Constitutionalism is the Road Ahead
Constitutionalism limits the powers of a Government and is a very important concept for the proper functioning of a democracy. It reduces the arbitrary powers in the hands of the Government thereby maintaining proper law and order in the society. A nation does not become constitutional just because it has a constitution of its own. There is a direct link between democracy and constitutionalism wherein sovereignty of citizens is important and not of the ruling parties. This article lays down emphasis on the importance of constitutionalism and why is it the road ahead leading to maintenance of sovereignty of the people of India. After studying this article, one would understand why constitutionalism is keen for the success of a democracy.
The constitution of a nation is the apex legal document which is above all laws of that particular nation. It is the fundamental law of the land which governs the functioning of the state. Thus the constitution must be strong enough since it affects the rule of democracy in a country and also the rule of law.
In the modern times of welfare state, powers of the government are divided into legislative, executive and judiciary wherein all the three departments work interdependently which leads to an efficiency in the working of the democracy. This concept of welfare state is the term called as constitutionalism which plays a very important role in the functioning of the democracy.
For the success of a democratic country, constitutionalism is important, especially in the modern times where socio legal issues are always on the rise.
Constitutionalism can be understood in many ways as there are no limited or specific features that define the term. For instance in India, checks on constitutionalism can be made via preamble, rule of law, checks and balances and so on. It is to be noted that although initially there were questions whether preamble is a part of the Indian Constitution or no, this debate was settled in the historic case of keshavanand Bharti v. State of Kerala it could be said to be a philosophy wherein the functions of a government shall not override the provisions of the constitution of that country. It limits the powers in the hands of the government and prevents arbitrariness.
It is to be noted that constitutionalism shall not be presumed by the mere fact that the country has its own constitution. The fact of constitutionalism is never included in the constitution but is judged by surrounding factors.
Although constitutionalism does recognize the role of government in governing the state, it lays emphasis on a restriction on this role. It aims at restrictions on powers of the government and distributing these powers in three departments in order to avoid abuse of power by the government.
Constitution and Constitutionalism
Both the terms constitution and constitutionalism sounds quite familiar. However there are certain differences between the two. In a layman sense, it sounds like constitution is principle law of a country and constitutionalism is the manner in which it is executed.
However in the true sense, while the constitution is the fundamental law of the land which is above all laws of the county, constitutionalism is the restriction of powers in the hands of the government and limitation on their activities. While the constitution is a charter of the government, constitutionalism is limitation on powers of the government.
Features of Constitutionalism
As seen above, there are no exhaustive features that define constitutionalism. It is the circumstances that show the presence of constitutionalism. Some of the features are as follows:
Where the source of the power is observed to be in the hands of citizens and not only vested in leaders or politicians, it represents constitutionalism.
- A written constitution
A properly written or codified constitution develops constitutionalism in the country as there would be no chances of arbitrariness thanks to a codified law unlike the English constitution which is unwritten or based on precedents.
- Separation of Powers
An important feature of constitutionalism is the theory of separation of powers whereby governmental powers are distributed between the three departments namely the legislature, executive and judiciary which ensures smooth functioning and thus preventing entire source of power in a single department.
It prevents arbitrariness practiced by politicians or leaders or public officials which are ultra vires their prescribed powers. All the three organs of the government must not be allowed the privilege to change or extent their limits at their pleasure.
Constitutionalism in India
India is the second largest democracy in the world and has the largest written constitution. Moreover, the concept of rule of law is founded as the basic structure of the Constitution of India. Thus it is important to have constitutionalism in a country like India.
However, in practicality India has a long way to go before it can claim that the concept of constitutionalism actually exists in India. Theoretically, Indian adoption of constitutionalism is evident from the existence of the preamble, the rule of law and others. However in practice, with proper implementations, constitutionalism could be made successful in the actual sense.
Economic backwardness has instigated anti social movements such as naxalism and is on the rise. There is an immediate need to curb this issue before it creates serious issues in the Indian administration. Also, there is need of judicial reforms at the earliest as the pendency of cases in India is more than 25 million which is a matter of concern. The corruption of political and Indian administrative department is a sad reality and is a huge hindrance in the democracy and there is an urgency in the removal of this cancer.
Constitutionalism and Democracy
There is a direct and a crucial link between constitutionalism and democracy and it is probably constitutionalism that protects the democratic nature of a country.
Governments consider themselves to be above the law and see no requirement for the separation of powers. Such governments bring about arbitrariness in the state leading to the demolition of democracy as well as the rights of its citizens.
For the purpose of solving dangers of such arbitrary governments, comes the concept of constitutionalism which protects the sovereignty of the people and limits the activities of the government. Democratic government is perhaps the only form of consensual form of governance in existence in today’s time.
