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Published : August 31, 2014 | Author : kiruthikadhanapal@legalserviceindia.com
Category : Constitutional Law | Total Views : 37032 | Rating :

Kiruthika D Student B.A.,B.L.,(Hons) School of Excellence in Law


For genuine democracies, constitutions consist of overarching arrangements that determine the political, legal and social structures by which society is to be governed. Constitutional provisions are therefore considered to be paramount or fundamental law. Under these circumstances, if constitutional law itself is inadequate, the nature of democracy and rule of law within a country is affected. The structure of modern nations has been shaped with government being divided into executive, legislative and judicial bodies, with the commonly accepted notion that these bodies and their powers must be separated. Of course, the separation of powers does not mean these bodies function alone, rather they work interdependently, but maintain their autonomy. Other tenets include the idea of limited government and the supremacy of law. Together, these can be termed the concept of constitutionalism. In other words, constitutionalism is the idea that government should be limited in its powers and that its authority depends on its observation of these limitations. A constitution is the legal and moral framework setting out these powers and their limitations. This framework must represent the will of the people, and should therefore have been arrived at through consensus.

Meaning of Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex 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". A political organization is constitutional to the extent that it "contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority". As described by political scientist and constitutional scholar David Fellman: It may be said that the touchstone of constitutionalism is the concept of limited government under a higher law.

Constitutionalism’ means limited government or limitation on government. It is antithesis of arbitrary powers. Constitutionalism recognizes the need for government with powers but at the same time insists that limitation be placed on those powers. The antithesis of constitutionalism is despotism. A government which goes beyond its limits loses its authority and legitimacy. Therefore, to preserve the basic freedoms of the individual, and to maintain his dignity and personality, the Constitution should be permeated with ‘Constitutionalism’; it should have some inbuilt restrictions on the powers conferred by it on governmental organs.

Constitutionalism-In Minimal And In Richer Sense
In some minimal sense of the term, a "constitution" consists of a set of rules or norms creating, structuring and defining the limits of, government power or authority. Take the extreme case of an absolute monarchy, Rex, who combines unlimited power in all three domains. If it is widely acknowledged that Rex has these powers, as well as the authority to exercise them at his pleasure, then the constitution of this state could be said to contain only one rule, which grants unlimited power to Rex. Whatever he decrees is constitutionally valid. When scholars talk of constitutionalism, however, they normally mean something that rules out Rex's case. They mean not only that there are rules creating legislative, executive and judicial powers, but that these rules impose limits on those powers.

Constitutionalism in this richer sense of the term is the idea that government can/should be limited in its powers and that its authority depends on its observing these limitations. In this richer sense of the term, Rex's society has not embraced constitutionalism because the rules defining his authority impose no constitutional limits.

Usage of Constitutionalism

Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper captured this aspect of the term. Used descriptively, it refers chiefly to the historical struggle for constitutional recognition of the people's right to 'consent' and certain other rights, freedoms, and privileges…. Used prescriptively … its meaning incorporates those features of government seen as the essential elements of the … Constitution."

Descriptive use
One example of constitutionalism's descriptive use is law professor Bernard Schwartz's seeks to trace the origins of the U.S. Bill of Rights. While hardly presenting a "straight-line," the account illustrates the historical struggle to recognize and enshrine constitutional rights and principles in a constitutional order.

Prescriptive use
In contrast to describing what constitutions are, a prescriptive approach addresses what a constitution should be. As presented by Canadian philosopher Wil Waluchow, constitutionalism embodies "the idea … that government can and should be legally limited in its powers, and that its authority depends on its observing these limitations.

History of Constitutionalism

In discussing the history and nature of constitutionalism, a comparison is often drawn between Thomas Hobbes and John Locke who are thought to have defended, respectively, the notion of constitutionally unlimited sovereignty (e.g., Rex) versus that of sovereignty limited by the terms of a social contract containing substantive limitations (e.g., Regina). But an equally good focal point is the English legal theorist John Austin who, like Hobbes, thought that the very notion of limited sovereignty is incoherent. For Austin, all law is the command of a sovereign person or body of persons, and so the notion that the sovereign could be limited by law requires a sovereign who is self-binding, who commands him/her/itself. But no one can "command" himself, except in some figurative sense, so the notion of limited sovereignty is, for Austin (and Hobbes), as incoherent as the idea of a square circle. Austin says that sovereignty may lie with the people, or some other person or body whose authority is unlimited. Government bodies - e.g., Parliament or the judiciary - can be limited by constitutional law, but the sovereign - i.e., "the people" - remains unlimited. But if we identify the commanders with "the people", then we have the paradoxical result identified by H.L.A. Hart - the commanders are commanding the commanders.

