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CONSTITUTIONALISM VIS-À-VIS CONSTITUTION: EVOLUTION AND UTILITY IN MODERN DEMOCRATIC INDIA
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CONSTITUTIONALISM
VIS-À-VIS CONSTITUTION: EVOLUTION AND UTILITY IN MODERN DEMOCRATIC INDIA
ABSTRACT
Constitutionalism has emerged as the
major theme around which the contemporary debates pertaining to law, democracy,
human rights, international relations, justice, freedom, etc. take place.
However, amid these debates, the core meaning of the term constitutionalism has
been lost to some extent. There is a blurring of meaning and confusion over
what exactly the term refers to. The lack of conceptual clarity with respect to
such a fundamental concept is concerning enough to merit serious scholarly
attention. The need for conceptual clarity cannot be highlighted enough.
Starting from providing a discussion of the various definitions of
constitutionalism, this paper explores and outlines its historical antecedents,
its past developments, its contemporary forms and the avenues for its future
growth.
The paper provides detailed
discussion on the definitions of and relationships between law, constitution,
and constitutionalism. This is followed by tracing the historical evolution of
the concept through its development from the ancient Greek scholars to modern
Europe to contemporary democratic world order. Also, paper deals with the
emergence of constitutionalism in the Indian subcontinent with significant
focus on political and legal developments in modern democratic India. The paper
also aims to shed light on the working of constitution in popular democracies
such as that of India, where a government with absolute majority poses a threat
to the constitutional values, principles and ethics and how the concept of constitutionalism
becomes the last beacon of hope in such testing times.
Keywords: Constitutionalism,
Constitution, Democracy, Law, India.
Introduction
In order to ensure the efficient
operation of a state, it is essential to implement measures that restrict the
authority of the government, safeguarding certain fundamental human rights for
the people. These restrictions are commonly termed as 'constitutionalism.' This
essay delves into the character of constitutionalism within the context of
India, particularly focusing on its evolution through judicial interpretation.
This process involves judicial decisions that impart significance and substance
to the written constitution. Through this approach, the judiciary has
effectively harmonized government power with the rights of the people.
Constitutionalism emerges as a vital element for effective governance, striking
a balance between power and rights.
A recurring question for a nation,
regardless of whether it has a written or unwritten constitution, revolves around
the form of government that emerges within the boundaries of that framework.
Often termed 'constitutionalism,' the essence of a nation's government is
undoubtedly shaped by its constitution. However, the mere presence of a
constitution does not guarantee the adherence to constitutionalism. It is
entirely conceivable for a nation to possess a constitution without embodying
constitutionalism in the sense of a government with defined limitations. For
example, a dictatorship may operate within the confines of a constitution but
rely more on the decrees of the dictator than on the constitutional structure
for its legal framework. While there may be alternative ways to establish the
relationship between the state and its citizens, constitutionalism, essentially
characterized by limited government or the imposition of legal constraints on
government, stands in stark contrast to the arbitrary powers wielded by a
dictator[3].
Comprehending the essence of
constitutionalism begins by examining the nature of the state itself. A society
endeavors to centralize its principles within its political framework, often
viewing a government with accompanying powers as crucial for achieving this
goal. However, the presence of a government can just as easily jeopardize those
principles. Hence, a dilemma arises between the orderly application of the law
and situations in which the state, ostensibly to ensure the systematic
development of values within the legal structure, might engage in an
unwarranted use of force. Consequently, there is a recognition that
governmental power, crucial for realizing societal values, must be regulated to
prevent it from becoming destructive to the very values it aims to foster[4].
This paradoxical need for governmental power to actualize societal values,
coupled with its potential to undermine those values, has been a part of
political discourse since at least the time of Hobbes, if not implicitly for
much longer. The question then arises: How can a state limit such power to
ensure that its exercise serves the well-being of the people[5]?
This is the concern of the constitutionalism. In a broader context, natural law
philosophers such as Aquinas, Paine, Locke, Grotius, and Rousseau have explored
how to enhance the common welfare[6].
The significant milestones in the history of liberty, like the Magna Carta
(1215), can be viewed as efforts to reinforce constraints on governmental
power, eventually becoming a focal point in the development of
constitutionalism.
