Constitutionalism in India

Constitutionalism is “a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law”. Constitutionalism is an important concept. It differs from the Constitution. Every country has the Constitution but a country may not have Constitutionalism. A country where there is dictatorship and the dictator under the Constitution, has all the powers of the Government and he is made above the law, the country may be said to have a Constitution but it cannot be d that there exists Constitutionalism.

To be called Constitutionalism the Constitution not only provides for distribution of powers among the different organs of the Government but also puts restrictions or limitations on their power in such a way that no organ of the Government becomes uncontrolled or arbitrary. Constitutionalism provides for the Government under the Constitution as opposed to the Government above the Constitution. Constitutionalism may be taken to mean the Constitutional Government.

In L.R. Coelho v. State of Tamil Nadu,’ the Supreme Court has observed that the principle of Constitutionalism is a legal principle which requires control over the exercise of Governmental power to ensure that it does not infringe the democratic principles upon which it is based. These democratic principles include the protection of Fundamental Rights. Constitutionalism puts forward a check and balance model of the separation of powers, it requires the diffusion of powers and different independent centers of decision making. The principle of Constitutionalism underlines the principle of legality which requires the Courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to the Fundamental Rights.

Constitutionalism indicates the state of affairs in a country where law is observed by everyone including the Government and its officers, where the action of the administration is backed by law. There is absence of arbitrariness, where every man is assured that he will not be punished except for violation of law, where disputes as to violation of law and as to rights and duties are decided by independent courts of law.

There are some factors that can help us check if a system supports constitutionalism. Some of them are:

  1. Separation of powers: There must be equal powers given to all branches of the system so that no one system can overreach the powers of the other to cause an imbalance in the system
  2. Popular Sovereignty: The power of the system must be derived from the people who are being controlled by the said system. There must not be a specific set of people who control the selection and checking of such governance. All the citizens must be allowed to get themselves involved in the process.
  3. Rule of Law: The rule of law states that everyone is equal before the law. This helps eliminate the difference between the different sections of the society. This elimination of difference further helps in better administration of justice.
  4. Individual Rights: The people being governed by the system must have the basic human rights of civil and political nature so that they can themselves act as a system to counter the possible ill-devised plan by any section of the system.
  5. Democratic system: The essence of constitutionalism has by far only been preserved by the system of democracy. In other methods of establishment of state, there is an authority that does not have to answer to anyone and the second that this unabridged authority comes into place, constitutionalism is deemed to be no longer present.

The Constitution of India establishes Constitutionalism firmly. Every organ of the Government is bound by it. The Supreme Court has been made guardian of the Constitution. The Constitution has established independent judiciary. The Constitution has guaranteed the Fundamental Rights and they are important and effective limitations on the power of the Government. Every act which is arbitrary is considered against Article 14 and therefore, declared void.

The Fundamental Rights, supremacy of the Constitution, separation of powers between executive, legislature and judiciary, rule of law, power of judicial review, the limited amending power of Parliament and independence of the judiciary have been held to be part of the basic structure of the Constitution and they cannot be destroyed or taken away even by amending the Constitution. Thus, the Supreme Court has established firmly the Constitutionalism in the country. It has made provisions not only for its establishment but also for its effective enforcement and preservation.

The sad reality is that even though the Constitution of India is a brilliant document, the interpretation of the Constitution lies in the hands of those in power and there is no possible way to mitigate this issue. However, the people of India need to understand the importance of Constitutionalism and rise against injustice. Surely there is a need for voicing opinions in this domain. The checks and balances part of the system, in my opinion is by far the most important aspect of any governmental system.

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.

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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.

You may also like to read:

Precedent: As a Source of Law – Aishwarya Sandeep

Will – Aishwarya Sandeep

Sources of Law – Aishwarya Sandeep

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