The concept of constitutionalism is that of a polity governed by or under a constitution that ordains essentially limited government and rule of law as opposed to arbitrary authoritarian or totalitarian rule. Constitutional government, therefore, should necessarily be democratic government.
In other words, Constitutionalism is a political philosophy in which the functions of government of a state must be in accordance with the provisions of the constitution meaning thereby the actions of government must reflect constitutionality.
As the constitutionalism is a political spirit or philosophy, so it is not necessary that the states who have a constitution must be embodied with the concept of constitutionalism. According to Douglas Greenberg
, Constitutionalism is a commitment to limitations on ordinary political power, it revolves around a political process, one that overlaps with democracy in seeking to balance state power and individual and collective rights, it draws on particular cultural and historical contexts from which it emanates and it resides in public consciousness.
Now to identify that whether constitutionalism is present in India or not. It can be analyzed with the help of various provisions of constitution that are:-
• Judicial Review
• Rule of law
• Separation of power
• Checks and balances and so on.
There is no exhaustive list of features by which the validity or existence of constitutionalism can be tested; but the every feature which limits the government and proves helpful to establish a position of sovereignty under fundamental principles of constitutional jurisprudence may be a considerable point for constitutionalism.
In Indian context,
Preamble may be a point to check the presence of constitutionalism. Our Constitution enacted on 26th November,1949, since then, a question always a matter of great concern that whether preamble is a part of Indian constitution or not. However, in 1960, In Re Beru Beri case, it was held that preamble is not a part of constitution but after a long time, In case of Keshavanand Bharti v State of Kerala, AIR 1973 SC 1461
, 13 judges largest bench of Indian constitutional history rejected previous contentions and declared that
“Preamble is a part of Indian Constitution”.
Preamble explains the objectives of constitution in two ways, one about the composition of bodies of governance and other about the objectives sought to be achieved in independent India. Objectives explained in preamble as follows:-
• To constitute India into Sovereign, Socialist, Secular, Democratic Republic (words Socialist and Secular inserted by 42nd constitutional Amendment,1976) Other provisions of preamble that are;-
• Justice – Social, Economic, and Political;
• Liberty – of thought, expression, belief, faith and worship;
• Equality of status and opportunity;
• Fraternity assuring the dignity of the individual and the unity and integrity of the nation (word unity inserted by 42nd constitutional Amendment,1976) may be invoked to determine the ambit of Fundamental rights and Directive principles of state policy.
According to Justice Subbarao,
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. E.g. Dr. Radhakrishnan, former President of India, has explained secularism in this country, as follows:-
When India is said to be a secular state, it does not mean that we reject the reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the state assumes divine prerogatives…..we hold that not one religion should be given preferential status…This view of religious impartiality, or comprehension and forbearance, has a prophetic role to play within the National and International life.
In other words,
Secularism, which reflects no state religion, means every citizen has a right to profess religion of their own choice, which promotes automatically liberty of faith and worship.
In this way, It can be surmised that preamble hold the spirit of constitutionalism. Second feature is Judicial Review, however, this doctrine is not clearly stated in Indian
constitution but its reflection is somewhere found in Article 13(2), Actually, this doctrine was firstly introduced in 1803 by Justice Marshall in Marbury v Madison(3) case, In USA
where he clearly said that ‘It is the duty of judge to annul the law made by the legislature which violated the constitution or contrary to it.
The similar spirit found in Article 13(2) of Indian Constitution that the laws “which are inconsistent to part III of constitution shall be declared null and void”, but it is not clearly defined that if any contrary law made, then who will check its validity, then an answer comes into light in reference to Justice Marshall that Judiciary can check such contrary acts of legislature and also can review the laws made by legislature.
And also a concept of “Higher law” emerged from this doctrine, because a judge has to follow the mandates or directions of Higher law while checking the consistency of provision. In written constitution, Higher law depicts constitution as Supreme but where there is no written constitution; there are some principles which can be regarded as Supreme or Higher law principle. In Gopalan V State of Madras (1950) SCR 88(100) has upheld that it is difficult to restrict the sovereign legislative power by judicial interference except so far as the express provision of written constitution. It is only the written provisions of constitution which may restrain legislative power, but where there is no written constitution, then, who restrain legislative power, and then its answer is judiciary by following various principles, precedents, customs, usages, and different statutes can check the consistency.
It clearly signifies that in absence of power of judicial review in hands of judiciary, judiciary is only a puppet of legislators.
Justice Frankfurter (4)(USA)…. said that judicial review, itself a limitation on popular government, is a fundamental part of our constitutional system; means if there is no power of judicial review then the constitution merely becomes a draft for the code of conduct for government as well as citizens, It also signifies as a
“Law without Sanction”.
However, this type of situation has been prevalent in India, till 2007, in different cases, such as Shankari Prasad case, Sajjan Singh case, Golak Nath case, Keshavanand Bharti case, N.Ramchandra case, traced a picture of conflict between legislature and judiciary, no clear cut demarcation of powers under which organs of government can overview the validity of their actions for upholding the true spirit of constitutionalism in a political entity could be realized. But the Raja Ram Pal case and I.R.Coelho v State of Tamil Nadu case 2007 have reshaped the whole demarcation and establish superiority of principles such as Basic Structure Theory enhancing the spirit of constitutionalism.
