Constitutionalism has a variety of meanings. In a general sense, it has come to be defined as an amalgamation of ideas, attitudes, and patterns of behaviour that lay down the foundation of the principles from which the bodies of government derive their authority. Constitutionalism is a philosophy that is essential for a democratic setup since it provides a safeguard to every State and does not undermine any such rights or freedoms. The philosophy seeks to limit the powers of the government and ensure democratic functioning as opposed to an authoritative or dictatorial setup of government. The principles laid down in the constitution are thus perceived as the grundnorm of the country being the guiding force behind all subsequent laws and legislation. It is, therefore, considered to be of paramount importance that this foundation is adequate since it directly affects the nature of democracy and rule of law in the country, which is in essence, the spirit of constitutionalism.
The structure of modern nations has been shaped with the government being divided into executive, legislative, and judicial bodies, with the commonly accepted notion that these bodies and their powers must be separated. This concept of separation of powers implicates an interdependence between the bodies of governance all the while maintaining their own separate autonomies. In addition to this doctrine, constitutionalism also poses the ideas of rule of law and limitation in government authority, as mentioned earlier. In other words, constitutionalism is a philosophy which poses the idea that the government should be limited in its powers and that its authority must be in accordance with such limitations. A constitution is thus, a legal and moral framework setting out these powers and their limitations. The philosophy of constitutionalism also provides that such a framework must be representative of the will of the people and must be formulated by way of a consensus.
On the contrary, authoritarian governments are subsequently unconstitutional by their very functioning since there is no supremacy of law, limitation in power, separation of powers, or representative governance. In other words, constitutionalism conforms around the notion of the people’s liberty and sovereignty, which must be sought to be exercised by a limited and representative government. The only consensual and representative form of governance in existence today is a democratic government, which establishes the link between constitutionalism and democracy. Interestingly enough, a written Constitution is no guarantee for Constitutionalism since even Nazi-controlled Germany had a constitution. Likewise, political parties and elections do not make governments democratic. A democracy that is genuine thereby rests on the foundations of the sovereignty of its people and not the rulers. The prevalence of this concept of genuine democracy is a prerequisite to the concept of constitutionalism.
As the Supreme Court said in S.R. Chaudhuri v. The State of Punjab (2001)“the mere existence of a Constitution, by itself, does not ensure constitutionalism. What is important is 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.Unless primacy to democratic policies and individual rights is not given Constitutionalism cannot survive. Even the littlest of harms to the rights of freedom of Speech and Expression and privacy, such as sedition laws, surveillance laws, undermine Constitutionalism.
There is no list that shows the presence of constitutionalism but every feature which limits the government and establishes a position of sovereignty under fundamental principles of constitutional jurisprudence may be the notable points for constitutionalism”.
Howsoever, according to Louis Henkin Constitutionalism implies,
1. Popular sovereignty
2. The supremacy of the Constitution and the Rule of Law
3. Political Democracy
4. Representative Limited Government
5. Separation of Power
6. Civilian Control of the Military force
7. Police governed by Law and Judicial Control
8. An Independent Judiciary
These essentials aim to limit and restrict government power in one way or the other, which furthers the interests of the citizens by providing a safeguard to their rights. Echoing in the sentiment, India, for instance, has a written constitution and is defined by the same as a democratic republic. The country’s governance revolves around the rule of law and equality before the law as enshrined in the constitution. Moreover, every administrative structure in India is thereby obligated to follow these principles in both letter and spirit; which establishes the foundation for constitutionalism in India. However, the experience with the functioning of the governments in India in the past few decades feels to be a mixed one. Excellent administrative structures have been put in place to oversee even the minutest of details related to welfare maximization while on the other side, such developments have only resulted in excessive bureaucratization and eventual alienation of the rulers from the ruled. Since independence, those regions which were backward have majorly continued to remain backward, the gap between the rich and poor seems to be forever widening, the people at the bottom level of this pyramid have remained at the periphery of the developmental process, bureaucracy has retained colonial characters and overall development has remained much below the expectations of the people.
Anyhow, India however lagging behind its goals, is an epitome of constitutionalism. According to Justice Subba Rao, the Preamble is the soul of the constitution without which a body in the form of states cannot survive. In 1973 in the Kesavananda Bharati case, it was held that Parliament cannot amend the basic structure of the constitution by the power granted under Article 368 of the constitution and “Preamble is a part of Constitution” and that, the doctrine of separation of powers, was an essential part of the basic structure of the Constitution. Constitutionalism is that character that controls the misuse of powers by an authority of the state. This role to limit and scrutinise the actions of the State lies with the judiciary, which establishes a system of checks and balances between the organs. It prevents arbitrary use of power and protects the citizens’ rights.
In conclusion, Constitutionalism is that character that controls the misuse of powers by an authority of the state. If there will be Rule of Law and Judicial review in the same system then the conflict between the Parliament and the Judiciary (Guardian of the Constitution) arises. Every provision has its importance but if it is implicitly present in a constitution but its reflection is found in some clauses of the laws, then it will be sufficient to promote the spirit of constitutionalism.
About author –
This article has been authored by Vidhit Verma, 2nd year BBA LLB(Hons.) student at School of Law, Christ University, Bengaluru.
