List of Cases

State of Jammu & Kashmir v. Triloki Nath Khosa

I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors

Samsher Singh v. State of Punjab

Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr.

Indra Sawhney and Ors. vs.Union of India (UOI) and Ors.

Minerva Mills Ltd

Keshavanand Bharti v State of Kerala

Gopalan V State of Madras

Introduction

One of the features that makes the Indian Constitution different from the other constitutions is its length. It took around 3 years to compile the first draft of the constitution. It consists of a number of parts dealing with different aspects. It starts with a preamble and has four hundred and forty eight (448) Articles, twenty five (25) groups, twelve (12) schedules and five appendices. The constitution is both hard and soft at the same time. While on one hand the supreme power needs to be followed carefully to maintain the law and order in the country, on the other hand the citizen can appeal to amend the bygone provisions. Although certain provisions provide for an easier amendment while others take a lot of time and resources to amend. Furthermore, there have been one hundred and four (104) amendments in the constitution from the day of its enforcement. The original constitution did not have a preamble but it was later on added to the constitutio which gives a detailed account of the constitution’s philosophy. The preamble states that India is a Socialist, Secular, Sovereign, and Democratic republic. In addition, it believes in equality, justice, and freedom of its people. The constitution puts forth the welfare of its people first rather than the welfare of the state. If we take the constitution of India by literal meaning, India is a secular country that means that it does not give special status to any religion. Its citizens are free to perform any religion of their choice freely. The country is not ruled by a dictator or a monarch. Its head is nominated and elected for a period of five years and chnages after that period of five years lapses. The constitution of the country has stated all the fundamental duties of its citizens under it which have to be followed by all the citizens of the country equally disregarding their status whether it be a rich person or a poor person. Furthermore, these duties also include the respect of national flag and national anthem, integrity and unity of the country, the safeguard of public property, and various other duties. The directive state principle or policy are simple guidelines for the state in which it ensures the development of the socio-economic aspect via its policies. The constitution is considered to be the supreme law of the country where everything is predefined in it. Besides, the constitution provides with a framework that guides the procedures, policies, and power of the government.

The concept of constitutionalism

Constitutionalism is a fancy mixture of ideologies, attitudes, and behaviourial patterns of  elucidating the principle that the authority of presidency comes from and is prescribed to a body of law. Constitutions encompass broad-gauge categorization that determine the political, legal and social framework by which society is anticipated to be governed. Constitutional provisions, therefore, are considered to be paramount or fundamental law. Under these aforementioned circumstances, if constitutional law in itself is insufficient, the nature of democracy and rule of law within a country is additionally affected. Modern nations have been structured and shaped with the government being divided into executive, legislative and judicial bodies, with the widely accepted notion that these bodies and their powers must be separated. It goes without saying that the separation of powers does not mean these bodies function alone, rather they maintain their autonomy but work interdependently. Other hypothesis include the thought of limited government and the supremacy of law. Together, these could also be termed as the concept of constitutionalism. To elaborate further, constitutionalism can be found within the concept that government should be limited regarding its powers and that its authority depends on how it observes these limitations. A constitution also provides for the legal and moral framework that outlines these powers and their limitations. This framework should represent the will of the people, and therefore have formed a consensus before arriving to it. Constitutionalism is the primal edifice on which Indian democracy stands. Constitutionalism can be seen bearing a spread of meanings. A political organization is considered constitutional to the extent that it “contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority”. As described by political scientist and constitutional scholar David Fellman: It may be said that the touchstone of constitutionalism is the concept of limited government under a higher law.

Constitutionalism means a limited government or limitation put on government. It is the antithesis of arbitrary powers. Constitutionalism has recognized the need for government with powers but at the same time it also insists that limitation be placed on those powers which it has been provided with or those powers that already rest with them. The antithesis of constitutionalism is despotism. A government which goes beyond its limits is bound to lose its authority and legitimacy. Therefore, to preserve the fundamental forms of  freedom of the individual, and to maintain their dignity and personality, the Constitution should be embedded with ‘Constitutionalism’; it should have some inbuilt restraints on the powers conferred by it on governmental organs.

