Constitutionalism-A Perspective

Varun ChhaChhar*& Arun Singh Negi**

I. Introduction

In some minimal sense of the term, a "constitution" consists of a set of rules or norms

creating, structuring and defining the limits of the government, power and authority.

Our constitution, a unique document, is not a mere pedantic legal text; it embodies

human values, cherished principles, and spiritual norms. It uphold the dignity of man

Bachan Singh v. State of Punjab. Constitutionalism is the idea, often associated with

the political theories of John Locke and the "founders" of the American republic, that

government can and should be legally limited in its powers, and that its authority

depends on its observing these limitations. Constitutionalism is the limitation of

government by law, as prescribed by a constitution. Constitutionalism implies also a

balance between the power of the government on the one hand and the right of

individuals on the other.

Constitutionalism is a system of government based on the supremacy of the

constitution, democratic government, separation of powers, checks and balances,

judicial independence and protection of individual rights; the rule of law describes a

condition of government in which the supremacy of democratically made laws, equality

before law, procedural justice and effective constraints on government arbitrariness all

existing and defining the limits of, government power or authority. Thus Charles H.

Mcllawain has written that the essential quality of constitutionalism is that "it is a legal

limitation on government; it is the antithesis of arbitrary rule". Another eminent scholar

of constitutional law, Howard Jay Graham, has observed that "constitutionalism... is the

art and the process of assimilating and converting statute and precedent, ideals and

aspirations, into the forms and the Rule of Law-into a Fundamental and Supreme Law".

We can now return to the task of defining constitutionalism. Like liberty or democracy,

"constitutionalism" is also a fuzzy word, and different people have different ideas about

what constitutionalism means. Giovanni Sartori defines liberal constitutionalism as

constituting the following elements: (1) there is a higher law, either ritten or
unwritten, called constitution; (2) there is judicial review; (3) there is an independent

judiciary comprised of independent judges dedicated to legal reasoning; (4) possibly,

there is due process of law; and, most basically, (5) there is a binding procedure

establishing the method of law-making which remains an effective brake on the bare-

*Ph.D Scholar & Advocate Delhi High Court.

**Indian Patent Agent & Advocate Delhi High Court.

A.l.R.1982.S.C.1325

will conception of law 'Sartori's definition emphasizes the "rule of law" side of liberal

constitutionalism.

I1. The Concept

According to the theorist a further important feature of constitutionalism is that the rule

imposing limit upon the governments power must be in some way be entrenched either

by law or by the way of constitutional creation. In other words those whose powers are

constitutionally limited, i.e. the organ of govt. must not be legally entitled to change or

expunge those limit at their pleasure. The central element of the concept of

constitutionalism is that in political society government officials are not free to do

anything they please in any manner they choose; they are bound to observe both the

limitations on power and the procedures which are set out in the supreme,

constitutional law of the community. It may therefore be said that the touchstone of

constitutionalism is rule of law.

Now if we need to discuss the concept of constitutionalism it is very important to

discuss John Austin theory of law, it say law is a command of sovereign". He further

define sovereign as political superior. He categorised the law given by superior to

inferior. He called it "positive morality". He called it positive because it was given by

man to man and it was definite and certain. He called it 'morality because it was backed
by legal sanction. Austin's view of sanction in this concept is correlative with command.

The relation of command, sanction and duty can be better explained through an

example:

"Do not drive fast otherwise you will be challenged".

"Do not drive fast" is a command of as it is an authoritative expression of desire.

"Otherwise you will be challenged" is a duty as it signified the obnoxiousness/liability

to the evil.

"Challan"is a sanction as it is the evil itself.

Now as we discussed John Austin his central idea revolves around 'sovereign'. This word

has a significance in terms of an idea of constitutionalism because sovereign is a theme

of constitutionalism. Although the conception of austinian theory do not fix into the

democratic form of government but still the idea behind sovereign has much to do with

the concept of constitutionalism. If you wanted to discuss constitutionalism it is

important to know the concept of sovereignty. This term sovereignty can be defined as,

supreme authority, especially over a state, self government and a political

independence of a state. As per the constitution of India We, The People Of India, are

SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC. This interpretation gave a

wide idea of the sovereignty as we the people signifies the importance of authority of

2 of 13

Sartori, 1987, p. 309.