Important Features of Constitutionalism

According to most theorists, one of the important features of constitutionalism is that the norms imposing limits upon government power must be in some way be entrenched, either by law or by way of constitutional convention. Entrenchment not only facilitates a degree of stability over time, it is arguably a requirement of the very possibility of constitutionally limited government. Were a government institution entitled, at its pleasure, to change the very terms of its constitutional limitations, we might begin to question whether there would, in reality, be any such limitations.

Written ness:
Some scholars believe that constitutional rules do not exist unless they are in some way enshrined in a written document. Others argue that constitutions can be unwritten, and cite, as an obvious example of this possibility, the constitution of the United Kingdom. Though the UK has nothing resembling the American Constitution and its Bill of Rights, it nevertheless contains a number of written instruments which arguably form a central element of its constitution. Magna Carta (1215 A.D.) is perhaps the earliest document of the British constitution, while others include The Petition of Right (1628) and the Bill of Rights (1689).

Elements of Constitutionalism

Written constraints in the constitution, however, are not constraining by themselves. Tyrants will not become benevolent rulers simply because the constitution tells them to. In order to guard against violations against the letter and spirit of the constitution, there needs to be a set of institutional arrangements. Louis Henkin defines constitutionalism as constituting the following elements: (1) government according to the constitution; (2) separation of power; (3) sovereignty of the people and democratic government; (4) constitutional review; (5) independent judiciary; (6) limited government subject to a bill of individual rights; (7) controlling the police; (8) civilian control of the military; and (9) no state power, or very limited and strictly circumscribed state power, to suspend the operation of some parts of, or the entire, constitution.

Broadly speaking, Henkin's nine elements of constitutionalism can be divided into two groups, one concerns power construction and power lodging; and the other deals with rights protection. These two groups of institutional arrangements work together to ensure the supremacy of the constitution, the existence of limited yet strong government, and the protection of basic freedom.

Constitutionalism And Democracy

Authoritarian governments are by their very nature unconstitutional. Such governments think of themselves as above the law, and therefore see no necessity for the separation of powers or representative governance. Constitutionalism however, is primarily based on the notion of people's sovereignty, which is to be exercised--in a limited manner--by a representative government. The only consensual and representative form of governance in existence today, is democratic government. In this way, there is a very important and basic link between democracy and constitutionalism. Just as mere constitutions do not make countries constitutional, political parties and elections do not make governments democratic. Genuine democracies rest on the sovereignty of the people, not the rulers. Elected representatives are to exercise authority on behalf of the people, based on the will of the people. Without genuine democracy, there can be no constitutionalism.

Constitutionalism And Rule of Law

Rule of law refers to the supremacy of law: that society is governed by law and this law applies equally to all persons, including government and state officials. Following basic principles of constitutionalism, common institutional provisions used to maintain the rule of law include the separation of powers, judicial review, the prohibition of retroactive legislation and habeas corpus. Genuine constitutionalism therefore provides a minimal guarantee of the justice of both the content and the form of law. On the other hand, constitutionalism is safeguarded by the rule of law. Only when the supremacy of the rule of law is established, can supremacy of the constitution exist. Constitutionalism additionally requires effective laws and their enforcement to provide structure to its framework.

Constitutionalism And Constitutional Convention

The idea of constitutionalism is usually thought to require legal limitation on government power and authority. But according to most consti­tutional scholars, there is more to a constitution than constitutional law. But there is a long-standing tradition of conceiving of constitutions as containing much more than constitutional law. Dicey is famous for proposing that, in addition to constitutional law, the British constitutional system contains a number of "constitutional conventions" which effectively limit government in the absence of legal limitation. These are, in effect, social rules arising within the practices of the political community and which impose important, but non-legal, limits on government powers.

Constitutionalism In Different Countries

United States
American constitutionalism has been defined as a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from the people, and is limited by a body of fundamental law. These ideas, attitudes and patterns of behavior, according to one analyst, derive from "a dynamic political and historical process rather than from a static body of thought laid down in the eighteenth century". In U.S. history, constitutionalism—in both its descriptive and prescriptive sense—has traditionally focused on the federal Constitution. Indeed, a routine assumption of many scholars has been that understanding "American constitutionalism" necessarily entails the thought that went into the drafting of the federal Constitution and the American experience with that constitution since its ratification in 1789. There is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States.

United Kingdom
The United Kingdom is perhaps the best instance of constitutionalism in a country that has an uncodified constitution. A variety of developments in seventeenth-century England, including "the protracted struggle for power between king and Parliament was accompanied by an efflorescence of political ideas in which the concept of countervailing powers was clearly defined," led to a well-developed polity with multiple governmental and private institutions that counter the power of the state.

Polish–Lithuanian Commonwealth

From the mid-sixteenth to the late eighteenth century, the Polish–Lithuanian Commonwealth utilized the liberum veto, a form of unanimity voting rule, in its parliamentary deliberations. The "principle of liberum veto played an important role in [the] emergence of the unique Polish form of constitutionalism." This constraint on the powers of the monarch were significant in making the "[r]ule of law, religious tolerance and limited constitutional government ... the norm in Poland in times when the rest of Europe was being devastated by religious hatred and despotism."

