CHAPTER – II

CONSTITUTION, CONSTITUTIONAL LAW AND CONSTITUTIONALISM

“The emergence of organized democratic tradition,

constitutionalism, has taken root from diverse beginnings. Its
emergence was primarily influenced by the philosophical
writings of Locke, Hobbs, Rousseau and the like. Models of
governance were created to adopt to the particular traditions,
cultures, norms and aspirations of the society that it was
created to represent”.

Mrs. Cynthia Barrow Giles,University of the West Indies1

A civilization on the march towards evolved forms of polity cannot

deny itself a well thought out road map for governance. Therefore, one

could witness the evolution of ideas about Constitution and

Constitutionalism all along the corridors of human development from the

era of the hunter-gatherer to the modern man.

Constitution- Historical Evolution of the Terminology

The term constitutionis a derivative of the Latin word ‘constitutio’,

originally intended to mean regulations and orders, such as the imperial

enactments (constitutionesprincipis: edicta, mandata, decreta, rescripta).2

Later, the term was adopted by canon law for important decisions and

declarations, especially a decree issued by the Pope, now popularly known

as an apostolic constitution. A constitution is a cluster of fundamental

1Kingston, (Edited with Don. D. Marshall), Living at the Borderlines: Issues in

Caribbean Sovereignty and Development, (Ian Randle Publishers, 2003)

2 George Mousourakis, The Historical and Institutional Context of Roman Law, (2003)

p. 243

22
principles or assimilated established precedents that control the

governance parameters of a state or other organizations.3 These rules

together make up or circumscribe, i.e. constitute, the target organization,

entity or polity.

When these principles are reduced in writing into a single document

or set of legal documents, those documents may be said to embody

a written constitution; if they are comprehensive unitary document, it is

said to embody a codified constitution. There are some constitutions like

that of the constitution of the United Kingdomwhich are uncodified, but

consisting of numerous fundamental Acts of a legislature, court cases or

treaties.4

Constitutions may be drafted for organizations; from sovereign states

to companies and unincorporated associations. A treaty which establishes

an international organization is also its constitution, in that it would define

how that organization is constituted.For instance,in order to work well with

25 Members, the European Union needed to be moreeffective, more

transparent, more democratic. Therefore the 25 have decided to replace the

existing Treaties with a Treaty establishing a Constitution for Europe,

commonly known as the European Constitution.5 Within states, a

constitution defines the principles upon which the state is based, the

3Erin McKean, The New Oxford American Dictionary, Second Edn., (May 2005, Oxford
University Press), ISBN 0-19-517077-6. P. 2015
4R (HS2 Action Alliance Ltd) v. Secretary of State for Transport [2014] UKSC 3, [207]
5 The Treaty establishing a Constitution for Europe comprises 448 articles divided into 4

parts

23
procedure in which laws are made and by whom. Some constitutions,

especially codified constitutions, also act as limiters of state power, by

establishing lines which a state's rulers cannot cross, such as fundamental

right.

The term ‘Constitution’ is a generic term describing all kinds of

normative structures from the Magna Cartato the U.N. Charter.Constitution

simply will mean a set of fundamental principles according to which an

organization or a State is governed. These set of principles or rules

constitute what the entity, i.e. Government or organization, is.

ThereforeConstitutions ‘simpliciter’ concerns different levels of

organizations from sovereign States to companies and unincorporated

associations. A treaty which establishes an international organization is

also a Constitution as evidenced in the case of European Union. Within a

State, a Constitution defines the principles upon which the State is

organized, the procedure by which laws are made and by whom. Therefore,

‘Constitution can describe a norm, a political condition, an object, the

document itself or even a function6.’

In a very generic sense, it may also mean the ‘make’ or composition

which underlies the basic nature of anything and hence can be applied to

mean to be the body or the mind of a man. As Sir Paul Vinogradoff says:

6Armin von Bogdandy, Principles of European Constitutional Law, (Bloomsbury

Publishing) P.169

24
 The Greeks recognized a close analogy between the organization of

the State and the organism of the individual human being. They thought

that the two elements of body and mind, the former guided and governed by

the latter, had a parallel in two constitutive elements of the State, the

rulers and the ruled.7

Out of the two different meanings to which the word Constitution is

applicable, the Greek Politeia conforms to be one of the most ancient. The

etymology of this terminology can be traced to the Greek political thought

especially that of Plato and Aristotle. It is a derivative from the word Polis

(City State). This can be interpreted as to compromise of the multifarious

aspects which portrays the State’s peculiar nature and includesits whole

economic and social structure, as well matters governmental in our modern

sense.

The interpretation of this terminology Politeia cannot be compromised

with the modern nation of a written Constitution because not all the Greek

States put the laws in writing. Further the Greeksneverdifferentiated

between ordinary and constitutional legislation. According to their

perception, if a certain body has the power to change the law, it had the

power to change the laws controlling its own power and membership; and

at the extreme, even to abolish and set up a new governing body.

7 A Discourse Concerning the Nature, Power, and Proper Effects of the Present
Conventions in Both Kingdoms (1689), in State Tracts, I, 220

25
 The two definitions of constitution expressed by the Greek Politeia

and by the Latin constitutio and their inter relationship in history are worth

considering.

This use of the term ‘constitution’ and 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 fame and constitution

of the policy (i.e. polity) of this kingdom, which is ‘juspublicumregni’ in

reality includes two conceptions of a constitution closely connected and at

times combined, but nevertheless distinct in character. One appears in

Whitelock’s first words, ‘the natural frame of the state,’ and this idea seems

as old as the politeia of the Greeks, which we term as ‘constitution.’ The

other conception is expressed by Whitelocke’s other phrase, ‘jus

publicumregni,’ the public law of the realm.

In the medieval period, the Church borrowed and applied the word

‘constitution’ to ecclesiastical regulations. From thereon the usage of the

term came back in the lateral medieval ages as applicable to secular

enactments of that time. The famous constitutions of Clarendon of

1164were referred to as constitutions even then in reality they were

ecclesiastical provisions only but promulgated by secular authorities.

Between 12th century and the beginning of 16th century the word

‘constitution’ metamorphosed into the modern usage in phases by the

developments in England and France.However, the history of

constitutionalism in the 16th and 17th centuries turned out critical mainly a

26
history of some aspects of the English constitution. The two outstanding

features, the separation of Government and jurisdiction distinguish the

medieval constitution from the modern one. In the words of Sir Edward

Coke, ‘The king by his proclamation, or other ways cannot change any part

of the common law, or statute law, or the customs of the realm.8 But

economic, social and intellectual developments had made inevitable

struggle between the jurisdiction and separation of power concepts.

The latter conceptualization may not be as ancient as the former, but

is very old. Cicero, for example, voices it in his De Re Publica in a passage

which contains the first use of the word ‘constitution’ in its accepted

modern sense. In commending a mixed form of government, Cicero says,

‘This constitution (haecconstitutio) has a great measure of equability

without which men can hardly remain free for any length of time.’9 Further

on he says,

‘Now that opinion of Cato becomes more certain, that the constitution

of the republic (constitutionem rei publicae) is the work of no single time or

of no single man.’10

Glanville frequently uses the word ‘constitution’ for a royal edict. He

refers to Henry II’s writ creating the remedy by grand assize as

legalisistaconstitutio, and calls the assize of novel disseisin both a recognitio

8Charles HowardMcILwain, Constitutionalism, Ancient and Modern, Revised Edition

(Great Seal Books, May 1947)
9A Collection of State Tracts (London, 1705), I, 106
10 Some Remarks upon Government (written in 1689), in State tracts, I, 159, 160, 162

27
and a constitutio.11Bracton, writing a few years after the statute of Merton

of 1236, calls one of its provisions a ‘new constitution,’12 and refers to a

section of Magna Carta reissued in 1225 as constitution libertatis.13 In

France about the same time Beaumanoirspeaks of the remedy in novel

disseisin as unenouveleconstitucio made by the kings.14

At this time, and for centuries after, ‘constitution’ always means a

particular administrative enactment much as it had meant to the Roman

lawyers. The word is used to distinguish such particular enactments from

consuetudo or ancient custom. It is apparently never used in our modern

sense, to denote the whole legal framework of the state. It would require a

very detailed examination of the legal and political writings of several

centuries to enable one to say with any confidence when this modern

notion of a constitution first appears.

ANCIENT CONSTITUTIONALISM

The origins of constitutionalism can be traced to ancient Greece

particularly in the writings of Politics, Nicomachean Ethics, and

Constitution of Athens by Aristotle. Aristotle states that “the politician and

lawgiver is wholly occupied with the city-state, and the constitution is a

certain way of organizing those who inhabit the city-state”. His general

theory of constitutions is set forth in Politics III. He described the concept of

constitutionalism as the “arrangement of the offices in a polis.” He

11 Ibid., p. 13
12 A Dissertation upon Parties (1733-1734), in The Works of Lord Bolingbroke (1841), II, 88
13 Ibid., p. 105
14 Parliamentary History, XVI, 170.

