Constitution, the political system is said to be founded on Constitutionalism. The Constitution places restrictions on government action to which the government is bound to adhere otherwise the actions that go beyond the boundaries of the Constitution will be held ultra-vires by the judicial system of the country. Individual freedom and liberty are guaranteed by a limited government.

PROS AND CONS OF CONSTITUTIONALISM

Positive Constitutionalism

Positive Constitutionalism contests the notion that Constitutional law only refers to restrictions on the state. Constitutionalism’s positive side necessitates that the State be viewed as a “Welfare State” to secure the welfare of its population, the positive form of Constitutionalism calls for the establishment of efficient and capable governmental institutions.

Government behavior is ensured to be lawful by the philosophy of Constitutionalism which indicates something considerably more significant than the idea of legality, which calls for official conduct to adhere to predetermined legal regulations. Constitutionalism ensures the Rule of law, which now has been accepted as integral for democracies all around the world.

Constitutionalism ensures that the governments adhere to the restrictions mentioned in the Constitutional provisions and exercise the powers which are consistent with the Constitution. Constitutionalism ensures that governmental organs are not exercising their powers arbitrarily and ensure that democracy is maintained in the country. Since the inception of the Constitution, India has been a democratic country and thus the methods of Constitutionalism make sure that the democratic system is not converted into an authoritative system of governance.

Constitutionalism protects the citizens’ rights and freedoms enshrined in the Constitution and ensure that states are not abusing their powers and following the due process of law. Certain procedures have been established in the Constitution which is to be adhered to by the authorities failing which the actions would be ultra vires to the Constitution.

The fundamental components which are being protected by Constitutionalism are equality before the law, limitations on arbitrary authority, and supremacy of individual rights. These components imply that there would be no discrimination against the country’s citizens based on factors such as caste, religion, sex, place of birth, and others and that all citizens will be treated equally before the law and accorded the rights guaranteed by the Constitution. Additionally, it declares that the state shall not utilize its authority arbitrarily and that no one shall be punished until a law is broken. Thus, Constitutionalism depends on the application of the law.

Negative Constitutionalism

The traditional approach to the idea of Constitutionalism fails to drive the positive role that Constitutionalism plays. It is thus being called negative as it seems to restrict and limits the functionalities of the states because it prevents the states from exercising their powers. The powers of the states and their organs are not absolute which seems to be the negative highlight of Constitutionalism as it draws the parameters of how a state should function in its domain. A negative interpretation of a concept in law precludes an entity from acting in a particular way. According to some critics, Constitutionalism is a negative methodology that restricts and limits the functions of the states.

A State is viewed as a threat that has to be restrained via the lens of negative Constitutionalism. The purpose of the legislation is to restrict the hazardous powers that the legislative and executive branches have. For instance, the separation of powers is meant to safeguard citizens’ freedom by limiting the state’s ability to act arbitrarily.

Constitutionalism sets a bar for the rules and regulations that govern the law and promote the essentiality of the rule of law which however seems to be a negative point as it leaves no scope for morality and common sense.

Another point to highlight the negative Constitutionalism is that the basic element of Constitutionalism i.e. Constitution is flexible; however, it is difficult to make amendments therein which in a way breaks down the entire concept of Constitutionalism.

Negative Constitutionalism, which calls for a legal framework that forbids state intervention, is not necessarily a good idea. The state’s ability to offer health care and programs to fight poverty, which calls for government action, is hampered by this conception of Constitutionalism. Therefore, it is not desirable, especially in India, a welfare state that strives for both political and social justice in addition to economic and social justice.

CASE STUDIES

· Rameshwar Prasad v. Union of India[3]

The Supreme Court in the abovementioned case recognized the ideology of Constitutionalism and quoted that “Constitutionalism or the Constitutional system of government rejects absolutism and it is founded on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.”[4]

S.R. Chaudhuri v. State of Punjab[5]

In this case, the Supreme Court stated that “the mere existence of a Constitution, by itself, does not ensure Constitutionalism. What are important are the political traditions of the people and its spirit and determination to work out its Constitutional salvation through the chosen system of its political organization.”[6]

· IR Coehlo v. State of Tamil Nadu[7]

In this decision, the court acknowledged constitutionalism as a legal theory that regulates and restricts the authority of governmental bodies, protecting the democratic values on which the nation was created.

R.C. Poudyal v. Union of India [8]

In this case, the court quoted that “Mere existence of a Constitution, by itself, does not ensure Constitutionalism or a Constitutional culture. It is the political maturity and traditions of people that give meaning to a Constitution which otherwise would merely embody the political hopes and ideals”.[9]

New India Assurance Company Ltd. v. Nusli Neville Wadia[10]

The Court in this case held that “For proper interpretation of Constitutional provisions not only the basic principles of natural justice have to be borne in mind, but also principles of Constitutionalism involved therein.”[11]

CONCLUSION

Constitutionalism is the heart of the Constitutionality of the country which keeps the powers of the government under control. The methodology of Constitutionalism has several pros and cons; however, it has proved to be the most important aspect of the Constitution of a country. Constitutionalism is an idea or notion which protects the citizens’ rights and freedoms and ensures that the government’s actions are intra-vires to the provisions of the COI. Every citizen is enriched and guaranteed certain liberties and thus it is crucial to limit the powers of the governments so that these powers do not overpower their rights. However, at some point in time, the rights of the citizens can be suspended if the functions of the government are according to the due process of law and procedure established by law.

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