Constitutionalism refers to a polity that is ruled by or under a constitution that provides for basically limited authority and the rule of law as opposed to arbitrary authoritarian or totalitarian control. As a result, constitutional governance must inevitably be democratic government.
In other words, constitutionalism is a political theory in which a state’s duties of government must be in line with the requirements of the constitution, implying that government acts must represent legality.
Because constitutionalism is a political spirit or philosophy, it is not essential for states with constitutions to embody the idea of constitutionalism. Douglas Greenberg believes
Constitutionalism is a commitment to limits on ordinary political power; it revolves around a political process that overlaps with democracy in seeking to balance state power and individual and collective rights; it draws on specific cultural and historical contexts from which it emerges; it exists in the public consciousness.
It is now necessary to determine whether or not constitutionalism exists in India. It may be evaluated using the following constitutional provisions:
• Judicial Revision
• The rule of law
• Power separation
• Checks and balances, for example.
There is no exhaustive list of features that can be used to test the validity or existence of constitutionalism; however, any feature that limits the government and helps to establish a position of sovereignty under fundamental principles of constitutional jurisprudence may be a significant point for constitutionalism.
In the context of India,
The preamble may be used to check for the existence of constitutionalism. Our Constitution was established on November 26, 1949, and since then, the issue of whether the preamble is a component of the Indian constitution has been a source of considerable worry. However, in the 1960 decision of Re Beru Beri, it was determined that the preamble is not a component of the constitution, but after a long time, in the case of Keshavanand Bharti v State of Kerala, AIR 1973 SC 1461, it was determined that the preamble is a part of the constitution.
, the biggest panel of 13 justices in Indian constitutional history, dismissed prior arguments and ruled that
“The Indian Constitution includes a preamble.”
The preamble describes the constitution’s aims in two ways: one concerning the composition of bodies of government and the other about the goals intended to be accomplished in independent India. The following objectives are stated in the preamble:
• To establish India as a Sovereign, Socialist, Secular, and Democratic Republic (the terms Socialist and Secular were added by the 42nd Constitutional Amendment in 1976).
• Social, economic, and political justice;
• Liberty of speech, belief, religion, and worship;
• Status and opportunity equality;
• Fraternity, which ensures the dignity of the person as well as the unity and integrity of the country (word unity added by the 42nd Constitutional Amendment,1976), may be used to define the scope of Fundamental Rights and Directive principles of state policy.
Justice Subbarao claims that
The preamble is the heart of the constitution, without which nobody in the form of a state can exist. The goals of the constitution guarantee the dignity of the Indian people and provide them with all rights and freedoms within the framework of the basic spirit of constitutionalism contained in the whole text of the constitution. E.g. Former Indian President Dr. Radhakrishnan described secularism in this nation as follows:
When we say that India is a secular state, we do not imply that we deny the existence of an unseen spirit or the importance of religion to life, or that we extol irreligion. It does not imply that secularism becomes a positive religion or that the state assumes divine prerogatives…..we believe that no religion should be given preferential treatment…this view of religious impartiality, or comprehension and forbearance, has a prophetic role to play in national and international life.
That is to say,
Secularism, which reflects no official religion, implies that every citizen has the freedom to practice the religion of their choosing, which naturally fosters liberty of faith and worship.
In this manner, the spirit of constitutionalism may be inferred from the preamble. The second element is judicial review, although this concept is not explicitly articulated in Indian law.
However, its reflection may be seen in Article 13(2). This concept was originally established in 1803 by Justice Marshall in the Marbury v Madison(3) case, in the United States.
When he said unequivocally, “It is the duty of the judge to annul the law made by the legislature which violated or was contrary to the constitution.”
A similar spirit can be found in Article 13(2) of the Indian Constitution, which states that laws “which are inconsistent with Part III of the Constitution shall be declared null and void,” but it is not clearly defined who will check the validity of such laws. An answer comes to light in reference to Justice Marshall, who states that the judiciary can check such contrary acts of the legislature and also revise them.
This theory also gave rise to the notion of “Higher law,” since a judge is required to obey the mandates or instructions of Higher law while verifying the coherence of provisions. Higher law portrays the constitution as Supreme in written constitutions, but when there is no written constitution, there are certain principles that may be considered as Supreme or Higher law principles. In Gopalan v State of Madras (1950), SCR 88(100) ruled that it is impossible to limit the sovereign legislative authority via judicial intervention unless expressly provided for in the written constitution. Only the written provisions of the constitution can restrain legislative power; however, where there is no written constitution, who can restrain legislative power? The answer is the judiciary, which can check the consistency by following various principles, precedents, customs, usages, and different statutes.
It plainly indicates that in the lack of judicial review authority in the hands of the court, the judiciary is just a puppet of lawmakers.
(4) Justice Frankfurter (USA)…. stated that judicial review, itself a restriction on popular governance, is a basic element of our constitutional system; this implies that if there is no power of judicial review, the constitution simply becomes a template for the code of behavior for government and people.
“Law without Sanction.”
However, this type of situation was prevalent in India until 2007, when different cases, such as the Shankari Prasad case, Sajjan Singh case, Golak Nath case, Keshavanand Bharti case, and N.Ramchandra case, traced a picture of the conflict between legislature and judiciary, with no clear cut demarcation of powers under which organs of government can review the validity of their actions for upholding the true judicial system. However, the Raja Ram Pal case and I.R.Coelho v State of Tamil Nadu case in 2007 altered the whole demarcation and established the supremacy of concepts such as Basic Structure Theory, strengthening the spirit of constitutionalism.