28
distinguished the constitution and law from others on the ground of

stature, as a matter of permanence.

Roman law expanded on Aristotle’s basics including the notions of

generalized equality, a universal regularity, and a hierarchy of types of

laws. In the Roman empire, the word Constitution, in its Latin form became

the technical term for acts of legislation by the emperor. Later the Church

borrowed it and applied it to ecclesiastical regulations for the whole Church

or for certain provisions. This term came back in to use in the later middle

ages as applicable to secular enactments also. Therefore, it is not

uncommon to find other words such’ lex’ or ‘edictum’ used in equivalent

terms and at times interchangeably with the term ‘constitutio’15.

Constitutionalism in this era claimed acceptance through religion and

tradition. Constitutional frameworks were quoted to spring up from divine

sources while emerging laws of those days were legitimized as a return to

the “ancient constitution.” It was not until the fall of Holy Roman Empire

due to the wars of the Reformation that it became inevitable to look out for

a new basis of order and stability. “Even in an imposition of a new

constitutional order, novelty could always be legitimized by reference to an

alleged return to a more or less fictitious “ancient constitution.” It was only

in Italy during the Renaissance and in England after the Reformation that

the “great modern fallacy” (as the Swiss historian Jacob Burckhardt called

15Amagi, Constitutionalism: Ancient and Modern, 1975)

29
it) was established, according to which citizens could rationally and

deliberately adopt a new constitution to meet their needs.”16

CONSTITUTIONALISM IN TRANSITION

Modern conceptions of constitutionalism came from the theory of the

social contract in the writings of Thomas Hobbes, John Locke, and Jean-

Jacques Rousseau. It was from their postulates of natural rights and the

proper functions of the government that modern constitutionalism

workings such as the American Declaration of Independence, Bill of Rights,

and the French Declaration of the Rights of Man and the Citizen were

conceived. The main focus of constitutionalism for Hobbes and Locke was

to provide constitutional stability. Hobbes declared that this buoyancy

came from the citizens’ consent to grant power to a sovereign in order to

avoid a state of disorder and war that occurs in a state of nature; this

notion was called ‘radical rationalism’. Locke added to this by saying there

is a two-directional flow of accountability between the citizen and the

sovereign. Individuals acknowledge the judgments of a common judge in

exchange for a government promise to execute its trust faithfully. He

further asserts that individuals have a right of revolution also against a

government, if it becomes unconstitutionally oppressive. Rousseau’s

concern for constitutionalism, however, was not restricted to constitutional

stability. He was also concerned with providing legitimacy through

16 Constitution/Politics and Law, Written by: Herbert John Spiro, Encyclopedia

Britannica, https://www.britannica.com/topic/constitution-politics-and-law

30
universal participation in legislation. In this sense, he gave the

philosophical foundation of “totalitarian democracy.”

Though constitutionalism, the spirit of constitution, had already been

alive and practiced for many years, Britain's Magna Carta, the Great

Charter of 1215, is now widely accepted by general consent of history as

the world's first major constitutional document. Indeed, it is interesting to

read the constitutions of the USA, both the federal constitution and those

of individual States, as well as the constitutions of many Commonwealth

countries, and to note how many passages from Magna Carta have simply

been adopted. Magna Carta provided Britain's reformers with a firm

foundation, a cornerstone on which subsequent constitutional documents

could be added to form the assemblage which, combined with unwritten

custom, is commonly referred to as Britain's "constitution" today.

PRESENT DAY CONSTITUTIONALISM

Constitutionalism in today’s sense is much different than

original Roman interpretation. Constitutionalism declares a certain set of

rights and is considered to be a prerequisite for a successful democracy.

This includes procedural stability, accountability, representation, division

of power, and openness and disclosure. Constitutionalism plays a major

function in today’s western legal cultures and is a necessity for modern

legal structures

31
 Constitution limits absolute power. This is achieved by placing

conditions on the use of that power, by requiring the sharing of power with

those subject to it through a process of debate, and by establishing limits

which the law may not violate. No government, President or Monarch, no

institution of law or enforcement, should be allowed to exist and to function

without a constitution. No one should exercise power over others unless

that power and the conditions of its use have been strictly defined. In the

words of Thomas Paine: "government without a constitution is power without

right".17If, for example, the constituent act of the people entrusts certain

definite powers to their government, "enumerated powers" as we term them,

it is a necessary inference that this government cannot exercise any powers

not so "enumerated." All constitutional government is by definition limited

government. We may not agree that these limits are necessarily

"antecedent" in the sense of that term that Paine had in mind, but for

everyone they must be in some sense "fundamental," and fundamental not

merely because they are basic, but because they are also unalterable by

ordinary legal process.

There are written and unwritten Constitutions. The Constitution of

India is written. TheConstitution of the United States of America is the

shortest written Constitution while the English constitutional tradition is

on the other hand unwritten and that appears to be not too demanding

with regard to catalogues to necessary elements of Constitutionalism.

17Thomas Paine, Rights of Man, (1791)

32
WRITTEN CONSTITUTION

A Written Constitution is one which is found in one or more than one

legal document duly enacted in the form of laws. It is precise, definite and

systematic. It is the result of the conscious and deliberate efforts of the

people. It is framed by a representative body duly elected by the people at

a particular period in history.

It is always promulgated on a specific date in history. The

Constitution of India, for example, is a written Constitution. It was framed

by a representative Constituent Assembly and was promulgated on a

definite date. i.e., 26th January 1950.

A written Constitution is mostly rigid and a procedure separate from

that of enacting ordinary law is provided for its amendment or revision. In

other words, a distinction between constitutional law and ordinary law is

maintained. The first is regarded as superior to the second. A written

constitution may also be termed as an enacted or codified constitution.

Modern written constitutions owe their origin to the charters of

liberty granted by the kings in middle ages. But the first written

constitution framed by a representative constituent assembly was that of

the United States of America. This example was followed by France. During

the 19th century a number of States framed their constitutions, all of

which were written, with the exception of the constitution of England.

33
UNWRITTEN CONSTITUTION

Generally, a Constitution which is not embedded in a single

document that based chiefly on customs and precedents as expressed in

statutes and judicial decisions is called unwritten Constitution.

The English governmental system has probably evolved more slowly

than many other systems with the written Constitution and Constitutional

review. However, the English Constitutional tradition is even more

demanding to its institution than many systems with Constitutional review.

Therefore, the documentation of a Constitution is neither an indicator of its

legal or political character. It is rather an indicator of a particular intensity

of both political and legal normative claims.

Thomas Paine sincerely believed that the origin of the government

either must be out of the people or over the people. According to him the

English government is one of those which arose out of the conquest and

consequently it arose over the people. Therefore, it exists without a

Constitution. On the other hand, in the Constitutions which have arisen

out of the people, the common individual can exercise his inherent

sovereign right, was personal to him if entered into a compact with each

other to evolve a system of governance. This compact is indeed the

Constitution. Therefore, Pain contended that ‘Constitution is not a thing in

name only but in fact … “A Constitution is not the act of a government, but of

the people constituting a government”18

18Ibid

34
 The objectives of the Constitution making process is to produce one

coherent possible short and general understandable text creating specific

political and legal normatively. Constitution is the highest law, lex suprema

in a given political order.Constitution can wield its supreme power in a

constitutional system by placing itself above and between the two processes

of law-making and law-enforcement and thus placed in control of that

crucial hub without which each process in itself is ineffective.

While narrating the history and nature of constitutionalism, a

comparison is often drawn between Thomas Hobbes19 and John Locke20

who stood for, respectively, the notion of constitutionally unlimited

sovereignty(REX) versus that of sovereignty limited by the terms of a social

contract containing substantive limitations. English legal theorist John

Austin contended that‘s all law is the command of a sovereign person or

body of persons’, and so the notion that the sovereign could be limited by

law requires a sovereign who is self-binding, who commands

him/her/itself. But no one can "command" himself, except in some

figurative sense, so the notion of limited sovereignty is, for Austin (and

Hobbes), as incoherent as the idea of a square circle.21Though this feature

of Austin's theory has some surface plausibility when applied to the British

Parliamentary system, where Parliament is often said to be "supreme" and

19Hobbes, Thomas, De Cive (The Philosophical Rudiments Concerning Government

and Society, (1642)
20Locke, John, Two Treatises of Government(1690) especially Book II, Chapters XI–XIV
21Leviathan, Ch. 29

35
constitutionally unlimited,22 it faces difficulty when applied to most other

constitutional democracies such as one finds in the United States and

India, where it is clear that the powers of government are legally limited by

a constitution. Austin's answer was to say that sovereignty may lie with the

people, or some other person or body whose authority is unlimited.