Constitutionalism, as embraced by
polities adopting it, shares a fundamental characteristic: the legal
restriction of government power. It stands as the direct contrast to arbitrary
rule, serving as the antidote to despotic governance rooted in the unchecked
will of an individual or a select group, rather than adherence to the rule of
law. The essence of constitutionalism lies in the governance's limitation by
legal principles. Whether in the case of the unwritten British constitution or
the written American one, all modern constitutions incorporate the essentials
of constitutionalism. In fact, the very existence of these constitutions is a
deliberate effort to confine governmental authority. However, even though the
fundamental aspects of constitutionalism can be pinpointed, it remains in a
continual state of evolution, characterized by dynamism and progress,
reinforcing the constraints on government power within the framework of a
constitution[7].
The Indian Constitution, which
matured during the era of modern written constitutions, establishes
constitutionalism as a prerequisite for limited government in India,
emphasizing governance based on law. In addition to outlining the explicit
provisions for the establishment and functioning of the government, the written
Indian Constitution also encompasses well-established principles of
constitutionalism that reinforce the concept of limited government. These
principles include federalism, secularism, reasonableness, an independent
judiciary endowed with powers of judicial review, the doctrine of the rule of
law, separation of powers, free and fair elections, decentralized, accountable,
and transparent democratic governance, fundamental rights, a welfare state, and
less-known but equally valid principles, notably socialism. These systematic
and structural principles underlie and interconnect various sections of the
written constitution, providing cohesion and rendering it an organic whole.
While not explicitly articulated in written provisions, these principles
nevertheless constitute an integral part of the government established by the
Indian constitution[8].
The Indian constitution serves as a
noteworthy illustration of the dynamic nature of constitutionalism principles.
While our narrative doesn't claim novelty, the Indian narrative in this essay
serves two essential purposes. Firstly, it furnishes an introductory overview
of the Indian approach, catering to those unfamiliar with its history.
Secondly, and more importantly, by methodologically drawing on the judicial
branch's work, this essay delves into the predominant themes of
constitutionalism within the Indian polity, providing a distinctive example for
many readers. The essay is structured into three parts. The first part delves
into the authority vested in the federal government, constrained by a
comprehension of rights and duties. The second part scrutinizes the shift in
constitutionalism from duties to fundamental rights. The final part offers
concise concluding reflections on the dynamic nature of constitutionalism as
evident in the Indian constitution.
Conference
of Power with Rights
After a protracted struggle for
independence, India formulated its constitution, placing a strong emphasis on a
systematic legal process. The framers articulated the goals of the government
in the Preamble, and the constitution itself laid down a structured legal
framework that the state must follow in the execution of governance.
Constitutionalism interprets the
constitutional text to guarantee that the government is 'legally constrained'
and that the authority of the government relies on enforcing these limitations
against itself. Consequently, the state is obligated to apply restrictions on
its own authority.
The Indian constitution achieves this
by safeguarding fundamental rights outlined in Part Three, reflecting the
conventional civil and political rights articulated in Articles 2 to 21 of the
Universal Declaration of Human Rights. Additionally, non-justiciable directive
principles of State policy, found in Part Four, contribute to this framework.
Both these elements draw strength from the Preamble and collectively articulate
the fundamental values, forming the essential principles of the Indian
constitution. This affirmation was underscored by the Supreme Court of India in
the case of Maneka Gandhi, where Justice Bhagwati articulated this perspective
as, “These fundamental rights represent the basic values cherished by the
people of this country since the Vedic times and they are calculated to protect
the dignity of the individual and create conditions in which every human being
can develop his personality to the fullest extent. They weave a “pattern of
guarantees on the basic-structure of human rights” and impose negative
obligations on the State not to encroach on individual liberty in its various
dimensions”[9].
Part Three encompasses the
fundamental rights safeguarded by the written constitution, with two pivotal
provisions forming the cornerstone of this protection. Article 13 stipulates
that any laws or executive orders inconsistent with the rights outlined in Part
Three are void. Complementing this, Article 32 bestows remedial power upon the
Supreme Court, which can be invoked to counter government attempts to violate
Article 13. This remedial power, with the potential to enforce fundamental
rights in Part Three, essentially constitutes an additional dimension of those
rights held by the people. Although not a representative body in itself, the
Supreme Court possesses the authority to act, enabling citizens whose rights
have been infringed to seek redress.