Mere constitutions do not make nations constitutional. In a similar way, elections whereby people choose the representative government do not make democratic governments. Democracies are based on the sovereignty of the people and not on the whims and fancies of government rulers. Even after through elections when the representative government is formed, the government shall act on behalf of the people in the interests of the people. Without a genuine democracy, there can never be constitutionalism.
Constitutionalism and the Rule of Law
The concept of rule of law is enshrined in the preamble of the Constitution of India, which is its basic structure. Entire society is governed by law and no one is excluded from the coverage of law.
Rule of law basically means the supremacy of law. It applies equally to each and every citizen be it a common man, a member of the government or a state official.
Common institutional provisions, following basic principles of constitutionalism used to maintain the rule of law. True constitutionalism provide a minimum guarantee of justice of both content and form of law. Constitutionalism is safeguarded by the rule of law.
When the supremacy of the rule of law gets established, only then supremacy of constitution can exist.
Constitutionalism and Secularism
In simple terms, to be secular means to be separate from all religions. In other words it can be said to mean to have no religious basis. Thus a secular person is one who does not his moral values to any particular religion or religious beliefs. Rather, such values are the product of his scientific thinking or rational belief.
It is often misinterpreted that secularism in one word is the practice of atheism. However, this is quite untrue since it does not relate to be an atheist but to respect every religion and be biased towards none.
However, in the growing times, secular nations are accused of intolerance whereby a particular religion is discriminated or biasness towards a particular religion is evident. Secularism is enshrined in the Indian constitution and India is known for its religious diversity. However, time and again communal riots are been observed in India which questions the validity of secularism.
An important question to be thought about is whether religion is a threat to constitutionalism. The answer could well be yes in the recent scenarios where personal religions are given higher priority than the secularism concept of the country.
Thus in order to protect constitutionalism, there is a need to promote secularism as it could also pose to be a threat to the democratic status of the country.
Global constitutionalism is a discourse which claims that norms and institutions of global governance shall respect and follow the principles of constitutionalism. It comprises the concept of rule of law, separation of powers, checks and balances, democracy, etc.
At the international level, the constitutionalist principles and modes of their implementation must be modified to some extent.
Global, in the context of global constitutionalism is significant for three aspects. Firstly, it denotes the geographical spread of political legal institution called constitution and the agenda of constitutionalism. Secondly, it marks the resonance of this institution and agenda in international law. Thirdly, constitutionalism can be called global only when it asks lawmakers to take into account needs and interests of human beings in different cultural and economic contexts all over the globe.
It basically refers to multiple levels of governance. It relates to both, the state constitutions and international constitutional law.
Case Laws recognizing Constitutionalism
Rameshwar Prasad and Ors. Vs Union of India (UOI) and Anr.
As observed by the Supreme Court, “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.”
Indra Sawhney and Ors. Vs Union of India (UOI) and Ors.
In this case, the judiciary held that faith in the judiciary is of prime importance. 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.
Although constitutionalism is a fundamental need for the smooth functioning of a democracy, it is subject to criticisms as well. It is not like constitutionalism has only advantages in the governance of a nation. Every coin has two sides and hence constitutionalism comes with merits as well as demerits.
Numerous anarchist thinkers have criticized the concept of constitutionalism. Murray Rothbard, who coined the term ‘anarcho – capitalism’ criticized constitutionalism. He argued that constitutions are incapable of restraining governments and it in no way, protects the rights of the citizens from the government. Jeremy Waldron, a legal scholar, states that constitutionalism is often undemocratic.
A constitution can not interpret or even impose itself and it is interpreted through humans. If such power of interpretation is given to the judiciary that is the own Supreme Court of the government, then there is high chances of arbitrariness.
The statement of Jeremy Waldron contrasts with what is stated in the article, that is, constitutionalism protects democracy. On paper, definitely constitutionalism protects and even promotes democracy and the rule of law but its actual application depends from country to country.
While countries may or may not declare themselves to have adopted the concept of constitutionalism, it forms the core of a democracy. In every country, there is a need to limit the powers in the hands of the government or else the chances are high of a arbitrary scenario.
Although many legal thinkers oppose constitutionalism, if applied according to the needs and requirements of the country, it can lead to a smooth functioning in its governance. The legislature, executive and judicial can function interdependently which brings about an increase in efficiency.
It could well be said after understanding the pros and cons of constitutionalism, that the road ahead for overall development of democratic countries is to adhere to constitutionalism. Although there is still lack of its proper implementation, with efforts and planning, it could pave the way for a successful democracy.