This article is written by Gautami Pradhan, a student at Symbiosis Law School, Noida. In this article, she discusses about Constitutionalism in the Indian scenario and the extent of its practical application.
The constitution of a democracy consists of certain arrangements and provisions that control or ascertain the legal, social and political framework of a society and how it needs to be governed. Thus, constitutional laws or provisions are considered to be the supreme law of the land as they govern the decision making powers of the three organs of a democracy. Now considering these circumstances, inefficiency and inadequacy of the constitution may result in the rule of law of the land getting affected. Most modern societies or countries follow the practice of power separation of their governments into legislature, executive and judiciary. These bodies do not function exclusively but rather work interdependently while maintaining their autonomous nature.
Constitutionalism, in a general sense, is a concept or a complex of ideologies whose essence is limitation of power of the government and supremacy of law. Thus, the basic idea of constitutionalism is that the government should have limited powers and that the constitution provides the nation with the moral and legal framework which limits the powers of the state. The will of the citizens of that nation must govern this framework and must be reached through their consensus. The state is not free to do whatever it wants and has to follow the rule of law of the land.
According to the contemporary jurist Louis Henkin, Constitutionalism has the following 9 elements, these are:
- Government based off of the constitution
- Sovereign will of the people
- Power separation
- Independence of the judiciary
- Constitutional review
- Limited power of the state to amend or suspend some parts of the constitution.
- Civil control of the police and military
- Limited power of the government in relation to bills and laws regarding individual rights
These elements can be broadly divided or classified into two groups: One concerning power structure and the other, concerning the protection of rights. These two groups of elements work interdependently to safeguard the authority of the constitution, the freedom and limitations of the state and the protection of the people’s liberty.
State which does not abide by its limitations loses all its legitimacy and authority. In this manner, to safeguard the fundamental opportunities of the individual, and to keep up his/her character and dignity, the Constitution ought to be saturated with ‘Constitutionalism’, it ought to have some inbuilt confinements on the forces given by it to these legislative organs.
Jurisprudence and Background
The underlying foundations of constitutionalism go way back. It didn’t simply come into existence out of nowhere, instead evolved and advanced into what it is currently. In the year 1215, England’s King John was constrained or rather forced by a gathering of affluent nobles to sign a record called the Magna Carta. The Magna Carta set certain points of limitations on the lord’s capacity/powers. The practical importance of the Magna Carta has been overstated throughout the years, however, it did set a point of reference for limited powers of the state.
Moving forward, in the year 1689, King William III of England signed the English Bill of Rights. William III came into power through a movement of depositioning and replacement of King James II which came to be known as the Glorious Revolution. Essentially, the citizens of England were worn out and fed up of James’ pro-catholic strategies and welcomed William, who was a Protestant, to come attack their nation and become their new lord. The English Bill of Rights sketched out what rights English residents had, and put restrictions on the powers of the ruler and Parliament. The English Bill of Rights is a foundational document that inspired the American Bill of Rights.
English philosopher and theorist John Locke assumed an immense role in establishing the way of thinking of constitutionalism. Locke was English scholarly who built up the idea of Social Contract Theory. In talking about the history and nature of constitutionalism, a correlation is frequently drawn between Thomas Hobbes and John Locke who are thought to have safeguarded, separately, the idea of constitutionally boundless power versus that of sovereign constrained by the provisions of the social contract containing limitations on the power of the sovereign authority.
Hobbes and Locke both gave secular social contract theories. In other words, there was no place for God in them. Thus, these theories were in complete contrast to the theories of divine right. Divine Right theories held that all citizens must abide by the King’s order because he was the emissary of God, and hence disobeying him meant disobeying God. Nevertheless, these theories were sharply different from each other.
The Social Contract Theory as per the British jurist Thomas Hobbes was mentioned in his book Leviathan and he believed that human beings were evil by nature. Thus, he was of the view that they required a supreme/sovereign authority to keep in check their evil ideas, impulses and acts, otherwise it could result in a state of perpetual war and humans would rob, kill, rape and disobey law and order. Thus, there would be impossibility of a peaceful life. Subsequently a ruler is required to keep up peace and maintain law and order, and that is the reason a sovereign is fundamental and he should be complied with. Although apparently this hypothesis gave outright power to the lord, there was actually a catch which came to be seen later on. Since, as indicated by Hobbes, a ruler was required as an authority to look after law, order and harmony in the public eye, it pursues that if the sovereign by his deeds or oversights neglects to keep up the lawfulness, the individuals hold the power to expel him. Subsequently, the privilege of upheaval or revolution was intrinsic in Hobbes’ hypothesis, however not explicitly referenced, and that is the reason the lord’s supporters, who at first acclaimed the hypothesis, later ended up condemning of it as they understood its revolutionary potential.
The hypothesis of the British jurist John Locke as mentioned in his 2nd treatise on Civil Government in the year 1690 is that even though the ruler is sovereign, his power is restricted and not total (as Hobbes had declared). It is restricted by the common rights which each person has by the very virtue of being an individual. The ruler can’t infringe on, or meddle with, these characteristic rights which incorporates the right to speak freely, opportunity to practice one’s religion, opportunity to claim or procure property, and freedom.
