Understanding Constitutionalism

Despite the proliferation of nominally democratic constitutions, only a minority of states have so far succeeded in maintaining a lasting democratic constitutional order. The constitution ensures that the government does not own the state: it simply manages the state, under the authority of higher laws, on behalf of citizens. Thus, the idea of Constitutionalism comes into play.

Constitutionalism and India: As constitutionalism is a political spirit or philosophy, it is not necessary that the states which have a constitution must be embodied with the concept of constitutionalism. According to Douglas Greenberg, Constitutionalism is a commitment to limitations on ordinary political power, it revolves around a political process, one that overlaps with democracy in seeking to balance state power and individual and collective rights, it draws on particular cultural and historical contexts from which it emanates, and it resides in public consciousness.

Positive constitutionalism: Positive Constitutionalism challenges the understanding of seeing Constitutionalism entirely in terms of limits upon the State (Negative Constitutionalism). The positive aspect of Constitutionalism requires the State to be seen in the light of a “Welfare State”. The positive version of Constitutionalism requires the creation of effective and competent state institutions to ensure the well-being of its citizens. 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.

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.

  1. SR Chaudhari vs State of Punjab: “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 organisation.”
  2. 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.
  3. Again, in RC Poudyal vs UOI: Court said that, “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”.

Features in Indian context:

  1. A state by constitution: Indian constitution not just provides the rights and immunities to the citizen, but it also delineates the character and structure of the Indian State. Therefore, it can also be said that the powers and extent of the Indian State are limited by the Constitution.
  2. Article 21 and Due process of law: In Swaran Singh vs State of UP: The Court observed that public power, including constitutional power, must never be exercised arbitrarily or malafide, and ordinarily guidelines for fair and equal execution are guarantees of valid use of power. The power being of the greatest moment, cannot be a law unto itself but it must be informed by the finer canons of constitutionalism. These requirements of Law and of Due process restrict the power of the state. Any violation of these principles would enable the courts to strike down the law.
  3. Fundamental Rights: IR Coelho vs state of TN: The principle of constitutionalism is based on the principle of legality which requires the Courts to interpret the legislations on the presumption that the Parliament would not intend to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights, but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes.
  4. Written constitution: Being a written Constitution it firstly provides for a limited government, which is the core of Constitutionalism. The sovereign powers are divided among 3 organs of the government. Powers of each organ are defined by the constitution and no organ, or its instrumentalities can transgress its limits.
  5. Separation of power: NCT Of Delhi VS UOI: “The essence of constitutionalism is the control of power by its distribution among several state organs or offices in such a way that they are each subjected to reciprocal controls and forced to cooperate in formulating the will of the state.
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