Part Four concludes the safeguarding
of fundamental rights through a collection of non-justiciable directive
principles or affirmative duties (Articles 36–51) imposed on the government.
These principles are derived from the concept of a welfare state and the ideal
of socio-economic justice, outlining the duties of the state in the formulation
and administration of laws[10].
The Supreme Court has affirmed that Part Four complements the fundamental
rights of Part Three, aiming to advance the objective of a welfare state and
align with the goals outlined in the Preamble[11].
Article 37[12] explicitly
declares the non-justiciability of these affirmative duties, emphasizing that
the judiciary cannot compel the state to fulfill these directives.
Nevertheless, these directive principles play a crucial role in governance; as
Dr. Ambedkar noted, they guide the state in determining the order, timing,
location, and manner of fulfilling these duties. These affirmative duties are
not mere moral guidelines but constitutional obligations, serving as a set of
instructions that must be honored by the state. They should not be merely paid
lip service by the legislature or executive; instead, they should form the
foundation of all executive and legislative actions. Article 38 serves as the
linchpin of the directive principles, emphasizing that the state should
endeavor to promote the welfare of the people by establishing a social order in
which justice—social, economic, and political—underlies all aspects of national
life.
Certainly, as mentioned earlier, the
directive principles are non-justiciable. Nevertheless, there are three ways in
which some enforceability can be achieved. First, if the state deviates from
the directive principles, the safeguard of free speech outlined in Article 19
provides a means for the people to oppose the objectionable government action.
Second, a form of constructive constitutionalism has evolved through amendment.
For instance, Articles 41[13],
45[14],
and 46[15]
of the constitution establish a positive obligation of the state towards
citizens for education. This obligation has been transformed into a negative
right in Part Three, taking on a new guise as a positive right under Article
21-A[16]
(the right to education). The Supreme Court, in the case of Unni Krishnan, J.P.
v. State of Andhra Pradesh, delineated the process through which the judicial
shift of education to Part Three occurred. The court asserted that education is
an inherent right implied in the fundamental right to life under Article 21,
when read in conjunction with the directive principle on education and the
directives in Article 45 that stipulate the state's endeavor to provide free
education. This shift has altered the state's positive duty to a negative right
enjoyed by the people—in the sense defined by Isaiah Berlin as 'liberty from;
absence of interference beyond the shifting, but always recognizable, frontier
[between positive and negative liberty]'. Finally, the genuine enforceability
of these positive duties imposed on the government is realized at the ballot box,
where the ultimate sanction is held by the voters, the people. A disliked
government can be rejected in the next election[17].
Constitutionalism
and Constitution – the Judicial Approach
In 1950, the case of A.K. Gopalan[18]
provided the Supreme Court an opportunity to assess the insufficiency of
procedural fairness concerning the phrase 'procedure established by law' in
Article 21[19] of the
constitution. The Court was tasked with comparing this expression to 'due
process of law,' as seen in American constitutional jurisprudence. The
challenge was to determine whether criteria such as reasonableness, fairness,
and justice were essential to fulfill the requirements of Article 21. Instead
of broadening the scope of Article 21, the court interpreted it narrowly,
considering it solely as a safeguard against executive actions lacking legal
support. This conclusion was reached through an analysis of Articles 14[20],
19[21],
20, and 21, asserting that each should be treated as distinct from the others.
Consequently, the framers' choice of 'procedure established by law' over 'due
process of law'—a doctrine of British origin—precluded the support for the
broader, substantive interpretation sought by the court.
These pivotal decisions set the stage
for a significant transformation, marked by the 1973 Keshavanada Bharati
ruling. In this landmark judgment authored by Justice Matthew, the Supreme
Court articulated that the fundamental rights outlined in Part Three are akin
to 'empty vessels,' awaiting each generation to imbue them with meaning based
on its experiences. This dynamic has unfolded in collaboration with Parliament,
acting as an amending body, actively modifying the constitution to give
substance to the positive duties (referred to as moral claims) enshrined in
Part Four. Effectively, these duties have been transformed into rights enjoyed
by the populace.