Government bodies like Parliament or the Judiciary can be limited by

constitutional law, but the sovereign,‘We the people’ remains unlimited.

DOCUMENTATION

Why constitutional norms must be written rules, as opposed to

informal conventions and organic social norms? A possible reason is that

the unwritten rules are less precise and therefore susceptible to

"interpretation," gradual change, and ultimately avoidance, than written

ones. Some theorist believe that constitutional rules do not exist unless

they are in some way incorporated in a written document. The contrary

view is that the constitution can also be unwritten, and cite as an obvious

example of this possibility, the constitution of the United Kingdom and

Israel etc.. Though the constitutional system in UK has nothing resembling

the American Constitution and its Bill of Rights, it nevertheless contains a

number of written instruments which have, for many centuries, formed

central elements of its constitution. Magna Carta (1215 CE) is perhaps the

earliest document of the British constitution, while others include The

Petition of Right (1628) and the Bill of Rights (1689). Furthermore,

22Sir William Blackstone,What Parliament does "no authority upon Earth can undo.

36
constitutional limits are also said to be found in certain principles of the

common law, explicitly cited in landmark cases concerning the limits of

government power. However historically the constitution of the UK has

been considered as an unwritten one, and therefore the inevitable

implications that wittiness is not a “defining feature” of constitutionalism.23

In many countries like in India, where there is written Constitution, it

is not unusual to find that such a written Constitution supplemented by

ordinary statues like the Representation of the Peoples Act. In fact, various

provisions in the Indian Constitution enable an appropriate legislature to

supplement the Constitutional provisions by making laws relating to

specified matters.24

Whatever be the inadequacy of the distinction between written and

unwritten Constitution, it has come to stay as one of the major topics for

discussion in political science.

SOVEREIGNTY AND GOVERNMENT

Though there are serious difficulties inherent in Austin's25attempt to

make sense of "the people's sovereignty," his account emphasize the need to

differentiate between two different concepts: sovereignty and government.

Roughly speaking, we might define ‘sovereignty’ as the possession of

supreme power and authority over some domain, and ‘government’ as those

23https://www.plato.stanford.edu/entries/constitutionalism/

Last visited Jan 10, 2001

24Art. 2,3,11,16 (3),17,19 (2)-6 of the Constitution of India
25 Austin, J.L., The Province of Jurisprudence Determined (Cambridge: Cambridge

University Press, (1995)).

37
persons or bodies through whom that sovereignty is exercised. This is the

logic behind the constitutional democracies where the people's sovereign

authority is thought to be unlimited but the government bodies, the

legislature(s) and the courts, through whom that sovereignty is exercised on

the people's behalf, is constitutionally limited. As Locke held, unlimited

sovereignty remains with the people who have the normative power to void

the authority of any branch of their government if it exceeds its

constitutional limitations.

CONSTITUENT POWER

The verb ‘to constitute’ stems from the Latin word constitūere, which

is a combination of the prefix con- and the verb statūere. The prefix con-

has varied grammatical connotations, the most important of which is “with”

or “together.” The verb statūere, on the other hand, derives from stătūo,

which means, “to cause to stand,” “to set up,” “to construct,” “to place,” “to

erect,” “to establish,” “to create.”26 The terminology constitūere, therefore,

can be understood as the ‘act of founding together’, ‘creating jointly’, or ‘co-

establishing’.

 Roman public law, named a very specific kind of legislative

practice that was regarded as superior to ordinary legislation, that is,

extraordinary acts of establishing or altering the fundamental laws and

institutions of the Republic.27 For instance, in the juridical form of rei

26Statuois itself derived from stare, that is, to stand firm and still
27CarlSchmitt, Die Dictatur, Theodore Mommsen, Le Droit Public Romain, Vol. 4 (Paris:
Thorin and Fils, 1884), 425-70, P. 127-49

38
publicaeconstituendae, it meant the power to initiate radical legal

changes.28 The office of the dictator, the decemvirs, the triumvirates, and

other regular and special commissions were treated as institutions of

constituent power. However, as they derived their authority and status from

a higher constitutional authority which authorized their power as a special

commission, these magistracies were not considered sovereign at all.

Likewise, the title of cõnstitūtor signified he who establishes, the one who

orders, the founder who exercises the power and authority to reform and

transform.29 After the collapse of the Republic, the power to constitute

went back to the Roman Emperor and became the validating basis to

describe his judicial decisions and higher executive degrees and

enactments (constitutio).30

During the early Middle Ages, the political use of the term ‘to

constitute’ lost its ancient legal and political significance and became

purely descriptive—in the literary sense, reduced to the faculty of making

or constructing. It was also invoked by various medical text books to

describe the anatomical ordering of a living being, its physical body and

28Cicero, De Re Publica, trans. Clinton Walker Keyes (Cambridge: Harvard University

Press, 1994), 264-67; Livy, History of Rome, trans. B.O. Foster (Cambridge: Harvard
University Press, 1997), 333-34; Appian, Civil Wars, trans. Horace White (Cambridge:
Harvard University Press, 2002), 185; Lucius Ampelius, Liber Memorialis, 29..1
29 Karl Ernst Georges, Ausfuhrlicheslateinisch-deutsches und deutsch-
lateinischesHandwowrterbuchaus den Quellenzusammengetragen und
mitbesondererBezugnahme auf Synonymik und AntiquitatenunterBerucksichtigung der
bestenHulfsmittel (Leipzig, 1869), 1151-52
30The Digest of Justinian, trans. A. Watson (Philadelphia: University of Pennsylvania
Press, 1985), 1:1.6, 1:2.18, 1, 5.

39
material constitution.31 But then, it reappeareed in late medieval political

vocabulary, invested with a new meaning: the act of appointment. From the

tenth century on, ‘to constitute’ means to appoint an officer, to invest a

person with specific powers, to attribute concrete and particular public

functions to an individual, to elect someone into office; in short, to

authorize.

It is within this conceptual shell of the medieval use that the concept

of constituent power was firstly incubated and formed. Marsilius of Padua

in the early fourteenth century laid the foundations of a novel conception of

sovereignty and opened the way for the modern reinvention of democracy.32

His renowned and controversial text, DefensorPacis, was completed in

1324, during the turbulent conflict between Louis IV, the Holy Roman

Emperor, and Pope John XXII. The dispute between the two over the

ultimate locus of sovereignty caused a temporary breakdown of legitimacy,

creating a fissure from which popular sovereignty eventually came into

being. Marsilius claimed that none of the two could be sovereign since they

both lacked the ultimate power to self-appoint appoint or to appoint the

other. In the space separating the two instituted sovereigns, in the void

opened up by their struggle for supremacybetween the secular and the

31 Ulrich Preuss,The Constitution as the ‘Object of all Longing, in Constitutional

Revolution, 27
32Otto Gierke, Political Theories in the Middle Age (Cambridge: Cambridge University

Press, 1987), 46-47; Charles Howard McIlwain. The Growth of Political Thought in the
West: From the Greeks to the End of the Middle Ages(New York: Macmillan Company,
1932), 305; Alexander PassarinD’Entreves. The Medieval Contribution to Political
Thought(Oxford: Oxford University Press, 1939), 59; Walter Ullmann, Principles of
Government in the Middle Ages (New York: Routledge, 2010), 282.

40
spiritual a new political subject made its appearance: the multitude with its

supreme right to appoint its Emperors and Popes. When it comes to

account for the advent of modern democracy, the paradigm of command

tends to explain it in terms of a transfer of sovereignty from the king to the

people, from the One to the Many.33

The conceptual history of constituent power goes against these

concepts command and subjection. In positive terms, democracy qua

constituent power discloses a different idea of sovereignty, opposed and

antagonistic to the regal paradigm: ‘the power of the people’ to constitute.

Political modernity can thus be viewed as consisting of two forms of

sovereign power and two visions of politics: the democratic and the

monarchical, the constitutional and the absolutist, the federalist and the

statist, the power of the ‘Many’ to constitute as opposed to the power of the

‘One’ to command.

Constituent power is the truth of modern democracy. The modern

doctrine of popular sovereignty coincides with the conceptual advent of

constituent power. They are co-original and coeval.34 From a historical

point of view then, constituent power and modern democracy are closely

33Hannah Arendt, On Revolution (New York: The Viking Press, 1963), 154-58.
34Ernst-Wolfgang Böckenforde, “Die VerfassungsggebendeGewalt des Volkes-
EinGrenzbegriff des Verfassungsrechts,” Staat, Verfassung, Democratie.
StudienzurVerfassungstheorie und zumVerfassungsrecht (Frankfurt-am-Main: Suhrkamp,
1991), 11-12; Andrew Arato, “Forms of Constitution Making and Theories of Democracy,”
Cardozo Law Review 17 (1995): 202–54; Antonio Negri,Insurgencies: Constituent Power
and the Modern State (Minneapolis: University of Minnesota Press, 1999), 1; Martin
Loughlin, “Constituent Power,in The Idea of Public Law (Oxford University Press, 2004),
100; Martin Loughlin and Neil Walker, The Paradox of Constitutionalism: Constituent
Power and Constitutional Form, ed. Martin Loughlin and Neil Walker (Oxford
University Press, 2007),

41
associated from their beginnings in the concept of popular sovereignty.