The term ‘Constitutionalism’ has not been directly employed in any of the provisions of the Constitution of India although the Supreme Court of India in its judgments has implicated the ‘idea’ of constitutionalism and has employed the term ‘constitutionalism’. The term constitutionalism is the blend of two words where one is ‘constitutionalism’ and the second, ‘constitutionalism’. The last syllable ―the “ism”― has an additional meaning(s) that denote a theory. Constitutionalism is an overbearing word for various aspects of study of constitutions. In the process to understand the meaning of the term ‘Constitutionalism’ we have to first understand the meaning of the term ‘Constitution’, and then the term ‘Constitutional’ in short. The term ‘Constitution’ literally means the act of forming or establishing something. The Constitution is the basic law of a country. Of all its various functions, it performs mainly two functions: firstly, it outlines the organs of the government, and secondly, it demarcates the power given to each organ of the government that it establishes whereas, on the other hand, the term ‘Constitutional’ signifies of being consistent with or operating under the law determining the fundamental political principles of a government. For example, ‘Constitutional Law’ means the law determining the fundamental political principles of a government. The term ‘Constitutionalism’ contains in it the philosophy of three concepts i.e., Constitution, Constitutional and –ism. So, Constitutionalism= Constitution+ Constitution-al+ Constitution-al–ism. When, the syllable ‘ism’ as a suffix is added after a word, it becomes a belief or theory/set of theoretical claims. The word ‘ism’ means a theory or hypothesis. In other words it is considered as a belief or system of beliefs accepted as authoritative by some groups or schools. 

Background of Constitutionalism

In discussing the history and nature of constitutionalism, there has often been a comparison drawn between Thomas Hobbes and John Locke who are thought to have defended, respectively, the notion of constitutionally unlimited sovereignty (e.g., Rex) versus that of sovereignty limited by the terms of a social contract containing substantive limitations (e.g., Regina). Although an equally good focal point is the English legal theorist John Austin who had similar notions as Hobbes, thought that the very notion of limited sovereignty is incoherent. For Austin, all law is the command of a sovereign person or body of persons, and therefore the notion that the sovereign could be limited by law requires a sovereign who is self-binding adn adheres to the law by disciplining themselves, who commands him/her/itself. But no one can “command” himself, except in some figurative sense, so the notion of limited sovereignty is, for Austin (and Hobbes), as incoherent as the idea of a square circle. Austin says that sovereignty may lie with the people, or some other person or body whose authority is unlimited. Government bodies – like Parliament or the judiciary – may be limited by constitutional law, but the sovereign – or “the people” – remains unlimited. But if we identify the commanders with “the people”, then we have a paradoxically identified result by H.L.A. Hart where he says that the commanders are commanding the commanders.

Elements of Constitutionalism

In order to safeguard against violations of the letter and spirit of the constitution, there is a demand to be provided with a set of institutional arrangements. Louis Henkin  defines constitutionalism as constituting the following elements:

Government according to the constitution: The Constitution of India provides for a Parliamentary form of Government, which is federal in structure.

Separation of power: Transparency, accountability and adherence to the rule of law depends on a systemic arrangement and coherency between the three arms of the state, viz, the Executive, the Legislature and the Judiciary.

Sovereignty of the people and democratic government;

Constitutional review; It refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India.

Independent judiciary; The Indian Constitution protects the citizens from any partial judgment. And, this gives the power to the judiciary to make decisions based on the rules of the law, in case of any dispute.

limited government subject to a bill of individual rights; 

controlling the police; 

civilian control of the military;

no state power, or very limited and strictly circumscribed state power, to suspend the operation of some parts of, or the entire, constitution.

