Context: Ongoing winter session of parliament has seen speeches from various political parties highlighting the importance of constitutionalism and constitution as a living document. In this context, let us understand these concepts.
Relevance of the Topic: Essay and Mains: Key aspects of Constitutionalism in India.
What is Constitutionalism?
- Constitutionalism in India refers to the principle that government authority is derived from and limited by a constitution, which serves as the supreme law of the land.
- It ensures that power is exercised within a framework that protects individual rights and liberties, thereby preventing arbitrary governance.
| According to Douglas Greenberg, “Constitutionalism is a commitment to limitations on ordinary political power, it revolves around a political process which overlaps with democracy in seeking to balance state power and individual and collective rights, it draws on cultural and historical contexts from which it emanates, and it resides in public consciousness.” |
Constitutionalism can be of Positive and Negative nature:
- Negative Constitutionalism: Views constitutions as a way to limit the state's political power. This model treats the arbitrary powers of state as a threat to liberty of citizens and views constitutionalism as a way to mitigate that threat.
- Positive Constitutionalism: Views constitutions as a way to make the state's political power effective. This model acknowledges the need for constitutional structures to guard against abuses of power, but also focuses on creating an effective and competent institution that works for the good of its people (welfare state).
- According to Professor M.P. Singh if a constitution ignores accommodation and respect for diversity and plurality in a society then it fails to meet the requirement of constitutionalism.
Furthermore, merely having a written Constitution is no guarantee for Constitutionalism, even Nazi Germany had a constitution but that does not mean that it adhered to the philosophy of Constitutionalism be it a negative or positive aspect of it.
Supreme Court of India has made the following observations in this context:
- SR Chaudhari vs State of Punjab: “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 organisation.”
- Unless primacy to democratic policies and individual rights is not given, Constitutionalism cannot survive.
- Subtle assaults to individual rights, especially freedom of Speech and Expression and Privacy, such as sedition laws, surveillance laws, undermine Constitutionalism.
- RC Poudyal vs UOI: “Mere existence of a constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of people that give meaning to a constitution which otherwise would merely embody the political hopes and ideals”.
Key aspects of Constitutionalism in India:
- State by Constitution: Indian constitution delineates the character and structure of the Indian State. The powers and extent of the Indian State are limited by the Constitution. E.g., Separation of power, federal structure etc.
- Rule of Law: Constitutionalism emphasises the rule of law, meaning that all actions taken by the state must be grounded in law. This principle is fundamental to maintaining order and justice within society.
- Fundamental Rights: The rights act as the safeguard against arbitrary state actions. In IR Coelho vs state of TN, S.C. reaffirmed that Fundamental Rights form part of Basic Structure of Indian Constitution.
- Written Constitution: Written Constitution provides for a limited government with powers divided among the three organs of the government.
- Separation of Power: In NCT of Delhi VS UOI, The court observed: Constitutionalism lies in the distribution of power among state organs, ensuring reciprocal controls and cooperation.
- Judicial Review: The Supreme Court upholds constitutionalism through its power of judicial review. It has the authority to invalidate laws and executive actions that violate basic structure, thereby protecting citizens' rights.
- Democratic Framework: Democratic framework which includes regular elections and equal participation in governance also contributes to constitutionalism. This ensures that the government remains accountable to the people.
Indian Constitution as a Living Document:
Almost like a living being, the Indian Constitution keeps responding to the circumstances arising from time to time, thus showing flexibility, adaptability, and accommodation towards social changes.
- Role of Judiciary: Judiciary has played an important role in not only saving the essence of the Constitution but also in its evolution.
- Basic structure Doctrine: Propounded in the famous Kesavananda Bharati Case, 1973 it restricts the Parliament from altering the essential features of the Constitution or what the Supreme Court termed as the Basic Structure. Basic structure includes various Constitutional ideals such as secularism, rule of law, federalism etc.
- Judicial Activism: The courts have brought transformative changes through a broad reading of our Constitution. For example, the Supreme Court in its landmark judgment in Justice Puttaswamy case recognised Right to Privacy as a part of Fundamental Rights under Article 21.