Secondly, there is a widespread systematic and conceptual analogy between

constituent power and democracy, insofar as they both describe collective

acts of self-legislation and public events of self-alteration. From this elective

affinity, democratic constituent politics evokes the principle of liberty as

political autonomy, whereby the members of a collectivity deliberately

constitute the political forms of authority in order to organize and

institutionalize their common life.35The addressees of the law become its

authors. Hence, formulating popular sovereignty as constituent power is to

affirm the basic democratic value of self-government. Ever since Carré de

Malberg identified sovereignty as “the capital problem in public law,” it has

been treated as a legal anomaly, a disturbing irregularity, and a political

threat.36.Therefore all the modern constitutions went for the recital “WE

THE PEOPLE”.

ENTRENCHMENT

According to most writers, another vital feature of constitutionalism

is that the rules imposing limits upon government power must be in some

way be ingrained, either by law or by way of "constitutional convention."

The organs of the government must not be legally entitled to change or

expunge those limits at their pleasure. Most written constitutions therefore

35Jeffrey Seitzer Carl Schmitt, Constitutional Theory,(Durham: Duke University Press,

2008), 101-2, 105, 112, 115, 120-21, 128-29, 136-39, 145-46; Cornelius Castoriadis,
“What Democracy?” in Figures of the Thinkable, trans. Helen Arnold (Stanford
University Press, 2007), 122-24
36Raymond Carré de Malberg, Contribution á la ThéorieGénérale de l’État, Vol. 2 (Paris:

Librairie de la société du RecueilSirey, 1922), 483

42
contain amending procedures which can be initiated by, and require the

participation of, the government bodies whose powers they limit. But these

procedures invariably require something more than a simple decision on

the part of the government to invoke a change. Sometimes constitutional

assemblies are mandated, or super-majority votes, referendums, or the

agreement of not only the central government in a federal system but also

some number or percentage of the governments or regional units within the

federal system. Entrenchment not only facilitates a degree of stability over

time but it is also a basic requirement for the functioning of constitutionally

limited government. Modern constitutional writers however insist on

organic evolution of constitution in view of changes imposed by global

politico-economic developments.

CONSTITUTIONALISM AND RULE OF LAW

Constitutionalism in the eyes of John Locke and the "founders"

of the American republic, is equated with the concept of the "Rule of Law"

that government must be a limited institution and that the authority of the

Constitution is indeed dependent on enforcing these limitations.

Maintaining the Constitution, in every micro detail, is vital. “Individuals die

but the Constitution needs to live for as long as one human remains alive,

and perhaps even beyond that”. (Jon Roland, 2003)

The idea of constitutionalism pre-existed the written

constitutions. Constitutionalism proscribing the ambit of official power,

limits the government. Constitutionalism therefore defines the boundaries

43
between the State and the individual, forbidding the State from trespassing

into certain areas held separately for private action. Constitutionalism also

has a deeper and older connotation, demanding adherence to recognized

customary procedures.

Modern Constitutions have indeed established a body of

governmental instructions that provide the necessary conditions for the

achievement of a democratic RULE OF LAW, orRechtsstaatas per German

Jurisprudence.37Constitutionalism is a necessary foundation of the rule of

law.Depending on how constitutionalism and the rule of law are defined,

different writers have different interpretations on the relationship between

constitutionalism and the rule of law. Some scholars in China argue that

the rule of law is merely one part of constitutionalism, and that the rule of

law alone does not establish a constitutional system. Other Chinese

scholars think that the rule of law is equivalent to constitutionalism, and

that the supremacy of law is first and foremost the supremacy of the

constitution.38A.V.Dicey, the noted English jurist, viewed "the universal

rule or supremacy... of ordinary law" as one element of English

constitutionalism.39Constitutionalism in general is a system of government

based on the supremacy of the constitution, democratic government,

separation of powers, checks and balances, judicial independence and

37‘PetraDibnerand Martin Loughlin, The Twilight of Constitutionalism?(xi-xiv)

38Chen, Albert H. Y. "Toward a Legal Enlightenment: Discussions in Contemporary China on
the Rule of Law."UCLA Pacific Basin Law Journal 17 (1999-2000): 125-165.
39Dicey, A.V. Introduction to the Study of the Law of the Constitution, (Indianapolis:

Liberty Fund, 1982).

44
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 exist.

The relationship between constitutionalism and the rule of law lies in

the fact that constitutionalism provides a minimal guarantee of the justice

of both the content and the form of law. Indeed, western jurisprudence in

the last one hundred years has focused exclusively on the form of law; it

has concentrated its efforts on finding those procedural devices and

safeguards that make law more just and more rational. Western

jurisprudence can afford to do so because there has been constitutional

democracy in the West for more than two hundred years. Constitutional

democracy provides a guarantee that the content of the laws will be just. A

large number of constitutional devices, including representative democracy,

competitive and periodic elections, and a free press, are designed to ensure

the just content of laws. Giovanni Sartori, a prominent political philosopher

writes that "the existence of the ‘Rechtsstaat’ (constitutional ‘garantisme’)

appears to eliminate the very possibility of the unjust law and thereby

allows the problem of law to be reduced to a problem of form, not of

content".40

Constitutional government, at the same time, provides a minimal

safeguard for the form of law to be just. In order to have procedural justice,

40Sartori,
Giovanni. The Theory of Democracy Revisited(Chatham, New Jersey:
Chatham House, 1987).

45
specific procedures have to be either written into statutes by legislators or

articulated by independent judges in case law. A constitutional mandate

and culture of rights protection is necessary for the establishment of fair

and transparent procedures. In addition, there must be independent judges

dedicated to legal reasoning to see to it that well-established procedures are

complied with. A constitutional structure of separation of powers, checks

and balances and independent judiciary is necessary for the effective and

consistent implementation and enforcement of well-established procedures.

The third aspect of the relationship between constitutionalism and

the rule of law is that constitutionalism strikes a proper balance between

rule of law and rule of person. To Sartori, either the rule of law or the rule

of person, left alone by itself, can be problematic. In a representative

democracy, the rule of person means the rule of legislators. Under the rule

of person in a representative democracy, law is the product of the "sheer

will" of the legislators41. The rule of person, left unchecked, presents the

danger of tyranny. In contrast, under the rule of law, law is the product of

judges' "legal reasoning." The rule of law, by itself, can be inadequate for

three reasons. First, the rule of law can be too static; secondly, the rule of

law can result in the tyranny of (unelected) judges; and finally, the rule of

law, by itself, may not address the problem of political freedom42. As such,

the ideal representative democracy needs to strike a proper balance

between the rule of legislators and the rule of law. This is done through

41Ibid
42Ibid

46
liberal constitutionalism. The following quote from Sartori's 1987 book is

illuminating:

"Liberal constitutionalism is the technique of retaining the

advantages of [the rule of legislators and the rule of law] while lessening

their respective shortcomings. On the one hand, the constitutional solution

adopts rule by legislators, but with two limitations: one concerning the

method of law making, which is checked by a severe ‘iterlegis’; and one

concerning the range of law making, which is restricted by a higher law and

thereby prevented from tampering with the fundamental rights affecting the

liberty of the citizen. On the other hand, the constitutional solution also

sees to it that the rule of law is retained within the system. Even though

this latter component of the constitutional rule has been gradually

displaced by the former, it is well to remind ourselves that the framers of

liberal constitutions did not conceive of the state as being a machine a ‘faire

lois’, a law making machine, but conceived of the role of the legislators as a

complementary role according to which parliament was supposed to

integrate, not to replace, judicial law finding"43.

Finally, constitutionalism is protected by the rule of law. Sans law,

sans constitutionalism. In other words, if laws are exclusively the results of

the "sheer will" of the legislators, there can be no constitutionalism. For, a

constitutional structure of separation of powers, checks and balances and

rights protection to survive, there must be prescribed limits on the

43Chatham, N.J, The Theory of Democracy Revisited,(Chatham House Publishers, 1987)

47
legislator’s ‘will’ in making laws. This limit is imposed by the rule of law

and actualised through an independent judiciary, the judicial review and

the paradigm that law is ultimately the product of ‘independent’ legal

reasoning by judges. "Even though our constitutions are becoming more

and more unbalanced on the side of statutory law making, as long as

constitutions are considered a higher law, as long as we have judicial

review, independent judges dedicated to legal reasoning, and, possibly, the

due process of law, and as long as a binding procedure establishing the

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

conception of law as long as these conditions prevail, we are still depending

on the constitutional solution of the problem of political power"44.