Entry in the online Stanford Encyclopedia of Philosophy.

John Austin :Province of Jurisprudence Determined p.9.

people and it now directly says sovereign are the people of the country. It is the people

who have adopted, enacted and given to themselves the constitution. The source of

Indian constitution is the people of the India. Parliamentary supremacy is the idea

behind this sovereignty and supreme law is people's constitution. There are some
features that are unique to this Constitution; no previous constitution possessed them,

while there are others which, though not peculiar, are still important characteristics:

Framed by the people of India, Derived from various sources like we had borrowed

fundament rights and supreme court from U.S.A.DPSP from Ireland, Emergency

provision from Germany, Fundamental duties from Russia, Distribution of legislative

power from Canada and G.0.I Act 1935 besides they borrowed G.0.I Act

1935,sovereignty of people, Republican government, secular polity, fundamental rights

and duties, directive principle of the state policy, judicial review, Universal adult

franchise and unique blend of flexibility and rigidity.

Now it is important to discuss the concept of constitutionalism by summarizing the

concept of law given by Kelson. He says Law is a hierarchy of norms, ultimately every

legal norm in a given legal order deduces its validity from a basic norm, i.e.

"Grundnorm". what is a Grundnorm? It is a structure of hierarchy of norms which

derives their validity from basic norm which he termed as 'Groundnorm'. Now if we are

to analyze constitutionalism as per kelsons view then constitution may be called as

grundnorm as we derive all our laws from it. It is mother act as it also creates rights and

duties, wherever there are right and duties, limitations are there to maintain check and

balance. This outset of constitutionalism had source called constitution, which is parent

act from where we get each and every rights, duties and statutes for the governance

and rule of law.

For our purpose, constitutionalism (as a descriptive cor

arrangements in which there is a supreme law (generally called "constitution"), in which

all (particularly the entire system of government) is governed by the supreme law, in

which only the people's will (as defined through some pre-specified institutional

procedure, usually through a super-majority voting mechanism) can supersede and

change the supreme law, in which changes can only be made infrequently due to the

difficulty of garnering the requisite popular support, and in which there are separation

of power, checks and balances and an independent judiciary dedicated to legal

reasoning to safeguard the supremacy of the constitution. To elaborate this point we

need to discuss the statement made by the famous jurist Savigny, founder of the

historical school of law. He says Law grows with a nation, strengthen with it and dies at

ept) means a system of political

Kelson's main works include austrian constitution(1920);The Pure Theory of Law(1934); Revised Theory

of Pure Law(1960).

its dissolution. His theory is basically a product of general conciousness of people and

manifestation of their spirit. Generally it is known as Volksgeist(thought of the people)

In order to guard against violations against the letter and spirit of the constitution,

there needs to be a set of institutional arrangements. Louis Henkin defines

constitutionalism as constituting the following elements: (1) government according to

the constitution; (2) separation of power; (3) sovereignty of the people and democratic

government; (4) constitutional review; (5) independent judiciary; (6) limited government

subject to a bill of individual rights; (7) controlling the police. In context of Indian

constitutionalism basic principle and elements involved with the constitution of India

are Sovereignty, Democratic Republican character justice (social, economic and

political),Liberty of thought, belief and expression, Equality of status and opportunity

and Fraternity assuring the dignity of the individual and the unity and integrity of the

nation which have been elaborately discussed in the different parts of the constitution.

It has been further interpreted by the Hon'ble supreme court in Keshvanand bharati v.

state of kerala' in majority opinion C.J.Sikri declares that the Basic Structure of the

constitution of India is not amendable and therefore parliament has no power to amend

the basic structure of the constitution. Basic structure is been illustrated as(i)supremacy

of the constitution,(i)republican and democratic form of govt.,(ii)secular character of

the constitution, (iv)separation of power(v)federal character of the constitution. We can

use the American Constitution to illustrate the two components of constitutionalism.

