lawyers in India

Constitutionalism - changing paradigm

Written by: Adv.Sandeep Agrawal - Completed my BA LLB (Hons.) from Hidayatullah National Law University. Practising as an Advocate in Chattisgarh High Court.
Constitutional Lawyers in India
Legal Service India.com
  • What is a constitution?

    A constitution is [a] charter of government deriving its whole authority from the governed (Black's Law Dictionary). The constitution sets out the form of the government. It specifies the purpose of the government, the power of each department of the government, the state-society relationship, the relationship between various governmental institutions, and the limits of the government.

    Just technical proposition may not help in the present scenario of complexities. Where digging the literal jurisdiction of words may seem futile in long run. For me, some sort of ethical thuds are vehemently needed which can reinvigorate the feelings behind such dogmatic and non-dynamic technical expressions. Below mentioned view aims to achieve one of the needful vision of such strata -

    Dr. Rajendra Prasad in his concluding speech as President of the Constituent assembly observed as follows:
    Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it. It is a trite saying that a country can have only the Government it deserves. If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. India needs today nothing more than a set of honest men who will have the interest of the country before. There is fissiparous tendency arising out of various elements in our life. We have communal differences, caste differences, language differences, provincial differences and so fourth. It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences. We can only hope that the country will throw up such men in abundance.

    So, above monstrous statement proves that constitution without synchronized administrative mechanism makes our governance effete.

    In Jones v. Securities & Exch. Com {298 U.S. 1, 24 (1936}) it was said that arbitrary power and the rule of the Constitution cannot both exist. They are antagonistic and incompatible forces; and one or the other must of necessity perish whenever they are brought in conflict.

    Here comes the regulatory verbatim which checks and balances the arbitrary power of the instrumentalities of the government.

    Constitutionalism -
    '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. It envisages checks and balances by restraining the powers of governmental organs by not making them uncontrolled and arbitrary.

    Constitutionalism comes from political philosophy and takes the position that a government, in order to be legitimate, must have legal limits on its powers. Thus, the government's authority ends up depending upon actually staying within those limits. A government which goes beyond its limits loses its authority and legitimacy.

    If the constitution confers unrestrained power on either the legislature or the executive, it might lead to an authoritarian, oppressive government. 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.

    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. (AIR 1999 SC 3197) view taken by the Supreme Court - The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law.
    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 principle of constitutionalism underpins the principle of legality which requires the Courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes.

    Court described Common Law constitutionalism in precise manner which may reveal our vehement exigencies. 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. (2006) 2 SCC 1 -
    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.

    Moreover, when our theories have been glorified with such emblazonment why in execution part it is sterile. We are just enriching our theories with intellectual twists which can be exemplified as -
    Constitutionalism is about limits and aspirations. According to Justice Brennan, interpretation of the Constitution as a written text is concerned with aspirations and fundamental principles. In his Article titled 'Challenge to the Living Constitution' by Herman Belz, the author says that the Constitution embodies aspiration to social justice, brotherhood and human dignity. It is a text which contains fundamental principles. Fidelity to the text qua fundamental principles did not limit judicial decision making. The tradition of the written constitutionalism makes it possible to apply concepts and doctrines not recoverable under the doctrine of unwritten living constitution.

    Myth and Realities -
    As observed by Chandrachud, CJ, in Minerva Mills Ltd. - The Constitution is a precious heritage and, therefore, you cannot destroy its identity'
    If identity is so important than can we ignore news like - Fiza, the second wife of former Haryana deputy chief minister Chander Mohan filing a police complaint accusing him of 'rape, hurting religious sentiments, cheating, defamation and criminal intimidation'.

    Whether population over hundred and forty billion of the country knows and believes in the stagnant provisions of the constitution; when media limelight the deteriorating image of chief person like Chander Mohan.

    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. 1992 Supp (3 )SCC 212.

    Its tragedy to emanate the ratio of conviction in blurred cases of such high officials; still we are not short of intellectual responses by skilled craftsman sitting in closed walls and stretching the ambit of conventional principles. They keep on playing with them till the extent that even if one layman spend whole of his life than also he will not be sure about integrity of that thought process. Such reach is manipulated by distinct interest of various known erudite personalities.

    In reality, no constitutionalism exists in practice.

    Another incident where seven-member Parliamentary committee probing the cash-for-votes scam has given a clean chit to Samajwadi Party leaders Amar Singh, Reoti Raman Singh and Ahmad Patel. Who is there to check them? Kindly tell me. Professional political romanticism is going on where layman should perpetuate with their endless frustration. Such complex administration of the country is perfect for India because 'we the people' cannot find any alternative.

    All passive souls are busy in securing their rapacious greed. Principle like 'inter-generational equity' is raped by such blind efforts of third largest population of the country. If this is the harsh reality than what's the problem in including 'CORRUPTION' as the inherent principle of Administrative Law. At least, we can elaborately regularize its hue.

    According to Scwartz, in the U.S.A, the word Constitution means a written organic instrument, under which governmental powers are both conferred and circumscribed.

    No power is circumscribed in our context just one should have power to buy Justice in our country. 'We the people' inherited the most complex societal surrounding circumstances from our ancestors. Therefore, getting birth in this land had become a curse. Also, over burdened with most ineffective and confusing philosophies one can ever have.

    The author can be reached at: vakil_sandeep@legalserviceindia.com / Ph: +91 9302997000

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