Difference between Constitution and Constitutionalism

The study of constitutions is not necessarily termed as the study of constitutionalism and is in no way synonymous. Although frequently debated, there are crucial difference. The People and America’s Constitutional Tradition Before the Civil War, a study of the early history of American constitutionalism. Fritz observes that an analyst could carefully approach the study of historic events by focusing on issues that entailed “constitutional questions” and this differs from that focus which involves “questions of constitutionalism.” Constitutional question involve the analyst in examining how the constitution was interpreted and applied to distribute power and authority as the new nation struggled with problems of war and peace, taxation and representation. A country may have a Constitution, but not necessarily ‘constitutionalism.’ For Example, a country where the dictator’s word is considered as the law can be said to have a constitution, but not constitutionalism. A Constitution does not merely put forth powers to various organs of the government, but it also seeks to restrain these powers that have been given. Constitutionalism anticipates the checks and balances and puts powers of legislature and executive under reasonable restraint, otherwise freedom of people would seem to be jeopardized, leading to an authoritarian and oppressive government. Therefore, to preserve basic freedom of individual and to maintain the dignity and personality, a Constitution should be permeated with Constitutionalism; that is, it should have in-build restrictions on powers as has been mentioned above.

Constitutionalism In India

India is a democratic country with a written Constitution where the Rule of Law is the basis for governance of the country and all the administrative structures are expected to follow this in both letter and spirit. It is also expected that Constitutionalism is a natural corollary to governance in India. But the experience with the process of governance in India in the last six decades has been a mixed one. On one side, we have excellent administrative structures put in place to overlook even the most trivial of details related to welfare maximization but it also cannot be overlooked that on the other side it has only resulted in excessive bureaucratization and eventual alienation of the rulers from the ruled. Since the independence of India, the regions which were backward have remained so which is the same, the gap between the rich and poor has widened, people at the bottom level of the pyramid remain at the periphery of developmental process, bureaucracy retained colonial characters and overall development remained much below the expectations of the people.

Legal Recognition of Constitutionalism

The paramount case in which the Supreme Court of India used the term ‘Constitutionalism’ and explicated its ‘idea’ was in its judgment in the State of Jammu & Kashmir v. Triloki Nath Khosa where the Court observed that ‘the dilemma of democracy is as to how to avoid validating the abolition of the difference between the good and the bad in the name of equality and putting to sleep the constitutional command for expanding the areas of equal treatment for the weaker ones with the dope of ‘special qualifications’ measured by expensive and exotic degrees. These are perhaps meta-judicial matters left to the other branches of Government, but the Court must hold the Executive within the loading strings of egalitarian constitutionalism and correct, by judicial review, episodes of subtle and shady classification grossly violative of equal justice. That is the heart of the matter. That is the note that rings through the first three fundamental rights the people have given to themselves.’  

In Gopalan V State of Madras has upheld that it is difficult to restrict the sovereign legislative power by judicial interference except so far as the express provision of written constitution. It is only the written provisions of constitution which may restrain legislative power, but where there is no written constitution, then, who restrain legislative power, and then its answer is judiciary by following various principles, precedents, customs, usages, and different statutes can check the consistency.

In I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors the view taken by the Supreme Court was that the principle of constitutionalism was now a legal principle which required control over the exercise of Governmental power to make sure that it does not errode the democratic principles upon which it is based where these democratic principles also include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The protection of fundamental constitutional rights through the common law is main feature of common law constitutionalism.

In Samsher Singh v. State of Punjab, the Court observed that ‘we have, in the President and Governor, a replicate of a constitutional monarch and a Cabinet answerable to Parliament, substantially embodying the conventions of the British Constitution-not a turnkey project imported from Britain, but an. edifice made in India with the know-how of British Constitutionalism. If this theory be sound, Government is carried on by the Ministers according to the rules of allocation of business and, the Governor, no more than the Queen, need know or approve orders issued in his name. The core of the Westminster system is that the Queen resigns, but the Ministers rule, except in a few special, though blurred, areas, one of which certainly is not the appointment and dismissal of civil servants.’ 

In Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr. “The constitutionalism or constitutional system of Government abhors absolutism – it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.” Constitutionalism is about limits and aspirations. 
As observed by Chandrachud, CJ, in Minerva Mills Ltd. – “The Constitution is a precious heritage and, therefore, you cannot destroy its identity’”

Preamble may be a point to check the presence of constitutionalism. Our Constitution enacted on 26th November,1949, since then, a question always a matter of great concern that whether preamble is a part of Indian constitution or not. However, in 1960, In Re Beru Beri case, it was held that preamble is not a part of constitution but after a long time, In case of Keshavanand Bharti v State of Kerala.