The original 1787 American Constitution was mainly concerned with power construction

and power lodging The American Constitution was amended in 1791 to add the Bill of

Rights, which strengthened the rights protection function of the constitution. The initial

Bill of Rights contained ten clauses: from the First Amendment to the Tenth

Amendment. Additional Amendments were added throughout the last two centuries to

provide additional protection for individual rights and to improve the power structure of

the government. Using the American Constitution as an example, we now analyze each

component of the liberal constitution more carefully. Under power construction and

power lodging, the two key concepts are "separation of power" and "checks and

balances". In the United States, one of the key authorities and the ultimate authority

that the courts rely on in conducting judicial review is the American Constitution.

American courts have the power to invalidate legislative or administrative acts of other

departments for violations of the Constitution. American courts also enjoy the exclusive

right to interpret the Constitution. These are generally true both at the federal level and

at the state level. That is, similar to federal courts, state courts usually have the power

to interpret state constitutions and review acts of state legislatures and other branches

of the state governments. Because of the power of independent judicial review,

American courts, consisting of independent judges dedicated to legal reasoning, become

4of 13

Quoted from Savigny's essay Vom Beruf.

A.I.R 1973.SC1461.
a bulwark against legislative and administrative encroachments on the letter and spirit

of the American Constitution. As such, the supremacy of the Constitution is protected".

I1. Ancient Approach

In the Oxford Dictionary the history of our peculiar institutions and ideas, several

meanings of the word "constitution" are listed as, a body of fundamental principles or

established precedents according to which a state or other organization is

acknowledged to be governed. In 621 BC, a scribe named Draco wrote the laws of the

city-state of Athens; and being quite cruel, this code prescribed the death penalty for

any offence. In 594 BC, Solon, the ruler of Athens, created the new Solonian

Constitution. It eased the burden of the workers, however it made the ruling class to be

determined by wealth (plutocracy), rather than by birth (aristocracy). Cleisthenes again

reformed the Athenian constitution and set it on a democratic footing in 508 BC. The

most basic definition he used to describe a constitution in general terms was "the

arrangement of the offices in a state". In his works Constitution of Athens, Politics, and

Nicomachean Ethics he explores different constitutions of his day, including those of

Athens, Sparta, and Carthage. He classified both what he regarded as good and bad

constitutions, and came to the conclusion that the best constitution was a mixed

system, including monarchic, aristocratic, and democratic elements. He also

distinguished between citizens, who had the exclusive opportunity to participate in the

state, and non-citizens and slaves who did not. The Romans first codified their

constitution in 449 BC as the Twelve Tables. They operated under a series of laws that

were added from time to time, but Roman law was never reorganised into a single code

until the Codex Theodosianus (AD 438); later, in the Eastern Empire the Codex repetitaæ

prælectionis (A.D. 534) was highly influential throughout Europe. This was followed in

the east by the Fcloga of Leo ll the Isaurian (740) and the Basilica of Basil I (878).The

Edicts of Ashoka established constitutional principles for that 3" century BCE Maurya

king's rule in Ancient India. Aristotle (ca 350 BC) was one of the first in recorded history

to make a formal distinction between ordinary law and constitutional law, establishing

ideas of constitution and constitutionalism, and attempting to classify different forms of

constitutional government.

Constitutionalism is the limitation of government by law, as prescribed by a

constitution. Constitutionalism implies also a balance between the power of the

government on the one hand and the rights of individuals on the other. In the Roman

Empire the word in its Latin form became the technical term for acts of legislation by

the emperor, and from Roman law the Church borrowed it and applied it to religious

regulations for the whole Church or for some particular religious province. It is quite

clear from this statements that Greek attitude towards the fundamental relations of

government to law is to be found in the Politicus or Statesman of Plato, a dialogue

of 13

What is Constitutionalism?, by Bo LI-Article in Perspectives, Vol. 1, No. 6.

