CONSTITUTION AND CONSTITUTIONALISM

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By Ananya S

             “Constitution is not a mere lawyers document, it is a vehicle of life and its spirit is always the spirit of age”

–              Dr. B. R  AMBEDKAR

  INTRODUCTION

           Justice M. N Venkatachaliah while deciding a case called R C. Poudyal v. Union of India, 1994 quoted that “Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and tradition of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals”.

Constitution means a document which is having a special legal sanctity and also set forward certain frame-work and chief functions of the organs of the Government of a State and also articulate some essentials for the working of those organs. 

The idea of Constitution and Constitutionalism springs from ancient Greek and it was firstly used by Greek philosopher Aristotle in his works. 

Most of the constitution lays down primary concept of state and pattern and operations of government and also basic fundamental rights of citizen. Different countries have different constitutions, for example some countries have unwritten constitution instead of written constitution and likewise some countries have rigid constitution rather than flexible constitution

Constitution mainly elucidate and mention territory of a state and nationality or citizenship of people. It also provides the basic fundamental rights of citizen ie, civil and political rights such as freedom of speech and expression, right to equality and right to life and personal liberty and also explains the social, economic and cultural rights of citizen. It also elucidate three forms of government ie, legislative, executive and judiciary and its main powers and functions. It also proclaim the religious identity of a state. Constitution also explains the directive principles and it is the duty of government to enforce that principles.

 Structure of Constitution

          Usually Constitutions are divided into parts, titles articles, sections and other clauses. Majority of Constitutions start with preamble and preamble is the essence of every constitutions. It is acting as a introduction to statute and it gives full ideal of constitution. The next is the preliminaries and it gives an idea of name and territory of state and also citizenship etc. It also contain fundamental rights, policy directive and also give an overview on three forms of government. The constitution usually end with amendment procedures.  

Characteristics of Constitutional Government

Main peculiarity of constitutional government are following:

●             There will be procedural stability

●             The government will be more accountable and there is also representation

●             There will be division of power in several organs of government. There will be a check and balance system.

●             Government will be more open to people and disclosure will be there.

CONSTITUTION OF INDIA

   The Constitution of India is the Supreme law of land. Our Constitution came into force on January 26,1950. The preamble of constitution starts with ‘We the people of india’ and end with ‘Adopt, Enact and Give to Ourselves this Constitution’.

Indian Constitution is neither purely federal nor purely unitary but it is a combination of both federal and unitary character.

Chief features of Indian Constitution 

●             Lengthiest and bulkiest Constitution in the world

     Indian Constitution is the lengthiest and detailed written Constitution in the world. It consists of 395 Articles in twenty two parts. It is the best component of Constitution.

●             Preamble

 Preamble is introductory part of Constitution and it is the key to open the minds of drafters of Constitution.

●             Securalism

   India is a secular state and it does not have its own religion and considers all religions equally. Securalism is not originally incorporated in Constitution but by 42nd Amendment it was incorporated.

●             Federal Constitution

  In Federal  Constitution there will be division of powers between the federal and state government and both are independent. Indian Constitution is both federal and unitary constitution. The main federal principles  are distribution of power, supremacy of constitution, written constitution, rigidity and authority of courts.

●             Parliamentary form of government

Indian Constitution created parliamentary form of government in both at centre and state. Here the Constitutional head is the President and real executive power is endowed in Council of ministers and they are headed by the Prime Minister. Members of Lok Sabha are elected by people for five years.

●             Fundamental Rights

 Part lll of Constitution deals with fundamental rights and it is the essence of Constitution. It is acting like a prohibition against state and whenever these fundamental rights are violated people can approach Supreme Court under Section 32 and High Court under Article 226 for their enforcement.

●             Directive Principles of State Policy

Part IV of India Constitution explains about directive principles of state policy and it set forward some aims and objectives and it is the duty of government to enforce such principles but these principles cannot be enforceable and no action can be take against the state for its implementation.

●             Fundamental duties        

  The 42nd Amendment Act of Constitution has incorporated a code of ten fundamental duties for citizen and if the fundamental duties are violated it will lead to constitutional offence.

●             Affirmative Action

 It is the main specialty of Constitution. Constitution introduced certain affirmative action for example, reservation and to attain equality reservations are essential.

●             Separation of powers

 Powers among three organs of governments, ie legislature, executive and judiciary are separated and also these organs  don’t interfere with each other but it act as a check and balance system.

●             Independent judiciary

 Here the third organ of government, ie judiciary is impartial and independent and it also has a power of judicial review and which is a main essential of judiciary and also other organs will not interfere in the activities of judiciary.

●             Rule of law

It is one of the main feature of Indian Constitution. This concept was first brought by jurist A. V Dicey. Rule of law means law is supreme over all.

DOCTRINE OF BASIC STRUCTURE

      There are some basic structures of Constitution and constitution cannot be amended in such a way which will destroy the basic structure of constitution. In Keshvananda Bharati v. State of kerala and this case is known as fundamental Right ‘s case, in this case seven judges evaluated the question of basic structure and enumerated certain essentials of basic structure and held that the basic structure of constitution should not be amended. 

