Constitutionalism – 1

CONSTITUTIONALISM

In ordinary sense, constitutionalism may be defined as a “belief in a constitutional government.” Constitution also can be defined as a doctrine that governs the legitimacy of a governmental action and it implies something more important than the idea of legality which requires official conduct to be in accordance with the Rules.

In simple terms, constitutionalism checks whether the actions of the government are legitimate and whether officials conduct their public duties in accordance with laws lay down. Merely having a Constitution does not secure Constitutionalism.

CHARACTERISTICS OF CONSTITUTIONALISM

According to Barnett, Constitutionalism embraces limitations of power, separation of powers (Checks and Balances) and responsible and accountable government.

According to Henkins he has identified “popular sovereignty”, “Rule of Law”, “Limited Government”, Separation of Powers”, Civilian Control of the Military”, “Police Governed By Law and Judicial Control” are few of the essentials features of Constitutionalism. Hence the following are the essential features of the Constitutionalism-

  • Popular Sovereignty- Popular Sovereignty refers to the fact that the public is the source of all governmental authority. The legitimacy of all governmental powers is derived from the consent of the people. In another words, the government acquires its mandate of people by way of elections.

The Source of all sovereignty lies essentially in the nation because the public is involved in the decision making process which may take different forms. Election of representatives is one of them. The public is entitled to elect representatives who represent them in the parliament. However, such elections must be free, fair and transparent.

Referendum is another mechanism by which the sovereignty of public is expressed. Before a Government makes a decision or takes any action which affects the interest of public, Constitutionalism requires it to consult the public and listen to what public has to say.

  • Separation of Powers (Checks and Balances)- Under Constitutionalism, power is not concentrated in any one organ of the government. It is divided amongst three organs namely- 1) The Legislature 2) Executive 3) Judiciary

If power is monopolized by any one organ of the state, there could be abuse of power, tyranny and dictatorship. Nor there can be any kind of liberty. For example- the legislature in addition to its law-making power is not allowed to exercise the roles of the executive and judiciary is not allowed to execute the laws which it interprets. These two powers are reserved to the respective organs i.e. the executive and the judiciary respectively.

In the context of the Indian Sub-Continent there are majorly three organs of the government-i.e. legislature, executive and judiciary. Legislature is solely responsible as the law making governmental body which sits in the Parliament at the Union Level and Vidhan Sabhas at the State Level. Executive on the other hand is responsible for executing the laws, rules, regulations, order and such other laws that are framed by the legislatures.

Judiciary being another independent organ is the care-taker of all the laws and apart from advising is primarily responsible for interpreting the law made by the legislature. It is the Judiciary which is responsible for adjudicating the laws and declaring whether the laws made by the legislature.

It is the Judiciary which is responsible for adjudicating the laws and declaring whether the laws made by the legislature and are constitutional in nature or not. In case the laws are against the Constitution, in that case that particular law shall be struck down and in case if that law is adhering to the fundamental principles of Constitution than it shall be upheld.

  • Responsible and Accountable Government- “If an American or English were asked what the first indispensible requirement of his government is, it is one to whom they would reply i.e. Government was the servant of the people” Article 57 of FDI Constitution.

In Democratic Nations, People perceive their Government as their own servant. The Government is there to serve as their own servant. The Government is there to serve their interests. Because the Government assumes office in the name of the people and on their behalf . The Government assumes office in the name of the public and for its benefit. For instance, a relationship between a principle and an agent could best suit as an example to show the kind of relationship which exists between a government and the public. It is well settled that the principle can always authorize or revoke such an authorization whenever it feels like.

The same principle, to a larger extent could apply the relationship shared by the government with its people, in the sense that the public has a mandate for or against the government. Hence, when the Government fails to act in the best interest of the public, the public can re-elect the government.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

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