On one hand, our judiciary elicit such intellectual responses that “Faith in the judiciary is of prime importance. Ours is a free nation. Among such people respect for law and belief in its constitutional interpretation by courts require an extraordinary degree of tolerance and cooperation for the value of democracy and survival of constitutionalism” said in Indra Sawhney and Ors. vs.Union of India (UOI) and Ors.

Criticisms
Constitutionalism has been a subject matter of criticism by many thinkers who are anarchist. allow us to say as an example, Murray Rothbard, who gave the term “anarcho-capitalism” had attacked constitutionalism, arguing that constitutions are incapable of restraining governments and don’t protect the rights of citizens from their governments. Legal scholar Jeremy Waldron   contends that constitutionalism is commonly undemocratic: Constitutions don’t seem to be nearly restraining and limiting power; they’re also about the empowerment of ordinary people or common folks in an exceedinglydemocracy and giving them a good opportunity to regulate the sources of law and harness the apparatus of state to their aspirations. it’s always possible to present an alternate to constitutionalism as an alternate type ofconstitutionalism: scholars talk about “popular constitutionalism” or “democratic constitutionalism.” But it should be better or worth popping out a stark version of the antipathy between constitutionalism and democratic or popular self-government, if only because which willhelp us to live more clearly the extent to which a fresh and more mature theory of constitutional law is correctlyaccounted for the constitutional burden of ensuring that the people don’t seem to be disenfranchised or deprived by the very document that’s presupposed to give them their power

Conclusion

In conclusion, the constitution serves as guidelines for every citizen. Also, law and rule are completely defined in the constitution. The head of the drafting committee Dr. B.R. Ambedkar has done a remarkable job that no one can forget. He and his team draft constitution that no other country has bale to do till date. Besides, the constitution has helped India to attain the status of the Republic in the world. Constitutionalism is a philosophy which implies the concept of ‘limited government’.

Rothberg wrote that is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted “checks and balances” and “separation of powers” in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers. Criminalization of politics is a bane for democracy and unless urgent steps are taken to counter it, might see the eventual failings of it. Political and administrative corruption is a sad reality of Indian administration and this cancer should be removed from the body politic of Indian democracy on an emergency basis. Aspirations of people at the local level are increasing at an exponential manner and if they are fulfilled, the mounting frustrations are extremely dangerous for functioning of democratic system. 

From the above analysis and discussion, it appears that the Supreme Court of India, the final interpreter of the Constitution and the laws, has explicated the idea of constitutionalism in its judgments but left the same undefined. There is not any judicial definition of constitutionalism as given by the Supreme Court. Not every Constitution possesses or provides for the constitutionalism. The notion of constitutionalism is supported by constitutionalists with a reason that it is important for government to be organized through and constrained by a set of constitutional rules. For most writers, constitutionalism equals to constraint, and for some it equals to “effective regularized restraint”. Where, there is a Constitution not necessarily means that there is Constitutionalism also. But, in India, the Supreme Court has recognized this notion so that the government may not act arbitrarily or cross its limits which is not only against the spirit of the Constitution but also destroys the essence of the Constitution. 

Bibliography

The Constitution of India, 26 January 1950.

Waluchow, Wil, “Constitutionalism”, The Stanford Encyclopedia of Philosophy (Spring 2018 Edition)

Gordon, Controlling the State: Constitutionalism from acnient Athens to today, Hardvard University Press, 1999, p. 4.

Chhachhar, Varun and Negi, Arun Singh, Constitutionalism – A Perspective (December 24, 2009).

Raza, Sayed Aqa. (2017). Dicta of the Supreme Court of India on Constitutionalism. 2. 06-28. 

Political Science Quarterly, Vol. 9, No. 1 (Mar., 1894), pp. 31-52 

Henkin, Louis (1992) “Constitutionalism, Democracy and Foreign Affairs,” Indiana Law Journal: Vol. 67 : Iss. 4 , Article 1.

Legal historian Christian G. Fritz’s American Sovereigns

 The War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (November 7, 1973)

Scott Gordon, Controlling the State: Constitutionalism from Ancient Athens to Today (Cambridge: Harvard University Press, 1999) and András Sajó, Limiting Government: An Introduction to Constitutionalism (Budapest: Central European Press, 1999). 

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