The very fundamental step in political development is the movement

from total lawlessness, or anarchy, towards a semblance of centralized law

and order. The politically developed nations have of course long accepted

the concept of a central authority or government, and the Rule of Law

which sets limitations upon the scope of people's actions; but this

nevertheless remains as the foundation of government and of a nation's

compact with its government. When power, that is the ability to physically

influence the behavior of others, is centralized, the rule of law is invariably

imposed. Instead of individuals arguing and settling their differences in

skirmishes orbattles based on power, the authority to establish decisions

on social conduct together with the power necessary to enforce them is

44Ibid

48
vested in a centralized institution a monarch, dictator, or elected

parliament.

Society indeed can benefit from the stability afforded by centralized

rule of law. And if government can formulate and enforce fair, just and

universal rules of social conduct, citizens will be able to live at peace with

one another in positive and productive collaboration. However, this is a

major qualification,when the people hand the power of decision over their

lives and livelihoods to a centralized authority, they would be well advised

before doing so, to define that power with strict rules of procedure, and so

ensure that the power thus entrusted can never be misused. "We the

People" have over the years given to government, or we have stood by while

government has taken and continues to take, more and more power over

our lives. Constitution sets the limitations within which that power can be

used.

That of course is nothing more than an ideal. Power is not handed

over conditionally by the people to their newly delegated public

administrators. Centralized power is established by strength, then used to

benefit those who hold it. Thus, in practice any rules attempting to

delineate and discipline the use of centralized power must be introduced

after the event, generally with considerable resistance on the part of the

rulers. Today we understand clearly and accept fully the idea that

constitution limits absolute power.

49
CONSTITUTIONAL LAW

Constitutional law deals with the basic principles by which the

Government exercises its authority. It is in fact the body of the law that

evolves from a Constitution setting different fundamental principles

according to which the State is governed and defining the relationship

between various branches of government within the State. A vast majority

of this body of law has been developed from the judicial review by the

competent courts which have the power to interpret the respective

Constitution and uphold the constitutional values. It is always considered

to be the branch of public law of a State and serves as a touch stone on

which the constitutional validity of the legal enactments are tested by the

criterion of conformity to the principles laid down in the Constitution of the

country.

The authors of democracy had a clear notion of the consequence of

constitution making. The Americans expressed it as ‘paramount law’ and

deployed the distinction between master and servant or principal and

agent, while Sieys conceptualized it in the dichotomy of pouvoirconstituant

(Constituent power) and pouvoirconstitue45 (constituted power). Without this

distinction and the distinction between constitutional law and ordinary law

and of the subordination of the latter to the former, constitutionalism

would have been unable to fulfill its function.

45James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (1788), No
78; E. Sieyes, Qu’est-ce le Tiers Etat (Paris: 1789)

50
CONSTITUTION - THE SUPREME LAW OF THE LAND

If the Constitution is to take its place as the Supreme Law of

the Land, then it must stand, not at the apex of the judicial system, but at

the apex of the legislative process, given voice and substance as a

Constitutional Executive similar in composition and stature to the US

Supreme Court and charged with the verification of proposed legislation

prior to its formal enactment. This position of supremacy can be assured in

a constitutional system by placing the Constitution at a critical point in the

governmental process.

There are two basic elements inherent in the process of governing.

The first is decision, the second is enforcement. Government decides what

laws are inevitable for the proper conduct of society, thenensures that they

are enforced. The process of governing depends on handling these two

functions individually and uniting them so that they are mutually

supportive. This process of union is vital. There is no purpose in

government's making laws if it cannot enforce them. Likewise there is no

point in having mechanism like police, judiciary, and correctional

institutions if they are given no laws or orders to enforce.

The process of government therefore involves making laws and

enforcing them. Neither of these two elements works without the other and

hence they must be coordinated. Constitution can exert its supreme power

in a constitutional system only by placing itself above and between the two

processes of law-making and law-enforcement and thus controlling that

51
vital link without which each process in itself is ineffective. A truly

Constitutional system of government can be achieved through the

separation of decision and enforcement, the two being connected so that

each can empower the other only through the constitution, and only on

condition that both comply with constitutional requirements.

MODERN OUTLOOK ON CONSTITUTIONALISM

In the modern times, the term, "Constitution" connotes a set of rules

or norms creating, structuring and defining the limits of, government power

or authority. In other words, all States have constitutions and all States are

constitutional States. Anything recognizable as a State must have some

acknowledged means of constituting and specifying the limits placed upon

the three basic tenets of government power: legislative power (making laws),

executive power (implementing laws) and judicial power (adjudicating

disputes under laws).

When scholars discourse about constitutionalism they mean not only

that there are rules creating legislative, executive and judicial powers, but

that these rules impose restrictions on those powers. Often these

limitations are in the form of individual or group rights against government,

rights to things like free expression, association, equality and due process

of law. But constitutional limits come in a variety of forms. They can

concern such things as the scope of authority, the mechanisms used in

exercising the relevant power and of course civil rights.

52
 Constitutionalism in this broader senseof the term is the idea that

government can/should be limited in its powers and that its authority

depends on its observing these limitations.

THE CRUX OF THE CONCEPT

Constitutionalism is a special and particularly ambitious form of

legalization. Its characteristics can be summarized as given below:

1. The constitution in the modern sense is a set of legal norms, not a

mere ideological construct. The norms emanate from a political

decision rather than some pre-established truth.

2. The purpose of these norms is to regulate the establishment and

exercise of public power as opposed to a mere modification of a pre-

existing public power.

3. The regulation is comprehensive in the sense that no extra-

constitutional bearers of public power and no extra-constitutional

ways and means to exercise this power are recognized.

4. Constitutional law finds its origin with the people as the only

legitimate source of power. The distinction between

pouvoirconstituant and pouvoirconstitue is essential to the

constitution.

5. Constitutional law is higher law. It enjoys primacy over all other laws

and legal acts emanating from government. Acts incompatible with

the constitution do not acquire legal force.

53
 6. These five characteristics refer to the function of the constitution. As

such they differ from the many attempts to describe the modern

constitution in substantive terms: democracy, rule of law, separation

of powers, fundamental rights. The reason is that constitutionalism

leaves room for many ways of establishing and organizing political

power.

CONSTITUTIONAL CONVENTIONS

The idea of constitutionalism is based on legal limitation on

government power and authority. But constitutional scholars also hold the

view that there is more to a constitution than constitutional law.

A.V.Diceyproposed that in addition to constitutional law, the British

constitutional system contains a number of "constitutional conventions".

They limit government in the absence of legal limitation. These are only

social rules arising out of the practices of the ‘polity’ and impose important,

but non-legal, limits on government powers. British constitutional

convention contains a rule that the Queen may not refuse Royal Assent to a

bill passed by the Houses of the UK Parliament. Another example that can

be cited is the convention that individuals elected from the State of Florida

in the American Electoral College (the body which actually chooses the

American President by majority vote) must vote for the Presidential

candidate who has secured majority votes of Floridians on election night.

Since these are political conventions, unenforceable in courts of law,

constitutional conventions are said to be distinguishable from

54
constitutional laws, which can indeed be legally enforced. If we accept

Dicey's distinction, we must not identify the constitution with

constitutional law. It includes constitutional conventions as well.

CONSTITUTIONAL INTERPRETATION AND CONSTITUTIONAL

THEORIES

There are certain ground norms like, there is more to a constitution

than constitutional law and constitutional norms need not always be

written rules. Besides these generic norms, two facts must be

acknowledged:

1. A vast majority of constitutional cases hinge on questions of

constitutional law; and

2. Modern constitutions are predominantly written documents.

Therefore, constitutional cases raise‘theoretical issues’ concerning the

proper approach to the ‘interpretation’ of those written instruments.

(A) THE FIXED VIEW AND THE LIVING TREE

Some constitutional scholars and judges view a constitution as

a "living tree", which must grow and adapt to contemporary beliefs and

practices about ‘justice’. Such conceptualization will tend to spurn appeals

to strict textual meaning and authors' intentions as attempts to impose the

past upon contemporary society and practice. Government must be limited

in power, but the understandings about these limitations should be allowed

to evolve and adapt in the light of changing beliefs and practices about

justice. Despite its undoubted appeal to some, the living tree conceptfaces

55
tough opposition and different exponents of constitutional interpretation

split on how they answer this important question.

(B) ORIGINALISM

Originalists might admit that Textualism is partially correct but

doesn't go far enough. But the original intentions of a constitution's

authors are indeed important. Undoubtedly the textual meaning is also

important is that it's often the most reliable painter to those intentions. But

when textual meaning fails, direct appeal to the relevant intentions is

inevitable. In both kinds of cases, however, the objective is to respect

original intentions.