Visited website on 13.08.2007, www.oycf.org/Perspectives/6 063000/what_is_constitutionalism.html.

whose central theme is the problem of "constitutionalism"- of all Plato's dialogues the

one most directly concerned with the subject we have now in hand. The central

ideology discussed in the Politicus is the proper relation of government to law. Plato has

been claimed as a fellow by some of the modern proponents of the totalitarian state,

but how anyone could honestly make such a claim after he had carefully pondered the

Politicus is wholly beyond comprehension. If one should disregard Plato's plain

statements of his purpose in the Republic, it is perhaps conceivable that one might

distort that dialogue into a defense of actual arbitrary governments; yet the whole

discussion in the Politicus plainly shows that this is not Plato's true position but the very

antithesis of it. A godlike ruler should rule like a god, and if a godlike man should appear

among men, godlike rule would and should be gladly conceded to him. This was
Aristotle's view, and he may well have got it from the teachings of Plato. It is of little

consequence that there should be one ruler, or a few or many rulers, in such a state,

provided the government be limited by law; and, in the cases where it is so limited,

Plato finds an approximation of the "art" of the perfect despot close enough to warrant

him in speaking of monarchy, aristocracy, and a constitutional democracy as forms of

government, sadly defective indeed, but true; in comparison with the three

corresponding perverted forms, in all of which men totally devoid of any "strength of

art" superior to the law- the only justification of despotism- have nevertheless made

their own art the state's sole law. Most possibly from the Roman law books themselves,

the term came back into use in the later middle ages as applicable to secular

enactments of the time. In England the famous Constitutions of Clarendon of 1164 were

referred to by Henry ll and others as "constitutions," avitae constitutiones or leges, a

recordatio vel recognitio of the relations purporting to have existed between church and

state in the time of Henry's grandfather, Henry 1. But in substance these were clerical

provisions even though they were promulgated by secular authority, and this may

account for the application to them of the word "constitutions." The word, however, is

often found in a purely secular use at this time; though scarcely in any technical sense,

for we find other words such as lex or edictum used interchangeably with constitutio for

a secular administrative enactment.As just noted, the Constitutions of Clarendon are

referred to in the document itself as a "record" (recordatio) or a "finding" (recognitio).

The author of the Leges Henrici Primi, who wrote early in the twelfth century, soon after

the appearance of Henry l's well-known writ for the holding of the hundred and county

courts, also refers to that writ as a "record."Glanvill frequently uses the word

"constitution" for a royal edict. He refers to Henry ll's writ creating the remedy by grand

assize as legalis ista constitutio, and calls the assize of novel disseisin both a recognitio

and a constitutio. Bracton, writing a few years after the statute of Merton of 1236, calls

one of its provisions a "new constitution," and refers to a section of Magna Carta

reissued in 1225 as constitutio libertatis. In France about the same time Beaumanoir

speaks of the remedy in novel disseisin as une nouvele constitucion made by the kings.,"
This use of the term "constitution" may have been new but the idea it conveys is in

reality one of the oldest, if not the very oldest, in the whole history of constitutionalism.

Whitelocke's phrase" the natural frame and constitution of the policy [i.e., polity] of this

Kingdom, which is jus publicum regni"- in reality includes two conceptions of a

constitution closely connected and at times combined, but nevertheless distinct in

character. One appears in Whitelocke's first words, "the natural frame of the state," and

this idea seems as old as the politeia of the Greeks, which we usually translate by our

word "constitution." The other conception is expressed by Whitelocke's other phrase,

"jus publicum regni," the public law of the realm. The latter conception may not be as

ancient as the former, but it is very old. Cicero, for example, voices it in his De Re Publica

in a passage which contains the first use. In commending a mixed form of government,

Cicero says, "This constitution (haec constitutio) has a great measure of equability

without which men can hardly remain free for any length of time."" This above

mentioned historical aspect shows, how the conception of constitutionalism emerged

and developed through different phases.

