The article has been written by Aksshay Sharma, from the Department of Laws, Panjab University, Chandigarh. This article deals with the importance of Constitutionalism with reference to John Locke’s theory of limited government. 

Introduction

The following article deals with constitutionalism, an idea that recognises the need for the government but also insists upon the limitations on the government. The article firstly explains the meaning of the term and how it is related to the ideas of John Locke, one of the most prominent thinkers of liberalism. The article focuses on how constitutionalism and a liberal state are related to each other. Secondly, the article also explains components of constitutionalism and how it is viewed by the contemporary scholar- Faizan Mustafa who believes in the need to imbibe the idea of constitutionalism.

Understanding of constitutionalism

There is no accepted definition of Constitutionalism but it is accepted as an idea or a thought according to which a government should be limited in its powers, and that its authority depends on it observing these limitations. Constitutionalism is thus the limitations put on a government, which are prescribed by a Constitution. These limitations are imposed either by giving rights to the subjects of the constitution (citizen) or by expressly placing restrictions on the authority of the State i.e to specify the scope of power of the State. The constitution of a State plays an important role in the realisation of constitutionalism, i.e. to make constitutionalism a ground reality. Since constitutionalism envisages a government governed by a Constitution. Therefore, it can also be said that the essence of constitutionalism can be found in the theory of a limited state where liberty and freedom forms a base for constitutionalism. A limited state is one whose powers are limited to a certain extent. Thus, constitutionalism is often associated by scholars to John Locke’s theory of the limited state. The concept of constitutionalism is the antithesis to dictatorship (eg. Nazi Germany and Fascist Italy) and authoritarianism (like Governance under Indira Gandhi).

For eg. In India, although the legislature is empowered to make laws, this power has been restricted by fundamental rights. No law can be made if it violates fundamental rights (Article 13). Thus, fundamental rights act as negative covenants for the Indian State. Similarly, the concept of “Due Process of Law” and “Procedure Established by the Law”, the concept of Checks and Balances, Rule of Law and even the Procedure for Amendment under Article 368 limits the power of the government. This is in complete contrast to the ancient and medieval system where the commandments of the king were considered as the law of the land. Similarly, constitutions of the United States and Germany are examples of constitutionalism, where the powers of the state are limited by the constitution itself

Constitutionalism and John Locke

Constitutionalism is often associated with John Locke since he was one of the prominent proponents of the theory of the limited state, which is in contrast to the theory put forth by Thomas Hobbes, who leaned more towards State Absolutism. According to Locke, man is a reasonable creature and because it is reasonable he has the ability to decide what is good for him and what is bad. Thus, he does not advocate for an all-powerful state but rather for a limited state. Constitutionalism is always studied along with the theories of State put forth by John Locke, Thomas Hobbes and John Austin. While Thomas Hobbes advocated for the state to be absolute by comparing state to Leviathan, (Leviathan is biblical sea-monster, which Hobbes used to describe State), John Locke supported a limited state theory which was in contrast to that of Thomas Hobbes’ conception of the state. For Austin also, the law is the command of the sovereign and any law which has not been authorised by the sovereign i.e. the State, are not laws in true sense. The Ideas of Thomas Hobbes can be understood from his book Leviathan and that of John Locke from his work on Two Treatises of Civil Government.

Locke was a proponent of the social contract theory. According to the Social contract theory, the obligations and rights of people are governed by a contract which has been entered by the people themselves, in other words, it means that the conduct of the people is regulated by contract and such contract was entered into by the people because they wanted to escape ‘the state of nature’, a world where there is no state to regulate the conduct of the people (anarchy).

According to him, people entered into a social contract to regulate themselves by a government (state). This social contract which people entered into by their own free will not only defined the rights of the people but also restricted the powers of the government. According to Locke, the state has limited powers and people have transferred only 3 basic rights to the state and these 3 basic rights are transferred by way of a social contract. The state has no right to abridge the rights which people haven’t transferred. These 3 rights have been described by Locke as inalienable rights. These rights are Life, Liberty and Property. He says these rights cannot be taken by the state and if so happens people have a right to revolt. Thus, in view of Locke, the powers of the state are limited by these natural rights. John Locke belongs to the school of Natural Law.

