NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

POLITICAL SCIENCE- 2 PROJECT

THIRD TRIMESTER

THEORY OF CONSTITUTIONALISM

SUBMITTED BY: SUBMITTED TO:

RADHA CHARPOTA PROF.

2019 BALLB[HONS] 30
CERTIFICATE

This is to certify that the Project titled – ‘Theory of constitutionalism’ has

been prepared and submitted by Radha Charpota ,who is currently pursuing
her BA LLB .(Hons.)at National Law Institute University,Bhopal in
fulfilment of Contract Law -2 course .It is also certified this is original
research report and this project has not been submitted to any other
university ,nor published in any journal.

Date:

Signature of the student:

Signature of the research supervisor:

ACKNOWLEDGEMENT

This project has been made possible by the unconditional support of many
people, I would like to acknowledge and extend my heartfelt gratitude to
Assistant Prof. for guiding me throughout the development of this project
into a coherent whole by providing helpful insights and sharing their brilliant
expertise. I, also would like to thank the members of the library staff and
computer section for the cooperation in making available the books and
accessing the internet even during their free time. I am deeply indebted to my
parents, seniors and friends for all the moral support and encouragement.

Radha Charpota

2019 BALLB [HONS] 30

TABLE OF CONTENTS

INTRODUCTION 5

LITERATURE REVIEW 8

CONCEPT AND MEANING 10

INTERNATIONAL PERSPECTIVE 12

CONSTITUTIONALISM IN INDIAN CONTEXT 14

CONCLUSION 16

BIBLOGRAPHY 17
INTRODUCTION :

"Constitutionalism is the name given to the trust which men repose in the power of
words engrossed on parchment to keep a government in order"
-Walton Hamilton1
The above lines clearly distinguish the line between Constitution and
Constitutionalism. While constitution lays down structure and functions of various
organs of the government constitutionalism is a form of political philosophy which
advocates limited form of government. In a broader sense constitutionalism
denotes the principle and practice under which a community is governed by a
constitution. The principle of constitutionalism denotes that any form of arbitrary
power remains checked. The birth of constitutionalism is a modem phenomenon
but its origin can be traced to ancient times.
Plato, an ancient Greek philosopher, believed in the importance of knowledge and
its utmost importance in leading a good life. He believed that power should be
vested with those who are endowed with knowledge. In other words, philosophers
should be rulers2. However Plato's suggestion was disproved by his own disciple
Aristotle who believed that all normal forms of government (monarchy,
aristocracy, and polity) were bound to degenerate (tyranny, oligarchy and
democracy respectively) in due course because power and virtue could not co exist.
The birth of modem constitutionalism can be attributed to great philosophers John
Locke and Charles de Montesquieu. Locke compared government akin to a trust
set up by individuals as opposed to any form of natural or divine ordained entity
for protection of personal life, liberty or property. Montesquieu gave the principle
of separation of powers to categorize different organs of the Government and
delineate their corresponding functions. Montesquieu took cue from constitutional
practices of then England which adequate safety of civil liberties albeit it was an
unwritten constitution. However, the written constitution of the world is American
Constitution ( 1787) incorporated elements of Locke and Montesquieu.
Though India is relatively a new country in adoption of a written constitution the
essence of constitutionalism is deeply embedded in the ethos of constitutional
principles3. Our constitution which has borrowed elements from different
constitution of the world has somewhat consolidated the elements of
1
See Louis Henkin. Introduction: The United States Co11stirution Abroad, in Constitutional ism And Rights.
2
See Bruce Ackerman. n,e Rise of World Co11stit11tionalism, 83 VA. L. REV. 771. 772 (1997)
constitutionalism through the passage of time. The available checks and balances
in the constitution have now metamorphosed with judiciary playing a pivotal role
in keeping the government in check. The judiciary over the years with the help of
interpretative theories like basic structure doctrine and extra judicial mechanism
like Public Interest litigation has expanded the scope of constitutionalism in India.
Many varied reasons like even handedness of legislature during emergency days,
failure of legislature to provide socio-economic rights to poor and disenfranchised
populace, human rights abuses amongst others led to imbalance which judiciary
stepping in to put restrain on the government.
During the framing of constitution Dr. B.R. Ambedkar, the principle architect of
constitution, quoted feel, however good a Constitution may be. it is sure to turn out
bad because those who are called to work it, happen to be a bad lot. However bad a
Constitution may be, it may turn out to be good if those who are called to work it.
happen to be a good lot. The working of a Constitution does not depend wholly
upon the nature of the Constitution 4 . Ambedkar prophetic words also revived the
spirit of constitutionalism as judiciary now stepped in to carry out functions of
legislature. Strictly speaking. there is no provision for separation of powers in
Indian Constitution. But still functions of different organs of the government are
explicitly outlined with appropriate checks and balances. But does such intrusion
by Judiciary into the domain of legislature negate the very principles of
constitutionalism which clearly defines role of different organs of the government?
The answer is in negative. Constitutional ism also advocates a limited form of
government with appropriate checks and balances. The presumption can be drawn
the required tools to check arbitrariness in constitution failed to work.

