Modern Approach of the Constitutionalism

Constitutionalism is a terminology used in an ambiguous way, virtually every political theorist of modern period described constitution in their own terms. In fact many political thinkers accepted that constitution is a pre-requisite to a legitimate government but undoubtedly it also create representation for society as a whole. What nearly everyone represents or share, though, is the thought that modern societies need a constitution in order to be properly constructed. St. Thomas Aquinas argued that God had provided a mixed government for Israel, and had done well. The Jewish state, he said, preserved the advantages of monarchy but escaped corruption into tyranny; it employed virtuous and wise men in the Sanhedrin, which was an aristocratic element, and these were chosen by the people, which was democratic .The scheme possessed stability which results when all have some share in the government. John of Paris believed that monarchy should be mixed with aristocracy and democracy. However, this was a literary tradition which only occasionally, as during the Conciliar controversy and in the Italian republics, touched the political life of the time. The conception of monarchy in the classical mixed state was in fact entirely alien to the medieval idea of kingship. What was called the monarchic element in Sparta and in republican Rome was nothing but a magistracy. Aristotle called the Spartan kings mere generals for life and classified the Spartan state as a polity or constitutional government. Medieval kingship, on the other hand, was personal rather than official, and the political bond was a personal tie between king and subject. To describe this, the Middle Ages resorted to Aristotle’s basic classification of forms of rule. Aristotle had distinguished three types:

  • Despotic rule, in which the ruler employs the subjects as instruments to serve his own purposes
  • Royal rule, in which a natural superior governs his subjects for their benefit.
  • Constitutional rule, in which the citizens rule and are ruled in turn.

The mixed state fell in the third category. Forced to choose among the regimen despoticum, the regimenregale, and the regimen politicum, medieval writers fixed upon the regimen regale. This sentiment by no means supplies a full philosophy of justice. It deals with the form rather than the content of legislation.

. A. V. Dicey, in describing the virtues of the English “rule of law” in his Law of the Constitution, spoke of the enthusiasm which greeted the fall of the Bastille. “When the fortress was taken, there were not ten prisoners within its walls; at that very moment hundreds of debtors languished in English goals. Yet all England hailed the triumph of the French populace with a fervour which to Englishmen of the twentieth century is at first sight hardly comprehensible. … Its fate was felt, and felt truly, to herald in for the rest of Europe that rule of law which already existed in England.”Yet the debtors can hardly have felt this generous glow. It surely makes a difference what the laws are which rule. Men have always thought so. Various substantive theories of justice have existed from time to time, but these have complemented rather than supplied the constitutionalist tradition. To the Greeks, the proper legal rules for religion prescribed piety toward the local gods. To Aquinas, they prescribed Catholic orthodoxy. Since the seventeenth century, freedom of worship has progressively gained ground. No one of these attitudes is inextricably associated with constitutionalism. It is true that modern liberalism and revived constitutionalism came into the world together, and have in some degree been associated with each other, but they can by no means be identified.

