CONSTITUTIONALISM AND TRANSFORMATIVE CONSTITUTIONALISM

By Akash Bhardwaj

INTRODUCTION

We all are aware of the term “constitution”, it is the supreme law of the land, set of rules and
regulation to preside over a country and many other definitions can be found. Constitution can be
written as well as unwritten. India has a written constitution whereas U.K is an example of unwritten
constitution. But most of us are unaware of the term “constitutionalism”. Constitutionalism is a
philosophy or ideology. In other words Constitutionalism is a goal and constitution is a mean to
achieve it. Constitutionalism has become an important element of the political life in any state that
cannot be neglected any more. It performs its functions of prevention and regulation of conflicts.

CONSTITUTIONALISM

It is an idea that Government should be limited in its power and that its authority depends on its
observation of those limitations. Constitution is merely a legal and moral framework which is setting
out or providing these limitations. According to constitutionalism, the constitution not merely
confers powers on the various organs of the Government i.e. Executive, Legislative and Judiciary but
also seek to restrain these powers. A country may have constitution but not necessarily
constitutionalism.

In other words, Constitutionalism is against putting all the power in a single organ but prefers
limitations on these powers. Therefore, constitutionalism is also called “Limited Government” and
these limitations on power are provided by none other than “constitution”.

Constitutionalism is just opposite to arbitrary powers. Constitutionalism supports the need of

government, but at the same time insist that some limitations must be there on those powers. The
main motive of “Constitutionalism” is to preserve or protect fundamental freedom of the individuals
and to maintain its dignity and pressure its personality. So, pervade constitutionalism i.e. it should
have some set of restrain or limitation on the power of conferred by it on governmental organs.

In contemporary liberal democracies, the ideas of constitution and constitutionalism are almost
fused, that is constitutions reflect the principles of constitutionalism. And constitution-making is a
process of building political consensus around constitutionalism, putting it in the context of the
country and the historical moment, adapting its principles to the needs of functional institutions and
peaceful coexistence among the different segments constituting the specific social fabric.

ELEMENTS OF CONSTITUTIONALISM

Written restraints in the constitution are not merely enough that means a tyrant will not become a
kind ruler just because some book says so. Along with the restraints in the constitution there have to
be some set of frameworks for institutional arrangements. According to Louis Henkin, there are
certain elements of constitutionalism which are as follows:

1. Rule of Law: According to Dicey, it means the absolute supremacy or predominance of

regular law, as opposed to the influence of arbitrary power, and excludes the existence of
arbitrariness, of prerogative, or even of wide discretionary authority on the part of the
government. Englishmen are ruled by the law, and by the law alone; a man may be punished
for a breach of law, but he can be punished for nothing else.
2. Separation of Power: The doctrine of separation of power emphasizes the mutual
exclusiveness of the three organs of the government i.e. legislature, executive and judiciary.
So, one organ of government should not interfere with any other organ or one organ cannot
do the function of other organ.
3. Judicial review: The Supreme Court has power to declare void the laws passed by the
parliament and the action taken by the executive if they violate any provision of the
constitution.
4. Independent Judiciary: The judiciary should be independent in its judgement and no
interference of any kind .i.e. from legislature or executive should be there.
5. Preamble: An introduction to the constitution which lays down the fundamental principle on
which the constitution is based.

Even though there is no exhausting list of elements by which the presence of constitutionalism can
be tested, but any feature which limits the power of the government and helps in the welfare of its
people can be considered a point for constitutionalism.

CONSTITUTIONALISM IN INDIA

India is a democratic country with a written constitution. Rule of law is dominant Government of the
country and all the administrative functionaries are expected to follow it. Talking about separation of
power, India didn’t follow it strictly. India prefers the concept of checks and balance that means
interdependency. The work of each organ has to be performed by itself but the other organ can
keep a check on the work. So, the concept of separation of power is now followed on a strict basis

Preamble is the soul of the constitution. It contains basic fundamental principals which forms the
tombstone of the constitution. Preamble clearly states that India to be a secular state that means it
has no state, religion. It means every citizen has the right to protest and follow any religion he/she
wants

Doctrine of judicial review is not clearly mentioned in the constitution of India it can be inferred
from article 13(2) of constitution of India

There are some other features present in the constitution which make the country lean towards
constitutionalism. Separation of power between state and centre, presence of emergency provisions
and fundamental rights are some essential features which limit the power of the state and promote
public welfare.
TRANSFORMATIVE CONSTITUTIONALISM

We live in a dynamic world and it changes from time to time. So in order to keep up with it society
also need to make certain changes. These changes need to be made in the constitution of the
country. The Constitution is a document committed to social transformation. In other words the
constitution needs transformation in order to keep up with the pace of the society. The concept of
transformative constitutionalism is not new and dates back to 1998 when the term “Transformative
Constitutionalism” was coined. It was laid down in South African journal on Human rights by Karl
Klare. Klare, a US scholar, argued that the South African constitution, in the context of the South
African post apartheid project, had to be understood fundamentally changed state and society by
non violent means. Transformative Constitutionalism has since become a widely used label.

As happens with successful attempts, transformative constitutionalism has assumed many meanings
today- and even more so as it has become a concept of comparative law. One of the most known
meaning is “If there is a concept that embraces the ideal of constitutions as society’s new moral and
political foundation, this concept is transformative constitutionalism.” Constitution in many
countries including Europe and the US serve to establish a new political and moral foundation for
their societies, especially when they emerge out of the victory of a revolutionary movement such as
the early French constitution or the US constitution are adopted in response to past horrors such as
in Germany and many Eastern European states.

TRANSFORMATIVE CONSTITUTIONALISM IN INDIA

In India also, the transformative constitutionalism was practiced way back in 1933. In 1933, British
organised communal awards in which separate representations have to be made in Hindu, Muslim,
Christians etc. The depressed classes were also assigned a number of seats but on a condition that
only the depressed classes can vote for them. M.K Gandhi protested for this by seating on a hunger
strike which ended with a pact between M.K Gandhi and B.R Ambedkar known as Poona Pact. After
the pact, some norms were eased. M.K Gandhi saved the nation that time but he didn’t know what
would happen in the future, the reservation system would merely become a way to increase vote
bank.

Similarly, we have seen some major changes like abolition of article 370 and 35(a). These changes
may have put a burden on Pakistan and Kashmir, but was radically required by the grave situation.
Legalisation of LGBTQ committee is also one of the examples of transformative constitutionalism.
This is how dynamism of constitution helps in development of a country as well as its people.

Our constitution is 73 years old, but it is the duty of the legal fraternity or the legislature to keep it
up with the pace of the society. We all are aware of the dispute that takes place after every year
between India-China, which is also needed to be resolved. We have seen a number of changes in the
constitution since 1950, but a whole lot more is in queue.