In this way, by exercising Appellate and Advisory jurisdiction, judiciary can secure uniformity in the interpretation and application of the constitution as amongst the states.
Third provision is “Rule of Law”, on its basis spirit of constitutionalism can be present in a state. This doctrine is given by dicey (a well known constitutionalist of England) in 1865 wrote a book titled
“An Introduction to the law of the constitution” in which the term “Rule of Law” was given a comprehensive amplitude. In reality, it is a doctrine of England where there is no written constitution, so it is placed as a higher law there to check the validity of any law made by legislature. This doctrine shows that whatever law is present in our state, must be ruled over everyone, meaning thereby the law is supreme in all respect and in every sphere. It clarifies that “No one above the law”. Now a question arises, what the law is? The answer of this question resides in two principles that are-
• Due Process
• Procedure established by law.
Due Process is a doctrine of USA, and its ambit is not defined comprehensively, but its sphere is to be explained by judges as per the facts and circumstances of the case. It represents judicial supremacy and also there is a danger for judicial autocracy because the court if not self restrained may go beyond the limits set by the constitution.
But in India, there is a “Procedure established by law” doctrine prevails, adopted from
Constitution of Japan
and clearly enshrined in Article 21 of Indian Constitution. It shows parliamentary sovereignty because in India, law is made by the legislature, it restricts the judicial supremacy and only infers right to do literal interpretation not statutory construction of laws.There are also some other elements embedded in Rule of law, such as
• Absence of arbitrary power on the part of government, which is undoubtedly present in form of judicial review in which judiciary always look after the actions of other organs of government.
• Equality of all persons in the eye of law, which can be justified on the basis of provisions of Article 14-18 with some reasonable restrictions.
• Rules of constitutional law are the results of the ordinary law of the land means the laws made by legislature must not be contrary to the provisions of constitution, otherwise it will be declared as null and void.
In England, Rule of Law flourished sovereignty of legislature, being unwritten constitution there is no higher law to circumscribe the plenary powers of the sovereign legislature but in India, there is written constitution and the concept of judicial review also present, so the doctrine of Rule of Law cannot be assigned a paramount place. But to promote the spirit of constitutionalism, the shadow of this doctrine reflects in various provisions of Indian Constitution in the form of fundamental principles of natural justice.
Next provision is Separation of Power
Among organs of government. In India, under Article 245,246 and Schedule VII there is a clear demarcation of legislative power among union and state government, under Articles 256-263 administrative relations are also clearly defined, and under Article 254 if there is any inconsistency between centre and state laws, then central law prevails, under Article 264-291 fiscal relation between centre and state is given, meaning thereby there is a rare chance of clash between union and states, so that public policies can be properly implemented as per the requirements of the people. As the powers of centre and state clearly divided, so there is no space to use arbitrary powers over any subject. Generally, subjects which have national importance vests in Union list and those have regional importance vests in State list and for the establishment of unity and integrity in the nation, Concurrent list is made in which for universalization of laws, central government made law but according to the requirements of a particular region, state and legislature may make any a difference.
In this way, this feature also promotes the spirit of constitutionalism.
And other provisions as Fundamental rights defined in Articles 12-35, provide some rights to the citizens and to every person for whose infringement people may approach towards Courts of Justice under Articles 32 and 226 respectively of Indian Constitution, which shows that citizens also have some rights to protect themselves from the arbitrariness of government. And Directive Principles of state policy under Articles 36-51 connotes that these principles should be in consideration of government while framing of its policies, because its trend helps to provide or flourish social, economic equality among people. As the aim of government cannot touch their destination without the contribution of public at large. That’s why the Fundamental duties of citizens also explained in Article-51A which should be obeyed by every citizen of nation.
In this way , these provisions shows the checks and balances among the actions of governmental organs and the public. The Emergency provisions under Articles 352, 356 and 360 also shows the spirit of constitutionalism by restraining the exclusive powers of state organs at the time of external aggression, armed rebellion, failure of constitutional machinery in particular state, financial crisis etc. It signifies the curtailment of powers of state functionaries in favour of public interest and all powers vests in union government to deal with such sort of situations. To uplift weaker sections of society, concept of reservation is also present in Indian constitution under Articles 330-342, in these provisions Doctrine of Appeasement is present by providing some reserved seats to lower society people in every functionary organ of government. Such as-under Articles 330 & 332, Reservation of seats for SC and ST in House of People and legislative assembly of states. With the help of this clause, the problems related to SC and ST comes in front of legislature and proves helpful to protect the interest of particular community.
The brief discussion of provision of constitution provides us a vision to see the process going on in the political system of country, in which we find that there are very detailed description of powers of organs of government so that they can exercise their powers within the boundaries of constitution i.e. Higher law in India, owing to which governmental organs become unable to entertain arbitrary powers and also these provisions provide a paramount place to laws whose main aim is to protect the interest of individuals in the country. 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, since the rule of law and judicial review in a single system cannot be realized easily. It would create a conflict between parliament and constitution (The Guardian of constitution i.e. judiciary).Judges are to promote the value of constitutionalism emanating from a legal draft, drafted by constituent assembly constituted of representatives expressing their public opinion. Although, Secondary public opinion cannot overrule primary public opinion, But every provision has its own importance and if any provision is not explicitly present in a constitution but its reflection is found in some clauses, then it will be sufficient to promote the spirit of constitutionalism.