Originalism do face challenges, some shared with Textualism. The

original intentions of the authors of a constitution is subject to personal

deductions which varies from person to person. Sometimes the only things

upon which joint authors of a text can agree are the naming of the words

‘per se’. The intentions behind that choice can, however, vary significantly.

Constitutional authors and legislators can have different goals and

applications in mind and yet settle on the textual meaning of the words.

Therefore, it is rather unhelpful to rely on original intentions only when

interpreting a constitution.

(C) HYPOTHETICAL INTENT THEORY

Human situations are so complex in these days that they could not

possibly be contemplated, let alone intended to be dealt with in any

particular way. Therefore, in such instances, the hypothetical question of

56
what the original authors would have intended to be done in the case at

hand needs to be considered. We need to imaginativelystep in to the

authors' shoes, and determine, in the light of their intended goals and

values, and possibly by way of synchronizing with their intended

applications, what they would have wanted to be done in the charged

circumstances.

The Hypothetical Intent Theory is criticized too since the theory

assumes that we can isolate out one, consistent set of values, goals and

applications attributable to the authors, in terms of which we are to ask the

question.Further, even if we succeed in this endeavor, it is unlikely that

there will always be a single correct answer to the question of what the

authors would have intended in these cases. “Unless we reject completely

the idea that there might be moral progress, or the idea that any such

progress must always be dismissed for the sake of a fixedness allegedly

guaranteed by adherence to authors' intent, there seems little reason to

believe that we should be so tied.”

(D) MORAL THEORY

This theory postulates that a constitution is based on the principles

of political morality which provide the best explanation and moral

justification, i.e. the best interpretation of whatever limits have been

expressed in positive law. Hence, according to this theory constitutional

interpretation must always invoke political morality. One bent upon to

interpret the limits upon government power and authority mandated by a

57
constitution must look to an interpretive theory which provides the positive

constitutional law with its morally best explanation and justification.But for

many constitutional scholars, originalism and textualism are no less

problematic than Dworkin's interpretive theory based on political morality.

Critical theorists are highly vary of constitutional practice and

theories which perceive constitutionalism as a bulwark against oppression.

A key element in the idea of constitutionalism is that government

can/should be limited in its powers and that its authority depends on

adherence to those limits. Also, the authority of constitutions in liberal

democracies is generally thought to lie in "the people."

Arguments of political morality may be essential to frame a

constitution, but if judges and other contemporary interpreters tend to

restrict it within their perceptions, then the possibility of limitation

vanishes. Ronald Dworkin’s theory of constitutional interpretation attempts

to do justice to both these points of view.

(E) CRITICAL THEORY

Critical theories always pose a serious challenge to conventional

theories and established practices of constitutional interpretation as well to

the very idea of constitutionalism itself. The solutions offered by this

school of thought vary considerably from one theorist to another, depending

on how radical the theorist tends to be. But whatever the preferred

solution, all critics of constitutionalism seem to agree that progress can be

made only if the myths surrounding constitutional protection, the

58
constraining force of meaning, intention, and objectively true moral theory,

are all clarified, and that the true political forces at work in constitutional

practice are acknowledged and dealt with openly.

According to Dworkin's historical factors like semantic meaning and

intention, though always important, are in no way ‘dispositive’. They in no

way fix the limits of government power until such time as an

amendment.On the contrary, constitutions frame the terms of an ongoing

political debate about the moral principles of justice, fairness and due

process underlying a nation's constitutional limits on government power.

And as the polity’s appreciation of these principles develops and improves,

the very content of the constitution develops and improves along with it.

The law, including constitutional law, is a powerful tool which has,

historically, been exploited by dominant groups to secure and maintain

their superior status. As such, a constitution is anything but the protection

from unwarranted power that its petogorists have upheld over the

centuries. What consideredto be "equality" is what the dominant group

understands it to be. What is considered to be the obvious historical

intentions of the framers is whatever intentions suit the ideologies of the

dominant groups. What is taken to be the best moral theory underlying the

constitution is but a rationalization of current social structures, all of

which systematically oppress the interests of weaker and oppressed

segments of society.

59
 Constitutional Theory helps us to understand where an argument is

coming from and where it might take us. It helps us to see the macro over

view of governance and the microorganisms which help to keep alive the

different mechanisms of power centers and their limitations with reference

to achieving over all goals set out in the Constitutional texts. Ultimately, we

are able to discern how different doctrines are related and how they fit into

the overall organizations of Constitutional Law.

DECISION, FORCE AND ARBITER – A TRIANGULAR MODEL

We can thus visualize a theoretical constitutional system of

government as three points of a triangle. At the top point of the triangle we

have the Constitution.At lower left, we have the Legislative Process –

proposal, debate, and formulation of laws;At lower right the Enforcement

Agencies – police, judiciary, correction.

The two points at the base of the triangle, representing the

Legislature on the left, and the Enforcement Agencies on the right, are not

directly joined. This is the very essence of constitutional government.

Decision and Force are allowed no direct contact; legislative proposals

cannot be passed directly to Enforcement. Only by moving upwards and

passing successfully through the process of Constitutional Verification can

legislative proposals gain the formal force of law. And similarly, only

through continuous compliance with the constitutional provisions can the

Enforcement Agencies qualify to receive legislative instructions. Decision

and Force; each powerless without the other, each empowered, and the two

60
joined, only by and through the constitution, only on condition that each

and both fulfill the provisions of the constitution.

A further issue of constitution relates to the process of constitutional

amendment. With the passage of time new perceptions or conditions will

make it necessary for existing constitutional articles to be reconsidered, or

new ones to be added. Without adequate provision for amendment,

inconsistencies are bound to develop as the customs and expectations of

civilization change.

THE RECENT TRENDS IN CONCEPTUALIZATION OF CONSTITUTIONALISM

We live in an era of constitution making. Writing a constitution is

part of many peace processes. New nations and radically new regimes that

seek democratic credentials make writing a constitution a priority. In a

changing world, constitutional practice is also changing.

Constitutions remain higher law, specify the institutions of

governance, define the rights, duties, and relationships of State and

citizens, and set the tone or establish the identity of the nation-state. Onto

this traditional foundation, however, today's framers seek to build new

practices. Recent constitution-making processes have been accompanied by

massive efforts to involve the public before, during, and after the text is

finalized. Examples of new practice include: prior agreement on broad

principles as a first phase of constitution making; an interim constitution

to create space for longer term democratic deliberation; civic education and

media campaigns; the creation and guarantee of channels of

61
communication, right down to local discussion forums; elections for

constitution-making assemblies; open drafting committees aspiring to

transparency of decision making; and approval by various combinations of

representative legislatures, courts, and referendums.

Twenty-first century constitutionalism is redefining the long tradition

of expert constitution making and bringing it into the sphere of democratic

participation. How the constitution is made, as well as what it says,

matters. Process has become equally as important as the content of the

final document for the legitimacy of a new constitution.

Public participation is often taken to mean voting for example,

electing a constitutional convention or ratifying a constitutional text by

referendum. Especially in developing nations in Africa and elsewhere,

however, experiments with new forms of participation are attempting to

place initiative in the hands of citizens and to create an open constitutional

conversation in which the public shares in agenda-setting, content, and

ratification.

James Madison, when he was preparing himself for the

Constitutional Convention during 1787, he made a thorough study of

historical confederacies from the ancient Greece to the then Dutch and

German federations.46 He picked up six case studies and absorbed them

for his project of reconstituting the United States into a viable federal

government. Now more than 200 years passed since then and we have the

46Robert
A Rutland, eds.Notes on Ancient and Modern Confederacies in the 9 Papers of
James Madison, 1975

62
benefitof a study which scanned more than 220 different nation-states in

existence. This study47 shows that these countries have produced more

than 900 constitutions in that time span. This includes now defunct

countries like Central American republic and the Ottomanempire.

Therefore, it is evident that many constitutions have been rewritten,

replaced and even abandoned.

Constitution making has become a part of many peace processes.

New nations and radically new regimes, seeking the democratic credentials

that are often a condition for recognition by other nations and by

international political, financial, aid, and trade organizations, make writing

a constitution a priority. In many cases, both the ways in which

constitutions are written and the ideas of sovereignty, citizenship, and

rights that are embodied in these foundational documents depart radically

from the tradition epitomized by the earlier Constitutions.