3
lndia gained independence from British rule on August 15. 1947. See Shnrad D. Abhyanknr. India. in Vii
Constitutions of I.he Countries of the World
4
Referring to the apprehensions expressed by the Constituent Assembly members on the removal of "due
process." from Article 15 of the draft constitution. Dr. B.R. Ambedkar observed: "We are therefore. now. by
introducing Article 15A. (Anicle 22 of the Constitution) making. if I may say so. compensation for what was done
then in passing Article 15. In other words. ~ are providing for the substance of the law of "'due process" by the
introduction of Article 15A." IL (citing IX Constituent Assembly Debates 1497).
AIM :

The paper tries critically analyzing the precepts of constitutionalism in the Indian
context and how contemporary development in the field of constitutional law in
India has ramifications over the principles that are followed in this country. The
practice of constitutionalism followed in United Kingdom and United States of
America is also briefly discussed in this paper.

RESEARCH PROBLEM :

The paper also will deliberate upon the question whether there is a gradual erosion
of constitutionalism in India The Fundamental Rights case gave the Basic Structure
doctrine vis-a-vis through judicial interpretation. But the emergence of derived
basic structure principles as illustrated in the recent fourth judges case might the
stretch the arc of constitutionalism to disproportionate measures. Similarly, PIL
movement in India has checked arbitrariness of State excesses but it has also
encroached the domain of legislature.

HYPOTHESIS :
Constitutional ism principles in India lacks a proper shape and are in complete
disarray due to too many borrowed elements from different constitution of the
world. Moreover the principle of constitutionalism is conflicting with the
principles of separation of powers.

RESEARCH METHODOLOGY :
The author of the paper has followed a conventional doctrinal research and has also
undertaken comparative research of UK and USA constitutions. The paper has also
discussed some of the principles enunciated in cases like Keshavnanda Bharti
case5.I.R Coelho case6, Rameshwar Prasad Thakur case7. Naz foundation8 and the

5
(1973) 4 S.C.C. 225
6
AIR 1999 SC 3197
7
(2006) 2 SCC 1
8
Civil Appeal No. 10972 of 2013 of Supreme Court of India
recent fourth judge case9 illustrates growing problems for interpretation of
constitutionalism in future.

LITERATURE REVIEW :

JEREMY WALDEN; CONSTITUTIONALISM: A SCEPTICAL VIEW.

Jeremy Walden has brought out the concept of constitutionalism using logical
deduction. Walden analyzed the principle of constitutionalism by studying its
practice in different jurisdictions particularly UK , USA , South Africa and New
Zealand. One of the most notable contributions of Walden analysis is that it
explicitly defined features of constitutional ism like written/unwritten features,
models of restraint on government, popular sovereignty etc. The paper also
categorized types of constitutionalism model. But one of the drawbacks of the
paper was the author has stressed too much on the concept of constitutionalism that
it has failed to take account of constitutionalism model followed in Asian
countries. The western model of constitutionalism no doubt is the defining feature
but the practice of constitutionalism in Asian countries should not be overlooked.