Components of constitutionalism 

1. Constitution: The most fundamental component of constitutionalism is the constitution because it is the constitution which practically defines the scope of power and imposes restrictions on state power.  According to A.V. Dicey, it is the constitution which directly or indirectly affects the exercise of the power of the state. Therefore, constitutionalism is entrenched in the constitution itself, however as Prof. Faizan Mustafa said it does not mean that without a constitution there cannot be constitutionalism, like Britain does not have a written constitution, yet it is more liberal than India. E.g. According to Article 21 of Indian Constitution, the state cannot make a law which does not conform to the “Due process of Law ”, which means the law has to be just fair and reasonable. This provision prevents the arbitrary exercise of power to enact laws(legislative power) of the state. Again matters on which centre and state can make law has been put under three lists and Schedule of the constitution. On the matters, in List 1 only the Center can make law and on matters in List 2 only the State can make a law, thus again by distributing such legislative matters the power of the centre is restricted. Therefore it can be said that federalism is also restraint of sorts on the Centre’s power.
2. Limited state: Limited state is the ultimate aim of constitutionalism, thus if the powers of the state are restricted by provisions of the constitution, then it is said that the political order is based on constitutionalism because the state’s powers are limited by a Constitution. The government is expected to act within the limits set by the constitution and cannot act beyond it. Any act beyond the limits of the constitution shall be declared by the courts as ultra-vires. A limited government ensures individual liberty and freedom.
3. Judicial setup: The courts or judiciary are the most important component for ensuring constitutionalism, as they play a crucial role in restricting the power of the state. The most prominent example is the Doctrine of basic structure as laid down by the court in Kesavananda Bharati v. State Of Kerala and anr, in which the courts restricted the amendment power of the parliament by laying down the basic structure of the constitution (basic principles). It held that the parliament is empowered to amend the constitution, even fundamental rights, but they cannot alter the basic structure of the constitution. Thus, an independent and impartial judiciary is crucial for the sustenance of constitutionalism.
4. Rule of Law: Rule of law has 3 elements:
5. 1. Equality before law i.e. equal subjection of all citizens (rich or poor, high or low) to the ordinary law of the land, administered by ordinary law courts.
   2. The primacy of the rights of the individual.
   3. Absence of arbitrary power i.e. No person shall be punished except for the breach of law.

The central idea of constitutionalism is that the state (including its officials) is not free to do anything as they please, in any manner they choose. They are bound to observe the limitations on their power and the procedures laid down in the Constitution of India. e.g. List II of the 7th schedule imposes a limitation on the centre that it cannot legislate on a few subjects which fall within the exclusive domain of the state. Thus, the rule of law is crucial to constitutionalism.

5. Separation of power: Constitutionalism is characterised by a division of powers and not a concentration of powers. According to CJ Friedrich “Constitutionalism, by dividing power, provides a system of effective restraints upon governmental action.” Separation or division of powers means that the powers of a state, namely the executive power, legislative power and judicial powers are divided among the three primary organs of a state,  executive, legislature and judiciary respectively and these organs are supposed to work within the sphere defined in the constitution. It also means that power is divided among various sets of government, for instance between the union and the state government. Thus, it puts limitations on various organs of the state.  E.g. In India, courts are not expected to make laws which are the exclusive domain of the legislature. However, India does not follow the strict separation of power rather provides for a system of checks and balances so that the state does not exercise arbitrary power.

Effectiveness of constitutionalism in India

According to Louis Henkin, constitutionalism consists of the following elements:

(1) government according to the constitution;

(2) separation of power;

(3) the sovereignty of the people and democratic government; 

(4) constitutional review;

(5) independent judiciary;

(6) limited government subject to a bill of individual rights; and

(7) controlling the police.

Indian polity satisfies all these elements, the government is bound to function within the confines of the constitution and cannot go beyond what the constitution provides; it has to follow the substantive limitations and procedures laid in the constitution. The Fundamental rights inter-alia restrict the state’s power to enact laws in the sense that no law can be made in contravention of fundamental rights Article 13(2).

Although it does not provide for strict separation of power rather it provides for a system of checks and balances which ensures that one organ of the state does not encroach upon the other. For instance, the judiciary has the power of judicial review, to declare a law ultra-vires (beyond the powers), if the court finds that such a law is beyond the power of the state to enact. Article 13 of the constitution empowers the court to perform this function and thus, ensures that the spirit of constitutionalism is maintained.