Just a few examples suffice to illustrate the widespread adoption of

new and open processes. In 1986, the Nicaraguan National Assembly

invited comment on the draft of a new constitution. Some 100,000 citizens

took part in open town meetings, forwarding 4,300 suggestions. In 1988,

constitution makers in Uganda and Brazil requested suggestions before, as

well as comment after, the drafting process, with equally impressive levels

of response. In 1994, the South African Constitutional Assembly

encouraged a nation of first-time voters to participate in the constitution-

47 www.compartiveconstitutionsproject.org – last visited on 2.8.2017

63
making process with the slogan: "You've made your mark, now have your

say." Polls estimated that 73 percent of South Africans were reached by the

assembly's campaign. The public made two million submissions. Between

1994 and 1997, Eritrean engaged in constitutional education and

consultation, addressing a nation with markedly low literacy rates through

songs, poems, stories, and plays in vernacular languages, and using radio

and mobile theatre to reach local communities. In 2002, members of the

Rwanda drafting commission and thousands of trained assistants fanned

out to spend six months in the provinces, so that constitutional education

and discussion could become an integral part of community life. In 2003,

the constitution review process in Kenya is operating under a statutory

requirement that Kenyans have every opportunity to participate. The goal,

as the Kenyan Commission claimed, is "a people-driven review process

whose final product will be a people-owned constitution."

Literacy and language are only two of the factors that have operated

to exclude groups and individuals from constitution making in the past.

Participatory processes have worked to overcome these two factors as well

as racial and ethnic exclusions and have been notable in some nations for

the new participation of indigenous peoples and in most cases for the very

visible inclusion of women.

The importance of Constitution, both in its content and its status, is

little appreciated by the general public. "We the people" must never forget

the basic fact that we have, as a price of social development and stability,

64
handed over a substantial area of control over our lives to our governments.

And we should bear constantly in mind that there is no form of government

yet devised, or yet devisable, which can be trusted to function successfully

and honestly without the discipline of clear constitutional rules laying down

the essential principles to which government can be held accountable.48

CONSTITUTIONALISM IN INDIA

The leaders of India’s freedom struggle had refused to allow the

British to write their new Constitution and had insisted that if India was to

become a democracy, its Constitution had to be written by the Indians

themselves.49

To transform themselves from a colony into a democracy was the

inspiration of many Indians struggling for independence; so, once

independence came, they became engaged in writing for themselves a

democratic constitution.

The criterion for ensuring that the new Constitution would be a

democratic one was that it be a ‘transformative Constitution’. In order for

India to become a democracy it needed not a ‘preservative Constitution’,

‘simply some kind of statutory codification of an acceptable or legitimate

48www.theartofgoodgovernment.org/constitution.html
49 ‘The Congress does not and will not recognize the right of any external power or
authority to dictate the political and economic structure of India… The Indian people can
only recognize a Constitutional Structure which has been framed by them…’ See the
Faizpur Congress Resolutions, December 1936, in B. Shiva Rao (ed.), The Framing of
India’s Constitution, Select Documents, Vol. 1. (Universal Law Publishing Co., Delhi,
2006, (1967), p. 82

65
past’, but a ‘transformative Constitution’, an attempt ‘not to preserve an

idealized past but to point the way toward an ideal future.’50

Democracy required not only that the Constitution be based on the

principle of ‘one man, one vote’, but also on the more fundamental principle

of ‘one man, one value’. Giving every individual the right to vote was not

enough to establish the equality which was required by a democracy. This

could only come about through a social and economic change or revolution

which the constitution was to effect. The Constitution was the political

instrument which was to be used to bring about social change. It

represented the political will of Indians to change themselves. Only if the

different kinds of Indians got together could the political will emerge to

write a transformative Constitution.

The Constitution was not only to be an expression of their will, but of

their will to change themselves, and also the instrument by which they

changed themselves. It is a harnessing of collective power to give oneself a

new start.

‘Constitutional morality is not a natural sentiment. It has to be

cultivated… Our people have yet to learn it. Democracy in India is only a

top dressing on an Indian soil, which is essentially undemocratic.’51 This is

Ambedkar moving the draft Constitution in the assembly on 4 November

1948. A few days later, on 19 November 1948, Ambedkar says, ‘While we

50C.R. Sunstein, Designing Democracy – What Constitutions Do(Oxford University

Press, Oxford, 2001) p. 68
51Constituent Assembly of India, Vol. VII.

http://parliamentofindia.nic.in/ls/debates/vol7p.1b.htm last visited on 23-04-2017

66
have established political democracy it is also the desire that we should lay

down as our ideal economic democracy… We do not want merely to lay

down a mechanism to enable people to come and capture power. The

Constitution also wishes to lay down an ideal before those who would be

forming the government. That ideal is economic democracy, whereby so far

as I am concerned, I understand to mean, “one man, one value”.’ 52 Much

earlier, in his Memorandum and Draft Articles on the Rights of States and

Minorities of 24 March 1947, to the Fundamental Rights subcommittee,

Amebedkar had written, ‘The soul of democracy is the doctrine of one man,

one value;53 To establish or create a society in which in which each person

was valued equally was only possible if all kinds of Indians, including those

Indians who knew the experience of being treated unequally, took part in

this creation.

Holding on to an expansive idea of democracy, the members of the

Constituent Assembly saw the Constitution as an aspect of democratic

transformation. Engaging in democratic transformation implied a

conception of a political will ranging widely over a public domain.

POST-MODERN CONSTITUTIONALISM - THE INDIAN EXPERIENCE

The fact that the Indian Constitution provides for group as well as

individual rights is highlighted as a revolutionary feature of India’s

52Constituent Assembly of India, Vol.

VII.http://parliamentofindia.nic.in/ls/debates/Volp.9.htm
53B. Shiva Rao, The Framing of India’s Constitution, Select Documents,(Universal Law

Publishing Co, Delhi, 2006 (1967)), Vol. 2. p. 102

67
democracy which according to many legal scholars defies the orthodox

notion of western constitutionalism.(Domenico Amirante)

The developments in constitutional law in India can be studied from

three perspectives. Firstly the pragmatic approach adopted by the

Constituent Assembly during the framing of the Constitution wherein the

makers anticipated the post-modern approach of the current law

makers.Secondly, the judicial activism of the Supreme Court which

empowers the judges to engage in comparative law and develop new and

original constitutional principles such as the ‘basic structure doctrine’ so

as to expand the protective umbrella of the Indian Constitution for its

citizens and thirdly the practice of internalizing international principles and

control measures into our body of national legislations and institutions,

particularly in the field of environmental law.Asian constitutionalism has

shown a growing interest for comparative studies, within and outside Asia,

in order to face the institutional challenges implied by globalization and by

the frequent exchange of legal instruments in the international arena.54Not

only in the constitution-making process or in the everyday work of the

Legislative Assemblies, but also in the Constitutional (or Supreme) Courts,

where foreign cases and doctrines are frequently used, more for their

practical strength than in the light of theoretical or ideological choices.This

‘circulation’ of constitutional instruments and doctrines corresponds to a

‘post-modern’ approach to constitutional law which no longer strictly

54Ex Multis, Roundtable on Asian Constitutions in Comparative Perspective in National

Taiwan University Law Review, 4.1., 2009, 185 ss.

68
adheres to the traditional ‘ideal-types’ (including the ‘Asian values’ doctrine

as opposed to the democratic model) but is open both to the incorporation

of new principles (for instance, the development of environmental law) or

the revitalization of ancient rights and traditions (tribal customs, but also

autochthonous legal doctrines) in the constitutional order.

According to Menski, “it is an observable fact that Indian law has

developed over the past few decades, away from the outwardly postcolonial

and partly aggressively modernist presuppositions of the 1940s and 1950s,

towards an embarrassed self-critical assessment of the present”.55In Sunil

Khilnani’s words, the journey of India towards democracy shows “a rapid

acceleration and intensification in the long-running encounter between a

civilization intricately designed with the specific purpose of perpetuating

itself as a society, a community with a shared social orders, and, set

against it, the imperative of modern commercial society”.56This encounter

has generated many original processes and solutions, contributing to the

consolidation, formore than six decades, of the “world’s largest

democracy”.57From the point of view of political theory, for instance, Maya

Chadda asserts that a very innovative feature of India’s democracy is that

groups based on caste, religion and ethnicity “have expanded popular

participation in the democratic process by mobilizing people on the basis of

55Warner Menski, - Working Paper N.20, South Asia Institute, University of Heidelberg,
(2004); http://www.casas.org.uk/papers/pdfpapers/pomolaw.pdf (Last visited on August
17, 2013)
56Sunil Khilnani, The Idea of India 5(1998)
57 For an account on India’s ‘contested modernities’, see Stuart Cordbridge& John

Harriss, Reinventing India, Liberalization, Hindu Nationalism and Popular

Democracy (2000)

