Introduction:
Indian constitutionalism is submerged in the culture, geography, history, sociology, and politics of the country. Constitutionalism is a set of ideas, attitudes, and patterns of behavior, and arrangement which forces the government to stay in its jurisdiction stated in the fundamental law i.e. the Indian Constitution and rule of law as opposed to arbitrary totalitarian rule. It is a principle that bound the political power by the rules, procedures, and validity. The authority and restrictions both of the government are derived from the fundamental law.
Constitutionalism seeks to prevent arbitrary government. Constitutionalism recognizes the need for a government with powers but at the same time insists that limitations be placed on those powers. Therefore it is a belief in the knowledge of constitutionalism that the power will never be misused and the actions of government must reflect constitutionality.[1]
Constitutionalism is bifurcated into two traditions i.e., Political constitutionalism: from the mixed government to representative democracy, this tradition originated from ancient times based on the 3 types of polity i.e. tyranny, oligarchy, and anarchy, respectively, because of it arbitrary rule manifested, the concentration of power started to remain in one’s hand or a group.
Three elements underlie this classic theory. First, overcoming arbitrariness, one should possess the ability to rule them without consulting their interests. Second, the aim was to so mix social classes and factions in decision making so that one could not insure their interest, they should hear others too. No one should dominate others, and everyone’s opinions must be respected. And the third is to maintain harmony between different social interests and stability of the polity. Legal constitutionalism: from the separation of powers to rights and judicial review. The aim behind these both traditions is, to prevent democratic governments from falling below their self-professed standards of showing all equal concern and respect. Therefore Legal Constitutionalism looks more suitable technique.
Indian Concept of Constitutionalism
A country may have a Constitution, but not necessarily Constitutionalism. For example, a country where the dictator’s word is the law can be said to have a Constitution but nor constitutionalism. Now we’ll be analyzing whether we have the concept of constitutionalism in India or not. The few provisions of the Indian Constitution which limit the government and prove helpful to establish a position of sovereignty under fundamental principles of constitutional jurisprudence are Written Constitution, Independent Judiciary, Rule of Law, Separation of Powers, Federalism, and Decentralisation. These provisions can easily help us understand the concept of Constitutionalism in India.
1. Written Constitution: A written constitution is the fundamental law from which the state’s authority and legitimacy have been derived, and which may limit the power of the state and help to protect the rights of individuals and minorities.
2. Independent Judiciary: It’s an essential part of modern constitutionalism because it upholds the rule of law and ensuring an effective and accountable political structure.
3. Rule of Law: The law is supreme, the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a no arbitrary form of government, and more generally prevents the arbitrary use of power. The concept of the rule of law in India has been welcomed by the framers of our constitution. In the preamble itself, they have incorporated this doctrine. The preamble assures to provide equality of status and opportunity and to promote among them all. It assures the dignity and integrity of citizens along with the nation.
4. Separation of Powers: On a casual glance at the provisions of the Indian constitution, we can state that Separation of Power is well accepted in India. Under the Indian constitution, the president has executive powers, parliament have legislative powers and the judiciary have judicial powers. Everyone is involved in their work and their powers can be used in their respective areas only, no one can interfere in any of the entities. It demarcates its jurisdiction minutely without overstepping its limits they function within a sphere allotted to them.
5. Decentralization: It is the process by which the activities of a country particularly regarding planning and decision making, are delegated away from a central, authoritative to the subordinates. It helps to identify the needs and preferences of people through their direct participation in plan formulation and implementation. It empowers weaker sections and minorities and overcomes the domination of the elite to a certain extent.
Therefore by concluding this, we can state that Constitutionalism exists in India in the form of natural justice principles to govern administrative functions, since the rule of law and judicial review in a single system that cannot be realized easily and it would create disharmony between parliament and judiciary.
Concept of Constitutionalism in Different Countries
1. Constitutionalism in the United States
Constitutionalism within the United States may be a basic value adapted by the political parties, activist groups, and individuals across a large range of the political spectrum, that the powers of federal, state and native governments are limited by the Constitution of the United States which the civil and political rights of citizens should not be violated. American constitutionalism has traditionally focused on the Federal Constitution and there is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States.[2]
2. Constitutionalism in Japan
The constitutionalism of Japan which experienced serious setbacks after World War II was reformed under the new Constitution of Japan. To strengthen the military there was indeed a need to supplement “the concord of the People’s mind which could only be achieved through the introduction of Western constitutional government. The term Constitutionalism in Japan denotes the functioning of a constitution thus defined and/or the idea that it should function. Constitutionalism however in Japan, was created not by popular demand, but by the initiative of the occupation authority.
3. Constitutionalism in the UK
Even after having the uncodified constitution, United Kingdom is the best example of constitutionalism. After the developments in the 17th century, the concept of unbalanced powers including prolonged struggle for powers between king and parliament and a constitutional monarchy was transformed to a well-developed polity with multiple governmental and private institutions that counter the power of the state and this gave the birth to the concept countervailing powers.
4. Constitutionalism in Germany
According to Gerhard Casper, the constitutionalism in Germany is neither prescriptive nor descriptive, its outline is hard to perceive because its historical roots are diverse and uncertain. But new era of Germany enshrines a distinctive and widely followed model of constitutionalism, entrenching institutions and procedures for the protection of fundamental rights. The new concept of constitutionalism majorly focuses on the basic rights, the protection of the free democratic order, the renunciation of any constitutional amendment that would dissolve the essential principles of the political system (i.e. political democracy, rule of law, separation of powers, popular sovereignty, the social welfare state, and federalism) or the concept of human dignity and the special role of the Federal Constitutional Court as guardian of the constitutional order.[3]
5. Constitutionalism in South Africa
The reframed Constitutionalism aims to incite a ‘culture of rights’ that is what the Constitutional Court of South Africa refers. This entails upholding, culture of respect for human life and dignity, based on the values reflected in the Constitution.