Constitutionalism In India

India is a democratic country with a written Constitution. Rule of Law is the basis for governance of the country and all the administrative structures are expected to follow it in both letter and spirit. It is expected that Constitutionalism is a natural corollary to governance in India. But the experience with the process of governance in India in the last six decades is a mixed one. On the one hand, we have excellent administrative structures put in place to oversee even the minutest of details related to welfare maximization but crucially on the other it has only resulted in excessive bureaucratization and eventual alienation of the rulers from the ruled. Since independence, those regions which were backward remained the same, the gap between the rich and poor has widened, people at the bottom level of the pyramid remained at the periphery of developmental process, bureaucracy retained colonial characters and overall development remained much below the expectations of the people.

Case Laws where principle of ‘Constitutionalism’ is legally recognized by Supreme Court

In I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors. view taken by the Supreme Court - The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The protection of fundamental constitutional rights through the common law is main feature of common law constitutionalism.

In Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr. “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.” Constitutionalism is about limits and aspirations.
As observed by Chandrachud, CJ, in Minerva Mills Ltd. – “The Constitution is a precious heritage and, therefore, you cannot destroy its identity'”

On one hand, our judiciary elicit such intellectual responses that “Faith in the judiciary is of prime importance. Ours is a free nation. Among such people respect for law and belief in its constitutional interpretation by courts require an extraordinary degree of tolerance and cooperation for the value of democracy and survival of constitutionalism” said in Indra Sawhney and Ors. vs.Union of India (UOI) and Ors.

Constitutionalism has been the subject of criticism by numerous anarchist thinkers. For example, Murray Rothbard, who coined the term "anarcho-capitalism", attacked constitutionalism, arguing that constitutions are incapable of restraining governments and do not protect the rights of citizens from their governments. Legal scholar Jeremy Waldron contends that constitutionalism is often undemocratic: Constitutions are not just about retraining and limiting power; they are about the empowerment of ordinary people in a democracy and allowing them to control the sources of law and harness the apparatus of government to their aspirations. Of course, it is always possible to present an alternative to constitutionalism as an alternative form of constitutionalism: scholars talk of "popular constitutionalism" or "democratic constitutionalism." But I think it is worth setting out a stark version of the antipathy between constitutionalism and democratic or popular self-government, if only because that will help us to measure more clearly the extent to which a new and mature theory of constitutional law takes proper account of the constitutional burden of ensuring that the people are not disenfranchised by the very document that is supposed to give them their power.

Rothberg wrote that is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government's own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted "checks and balances" and "separation of powers" in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers. Criminalization of politics is a bane for democracy and unless urgent steps are taken to counter it, might see the eventual failings of it. Political and administrative corruption is a sad reality of Indian administration and this cancer should be removed from the body politic of Indian democracy on an emergency basis. Aspirations of people at the local level are increasing at an exponential manner and if they are fulfilled, the mounting frustrations are extremely dangerous for functioning of democratic system.
# Sandeep Agarwal, “Constitutionalism-Changing Paradigm”, Sep 7, 2009, www.legalservice.india.com.
# M.P. Jain, “Indian Constitutional Law”, 5th Ed, Wadhwa and Company Nagpur, 2006, p.5.
# Waluchow, wil, “Constitutionalism”, Sep 11.2012, plato.stanford.edu.
# “Constitutionalism”, en.wikipedia.org.
# Jeremy Waldron, “Constitutionalism-A Skeptical View”, May 1, 2012, papers.ssrn.com.
# Anesh Kumar, “What are the important features of constitutionalism?”, Sep 27, 2011, www.preservearticles.com.
# “Rights-based Constitutionalism”, Vol.9, Issue-02, icon.oxfordjournalas.org.
# “Constitutionalism”, en.wikipedia.org.
# Alexander, Larry, “Constitutionalism”, Cambridge University Press, 1998, p.207.
# “Popular Constitutionalism”, www.yalejournal.org.
# M.P. Jain, “Indian Constitutional Law”, 5th Ed, Wadhwa and Company Nagpur, 2006, p.3.
# “Global Constitutioanlism”, Vol.1, Issue-03. Nov 2012, journals.cambridge.org.
# AIR 1999 SC 3197.
# (2006) 2 SCC 1.
# Minerva Mills Ltd. vs. Union of India, AIR 1980 SC 1789.
# 1992 Supp (3 )SCC 212.
# Sandeep Agarwal, “Constitutionalism-Changing Paradigm”, Sep 7, 2009, www.legalservice.india.com.
# Jeremy Waldron, “Constitutionalism-A Skeptical View”, May 1, 2012, papers.ssrn.com


The  author can be reached at: kiruthikadhanapal@legalserviceindia.com

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