Constitutionalism

Constitution and constitutionalism are two different concepts. Modern political thoughts draw a distinction between ‘constitution’ and ‘constitutionalism’. A country having a constitution may or may not have constitutionalism. In a proper democracy, constitution consists of agreements and fundamentals to determine political, legal and social system to govern the country. But every country with a constitution cannot be called to have constitutionalism. For example, a country with a Monarch as the ruler, and all the words of the king becomes law, can be said to have a ‘constitution’ but not ‘constitutionalism’.

Meaning

Constitutionalism has several meanings; in the most general context it means that the authority of the government should be limited by some fundamental law. It believes on the need for government; but also talks about limitations being places upon governmental power. It does not support the concept of dictatorship. It supports check and balance of the power and not the centralization of all powers in one hand.

Constitutionalism insists upon the fact that the powers of the legislature, executive or judiciary must not be absolute. They should be subject to some restriction. It is an antithesis of arbitrary power[1]. It is very important that the constitution fuses with the idea of constitutionalism for the protection of rights of the citizens of the country; and for providing better administration throughout the territory.

Constitutionalism has a long history. Many philosophers at different time have promoted the idea of constitutionalism. Way back in 1215, King John of England signed a document called the Magna Carta. This was the first document that talked about the limitations on the power of the king. Magna Carta strengthened the traditional view that the law is supreme.

Arthur Sutherland observed “The Great Charter was obviously a cherished standard, a welcome assurance that the people could set some limitations on the arbitrary powers of the king.”[2] Later political theorist John Locke played a huge role in cementing the concept of constitutionalism. He developed a social contract theory, where he tried to establish that the illegitimacy of arbitrary powers of the government and even the government is accountable to the people. According to the theory, government in itself is a contract between the people of the territory and the state; and if the state is misusing its power then the people of the territory have all the rights to make the contract null and void. These were some of the building blocks of constitutionalism.

If the constitution gives absolute power to either the legislature or the executive, then it might lead to violation of the human rights of the people in the country ;and make the government authoritarian or oppressive.

At the later stage democracy became the most widely accepted form of government. World started understanding the power and the importance of human rights in the administration. For the establishment of a peaceful and democratic social setup in the country it became very important to give importance to the fundamental human rights of the people.

Slowly every country started adopting the concept of constitutionalism directly or indirectly. Rulers or the governments faced some restrictions. Fundamental rights, rule of law, federalism, decentralization of power, free elections, independent judiciary, power of judicial review, etc. are some of the principles that promotes constitutionalism and administers restriction on the government.

The Indian Constitution follows all of these principles. All the citizens have Fundamental Rights in India described under Part III of the constitution. Right to constitutional remedies guarantees the right to move to the Supreme Court with appropriate proceedings for the enforcement of fundamental rights; and deals with the power of the Supreme Court to issue writs for the enforcement of the fundamental rights. The framing of the Indian Constitution is in such a manner, that there lies a balance of power between the legislature, executive and judiciary.