VIJAYASHRI SRIPATI; TOWARD FIFTY YEAN OF CONSTITUTIONALISM

AND FUNDAMENTAL RIGHTS IN INDIA: LOOKING BACK TO SEE
AHEAD (1950-2000)
The article reflects the Indian constitutional history on the backdrop of
constitutionalism model followed in India. The author also paints a grim picture of
growing intolerance due rise of Hindutva movement in India. Notwithstanding the
detailed picture drawn on the paper the author misses the mark when he failed to
explain the meaning of constitutionalism as per the Indian constitution. The author
just gave a fractured narrative retelling the events of promulgation of constitution
and its tumultuous journey during the emergency days. But how such events has
shaped and affected the constitution needs to be succinctly stated.

9
Writ Petition(Civil) No. 13 of 2015 of Supreme Court of India
AKHIL REED AMAR, AMERICA'S CONSTITUTION, WRITTEN AND
UNWRITTEN :
The article explored American Constitutionalism system since its inception. The
written and unwritten features of constitution is explained and its different
advantages and disadvantages. The author has analyzed the bill of rights in a
detailed manner and stated how overlapping of rights in ninth and fourteenth
amendment might sensibly be interpreted and enforced. Mainly the rights and
privileges as guaranteed by the American constitution is discussed on the backdrop
of constitutionalism.

MILAN DALAL; INDIA'S NEW CONSTITUTIONALISM: TWO CASES THAT

HAPE RESHAPED INDIAN LAW :
The author has taken two cases I.R Coelho, and Raja Ram Pal case to discuss that
there is a taciturn shift in the changing concept of constitutionalism. These case
involved review of legislative and non-legislative functions of the government that
showed how the supreme court of India is undergoing an identical transformation
heralding itself as an equal stakeholder in the power structure of the government.
 CONCEPT & MEANING
The Oxford English Dictionary defines constitutionalism in a broader sense to an
attitude or disposition-"adherence to constitutional principles." A constitutionalist
is one who takes constitution very seriously and who does not stray away from the
path of important values incorporated in the constitution. Constitutionalism
therefore refers to the sort of ideology that makes this attitude seem sensible. But
this definition reeks of fundamentalism that might hinder the growth of
constitution in a holistic manner. A constitution is a social organic document that
changes not drastically though in passage of time to subserve the aspirations and
needs of the future generations. A constitution cannot be stuck in a time warp
otherwise it will lose its very purpose. Roger Scruton's defined the term in
Dictionary of Political Thought10 advocacy of constitutional government. i.e. of
"government channeled through and limited by a constitution." So a constitution is
just a bulwark lo a tyrant march to impose absolutism. This same principle was
reiterated in Andras Sajo's book Limiting Government A introduction to
Constitutionalism11. In a forward to Sajo's book. Stephen Homes writes that that
"constitutions are giant restraining orders motivated by a passion for avoidance.
They are inevitably propelled by the desire to escape specific dangerous and
unpleasant political outcomes."

The evolution of modem constitutionalism can be traced if we go through the

works of three scholars C.H. Mcilwain (Constitutionalism and the Changing World
published in 1939)12, Carl J.Freidrich (Constitutions and Constitutionalism) and
Karl Loewenstein (Constitutions, Constitutional Law). According to Mcilwain, "A
constitutional government and must be limited government if it is constitutional at
all." So basically the form of government doesn't matter at all. Taking the
argument further it can be presumed that constitutionalism exist in dictatorship
countries also. Mcilwain propounded the theory during the backdrop of rising
fascism which shaped his views regarding constitutionalism in an orthodox
manner. He was of further opinion that a free market economy could only provide
conducive environment for proper growth of constitutionalism. Carl J. Freidrich,
10
See Roger Scruton, A Dictionary of Political Thought (London: Macmillan 1982), p.94.
11
See Andras Sajo, Limiting Government: An Introduction to Constitutionalism (Budapest: Central European Press,
1999)
12
See C.H Mcilwain, Constitutionalism Ancient and Modern {Ithaca: Cornell University Press, 1940), p.24.
on other hand, severely criticized Mcilwain model as such model lacks elements
necessary for constitutionalism to thrive.