IV. Medeival Approach

The medieval model of constitutionalism is often associated with Magna Carta (1215); in

it, the constitutionalistic idea that personal liberties should be protected from the

authority of the prince by established legal procedures was already present. But the

medieval contributions to constitutional theory may be found in the sphere of

ecclesiology under the label of conciliarism. Conciliarism was the idea that the pope was

not an absolute ruler but a constitutional monarch whose authority was ministerial and

delegated to him for the common good of the church. The ultimate authority in the

church, then, resides in the whole body of the believers or their representatives
namely, the general council. According to twelfth-century canonists, who grappled with

the questions surrounding the possible abuse of power by the pope, the pope was an

inherent part of a general council and the authority of the pope with a general council

was greater than without: an argument parallel to the secular idea of the supremacy of

the king-in-parliament. The divine nature of papal authority did not necessarily result in

theocratic absolutism because of the idea that the power of jurisdiction came from God

through the people; the power of the papal office originates from God, but the choice of

a person who assumes the office depends on the consent of human cooperation.

Between Glanvill at the end of the twelfth century and Bracton in the middle of the next

the development of English governmental institutions goes on apace, and some

incidental light on their spirit could no doubt be got from a careful study of the

contemporary records of the law cases which now become available. But of the true

character of the general principles underlying the medieval English constitution there is

no indication so clear as the book on the laws and customs of England by Henry of

Bratton, or Bracton - the greatest of medieval books on English law and

constitutionalism, if not on the law of any European nation. Bracton's book is a book of

case law; it is probably, as has been said, the unique medieval book of case law, and

.Constitutionalism: Ancient and Modern, Charles Howard Mcllwain (1947)-Discourse on the origins

and development of constitution theory.

without doubt that case law is almost entirely an English law. But no attentive reader of

the book can miss in it the great influence of a jurisprudence that is far older and far

wider than any mere "law of reason secondary," and "particular" to England."If for one

moment we set his [Bracton's] book beside the Customs of Beauvais and the Saxon

Mirror," says Maitland, one fact worthy of note stares us in the face. The Englishman's
work both in its general structure and in many details has been influenced by Roman

jurisprudence. Really if we place ourselves in the thirteenth century and look only at the

surface of things, it must seem very likely that England will soon adopt Roman law as a

whole, while into Northern France and Germany it will make its way but slowly or never.

After the event we can see why such a prediction would be foolish. The development in

England of a centralized royal justice was rapid, exceptional and looking closer we see

that Bracton had no intention of supplanting English by Roman law. It is Rationalism

rather than Romanism that he learnt from Azo's book, and this fact that at an early date

English law was rationalized by an able man, is not the least among the causes which

protected us against Romanism in the following centuries. Other instances of the same

view might be given almost without number, and before 1627 we find it asserted at

times even by the men who in later years were to be its most arduous opponents. As

late as 1621 Sir Edward Coke himself admitted that there was a prerogative

"indisputable." Sir Edward Crawley in the ship-money case contrasted this with the

ordinary or "disputable" prerogative by calling it "regal" in distinction from "legal."

James I spoke of it as his "public prerogative," or "mystery of state," the arcanum

imperi, "not fit for the tongue of any lawyer," while he professed that in his "private

prerogative" he was always willing to submit to the judgment of the courts. Hobbes had

the same distinction in mind in his difference between "matter of polity" and matter of

law0

V. Modern Approach

Constitutionalism is a terminology used in an ambiguous way, virtually every political

theorist of modern period described constitution in there own terms. In fact many

political thinkers accepted that constitution is a pre-requisite to a legitimate

government but undoubtedly it also create representation for society as a whole. What

nearly everyone represent or share, though, is the thought that modern societies need a

constitution in order to be properly constructed. St. Thomas Aquinas argued that God

had provided a mixed government for Israel, and had done well. The Jewish state, he

said, preserved the advantages of monarchy but escaped corruption into tyranny; it
employed virtuous and wise men in the Sanhedrin, which was an aristocratic element,

and these were chosen by the people, which was democratic. The scheme possessed

Supra note 9.

the stability which results when all have some share in the government. John of Paris

believed that monarchy should be mixed with aristocracy and democracy. However, this

was a literary tradition which only occasionally, as during the Conciliar controversy and

in the Italian republics, touched the political life of the time. The conception of

monarchy in the classical mixed state was in fact entirely alien to the medieval idea of

kingship. What was called the monarchic element in Sparta and in republican Rome was

nothing but a magistracy. Aristotle called the Spartan kings mere generals for life and

classified the Spartan state as a polity or constitutional government. Medieval kingship,

on the other hand, was personal rather than official, and the political bond wasa

personal tie between king and subject. To describe this, the Middle Ages resorted to