Nevertheless attempts have been made, since Dicey popularized the expression “rule of law” in 1885, to put the authority of Aristotle and the long tradition of constitutionalism behind one or another local opinion. Dicey himself equated the rule of law to the decision of cases by common law courts, in particular opposition to the administrative justice of the continent, blandly ignoring the fact that the Rechtstaat , with its Roman law doctrine of the suability of the sovereign, might more properly than Great represent itself as practicing the rule of law. The Supreme Court of the United States has read Dicey’s opinion into the two due process clauses of the constitution, thus converting an amendment which was adopted to validate the Freedmen’s Bureau into advice to limit administrative authorities. In 1937, during the controversy over the proposed enlargement of the Supreme Court, it was widely proclaimed that the rule of law prescribed not only judicial control of the executive but also the number of judge son the bench. Miscellaneous publicists have gone even further, arguing that the rule of law involves a censorship of the substance as well as the method of governmental action. These points’ shows that, they mark out the areas removed from the scope of governmental action, have a certain external resemblance to the medieval doctrine of double majesty. It can be said as the idea is altogether modern. They are not a part of the institution of constitutionalism. What that tradition has stood for, for twenty-five hundred years, is the technicalities of the mixed state and the proposition that law should be general and approaching, this latter having been implemented in the seventeenth century by the doctrine of the separation of power. The mixed state is unintelligible in theory  and insufficient in practice. The constitutionalist view of law, onthe other hand, represents a conception of justice so long and so widely held that it isprobably safe to say that no state can afford to ignore it. It teaches the process ratherthan the essence of governmental action, but it is a method to which we the humanbeings are associated from ancient time. When the Constitution of India was adopted on November 26, 1949 by the Constituent Assembly, its members were mindful of the challenges of governance. Speaking after the completion of his work, Dr. B.R. Ambedkar,  Chairman of the Constitution Drafting Committee, said: “I feel that the Constitution is workable; it is flexible and it is strongenough to hold the country together both in peacetime and in wartime. Yet  there   expectations that in the years to come, the Constitution would move from a document worthy of admiration to a solid commitment on the part of power holders. It has a ability of Constitutions to act as limitations on the exercise of power, and in that process delineate the functions of the government and outline the rights of the people, that distinguishes them from other legislation. The experience of 60 years of constitutional governance helps us understand the working of the Constitution in general and the role of the judiciary in particular. Constitution is a mother act and agrund norm, as said by kelson a great legal scholar. To satisfy the basic conception

” For this, the framers intended to fulfil the basic needs of citizens, and hoped that it would bring about fundamental changes in the structure of Indian society. The theme of social revolution runs throughout the proceedings and documents of the Constituent Assembly. This theme formed the basis of the decision to adopt the parliamentary form of government and direct elections, the fundamental rights, the directive principles of state policy, and many of the executive, legislative, and judicial provisions of the Constitution. Although the social revolution theme was adopted throughout the Constitution, Parts III and IV fundamental rights and directive principles of state policy demonstrate the core of this commitment. These are perceived notions of the constitution, because they provide they base for human rights and human development

Policies for governance. The Constitution ensures that the fundamental rights are guaranteed as a matter of legal obligation rather than as a political concession. These are basic human rights and have been interpreted as civil, political, economic, social and cultural rights. Articles 12-35 of Part III elaborate on the fundamental rights. Articles 36-51 outline the framers’ vision for good governance and they constitute the directive principles of state policy. To enforce both of these part it is essential to strengthen judiciary, a significant and trust worthy institution in democracy. Judicial review an imperative tool of developing judicial system was evolved by the American courts for the very first time in Marlbury v. Madison,  Justice Marshall placed the doctrine and says that judges are directed by the constitution itself, took oath to support the constitution, which constitutes the paramount law of the land. It is a duty placed upon judges to review any law which is repugnant to the constitution. Seven year later in

Flether v. Peck, Supreme Court asserted its judicial reviewing power over both federal and state laws and thereby securing for itself the role of chief interpreter and arbiter of constitution. Similarly in Indian constitution article 32 and 226 gave wide powers to Supreme Court and High court respectively. Nevertheless, in several cases, it has held that the Supreme Court can act as the custodian, defender of rights of people and democratic system of government only through the judicial review. In Keshvanand Bharti’s case,it was held that the judicial review is a ‘basic feature’

of the constitution and cannot be amended. The scope of judicial review is sufficient in India, to make Supreme court a powerful agency to control the activity of executive and the legislature. A recent judgment of I.R.Coelho v. State of Tamil Nadu also shows how the notion of  judicial review can be used to maintain separation of power and supremacy of constitution, the two important notion of Justice, whenever any of the organ transgresses its limit, judicial review is there to maintain check and balance. In no way, judicial review  make the supreme court a rival of the Parliament. If democracy is to become consequential in India, it should be based on two important factors: enforcement of the rule of law and the transformation of the political governance and the of the transformation of political governance each dwelling upon the other. The judiciary is well suited to support both of these.

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