In this manner, by exercising Appellate and Advisory jurisdiction, the court can ensure consistency in the interpretation and implementation of the constitution among states.
The third requirement is the “Rule of Law,” on which the spirit of constitutionalism may be present in a state. This theory was articulated by Dicey (a well-known English constitutionalist) in a work titled
“An Introduction to the Law of the Constitution,” in which the phrase “Rule of Law” was given a broad definition. In fact, it is a concept of England where there is no written constitution, therefore it is put as a higher law there to verify the legitimacy of any legislation enacted by the legislative. This concept demonstrates that whatever law is existent in our state must be governed over everyone, implying that the law is paramount in all respects and in all spheres. It makes it clear that “no one is above the law.” Now the issue is, what is the law? The solution to this issue is found in two principles, which are-
- Due Process
- Legal Procedure
Due Process is a concept in the United States, and its scope is not exhaustively defined; rather, it is to be interpreted by judges based on the facts and circumstances of the case. It symbolizes judicial supremacy, but there is also a risk of judicial autocracy since the court, if not controlled, may go beyond the boundaries established by the constitution.
However, in India, the “Procedure established by law” concept predominates, which was borrowed from the United States.
Article 21 of the Indian Constitution plainly states this. It demonstrates parliamentary sovereignty since in India, laws are created by the legislature; it limits judicial supremacy and only implies the authority to conduct literal interpretation rather than statutory construction of laws. There are also several additional aspects inherent in the Rule of Law, like as
• Absence of arbitrary authority on the side of government, which is undeniably present in the form of judicial review, in which the court constantly monitors the acts of other government institutions.
• Equality of all people in the eyes of the law, which may be supported by the provisions of Article 14-18 with certain acceptable limitations.
• Constitutional law rules are the outcome of the ordinary law of the country, which means that legislation enacted by the legislature must not be contradictory to the requirements of the constitution, or they will be deemed null and invalid.
In England, Rule of Law flourished sovereignty of legislature, as there is no higher law to circumscribe the plenary powers of the sovereign legislature, but in India, there is a written constitution and the concept of judicial review is also present, so the doctrine of Rule of Law cannot be assigned a paramount place. However, in order to foster the spirit of constitutionalism, the shadow of this concept is reflected in numerous sections of the Indian Constitution in the form of basic principles of natural justice.
The next clause is the Separation of Powers
Among Government Organs. In India, there is a clear demarcation of legislative power between the union and state governments under Articles 245,246 and Schedule VII, and administrative relations are also clearly defined under Articles 256-263. Under Article 254, if there is any inconsistency between centre and state laws, then central law prevails. Because the powers of the center and the state are clearly separated, there is no room for arbitrary authority over any topic. In general, subjects of national importance are placed on the Union list, while those of regional importance is placed on the State list, and for the purpose of establishing national unity and integrity, a concurrent list is created in which for universalization of laws, the central government makes a law, but state legislatures may amend the provision to meet the needs of a particular region.
This feature also fosters the spirit of constitutionalism in this manner.
Other provisions, such as Fundamental Rights defined in Articles 12-35, provide some rights to citizens and to every person, the violation of which people may approach Courts of Justice under Articles 32 and 226 of the Indian Constitution, demonstrating that citizens have some rights to protect themselves from government arbitrariness. And Directive Principles of State Policy under Articles 36-51 imply that these principles should be taken into account by the government when developing policies since their tendency helps to supply or thrive social and economic equality among people. As the government’s goal cannot be achieved without the participation of the general people. As a result, the fundamental responsibilities of citizens are likewise stated in Article-51A and must be followed by every citizen of the country.
In this manner, these laws demonstrate the checks and balances that exist between the acts of governmental institutions and the general population. The Emergency provisions in Articles 352, 356, and 360 further demonstrate the spirit of constitutionalism by limiting the exclusive powers of state organs in the event of foreign invasion, armed revolt, breakdown of constitutional machinery in a specific state, financial catastrophe, and so on. It denotes the limitation of state officials’ rights for the benefit of the public good, and all powers are vested in the union government to deal with such circumstances. To elevate the weakest parts of society, the idea of the reservation is also included in the Indian constitution under Articles 330-342, where the Doctrine of Appeasement is present by giving certain reserved seats to lower social class individuals in every functionary organ of government. Articles 330 and 332, for example, provide for the reservation of seats for SC and ST in the House of People and state legislative assemblies. With the assistance of this provision, issues pertaining to SC and ST are brought to the attention of the legislature, which becomes beneficial in protecting the interests of a certain group.
The brief discussion of constitutional provisions provides us with a vision of the process that is taking place in the country’s political system, in which we find that there are very detailed descriptions of powers of organs of government so that they can exercise their powers within the boundaries of the constitution, i.e. Higher law in India, as a result of which governmental organs become unable to entertain arbitrary In this manner, constitutionalism is undeniably present in India, with the caveat that the concept of Rule of Law does not dominate in India as it does in England (regarding parliamentary sovereignty). It exists in India in the form of natural justice principles to regulate administrative activities, since the rule of law and judicial review cannot be readily achieved in a single system. It would result in a clash between parliament and the constitution (The Guardian of constitution i.e. judiciary). Judges are to promote the value of constitutionalism derived from a legal draft produced by a constituent assembly comprised of representatives representing popular opinion. Although secondary public opinion cannot override primary public opinion, each provision has its own significance, and if a provision is not expressly included in a constitution but its reflection can be found in certain clauses, it will be enough to foster the spirit of constitutionalism.
Written by Somesh Vaidya