Aristotle's basic classification of forms of rule. Aristotle had distinguished three types:

despotic rule, in which the ruler employs the subjects as instruments to serve his own

purposes; royal rule, in which a natural superior governs his subjects for their benefit;

and constitutional rule, in which the citizens rule and are ruled in turn. The mixed state

fell in the third category. Forced to choose among the regimen despoticum, the regimen

regale, and the regimen politicum, medieval writers fixed upon the regimen regale. This

sentiment by no means supplies a full philosophy of justice. It deals with the form rather

than the content of legislation. A. V. Dicey, in describing the virtues of the English "rule
of law" in his Law of the Constitution, spoke of the enthusiasm which greeted the fall of

the Bastille. "When the fortress was taken, there were not ten prisoners within its walls;

at that very moment hundreds of debtors languished in English gaols. Yet all England

hailed the triumph of the French populace with a fervour which to Englishmen of the

twentieth century is at first sight hardly comprehensible. ... Its fate was felt, and felt

truly, to herald in for the rest of Europe that rule of law which already existed in

England."Yet the debtors can hardly have felt this generous glow. It surely makesa

difference what the laws are which rule. Men have always thought so. Various

substantive theories of justice have existed from time to time, but these have

complemented rather than supplied the constitutionalist tradition. To the Greeks, the

proper legal rules for religion prescribed piety toward the local gods. To Aquinas, they

prescribed Catholic orthodoxy. Since the seventeenth century, freedom of worship has

progressively gained ground. No one of these attitudes is inextricably associated with

constitutionalism. It is true that modern liberalism and revived constitutionalism came

into the world together, and have in some degree been associated with each other, but

they can by no means be identified.

Nevertheless attempts have been made, since Dicey popularized the expression "rule of

law" in 1885, to put the authority of Aristotle and the long tradition of constitutionalism

behind one or another local opinion. Dicey himself equated the rule of law to the

decision of cases by common law courts, in particular opposition to the administrative

justice of the continent, blandly ignoring the fact that the Rechtstaat, with its Roman

law doctrine of the suability of the sovereign, might more properly than Great Britain

11. The Origins of Modern Constitutionalism, Francis D. Wormuth (1949)

constitutional concepts.

Historical analysis of the key

represent itself as practicing the rule of law. The Supreme Court of the United States has

read Dicey's opinion into the two due process clauses of the constitution, thus

converting an amendment which was adopted to validate the Freedmen's Bureau into a

device to limit administrative authorities. In 1937, during the controversy over the

proposed enlargement of the Supreme Court, it was widely proclaimed that the rule of

law prescribed not only judicial control of the executive but also the number of judges

on the bench. Miscellaneous publicists have gone even further, arguing that the rule of

law involves a censorship of the substance as well as the method of governmental

action. These points shows that, they mark out the areas removed from the scope of

governmental action, have a certain external resemblance to the medieval doctrine of

double majesty. It can be said as the idea is altogether modern. They are not a part of

the institution of constitutionalism. What that tradition has stood for, for twenty-five

hundred years, is the technicalities of the mixed state and the proposition that law

should be general and approaching, this latter having been implemented in the

seventeenth century by the doctrine of the separation of power. The mixed state is

unintelligible in theory and insufficient in practice. The constitutionalist view of law, on

the other hand, represents a conception of justice so long and so widely held that it is

probably safe to say that no state can afford to ignore it. It teaches the process rather

than the essence of governmental action, but it is a method to which we the human

beings are associated from ancient time.