Mcilwain failed to discern the difference between constitutional and non-

constitutional model. Further, only organization of government is no sufficient as a
prerequisite for constitutionalism. Freidrich proposed his constitutionalism model
based on two parameters:

A) The life, liberty and property of individual should be protected. The personal
sphere of individuals should be protected against personal sphere. He cited
the example of Bill of Rights to further its argument.
B) There should be application of separation of powers with federalism as it
main feature.

Constitutionalism implies. according to Freidrich, the practice of politics according

to 'rules of the game' which ensure effective restraints upon governmental and
other political action, and the theory-explanatory as well as justificatory-of this
practice.

Karl Lowenstein morphological theory of constitutionalism13 gave the skeletal

outlook of constitutionalism model. According to him, the formal institution in the
accepted contemporary sense establishes the political agencies-organs; power-
holders of a state community and the institutions and techniques by which they are
expected to conduct the political process, regulates the mutual relations of the
power-holders or state organs, particularly their co-operation in formulating the
will of the state(frame of government). In addition, the contemporary constitution
regulates the mutual relations between the public authorities and the citizens and
among the citizens themselves; this section of civil liberties is usually spoken of
the bill of rights.

The aforementioned three model of constitutionalism has no doubt shaped the

future of constitutions around the world.

13
See Akhil Reed Amar, America's Constitution, Written and Unwritten, 57 Syracuse L.Rev.267 (2007) at 269
INTERNATIONAL PERSPECTIVE :

The concept of constitutionalism both differed in United States of America and

United Kingdom albeit to a lesser extent. While USA follows the model of
judicially enforced limitations on legislative authority the UK followed the
Westminster model which is based on parliamentary sovereignty. The practice has
differed over the years but initially there was a common ground over which both
the models shared similar features14. Despite the differences between English and
American constitutionalism. the concept of constitutionalism in both countries
celebrate and advocate forms of political structuring that limits the power of
government in various ways. Many of the forms are similar (like federalism); while
some of them are different (like the more extensive provision for judicial review of
legislation in the United States).

UK does not have a written constitution. There is no single canonical document

that defines the constitution of UK. Legislations like the Bill of Rights of 1689, the
Act of Union of 1707, the European Communities Act of 1971, The Human Rights
Act of 1998 and the various Representation of the people Acts from 1918 to 2000.
The unwritten feature of UK constitution is subject to intense debate and
deliberations. It is generally argued that individual rights and rules restraining
government are insecure unless they are laid down in the terms of a written
constitution. It will be useful to recall the Walton Hamilton ironic definition:
"Constitutionalism is the name given to the trust which men repose in the power of
words engrossed on parchment to keep a government in order." Here it will be
useful to reflect the words of Justice Marshall in Marbury v Madison.

"All those who have framed written constitutions contemplate them as forming the
fundamental and paramount law of the nation, and consequently the theory of
every such government must be, that cm act of 1he legislature repugnant to 1he
constitution is void. This theory is essentially attached to a written
constitution ......"

14
See Trimbak Krishna Tope, The Constitution of Indio 37 (1971) (discussing the similarities and differences in the
United States and Indian constitutions).
While UK is still stuck in a time warp the Americans on the other hand believed in
the tangible worthiness of a constitution. The drawback of unwritten aspects of the
U.K constitution is that there is a taciturn shift in subject matter and the line
between a nonnative provision of the constitution in this sense and a nonnative
view about what the provisions of the constitution ought to be is a subject of
constant equivocation. Noted American scholar Jeremy Walden15 cautions that the
written feature of the constitution is heavily swayed by the interpretation of
lawyers. Judges and such abstract interpretive debates can sometimes crowd out
serious arguments focused on the merits of the question under discussion, whether
it is abortion, or affirmative action or campaign finance reform.

15
See Jeremy Walden, Constitutionalism: A Sceptical View. Georgetown University utw Center(2010)
CONSTITUTIONALISM IN INDIAN CONTEXT:

In I.R.Coelho (Dead)LRs vs. State of Tamil Nadu and Ors16 the Supreme Court
reiterated that the constitution is a living document. The constitutional provisions
have to be construed having regard to the march of time and the development of
law. The principle of constitutionalism is now 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. These democratic principles
include the protection of fundamental rights. 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 principle of constitutionalism underpins the principle of legality
which requires the Courts to interpret legislation on the assumption that Parliament
would not wish to legislate contrary to fundamental rights. The Legislature can
restrict fundamental rights but it is impossible for laws protecting fundamental
rights to be impliedly repealed by future statutes.