CONSTITUTIONALISM

 Clinton Rossiter quoted that “There is no happiness without liberty, no liberty without self-government, no self – government without constitutionalism, no constitutionalism without morality – – and none of these great goods without stability and order”.

The main essence of constitutionalism is that limited power of government and here the fundamental rights of individual has given more power and basics freedom of individual is paramount. Constitutionalism is against the concept of arbitrariness. Constitution can be used in descriptive and prescriptive way. Constitutionalism is against the system of monarchy, where there will be unlimited power on one person.

Main features of Constitutionalism are the entrenchment and it will give more stability to limited government. The second one is the writtenness of constitution and there is argument between different scholars on this matter.

The main element of constitutionalism is that there will be government accordance with a constitution and also there will be separation of powers, sovereignty of people and there will be independent judiciary and there will be limited government and there will be more importance to individual freedom.

Democracy is the main element of constitutionalism and authoritarian governments is against the concept of constitutionalism. In constitutionalism there will be more supremacy of people and a good democracy always gives importance to people’s sovereignty. If there is genuine democracy then there will be constitutionalism.

An effective rule of law ensure effective constitutionalism and also constitutionalism requires supremacy of law and their enforcement.

Different countries has different constitutionalism. In America it has complex level of Constitutionalism and they have a written constitution which provides freedom to individuals. In United Kingdom it has constitutionalism without a written constitution.

Constitutionalism in India 

  India is a democratic country and has a written constitution and here constitution provides rule of law and supremacy of law and also provide fundamental freedom to individuals and there is power on government but it is not unlimited. In some situations the freedom of individual can be restricted by reasonable restrictions by state but it should not violate the entire freedom of individual.

There are some case laws in which Supreme Court legally recognized the idea of constitutionalism and they are following :

The first one is the I. R. Coelho case in this case Supreme Court observed that the concept of constitutionalism has become a legal concept and also pointed out that there is a need to stop the over power of government to ensure democracy. Also held that constitutionalism ensures the concept of check and balance system and also protects the fundamental rights of citizen and which is the essence of constitutionalism.

The second case is the Ramesh Prasad v. Union of India, in this case Chief Justice Chandrachud observed that the concept of constitution and constitutionalism removes the absolute power of government and also said that the concept constitutionalism gives limitations on power of government.

In Minerva Mills case, Court that no one can destroy the essence of Constitution and Constitutionalism.

In Indira Sawhney case Court observed that independency judicial is an important element and faith in judiciary and respect for constitutional interpretations leads to development of constitutionalism.

There were so many criticisms for constitutionalism. Some scholars explained that it is not possible to limit the power of government and they formulated a alternative for constitutionalism, ie democratic constitutionalism.

Thus constitutionalism is against the concept of arbitrary government and also against concept of unlimited power of government and it gives more importance to civil liberties of individual and it is essential for a democratic country.

 CONCLUSION

     The concept of Constitution and Constitutionalism is an essential thing for a country. Constitution is a document which explains the power of states and its functions and also explain the basic fundamental rights of individuals. All countries have different constitution and there is written and unwritten constitution, federal and unitary constitution and also rigid and flexible so different countries have different constitutional structure.

Constitution is the Supreme law of land and it cannot amended in a manner which will destroy the basic structure of constitution and it is the essence of Constitution. Any law which is contrary to constitutional provision can be declared as void by judiciary through judicial review. Constitutionality is an essential one.

Constitution provides the fundamental freedom which is essential for individuals and if these freedoms are violated it can be enforceable in Court of law and there is constitutional remedies provided by constitution and by this remedy the violated freedom can be enforceable.

Constitutionalism is a concept which is against the concept of arbitrariness and the unlimited power of government. Here government has certain powers but it is limited and over power is not there. Constitutionalism gives more power to individual freedom and civil liberties of individual and it gives more importance to rule of law and supremacy of law. It also favours democracy which gives power to people and a genuine democracy always ensures a good constitutionalism.

In my opinion the concept of constitutionalism and essential for a democratic country.

Constitution is the law of land and in India it is the Supreme law of land and all laws are created according to constitution and if any law is contrary to constitution then it can be declared void by Court and judicial review is a basic structure of Constitution.

Constitutionalism gives utmost power to individual liberty and freedom and it gives more importance to law and government has limited power and Supreme Court of India has enumerated the importance of constitutionalism in several cases and also held that survival of constitutionalism is an important thing. An effective democracy can ensure effective constitutionalism.

Thus both Constitution and Constitutionalism is essential for effective democracy.

REFERENCE

●             Dr. J. N. Pandey – Constitutional Law of India, Published by Central Law Agency

●             www.legalservicesindia.com last visited on 14/11/2020,2.00pm

●             www.britanica.com last visited on 13/11/2020,9.00pm

●             Constitutional Law Bare Act

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