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The Constitutionalism Paradigm: Examining Its Effect on the Indian Constitution

The Indian constitution is not just a document that consists of knows and how's to governance. it is a monumental organic document of governance and democracy through which the country derives its sovereignty and stands as a testament to the enduring constitutionalism in shaping the world's largest democracy.

The constitution frames gave this meticulously drafted document to the citizens of India which embodies a profound commitment to the principles of constitutionalism, which not only serves as the bedrock of the legal framework but also serves as the cornerstone of democratic India. The impact of Constitutionalism on the Indian Constitution cannot be overstated as its values flow down and percolate the state's machinery, leading to the improvement of each and every citizen's well-being within the states.[i]

What is Constitutionalism?

"The mere existence of a constitution does not ensure constitutionalism."[ii] Constitutionalism is a vital political and legal philosophy that forms the bedrock of contemporary democratic states. It comprises core principles and ideals governing government structures, state authority, and individual rights.

Constitutionalism recognises the power vested to the government and at the same time stresses the importance of limitation on those powers. In essence, it restricts the arbitrary powers of the government. If left unchecked, the legislative or the executive may exercise their powers uncontrollably and act in an arbitrary manner which will lead to a despotic, oppressive and authoritarian government which will jeopardize the rights and freedom of the citizens.

Constitutionalism checks the legitimacy of a government's action, i.e., whether the various organs of the government are performing their public duty within their authority i.e., conforming to the limitation placed. Thus, constitutionalism is said to be the antithesis of arbitrariness.[iii]

Impact of Constitutionalism on Indian Constitution
To understand the significant impact of constitutionalism, we first need to understand its essence and how it is incorporated into our constitution.

Rule of Law

"Between a tyrant and a prince there is this single or chief difference, that the latter obeys the law and rules the people by its dictates, accounting himself as but their servant"[iv]

The rule of law is a critical requirement for constitutionalism. The rule of law, according to Prof. A.V. Dicey, is the lack of broad powers in the hands of government authorities. Essentially it means that the government has to comply by the laws that have been publicly announced in advance i.e., the government must work within the ambit of the approved legislature, not by arbitrary decisions and discretion of individuals holding government offices.

A few examples of the implementation of the rule of law into our constitution are, Article 14- Right to Equality, Article 21- Fairness, Justice and Reasonableness, Article 265- No tax should be imposed or collected except by the authority of the law.

Separation of Power

This concept, introduced by Montesquieu, refers to the allocation of governmental duties among various branches of the government to ensure a system of checks and balances.[v] The intention behind the principle is that no single entity has a concentration of power which can cause abuse of power and may lead to tyranny or dictatorship.

The Indian constitution embodies separation of power by dividing the government into three organs- legislative, executive and judiciary. To prevent any one branch from becoming overly dominant, these organs balance one another. For example, the President had the power to veto laws passed by the Parliament, But, with a vote of two-thirds of the chamber, the parliament can overturn the veto. The judiciary can also strike down laws that it finds to be unconstitutional. This means that the judiciary can check the power of the legislative and executive branches.

In the Kesavananda Bharti[vi] case, the Supreme Court has ruled that the Parliament's authority to make amendments to the Constitution is limited by the fundamental principles and core values enshrined in the Constitution itself. Therefore, any amendment that contradicts or undermines these fundamental principles will be deemed unconstitutional. In Indira Gandhi v. Raj Narain[vii], the court held that even with the ability to modify the constitution, parliament cannot perform the judicial duty of adjudicating a specific issue.

Hence, constitutionalism encompasses limitations on both legislative and executive authority via the process of judicial review. Further, this constrained model constitutionally entrenches the separation of powers and the rule of law.[viii]

Independent Judiciary

An independent judiciary plays a pivotal role in a liberal democracy by safeguarding individual rights, upholding the rule of law, and ensuring adherence to constitutional principles. Utilizing the mechanism of Judicial Review, an autonomous judiciary possesses the authority to invalidate laws that are in conflict with the Constitution. This underscores its significant role in upholding constitutional supremacy and rendering impartial judgments.

Few landmark judgments that highlighted the significance of constitutionalism:

  • I.R. Coelho v. State of Tamil Nadu [ix]:
    In order to prevent the destruction of democratic norms, including the safeguarding of fundamental rights, the court remarked that the notion of constitutionalism is now a legal principle that necessitates oversight over the use of governmental authority.
  • Swaran Singh v. State of U.P.[x]:
    The court emphasized that the exercise of public power, including constitutional authority, should never be arbitrary or done in bad faith. Typically, adhering to guidelines for fair and equal execution ensures the legitimate exercise of power. Even though this power is of utmost importance, it cannot operate independently but must be guided by the principles of constitutionalism.

Constitutionalism has provided a foundation for the courts to develop and apply the doctrine of Constitutional Morality[xi], and highlighted its significance in the case of State (NTC of Delhi) v. Union of India [xii] by stating:
"The constitutional functionaries owe a greater degree of responsibility towards this eloquent instrument for it is from this document that they derive their power and authority and, as a natural corollary, they must ensure that they cultivate and develop a spirit of constitutionalism where every action taken by them is governed by and is in strict conformity with the basic tenets of the Constitution"

It is impossible to overstate the importance of constitutionalism in defending our democracy and constitution from dangers of absolutism. It has served as both a barrier against oppression and a tool for reform that has formed our civilization. It now serves as the foundation of India and has permeated the fabric of governance, having an influence on residents' daily lives.

  1. Shakti Vahini v. Union of India, (2018) 7 SCC 192.
  2. R.C. Poudyal v. Union of India (1994).
  3. "Charles H. Mcilwain, Constitutionalism : Ancient and Modern, 21; S.A. De Smith, Constitutional and Administrative Law, 34 (1977); Giovanni Sartori, Constitutionalism : a preliminary discussion. (1962) 56 am. Pol.Sc.Rev. 853. Recited in Indian Constitutional Law by M.P. Jain, fifth edition, 2006 at p. 5."
  4. John of Salisbury
  5. Prof. GS Pande, Constitutional Law (6th Edition, Lexis Nexis 2010) 6.
  6. Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461.
  7. AIR 1975 SC 2299
  8. I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1
  9. AIR 2007 SC 611.
  10. 1988 SCC ONLINE ALL 633.
  11. Naz Foundation v. State (NCT of Delhi), 2009 SCC Online Del 1762.
  12. State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501

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