Even though we have important check and balances to keep the government in a
limited form there has been gradual introduction of new elements to keep the
excessive power of the government at abeyance. Two of the elements are
introduction of Public Interest Litigation ("hereinafter," PIL) and the basic
structure doctrine. PIL movement started in the aftermath of emergency days when
there was curtailment of civil liberties and excessive arbitrary decisions were
introduced. The PIL enabled ordinary citizens to question any laws, rules, bye-laws
or policies of the government which found to be arbitrary. The success of PIL has
no doubt helped to keep the power of the government in check but its misuse vis-a-
vis frivolous PILs.

The fundamental rights case in I 973 gave birth to a new theory called the Basic
structure doctrine. The basic structure doctrine encapsulates all the features of a
constitution which cannot be amended. Parliament can amend the constitution but
that amendment has to withstand the basic structure doctrine test. Following the
enunciation of basic structure which consisted of limited number of features there
16
AIR 1999 SC 3197
has been addition of new elements in subsequent cases. Of recently, in the fourth
judges transfer case the bench reiterated the primacy of judiciary as part of the
basic structure doctrine which was introduced in the second judges transfer case.
Many new elements introduced in the basic structure doctrine for part of the
derived basic structure as noted by senior advocate Raju Ramachandran.

Both the PIL and basic structure doctrine though not doubts are exemplary features
of judicial craftsmanship but its misuse has been stretched to limit the powers of
the government. There has been intense debate and deliberations in the recent past
whether such extra constitutional mechanism is needed to keep a check on
arbitrary powers of the government. It is not necessary that appropriate check and
balances should be only found in the constitution. As mentioned earlier that
constitution is a living document its organic growth should not be stalled for want
of limited measures. It is on the prerogative of lawmakers to insert elements into
constitutionalism for its execution in both letter and spirit of law.
CONCLUSION:
The backdrop in which the constitutionalism is discussed provides us a vision to
see the contemporary perspective, in which we find that there are very detailed
description of powers of organs of government so that they can exercise their
powers within the boundaries of constitution i.e. Higher law in India. Owing to
which governmental organs become unable to entertain arbitrary powers and also
these provisions provide a paramount place to laws whose main aim is to protect
the interest of individuals in the country. The concept of constitutionalism is
deeply entrenched in the Indian legal soil but its practice in the recent years has
been faltering. The recent intolerant debate that has been raging in the country is
simply antithesis to the principles of constitutionalism. As we law students we can
so far promote the value of constitutionalism right from the ground level. Legal
activism is one of the best ways to inculcate the value of constitutionalism. Voices
need to be raised against any form of injustice. Judges are to promote the value of
constitutionalism emanating from a legal draft, drafted by constituent assembly
constituted of representatives expressing their public opinion. Although, Secondary
public opinion cannot overrule primary public opinion, but every provision has its
own importance and if any provision is not explicitly present in a constitution but
its reflection is found in some clauses, then it will be sufficient to promote the
spirit of constitutionalism.
BIBLIOGRAPHY:
1. Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L. REY.
771, 772 ( 1997)

2. Sharad D. Abhyankar. India, in VII CONSTITUTIONS OF THE

COUNTRIES OF THE WORLD.

3. Louis Henkin, Introduction: The United States Constitution Abroad, in

Constitutionalism And Rights .

4. Roger Scruton. A Dictionary of Political Thought (London: Macmillan

1982).

5. Andras Sajo, Limiting Government: An introduction to Constitutionalism

(Budapest: Central European Press. 1999)

6. C.H Meilwain, Constitutionalism Ancient and Modem (Ithaca: Cornell

University Press, 1940).

7. Akhil Reed Amar, America's Constit11tion, Wrillen and U11writ1en, 51

Syracuse L.Rev

8. Trimbak Krishna Tope, The Constit11tion of India 31 (1971)

9. Jeremy Walden, Constitutionalism: A Skeptical View. Georgetown

University Law Center(2010)