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This article is written by Anshal Dhiman. The article talks about various aspects related to constitutionalism and limited government in India.

Introduction

Democratic governments are the modern-day trend, at least on paper. Most countries of the world have adopted democratic systems, documents and are promoting democracy. Very few countries remain which are still under dictatorship or military rule. A democratic government is regulated by its Constitution, the supreme law of the land. If the Constitution is inadequate or roughly drafted, the democracy itself is bound to flop because of the flaws that will be present in the system due to lawlessness. It is also important that the government does not in any way override the law and establish its supremacy in the country.  To limit the powers of government in order to give them limited authority, the concepts of constitutionalism and limited government have been advocated by many thinkers, which will be discussed in the next section.

Constitutionalism

The Constitution is a document that contains rules regarding the structure of the government of a country and the governance of the country. The government is bound to follow the Constitution during its reign as ruling power and cannot violate it. The limitations on the government through these rules and regulations slowly add up to the concept of Constitutionalism. 

Constitutionalism basically means that the nature of the government should be limited in nature and that its powers should not be arbitrary in nature. As in a democracy, the people have the supreme power and not the ruling power, the concept of constitutionalism advocates that a government should not override the supreme law of the land i.e. the Constitution. In other terms, constitutionalism says that the Constitution of a country should have restrictions laid down in it to prevent the freedom of the citizens of the country, and to make sure the government does not go beyond its authority.

Limited government

Limited government is a concept directly related to constitutionalism. It is said in the above part of the article that constitutionalism means that the Constitution of a country should contain provisions to limit the authority of the government so that they don’t override the Constitution and act in an arbitrary manner, which might threaten the rights of the individuals of the country, a situation which is regularly happening in dictatorships and military rules. The limited government can be seen as the practical usage of the concept of constitutionalism. Examples of limited governments are the UK, USA, India, etc. All of these countries have governments that are restricted in the exercise of their powers by the Constitution. Limited government is seen as one of the biggest achievements of mankind in the democratic era. Limited government does not necessarily mean to rob the government of all of its authorities, but rather for a government with Constitutionally delegated authorities, to preserve the rights of the individuals.

History of Constitutionalism

  • Constitutionalism has been discussed by various jurists over the years. It had its share in history, being developed in various stages by various great thinkers of the world. 
  • The Greeks and the Romans were amongst the first in the world to discuss constitutionalism, although they did not do it directly. Aristotle, the great Greek philosopher, came up with the theory of separation of powers, which is now one of the most important aspects of a democratic government. 
  • The principle of checks and balances was developed by the Romans, although it is not yet clear as to who came up with the principle first. The principle of checks and balances was accompanied by the principle of the supreme law of land i.e. the Constitution. This is where the founding stones for the concept of limited government and constitutionalism were laid. 
  • The Greeks and Romans were the first to differentiate between the fundamental law and ordinary law of the land, and this differentiation is one of the reasons why the concept of Constitutionalism is understood the way it is understood today.
  • European thinkers and jurists like Ulpian, Gaius, Gratian, Justinian, and Christian leaders St. Paul, Augustine, Jerome etc., all of them have played their part in the development of this concept. There was no concept of limited government in reality at that time because of the fact most regions of the world were under monarchy at that time and it is very much impossible to convince a king to put restrictions on their own powers, especially in a time period when kings regarded themselves second to none other than God himself.
  • Thomas Aquinas of Italy was one of the first thinkers who related the concept of natural law to the present-day understanding of Limited Government. It was observed by him that the concept of Constitutionalism can only be applied in a limited state and that restrictions cannot be imposed on the supreme powers of a sovereign or a sovereign land that is not regulated by a Constitution.
  • Also, it was realized by the medieval jurists that Constitutions of that era are not as effective because of their flawed implementation and the only check against violations was a revolution, which is never a mean in a healthy democracy. Madison famously said that a government should first govern the people of the country and govern itself. 
  • The British themselves have made big contributions to the concept of constitutionalism as they have to the concept of democracy. Sir Edward Coke, an English jurist and a lawyer, was one of the first to establish that authority was derived by the law, and hence, must be limited to the law. If one reads this sentence carefully, they can realize that this is one of the if not the main principles behind the present-day concepts of constitutionalism and limited government. Bracton, Henry of Bratton, in one of his decisions laid down another such principle. He said that the King is subject to the god and the law, and not to man because it’s the law that makes him the King. 
  • Without law, there is no king and no dominion can ever have a king which is ruled on the will and not law. The doctrine of supremacy of law is one of the most essential elements of constitutionalism, which has been developed by these principles. 
  • There are some thinkers who have disregarded the concept of constitutionalism in one way or another. Thinkers like Thomas Hobbes and John Locke don’t think sovereignty can be limited in any and that the concept of limited government of limited sovereignty is incoherent and non-practical. Another English thinker, Austin, again, regarded the concept of limited government as impractical. His reasoning was that the authority may remain either with a body of sovereign rulers, or a single ruler, or the people, but the sovereign authority of these bodies cannot be limited. 
  • Then the American and Indian systems of government have given new dimensions to the concept of limited government. India and the USA are the two biggest democracies in the world and their governments and Constitutions are great examples of modern-day constitutionalism.