When the Constitution of India was adopted on November 26, 1949 by the Constituent

Assembly, its members were mindful of the challenges of governance. Speaking after

the completion of his work, Dr. B.R. Ambedkar, Chairman of the Constitution Drafting

Committee, said: "I feel that the Constitution is workable; it is flexible and it is strong

enough to hold the country together both in peacetime and in wartime. Yet there were

great expectations that in the years to come, the Constitution would move from a

document worthy of admiration to a solid commitment on the part of power holders. It

has a ability of Constitutions to act as limitations on the exercise of power, and in that

process delineate the functions of the government and outline the rights of the people,
that distinguishes them from other legislation. The experience of 60 years of

constitutional governance helps us understand the working of the Constitution in

general and the role of the judiciary in particular. Constitution is a mother act and a

grund norm, as said by kelson a great legal scholar. To satisfy the basic conception " For

this, the framers intended to fulfil the basic needs of citizens, and hoped that it would

bring about fundamental changes in the structure of lndian society. The theme of social

revolution runs throughout the proceedings and documents of the Constituent

Assembly. This theme formed the basis of the decision to adopt the parliamentary form

of government and direct elections, the fundamental rights, the directive principles of

state policy, and many of the executive, legislative, and judicial provisions of the

Constitution. Although the social revolution theme was adopted throughout the

Constitution, Parts lI and IV fundamental rights and directive principles of state policy

demonstrate the core of this commitment. These are perceived notions of the

Constitution, because they provide the base for human rights and human development

policies for governance. The Constitution ensures that the fundamental rights are

guaranteed as a matter of legal obligation rather than as a political concession. These

are basic human rights and have been interpreted as civil, political, economic, social and

cultural rights. Articles 12-35 of Part lll elaborate on the fundamental rights. Articles 36

51 outline the framers' vision for good governance and they constitute the directive

principles of state policy. To enforce both of these part it is essential to strengthen

judiciary, a significant

imperative tool of developing judicial system was evolved by the American courts for

the very first time in Marlbury v. Madison*, Justice marshall placed the doctrine and
says that judges are directed by the constitution itself, took oath to support the

constitution, which constitutes the paramount law of the land. It is a duty placed upon

judges to review any law which is repugnant to the constitution. Seven year later in

Flether v. Peck, Supreme Court asserted its judicial reviewing power over both federal

and state laws and thereby securing for itself the role of chief interpreter and arbiter of

constitution. Similarly in Indian constitution article 32 and 226 gave wide powers to

Supreme Court and High court respectively. Nevertheless, in several cases, it has held

that the Supreme court can act as the custodian, defender of rights of people and

democratic system of government only through the judicial review. In Keshvanand

Bharti's case*", it was held that the judicial review is a 'basic feature' of the constitution

and cannot be amended. The scope of judicial review is sufficient in India, to make

Supreme court a powerful agency to control the activity of executive and the legislature.

A recent judgement of I.R.Coelho v. State of Tamil Nadu also shows how the notion of

judicial review can be used to maintain separation of power and supremacy of

constitution, the two important notion of Justice, whenever any of the organ

transgresses its limit, judicial review is there to maintain check and balance. In no way,

judicial review make the supreme court a rival of the Parliament. If democracy is to

become consequential in India, it should be based on two important factors:

enforcement of the rule of law and the transformation of the political governance

each dwelling upon the other. The judiciary is well suited to support both of these.

nd trust worthy institution in democracy. Judicial review an

CONCLUSION

In summary, constitutionalism forms an institutional groundwork for the rule of law,

strikes a proper balance between the rule of law and the rule of person, provides a

minimal guarantee for the justice of both the content and the form of law and, finally, is

itself safeguarded by the rule of law. This, in my view, constitutes a relatively complete

depiction of the relationship between constitutionalism and the rule of law.

Constitutionalism is also safeguarded by the rule of law in another sense. For

constitutional provisions to be meaningfully and effectively operative, there must be an

institutional and cultural machinery, which is partially created by the constitution itself,

5U.S. 137; 1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352.

10 U.S. (6 Cranch) 87;3L. Ed. 162,;1810 U.S. LEXIS 322

of 13

Supra note 7.

1 AIR 2007 SC 861.

to implement, enforce and safeguard the constitution. The rule of law is one key

component in the constitution-implementing and safeguarding machinery. An

independent judiciary, independent constitutional review, and the notion of the

supremacy of law all work together to ensure that the letter and spirit of the

constitution are complied with in the working of a constitutional government.

Constitutionalism is the philosophy of the constitution which imposes limitation upon

the exercise of power.