6. Constitutionalism in France
French Constitutionalism is just 60 years old and relatively latest though the constitution was there from the year 1958 but constitutionalism was absent in it. Constitutionalism generally aims towards political freedom and this is only possible if the government is moderate and that can only be done by implementing separation of powers because it’s important that power checks power. The last 60 years, French constitutionalism has been supported by an institution namely the Constitutional Council, whose practice is majorly based on the various missions that the authors of the constitution entrusted to it should stay around; the law, in accordance with the spirit of French legal culture which guarantees rights through the law rather than judges. That is why French constitutionalism is legislative, rather than judicial.
7. Constitutionalism in Australia
Australian Constitutionalism comprises Representative government, where people elect their representatives. Federalism, government power is spread between the state and federal governments. Separation of powers, three arms of government are separated the same as India i.e. Legislative, Executive, and Judiciary. Australia might be one of those fortunate countries which have managed to deal with the problem of power by constructing a political system in which the power of the state is restricted by power controlling power.
8. Constitutionalism in Canada
Canada is caught between two empires and between two constitutional systems. However, neither of them has matched the diversified identity of Canada, so Canadians are engaged in constitutional experimentation. Canada’s contribution to the ethics of constitutionalism includes the limits of free expression, the origins and functions of judicial review, the Quebec secession debate, indigenous self-government, etc. [4]
9. Constitutionalism in Ireland
Home Rule Bills to the Good Friday Agreement, Irish Constitution has been developed. It brings a fresh outlook to bear the development of one of the oldest constitutional systems of Europe.
10. Constitutionalism in Russia
Russian Constitutionalism in many aspects, is more progressive than French, German, and US American models. The renewed Constitution of Russia has to gauge Russia’s constitutionalism. The recent constitutional amendment of 2020 brings about one of the important adjustments to the system of government by creating a new Federation Council. The new organ will rebalance the checks and balances and will function as a counterweight to some increased powers of the President in regard to the executive and the legislative process as well as in the procedures for the appointment and removal of the Prosecutor General and judges. Russian Constitutionalism supports scientific and technical development, public safety and security, information technologies agriculture.[5]
Case laws regarding the Concept of Constitutionalism
1. Golak Nath v. State of Punjab[6]
In this case law, the supreme court of India stated that parliament cannot cut down any of the fundamental rights written in the Indian Constitution.
2. Kesavananda Bharati Sripadagalavaru v. State of Kerala[7]
It is a landmark decision of the Supreme Court of India that outlined the basic structure doctrine of the Constitution. Justice Hans Raj Khanna asserted through this doctrine that the constitution possesses a basic structure of constitutional principles and values.
3. I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors [8]
In this case, the landmark judgments on the interpretation of the doctrine of basic structure of the constitution as laid down in the Kesavananda Bharti case, a nine-member bench of Supreme Court held that ninth schedule items are not resistant to judicial review as it is part of the constitution. Also, the principle of constitutionalism is now a judicial principle that control over the exercise of Governmental power to make sure that it doesn’t destroy the democratic principles upon which it’s based. These democratic principles 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 higher cognitive process. The protection of fundamental constitutional rights through the common law is the main feature of common law constitutionalism.
Conclusion
The brief description of the concept of Constitutionalism in India gives us an outlook that how the political system of a country is governed. How the polity use their powers and how the Rule of law rule over the country. Today the state is not merely a police state exercising sovereign functions, but it is a rather progressive democratic state which seeks to secure social security and social welfare of citizens of the country. In short, the modern state takes care of a citizen from “cradle to grave” while using their powers accordingly.
References:
[1] Wikipedia Contributors. (2019, November 19). Constitutionalism. Wikipedia; Wikimedia Foundation. https://en.wikipedia.org/wiki/Constitutionalism
[2]Constitutionalism. (n.d.). Www.Legalservicesindia.Com. Retrieved August 30, 2020, from http://www.legalservicesindia.com/article/1699/Constitutionalism.html
[3] Grimm, Dieter, et al. “European Constitutionalism and the German Basic Law.” National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, 2019, pp. 407–492, link.springer.com/chapter/10.1007/978-94-6265-273-6_10, 10.1007/978-94-6265-273-6_10. Accessed 6 Sept. 2020.
[4] “Canada and the Ethics of Constitutionalism | McGill-Queen’s University Press.” Www.Mqup.Ca, www.mqup.ca/canada-and-the-ethics-of-constitutionalism-products-9780773555310.php. Accessed 6 Sept. 2020.
[5] “Constitution and Constitutionalism in Russia.” Www.Iol.Co.Za, www.iol.co.za/news/opinion/constitution-and-constitutionalism-in-russia-51126732. Accessed 6 Sept. 2020.
[6] Golak Nath v State of Punjab AIR 1967 SC 1643. (n.d.). Indian Kanoon. https://indiankanoon.org/doc/120358/
[7]Kesavananda Bharati Sripadagalavaru v. State of Kerala., AIR 1973 SC 1461, (n.d.). Indian Kanoon. https://indiankanoon.org/doc/257876/
[8] I.R. Coelho v. State of Tamil Nadu: A Judicial Challenge., (1999) 7 SCC 580, (n.d.). Www.Legalserviceindia.Com. Retrieved August 30, 2020, from http://www.legalserviceindia.com/article/l382-I.R.-Coelho-v.-State-of-Tamil-Nadu-A-Judicial-Challenge.html
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