CONSTITUTIONALISM IN INDIA

Varun Ahuja*

*1st year BA LLB

Vivekananda Institute of Professional Studies (VIPS)
Vahuja083@gmail.com
Introduction

Under every government, state or nation, the constitution is the one document that sanctions
every organ of every institution. It’s meant to deal with emergencies, ensure a life of dignity and
quantify the basic duties expected off of an average citizen. The idea of a document governing a
nation is not natural to India but has been in existence since time immemorial. In McCulloch v.
Maryland1, Chief Justice John Marshall of the United States Supreme Court wrote what is still
today the dominant theory:

"(The) constitution (of the USA is) intended to endure for ages to come, and
consequently, to be adapted to the various crises of human affairs."

The constitution is the very fundamental on which the whole infallible structure of democracy is
juxtaposed. Essentially a democracy derives its powers from the will of the people or the
‘General will’ as coined by Rousseau in his Social Contract theory which highlights an existence
of a contract between the state and its people. Emphasizing on the importance of a constitution,
John E. Finn was of the opinion that:

“Constitutions are chains with which men bind themselves in their sane moments, that
(they) may not die by a suicidal hand in the day of their frenzy.”2

One meaning of the term ‘Constitutionalism’ can be described as an instrument which gives birth
to the state and demarcates a separation of power between its organs, propounding a functioning
of checks and balances amongst them. According to Article 16 of the French Declaration of the
Rights of Man and of the Citizen of 1789, ‘A society where rights are not secured or the
separation of powers established has no constitution at all.’ Another meaning of
‘Constitutionalism’ is limited government or limitation on government. It is antithesis of
arbitrary powers

A written Constitution, independent judiciary with powers of judicial review, the doctrine of rule
of law, free elections to legislature, accountable and transparent democratic government,

1
17 U.S. 316 (1819)
2
Constitution in Crisis, Political Violence and Rule of Law, (1991), Oxford University Press, p. 5
Fundamental Rights of the people, federalism, de-centralization of powers are some of the
principles and norms which promote Constitutionalism in a country.3

Constitutionalism in India

Following Lord Acton’s observation ‘Power tends to corrupt; absolute power corrupts
absolutely’, constitutionalism provides the solution of forming a self-limiting government
through a constitution. The theory of separation of powers was first propounded by the French
philosopher Montesquieu in his book `The Spirit of Laws' still broadly holds the field in India
today. In Asif Hameed v. State of Jammu and Kashmir4, a three Judge bench of this Court
observed:

“Although the doctrine of separation of powers has not been recognized under the
Constitution in its absolute rigidity but the constitution makers have meticulously defined
the functions of various organs of the State. Legislature, executive and judiciary have to
function within their own spheres demarcated under the Constitution. No organ can usurp
the functions assigned to another.”

The rationale behind the application of separation of power given by Montesquieu or Locke or as
it exists in India is to uphold the sanctity of rule of law and preserve as much as possible every
organ of the democracy from the inevitably vile nature of man. In India, the separation between
is not rigid or in the strictest sense as can be found in the American constitution. To name a few
overlapping, the Supreme Court has power to declare void the laws passed by the legislature and
the actions taken by the executive if they violate any provision of the Constitution or the law
passed by the legislature in case of executive actions. The executive can affect the functioning of
the judiciary by making appointments to the office of Chief Justice and other judges and the list
goes on.

Time and again the legal fraternity of this country has debated the use and importance of
amending the constitution in an attempt to keep the laws abreast with the changing society. The
constitution even empowers the parliament under Article 368 to ‘amend by way of addition,

3
Richard A. Epstein, “The Protection of Liberty, Property and Equality”, Oxford University Press, London, p. 342.
4
AIR 1989 SC 1899
variation or repeal any provision of the Constitution’. While debating in the constituent assembly
on the draft of the constitution Dr. Ambedkar quoting Jefferson remarked:

“We may consider each generation as a distinct nation with a right by the will of the
majority to bind themselves but not to bind the succeeding generations any more than the
inhabitants of another country"5

After a series of judgments the judiciary of the country promulgated the ‘Basic Structure
doctrine’ in the Keshvananda Bharti6 case where it allows the parliament to amend the
constitution but simultaneously keeping the essence or the basic structure of the constitution
intact. The nine judges Bench delivered a unanimous verdict in I.R. Coelho (dead) by L.Rs. v.
State of Tamil Nadu7, upholding the 'Basic Structure Doctrine', and the authority of the judiciary
to review any such laws. The principle of constitutionalism became 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. 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 Constitution is a living and organic document. A written document with the power to change
and adapt itself according to the needs of the society is an invaluable weapon in the hands of men
in the leadership of the country. The constitution will never enforce or interpret itself, it is the
duty of the elected members of the parliament to decide the fate of the nation by upholding
constitutional values. Constitutionalism and ideas of ‘separation of powers’ or ‘basic structure’
were propounded as a means to ensure a better governance and increased accountability on the
heads of the political leaders and it is by far as relevant today as it was in the times of Locke,
Montesquieu or Austin.

5
Raman Sunder, Amending Power Under the Constitution of India, (1990), E.B.C., Calcutta,
P. 39
6
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
7
AIR 2007 SC 861