69
these loyalties”, and, in this way, “they have redefined democracy”.58In the

same direction Christophe Jaffrelot affirms that “India is inventing a unique

route towards democracy… it is probably the first country in which a

formal, institutional democracy has been gaining social substance through

a quiet transfer of power”.59From an institutional point of view today’s India

is considered by Stepan, Linz and Yadav as a model for an innovative

concept of State, which can be termed as the State-Nation] based on

“shared political community amidst deep cultural diversity”.60For Indian

constitutional lawyers such as M.P. Singh and S. Deva, the peculiar

character of the Indian polity is reflected in the Constitution of 1950.61For

these authors, the Indian Constitution is only formally representative of the

Euro-American liberal model but essentially: “It is founded on the age old

Indian traditions built up in the course of its over four thousand years of

history and on the experiences gained by the people of India in the course

of colonial rule in modern time … though its form may resemble the

constitutional documents produced by the colonial rulers for governing the

country, its spirit is native”.62Indian constitutionalism is ‘unconventional’

in the sense that it contains many unorthodox provisions defying

conventional definitions of western constitutionalism, as well illustrated by

58Maya Chadda, Building Democracy in South Asia: India, Nepal, Pakistan 11 (2000)
59Christophe Jaffrelot, Caste and the Rise of Marginalized Groups in The State of
India’s Democracy, (2007 6 NUJS L.Rev. 213 (2013) Nation-State)
60Alfred Stepan, Juan J. Linz &Yogendra Yadav, Democracies in Multinational Societies:

India and Other Polities39 (2011)

61Mahendra P. Singh & Surya Deva, The Constitution of India: Symbol of Unity in

Diversity in JahrbuchDesOffentlichenRechts der Gegenwart 649,686 (2005)

62Ibid

70
the debates on the controversial nature of Indian federalism or on the

Union’s system of government. In this perspective, many interesting hints

for comparative scholars are offered by the relatively yet to be unexplored

experience of the Indian constitutional system, presenting many features

that can be associated to post-modern law, even if they are not labeled as

such in the Indian context or by Indian doctrine.

In Rameshwar Prasad and Others. Vs. Union of India and Anr.,it has

been observed that “The constitutionalism or constitutional system of

Government abhors absolutism - it is premised on the Rule of Law in which

subjective satisfaction is substituted by objectivity provided by the

provisions of the Constitution itself.” 63

NEW ERA OF CONSTITUTIONALISM

Riding the wave of globalization, a global version of constitutional

ordering transcending nation-states is being jubilantly envisioned. Echoing

these institutional aspirations for constitutional ordering on a global scale,

the normative ideals of constitutionalism such as human rights and rule of

law are disseminated. Apparently a new era of constitutionalism is arriving.

However, the transnational parallel between institutions and norms poses

more questions than answers. Does it simply suggest a global expansion of

constitutional democracy or does the new era of constitutionalism herald a

paradigm shift in conceptualizing constitutionalism? These are the central

63(2006) 2 SCC 1

71
concerns not only to policy makers but also to political scientists and legal

scholars in the discourses regarding evolving neo- constitutionalism.

ROLE OF APEX CONSTITUTIONAL COURTS IN EMERGING

GLOBALIZATION SCENARIO

National constitutions and international law don’t provide sufficient

protection to avoid negative effects of international decision making.

Strikingly, the lack of democratic accountability of many international

agreements and the fact that they often offer citizens less protection than

the national rules they supersede, is not widely debated, either in

parliaments or media. Next to being a potential threat to democracy and

accountability, international agreements may also directly affect the rights

of individuals. At the same time, constitutional protection is needed for

citizens and companies.

The starting points in the Enlightenment-inspired development of

domestic constitutional standard separation of powers, government ‘sub

lege’, rule by many with the consent of the governed,guaranteed civil and

political rights, etc. are fundamentally different from the basic principles

applying to the international realm: sovereign equality of states,

governments which are able tocommit their state (and their citizens), non-

intervention in internal affairs. Strict adherence topurely domestic

constitutional standards in the face of internationalisation is often neither

feasible nor desirable. International cooperation would be disrupted if each

state were to insist on unlimiteddiscretion in accepting, rejecting or

72
modifying the effects of international decisions on its ownterms.64Since

constitutions, among other things, lay down the fundamental rules

governing citizen-staterelations, the area of human rights and fundamental

freedoms is crucial in the present context. In established democracies with

a high pre-existing level of judicially enforceable individual

rights,internationalisation may bring about a deterioration of

standards.65The globalisation and constitutionalism discussion need to

focus on two related themes - both within the context of globalisation:

1. The role and function a constitution as a document that

creates and supports a senseof ‘nationhood’.

2. (2)The role and function of a constitution in the relationship

between national and internationallaw and in the relationship

between national legal orders.

Turning to human rights and its protection by constitution it was

emphasized thathuman rights should obviously be protected, however the

scope of protection varied.Everyone would agree, for example, that the right

to life had to be protected, but there weredifferent answers as to where the

right to life starts and where it ends. Questions regarding humanrights may

appear in different forms. There had to be enough room for the development

ofnational particularities, and many times such particularities are not be

64HiL, Constitutional Principles and Internationalization, Concept Paper, 2007.

65Where pre-existing standards are poor, the adoption of international (regional) human
rights instruments may actually bring about an improvement to rights protection levels. In
France and the Netherlands, it istreaty-based human rights that are judicially enforceable
to override statutory law whereas constitutionbasedhuman rights are not.

73
expressed in theconstitution itself, but rather, they would be developed by

courts. The survival of the legal authority of those Constitutions had been

due to the active role of constitutional courts that have been continuously

adjusting the provisions of the written text to the real life. In these

countries, most emphasis was laid on the role of courts in adjusting the

new but already aging constitutions as necessary. The perspective of ‘new

democracies’ showed a particular link between a parliamentary/political

process of adopting and/or revising constitutions and a judicial process of

adjusting constitutional provisions to the changing context.66

Today, the state shares its power with a number of non-state actors,

most of them international organizations to whom sovereign rights have

been attempted to be transferred and whose exercise escapes the

arrangements of national constitutions. Internal erosion that started

almost unnoticed in the wake of a transformation of statehood,

domestically as well as internationally, and eventually cost the state the

monopoly of public power over its territory.67 The internal erosion

endangers the capacity of the constitution to fulfill its claim of establishing

and regulating all public power that has an impact on the territory where

the constitution is in force. This is why the erosion not only affects this or

that constitution but the achievement of constitutionalism altogether.

66 Report on the Expert meeting on National Constitutions and Globalization, (12 March

2010CAOP (Albedazaal) -Lange Voorhout 9, The Hague)

67D. Grimm, Die Zukunft der Verfassung (Frankfurt: Suhrkamp, 1991; 3rdedn, 2002).

74
 Judicial intervention, as envisaged and interpreted by the

Constitutional provisions, therefore can be a viable solution to stop the

juggernaut of internal erosion of Constitutionalism, provoked by the

marauding forces of liberalization, privatization and globalization.

Particularly, in countries where the economic conditions subjugate the local

polity to the dictates of international commercial forces and the legal

regimes they belong to, active judicial interventions alone can be the

mechanics available to harmonize between the Constitutional values of the

country and the requirements of the multinationals.

In a country of varied economic disparities Judicial intervention may

also be twisted and claimed as “Adventurism. The functioning of our

democracy so far has shown that substantial number of issues that should

have been solved by the different arms of the constitutional machinery,

armed with adequate powers enabled by a reasonably well demarcated

separation of powers; are just allowed to be passed on to the Judiciary for

eventual disposal.Most would agree with the remarks of Justice Anthony

Kennedy, of the United States Supreme Court, that a society that leaves all

or most of its hardest decisions to the courts is a weak society.68

Even faced with this onerous and arduous task of carrying someone

else’s cross, our Judiciary ,particularly the Supreme Court of India,have

performed well in the early years; managing the tussle between the

Parliament’s reform driven forays ,somewhat oblivion of the far reaching

68J Rosen, The Agoniser, New Yorker, 11 November 1996 at 90.

75
impact of such a haste, and the Judiciary’s interpretative protective

initiatives, with a kid glove. This was appreciated by well known jurists of

commonwealth system. I submit the following record of appreciation to

conclude this chapter, setting the basic premise of this thesis, grounded on

judicial interpretation, intervention and innovation as the future hope for

India against the gargantuan attack of the forces of Globalisation:

“Although the detail of Indian jurisprudence is no more known in my

country than that of Australia is known here, there is a general belief or

understanding that the Supreme Court of India, and the High Court under

its leadership, have been particularly creative and imaginative in the

development of the constitutional and common law of this country…Indian

courts, particularly the Supreme Court, have a respected reputation for

creativity and ingenuity in the development and adaptation of the common

law to the enormous contemporary problems and opportunities of this

country. Those who trouble to examine the law of India carefully soon come

to an understanding of the way in which the Supreme Court has, by a

series of landmark judgments described by some as "judicial activism",

established basic principles which would repay study in other parts of the

common law world….”

- The Hon Justice Michael Kirby AC CMG -69

69The Hon Justice Michael Kirby AC CMG on Judicial Activism,Bar Association Of India
Lecture, 6thJanuary 1997.

76