These ideologies, theories and documents influenced the Constitutionalism in India. Our Indian Constitution is inspired by the western models of constitution. Our establishing fathers obtained the Parliamentary type of government and independent and autonomous judiciary from Britain, the directive principles from the Irish model, the fundamental rights from its US counterpart and so on. In this manner, the fundamental standards and state organizations set up in our constitution were not of our own creation. We acquired present day western ideas and current foundations from western nations and imposed them on our retrogressive, semi-medieval society.
In order to identify the position of Constitutionalism in India and to what extent is it present in the Indian legislative system, one must analyse the following provisions laid down under the Indian Constitution. These can be analysed on the basis of the provisions of the Constitution which limits the powers of the Government and establish the position of the sovereign. The first provision is found in the Preamble.
The Indian Constitution was enacted on 26th November,2019 and the question whether the Preamble is a part of the Indian Constitution or not has been a great matter of concern. However, in the famous case of Keshavnanda Bharti v. State of Kerala, the 13 judges bench held that it was indeed a part of the Constitution.
According to Justice Subbarao in the Golaknath v. State Of Punjab case “Preamble is the soul of the constitution, without which a body in the form of state cannot be survived. The objectives of constitution ensure the dignified conditions for the people of India and provide them all rights and liberties within ambit of fundamental spirit of constitutionalism embodied in entire body of the Constitution” One of the objectives explained in the preamble is to constitute the Republic of India into a sovereign and secular nation. Secularism, which mirrors no state religion, implies each resident has a right or a privilege to practice religion of their own decision, which advances naturally freedom of worship and faith. Along these lines, It can be induced that preamble holds the soul of constitutionalism.
The second provision is judicial review. Justice Marshall in Marbury v. Madison case, introduced the doctrine of Judicial Review and clearly stated that it is the duty of the judiciary to annul any law or order passed by the legislature which violates the provisions of the constitution and takes away from the individual rights of the citizens.
In the Indian Constitution the spirit of this ideology has been expressed in Article 13(2) –“Laws which are inconsistent to Part III of the Constitution shall be declared null and void.” I.R. Coelho V. State of Tamil Nadu (2007) case cemented this doctrine and established the superiority of basic structure theory which has in turn enhanced the Constitutionalism spirit.
Rule of Law
The first question that comes to our minds when we talk about the Rule of law is ‘what is law?’ The appropriate response of this inquiry lives in two rules that are-
Due Process – it stands for judicial supremacy and furthermore there is a peril for legal or judicial absolutism in light of the fact that the court if not self-controlled may go past the limitations set by the constitution.
Procedure set up by law- In India, there is a “Procedure set up by law” doctrine which prevails, embraced from Constitution of Japan. It is clearly stated in Article 21 of Indian Constitution. It demonstrates parliamentary sovereignty in light of the fact that in India, law is made by the council, it confines the judicial supremacy and just deduces the right to do literal interpretation of the laws, rules and regulations and not statutory development of laws.
Separation of Powers
The Constitution of India demarcates between the powers of the organs of Government. Articles 245 and 246 along with Schedule VII of the Constitution deal with the demarcation of law making powers between the Union and State governments. Now, under the Articles 256-263, the administrative relations between the two governments is clearly defined. Articles 264 to 291 deal with fiscal relations between the centre and state. This reduces the risk of clash between the centre and the state resulting in the smooth co-dependent functioning of the legislature. As the powers of the centre and the state are clearly demarcated, there is no scope for the use of arbitrary powers over any of the subjects.
Subjects having National importance come under the Union List whereas the subjects having regional importance come under the State List. Subjects In which both the centre and state have interest comes under the Concurrent list. Central Government made laws come under this but the State government can amend these laws depending upon the requirements of that particular region. This way, the separation of powers also promotes constitutionalism in India.
Rights of the Citizens
Article 12-35 deal with the fundamental Rights which are guaranteed to all the Citizens of India and violation of which gives the Individual a right to approach the court under Articles 32 and 226 of the Indian Constitution. This shows that the citizens of a country also have the right to protect themselves from the arbitrary powers of the State. These Provisions ensure that Constitutionalism in India is practised extensively and the Constitution of India has certain provisions laid down that enable the proper functioning of the organs of the government so that they can serve the citizens of the country better with limited powers and supremacy of law of the land. Constitution of India also guarantees the people of India with rights which safeguard them against exploitation by the state.
This brief discussion about the provisions of the constitution provides us with a vision to see the process going on in the political system of our country. Through our study we’ve found that there description of powers of organs of government are extremely detailed and are extensively laid down in the Indian Constitution , so that they can exercise their powers within the boundaries of constitution. This results in the Government acting within the boundaries of Limitations of their powers. In this way, In India, constitutionalism is undoubtedly present but there is only one exception that the doctrine of Rule of Law does not prevail in India as in England (regarding parliamentary sovereignty). It exists in India in form of natural justice principles to govern administrative functions. Judges are to promote the value of constitutionalism arising from a legal draft, drafted by constituent assembly constituted of representatives expressing their public opinion. Each provision has its own significance and if any provision isn’t expressly present in a constitution however its appearance is found in certain provisos or clauses, at that point it will be adequate to advance the spirit of constitutionalism.