This symbiotic process, particularly
evident in the realm of education following a judicial shift, led to the
incorporation of Article 21-A into the constitution. In response, Parliament
enacted the Right to Education Act[22]
and the Right to Information Act. This dual approach underscores the trend
toward embedding authority within the framework of rights as an integral
component of the foundational structure of the written constitution.
Consequently, over its 73-year journey, the Indian constitution has witnessed
the filling of these metaphorical empty vessels through a combination of
judicial and legislative actions, especially concerning the treatment of Part
Four.
Rejecting the notion of a strict
dichotomy between the Third and Fourth Parts, the court has asserted that the
directives found in Part Four serve as a complement to fundamental rights. This
synergy aims at instigating a social revolution and the establishment of a
welfare state, aligning with the aspirations articulated in the Preamble[23].
The court regards these two parts as analogous to the wheels of a chariot,
working in tandem to foster social and economic democracy. By addressing moral
claims or positive duties, as interpreted by the court, the fundamental rights
outlined in Part Three create a space for their implementation, contributing to
the realization of constitutional objectives. This trajectory of constructive
constitutionalism thus becomes an integral aspect of the structural foundation
of the Indian constitution, aligning with the vision envisioned by its framers.
The court has effectively implemented
this approach to constructive constitutionalism, and a notable illustration
occurred in 1973 during the Keshavanada case. In this landmark decision, the court
introduced the 'basic structure theory.' This theory, building upon the
amending power of Article 368, imposes a restriction on the government's
amending authority, safeguarding the integrity of the written Indian
constitution from destruction. Employing the 'identity test theory,' through
which the court evaluates and accommodates the evolution of various
limitations, it ensured that Parliament cannot modify the fundamental structure
or core framework of the constitution. The court emphasized that using the
Constitution to undermine itself is not legally permissible and underscored the
imperative that the Constitution's personality must remain unaltered.
The approach adopted after Keshavanada
can be denoted as judicial constitutionalism. Leveraging its authority in
construction and judicial review, and assuming the role of the constitution's
guardian, the court has formulated several principles that currently constitute
the constitutionalism inherent in the Indian constitution. These principles
encompass the supremacy of the constitution, the rule of law, the principle of
separation of powers, the guiding principles underlying enumerated fundamental
rights, objectives outlined in the Preamble, judicial review, federalism,
secularism, individual freedom and dignity, the principle of equality, the
essence of unenumerated fundamental rights, the concept of social and economic
justice for the establishment of a welfare state, the equilibrium between
fundamental rights and directive principles, the independence of the judiciary,
and parliamentary democracy.
Acknowledging each facet of
constitutionalism, the written Indian constitution, embraced by 'We the People
of India,' has progressed toward a more nuanced equilibrium between power and
rights. This reflects the understanding that 'a constitution is not the act of
a government.' This ongoing evolution represents a protracted journey,
encapsulated in Professor Faizan Mustafa's observation about the Indian
Constitution: 'India requires constitutionalism, not just a constitution.'
Conclusion
The Preamble of the Indian
constitution aims "to secure to all its citizens: JUSTICE, social,
economic, and political; LIBERTY of thought, expression, belief, faith, and
worship; EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity
of the Nation." In pursuit of these goals, the Constitution explicitly and
implicitly incorporates various provisions supporting an independent judiciary,
judicial review, the rule of law, the separation of powers, free elections,
accountability, transparency, fundamental rights, federalism, and the
decentralization of power. Collectively, these principles contribute to the
promotion of constitutionalism.
The judiciary holds a central and
indeed indispensable role in this process. While the elected and representative
branches of government bear the primary responsibility for implementing
constitutionalism through self-restraint, the unelected judiciary plays a
crucial role in ensuring that these elected branches, in their purported
efforts to advance the values of their constituents, do not violate the
fundamental rights of those belonging to the otherwise unrepresented minority.
Judicial constitutionalism facilitates swift adaptations that respond to the
will and aspirations of both the majority and minority populations. Most
crucially, the judiciary ensures a government that is both limited and
effective, and, above all, upholds the equality of all citizens enshrined in
Article 14. Rather than being a negative development, constitutionalism in
general, and judicial constitutionalism in particular, allows the Preamble to
acquire concrete meaning in the lives of the Indian people.
