This article has been written by Ishika Sharma, a 1st-year student of Gujarat National Law University.

Meaning

As per the Britannica dictionary:

“Constitutionalism means the doctrine that a government’s authority is determined by a body of laws or constitution. Although constitutionalism is sometimes regarded as a synonym for limited government, that is only one interpretation and by no means the most prominent one historically. More generally constitutionalism refers to efforts to prevent arbitrary government.”

Elements of constitutionalism

• Popular sovereignty

• Supremacy of the Constitution

• Rule of Law

• Political Democracy

• Representative Limited Government

• Separation of Power

• Civilian Control of the Military force

• Police governed by Law and Judicial Control

• An Independent Judiciary

• Protected fundamental rights

Kinds of Constitutionalism

Negative constitutionalism: Seen through this lens, a State is a threat that has to be restrained. For instance, the goal of the separation of powers is to safeguard citizens’ freedom by limiting the state’s ability to act arbitrarily. as being anti-democratic was criticized.

Positive constitutionalism: contests the idea that constitutionalism is primarily about placing restrictions on the state and calls for the state to be viewed as a “Welfare State”.

Transformational constitutionalism: introducing equality, liberty, fraternity, and dignity into society via the integration of these ideals. It refers to achieving the fundamental goal of the Constitution, which is to improve society. Most significant rulings in recent years have centred on the idea of transformative constitutionalism and accorded it great weight. This means using the Constitution as a tool to further improve the country’s current human rights, legal rights, and other constitutional rights, among other things.

Political, Administrative, and Judicial Constitutionalism: No one is above the Constitution in terms of political, administrative, and judicial constitutionalism.

Importance of Constitutionalism

The fundamental framework of a country or state’s governance is its constitutionalism. Its significance cannot be discounted in any way. The following are some crucial points:

• It is a system of laws that forbids the government from misusing its authority.
• It guarantees the people’s freedom and access to justice, which is essential for a democratic nation like India.
• It protects democratic rights by limiting the misuse of governmental authority and ensuring effective governance within the nation or state.
• It assures that the state is founded on precise laws and principles, which asserts that every individual has the right to human dignity, and it contributes to the greater development and welfare in developing nations by denoting equal rights for everyone.

Principle of Constitutionalism

Constitutionalism is an amalgamation of the fundamental ideas listed below:

Separation of Powers

The legislative, executive, and judicial branches of government make up the three branches of the separation of powers. In addition to preventing the concentration of power, this also establishes a system of checks and balances. Since the Constitution itself contains this division of powers, it becomes a powerful weapon for upholding constitutionalism.

Accountable and responsible government

In a democracy, representatives are elected to serve the interests of the electorate. In this sense, voters have a right to expect transparency and responses from their government. As a result, when the electorate’s expectations are not met, the government’s right to rule is withdrawn by being ousted from office.

Popular Sovereignty

According to the idea of popular sovereignty, the populace grants legitimacy to the government. No business entity or person is allowed to use any power that doesn’t directly come from them. Even though there is a specific sovereign institution with governing authority, the nation itself has the last say in matters of sovereignty. Such a sovereign body derives its authority from the general populace.

An independent judiciary

Any liberal democracy’s core value and the cornerstone of a free society is the judiciary’s independence. As the judiciary is responsible for upholding the law, its loss would jeopardize the rule of law. By Article 50 of the Constitution, the judiciary and executive branches also must be kept apart.

Rights of Individuals

For constitutionalism to flourish, individual rights must be placed at the top of the priority list. By enshrining these rights in Part III of the Constitution, the Indian system of government accords them with the respect they merit. In addition to being upheld by the courts, these individual rights have also been construed in a way that broadens the scope of their application. The Constitutional Courts, which include the Supreme Court and the High Courts, are responsible for upholding these rights.

Rule of law

The existence of the rule of law signifies that the laws, not persons, are the owners of the government. Dicey identifies three crucial elements of the Rule of Law:

• No one is to be punished unless a particular legal violation is shown to have occurred before a regular court of law in a regular legal manner.
• Everyone is subject to the law.
• In order to preserve a person’s liberties and rights, courts are essential.

Difference between Constitution & Constitutionalism

Although having a similar aim, there are still some fundamental distinctions between constitution and constitutionalism.

• The government drafted the Constitution as a written document. Constitutionalism is the notion or ideology that the Constitution alone should be used to establish laws and regulations.
• The Constitution is regarded as the country’s fundamental law, and constitutionalism is the action that makes the Constitution effective.
• The Constitution outlines the guidelines that must be followed, but constitutionalism outlines the limitations on the power of the government.
• A nation can survive without its constitution, but it can never exist without a constitutional government since the constitution establishes the rules and methods of government.

Relevant Cases

In I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors. (AIR 1999 SC 3197): As per SC, The Constitution is a dynamic legal framework. The constitutional provisions must be read with consideration for the passage of time and the evolution of the law. Thus, it is imperative that consideration be given to numerous decisions that contributed to the extension and development of the law while interpreting the theory of fundamental structure.

As a current legal philosophy, constitutionalism calls for oversight of how the government uses its authority to prevent it from undermining the democratic values on which it is founded. The defence of basic rights is one of these democratic tenets. The check-and-balance model of the separation of powers is promoted by the constitutionalism concept; yet, this model calls for a diffusion of powers and several independent centres of decision-making. The legality concept, which calls for courts to interpret law under the presumption that Parliament would not want to pass legislation that violates basic rights, is supported by the principle of constitutionalism. Fundamental rights legislation cannot be impliedly abolished by subsequent acts; the legislature may impose restrictions on them.

The Court’s exact description of Common Law constitutionalism may disclose our adamant needs. The primary characteristic of common law constitutionalism is the preservation of fundamental constitutional rights by the common law.

In Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr. (2006) 2 SCC 1

Absolutism is hated by constitutionalism or the constitutional system of government, which is based on the Rule of Law and replaces it with the objectivity supplied by the Constitution’s own provisions.

Furthermore, why are our theories ineffective in practice when they have been adorned with such glorification? Constitutionalism is about boundaries and ambitions, which is an example of how we are just supplementing our ideas with intellectual twists. Judge Brennan asserts that the ambitions and guiding principles are what matter most when interpreting the Constitution as a written document. Herman Belz claims in his article titled “Challenge to the Living Constitution” that the Constitution represents the ideals of social justice, fraternity, and human dignity. It is a text that is composed of core ideas. A judge’s ability to make decisions was not constrained by adherence to the text as essential principles. It is feasible to apply ideas and beliefs that are not recoverable under the notion of the unwritten living constitution, thanks to the legacy of written constitutionalism.

Conclusion

In all thriving democracies, the idea of constitutionalism has existed. Instead of serving the interests of the people, governments have learned to manipulate the machinery of government to their own advantage throughout time. The government has tainted the process of developing policies, whose main goal is the welfare of the greater public, by granting corporate interests backdoor access to the decision-making process. In fact, people’s rights are being suppressed and denied by the very constitution that was intended to protect them.

The issue is that because the Constitution cannot interpret itself, it must be interpreted by the persons in positions of authority. The institutions that served as Constitutionalism’s bulwark are either disintegrating or have been made ineffectively weak and inept. Checks and balances have become ineffective. The role of checks and balances has been diminished to the point where it is essentially theoretical. An already unstable system has gotten worse as a result of criminalization and the infiltration of money power into the halls of power in politics and government. It is imperative to halt this downward trend because the growing resentment caused by the government’s complete contempt for constitutionalism is exceedingly hazardous.

Aishwarya Says:

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