Other aspects of constitutionalism

  • It has been discussed above how constitutionalism is one way or another related to a democratic system of governments because a government that is authoritative in nature will, in turn, be unconstitutional in the real sense as no Constitution enacted in a healthy spirit can allow a government to become authoritative. 
  • In a democracy, it’s the people who have sovereign power and they elect their government, so it is quite natural that the government should just act as representatives of the people and work as regulated by the Constitution. 
  • No government elected by the people can exercise its authority in an unhealthy way over the same people that elected it. 
  • It is also a well-known fact that in most democratic nations, the Constitution follows the principle of ‘rule of law’ i.e. supremacy of the law which means that no one in the country can override the law and that no one can overtake the authority of the Constitution of that particular country. 
  • Rule of law can only take effect when there is a Constitution in the country. Only when the rule of law or the supremacy of law is established in a country, then can the supremacy of the Constitution continue. 
  • Another important aspect to notice here is that constitutionalism can work in only those countries which have well-framed laws. 
  • It has been stated above too that a roughly drafted Constitution cannot promote the concept of constitutionalism as constitutionalism requires a well-framed set of laws to work, because of its definite nature.
  • A limited government cannot work when there is no clear idea as to what restrictions are there on the activities of the government, and to how much extent can it exercise its authority without overriding the Constitution or for that matter any law of the country.

Constitutionalism in India

India is amongst the two biggest democracies in the world. Indian Constitution is one of the biggest and lengthiest in the world with 448 articles, 25 parts and 12 schedules. The principle of rule of law is enshrined under Article 13 of the Indian Constitution. The Indian Constitution puts restrictions on both the rights of the people and the authority of the government. It can be assumed that the concept of Constitutionalism is naturally adopted in India. 

In I.R Coelho by LRs vs. State of Tamil Nadu and others, the Supreme Court observed that the principle of constitutionalism is now a legal principle that requires the authority of the government to be controlled so as to protect the fundamental rights of the people. The court also stated the basic features of the Indian Constitution and related it to the concept of constitutionalism and limited government. It also said that the protection of fundamental rights through the constitution is an essential feature of the Indian Constitution. 

Despite the common belief that constitutionalism is enshrined in India, the experience of the government since independence may not say so. Even though the structure of the Indian government is very solid because of the strong foundations laid in the Constitution, the government has at times in a direct or indirect manner tried to take the law into their hands.

The emergency era, which lasted 21 months from 1975 to 1977 is one of the biggest examples. During this time the government tried to put various restrictions on the rights of the citizens. The judiciary in this in a number of cases interpreted clearly through the constitution as to what rights could be suspended during a situation of emergency and to what extent the government can exercise its authority without violating the fundamental rights of the citizens and without overriding the Constitution of India. 

In Rameshwar Prasad and other vs. Union of India and another, the court observed that the constitutionalism or constitutional system of Government abhors absolutism – it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself. Judiciary has at various times reminded the government of the supremacy of the Constitution.

Peroration

Constitutionalism has emerged as a very important concept in the last century or so. In the Article, the importance of a Constitution has been mentioned a number of times. But in the end, a Constitution is just a document made by men, and it is the men who interpret it and mould it to use it to their benefit. Limited government is another achievement of humanity that is often overlooked.

The concept of limited government is a major advancement to protect the fundamental rights of the citizens from the ruling governments. The plan and character of the Indian Constitution guarantee that the forces of the Executive and the Legislature is restricted so the caution given to these organs doesn’t transform into discretion, a subjective exercise. The Fundamental Rights, the essential construction, government arrangement of the organization and the alteration method, all cutoff the State with a specific goal in mind.

References


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