Further, the Preamble to the Indian Constitution says that people of India have solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC. Thus, the people are the ultimate sovereign and the political setup of the Indian state is democratic.

The powers of the Supreme Court in matters of appointment of judges of Supreme court itself as well as of High Courts by a collegium system, removal of judges by way of a resolution passed by the parliament, fixed service conditions and High Courts power of supervision under Article 227 makes the Indian judicial set up independent and impartial.

In India, the most effective way of ensuring constitutionalism is the Amendment Procedure under Article 368. Article 368 of the Indian Constitution provides that certain provisions of the constitution can be amended only by a bill supported by a special majority, and the provisions which also affect the states (the federal provisions), those can be amended only by a special majority of parliament as well as ratification of half of the state legislatures. Thus, this provision has acted as a limitation on the power of parliament to amend the constitution, many states tend to be authoritarian and dictatorial by amending the constitution in its favour. Further, the Supreme court’s decision in Kesavananda  Bharati v. The State of Kerala that parliament has no power to amend the basic structure of the constitution has further strengthened the idea of constitutionalism.

A modern approach towards constitutionalism

Contemporary scholars such as Faizan Mustafa believe that having a written constitution does not ensure constitutionalism. He gives the example of the United Kingdom even with no constitution being more liberal than India’s bulkiest constitution. Hitler also had a Weimar Constitution. According to Professor Mustafa, the Constitution and constitutionalism exist as two separate ideas and one(constitutionalism) can exist without the other (constitution). For him, the “idea of a limited state” is sufficient to ensure constitutionalism.

Further, constitutionalism after the 2nd world war has been expanded from merely being a limitation on the power of government to encompassing other aspects as well, such as judicial review, constitution being more difficult to amend than ordinary laws, and equal protection of laws. This is because undemocratic elements were able to gain legitimacy by the constitution. For instance, when Hitler came to power it was easy to amend the constitution because only the ⅔ rd majority was required to amend it. Also in 1933, when he came to power he passed the Enabling Act 1933, which empowered the government/executive to pass legislation, in addition to the legislature. He used this to accumulate all power to himself and curtailed the civil rights of the people. This resulted in Germany adopting an “eternity clause” which included certain provisions which cannot be amended at all. This expanded constitutionalism has been regarded as “New constitutionalism.”

The positive side of constitutionalism

Importance of constitutionalism can be understood from W. Waluchow’s definition of constitutionalism, “Constitutionalism is a set of rules or norms creating, structuring and defining the limits of a government authority.” Constitutionalism, therefore, acts as a limitation on the arbitrary exercise and abuse of power by the  State. As Rajiv Bhargava said, states are inherently authoritarian and the constitution acts as a limit on this authoritarianism. Constitutionalism prevents authoritarianism and totalitarianism. 

Constitutionalism ensures that the state does not encroach upon people’s life and liberty and is crucial for a democratic polity. Constitutionalism ensures Rule of law, which now has been accepted as integral for democracies all around the world.

Constitutionalism ensures good governance and democracy in a state as it enables necessary checks and balances on the excessive use of state power. It ensures that a nation does not become an elitist state. It is essential especially in developing countries where abusive use of power by state and its officials is normal.

Most importantly it ensures that the state is based on the Rule of Law and that every person is ensured the right to human dignity.

Conclusion

Constitutionalism and its essence is now being recognised as a norm crucial for a democratic polity. However, merely having it in the form of text is not what makes constitutionalism a reality, rather imbibing its concept is what is necessary. The Supreme Court is increasingly emerging as a gatekeeper of constitutionalism by exercising its power of judicial review.

References

1. Remembering Professor Conrad: The Genius Behind the Basic Structure Doctrine: https://thebasicstructure.com/2020/04/24/remembering-professor-conrad-the-genius-behind-the-basic-structure-doctrine/
2. John Locke’s Limited State: http://www.quebecoislibre.org/06/060219-4.htm
3. Locke’s Political Philosophy: https://plato.stanford.edu/entries/locke-political/
4. Article 370 and Territorial Pluralism
5. Faizan Mustafa on Constitutionalism, here

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