[1] Assistant Professor, Faculty of
Law, SRM University, Delhi -NCR and Research Scholar, Vellore Institute of
Technology School of Law (VITSOL), Chennai, Tamil Nadu.
[2] Assistant Professor, Faculty of
Law, SRM University, Delhi -NCR
[3] C.H. Mcilwain, Constitutionalism:
Ancient and Modern 21 (McIlwain [1940] 2008); S.A. De Smith, Constitutional and
Administrative Law 34 (De Smith 1977).
[4] M.J.C. Vile, Constitutionalism and
The Separation Powers 2 (2nd ed., Vile 1967).
[5] See State of Karnataka v. Dr.
Praveen Bhai Thogadia, A.I.R. 2004 S.C. 2081.
[6] M.P. Jain, Indian Constitutional
Law 6 (5th ed., Jain 2007).
[7] See generally, Bruce Ackerman,
Revolutionary Constitutions: Charismatic Leadership and The Rule Of Law (Ackerman
2019).
[8] D.D. Basu, Shorter Constitution of
India 17 (14th ed., 2011); see also M. Nagraj v. Union of India, A.I.R. 2007
S.C. 71.
[9] Maneka Gandhi v. Union of India,
A.I.R. 1978 S.C. 597.
[10] Keshavananda Bharti v. State of
Kerala A.I.R. 1973 S.C. 146; BASU, supra note 10, at 629. See also Union of
India v. Hindustan Development Cooperation, A.I.R. 1994 S.C. 988.
[11] State of Kerala v. Thomas, A.I.R.
1976 S.C. 496; Mehta v. Union of India, (1992) Supp. (2) S.C.C. 85.
[12] Constitution of India, Article 37,
provides: “The provisions contained in this Part shall not be enforceable by
any Court, but the principles therein laid down are nevertheless fundamental in
governance of the Country and it shall be the duty of the State to apply these
principles in making the laws”.
[13] Constitution of India, Article 41,
provides: “The State shall, within the limits of its economic capacity and
development, make effective provision for securing the . . . . right to
education . . . . . . ”.
[14] Constitution of India, Article 45,
provides: “The State shall endeavor to provide early childhood care and
education for children until they complete the age of six”.
[15] Constitution of India, Article 46,
provides: “The State shall promote with special care the educational and
economic interests of the weaker sections of the people . . . ”.
[16] Constitution of India, Article
21-A, provides: “The State shall provide free and compulsory education to all
children of the age of six to fourteen years in such manner as the State may,
by law, determine”
[17] On the important role played by
judicial interpretation in the development of constitutionalism, see Robert M.
Cover, Nomos and Narrative, 97 HARV. L. REV. 4 (Cover 1983); John V. Orth, John
Gava, Arvind P. Bhanu, and Paul T. Babie, No Amendment? No Problem: Judges,
“Informal Amendment,” and the Evolution of Constitutional Meaning in the
Federal Democracies of Australia, Canada, India, and the United States, 48
PEPP. L. REV. 341 (Orth et al. 2021).
[18] A.K. Gopalan v. State of Madras,
A.I.R. 1950 S.C. 27
[19] Constitution of India, Article 21,
provides: “No person shall be deprived of his life or personal liberty except
according to procedure established by law”
[20] Constitution of India, Article 14,
provides: “The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.”
[21] Constitution of India, Article 19,
provides: “(1) All citizens shall have the right—(a) to freedom of speech and
expression; (b) to assemble peaceably and without arms; (c) to form
associations or unions 2 [or co-operative societies]; (d) to move freely
throughout the territory of India; (e) to reside and settle in any part of the
territory of India; 3 [and] (g) to practise any profession, or to carry on any
occupation, trade or business.”
[22] Right of Children to Free and
Compulsory Education Act, 2009.
[23] Constitution of India, Preamble,
establishes justice, liberty, equality, and fraternity, including social,
economic and political justice, as the goals of the Constitution. See P.A.
Inamdar v. State of Maharashtra, A.I.R. 2005 S.C. 3226
Article Information
CONSTITUTIONALISM VIS-À-VIS CONSTITUTION: EVOLUTION AND UTILITY IN MODERN DEMOCRATIC INDIA
Authors: MOHAMMAD SALEEM, RAKA MEDHAVI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/22
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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