Sprit of Constitutionalism in India

Submitted in partial fulfilment of degree of B.Com.LLB (Hons) at

Tamil Nadu national law university

Political Science (Political Theory and Organizations)

By

MUKILAN.P
(BCO200027)

2nd year B.Com.LLB (Hons)

Under the guidance and supervision of

Dr. S. Subba Rao

Assistant Professor of Political Science

Tamil Nadu national law university

Tiruchirapalli-620027
 Acknowledgment

I would like to express my special thanks of gratitude to my teacher Dr. S. Subba

RaoAssistant Professor of Political Science as well as our Vice Chancellor Prof
(Dr) V.S.Elizabeth who gave me the golden opportunity to do this wonderful
project on the topic “Sprit of Constitutionalism in India”, which also helped
me in doing a lot of Research and I came to know about so many new things I am
really thankful to them.

Secondly I would also like to thank my parents and friends who helped me a lot
in finalizing this project within the limited time frame.
Declaration

I, MUKILAN P, Register Number BC0200027, hereby declare that this Research

Paper/ Research Project work entitled “Sprit of Constitutionalism in India”
under the guidance and supervision of, Dr. S. Subba RaoAssistant Professor of
Political Science, Tamil Nadu National Law University, Tiruchirappalli – 620
027. This work has not been submitted either in whole or in part of any Degree/
Diploma at any University

Place: Tiruchirappalli (Study from Home due to the pandemic)

Date: 19-03-2022
 Sprit of Constitutionalism in India

Chapter 1

1.1 Introduction
Constitutionalism, doctrine that a government’s authority is determined by a body of laws
or constitution. Although constitutionalism is sometimes regarded as a synonym for limited
government, that is only one interpretation and by no means the most prominent one
historically. More generally constitutionalism refers to efforts to prevent arbitrary government.1

Baxi’s definition of constitutionalism states:

Constitutionalism, most generally understood, provides for structures, forms, and apparatuses
of governance and modes of legitimation of power. But constitutionalism is not all about
governance; it also provides contested sites for ideas and practices concerning justice, rights,
development, and individual associational autonomy. Constitutionalism provides narratives of
both rule and resistance2

1.2 Research question

 How is the Indian constitutionalism different from the rest of the world democracies?
 Is the spirit of constitutionalism directly linked with the limiting of powers of the state?
 Is separation of powers, rule of law related to constitutionalism?
 What are the politico legal changes that India had witnessed in the scene of
constitutionalism?

1.3 Research objectives

 To see how the Indian constitutionalism is defer from other countries’ constitutionalism
 To know the spirit of constitutionalism directly linked with the limiting of powers of
the state
 To check the separation of powers, rule of law related to constitutionalism
1
Bellamy, R... "Constitutionalism." Encyclopedia Britannica, July 30, 2019.
https://www.britannica.com/topic/constitutionalism.
2
Baxi, Postcolonial Legality, supra note 15 at 540
1.4 Review of literature
“Vijayashri Sripati. "Constitutionalism in India and South Africa: A comparative study
from a human rights perspective." Tul. J. Int'l & Comp. L. 16 (2007): 49. (Pg.no 5-9)”
This article is based on Vijaya Sripati's thesis, which analyses and compares both the
constitution-making process and the bills of rights of the Indian and South African
constitutions from a human rights viewpoint. The creation of constitutions is the focus of this
research. It looks at the impact of the drastically varied processes by which these constitutions
were produced, as well as the different international settings in which those processes took
place, on their contents. This thesis's overall thematic argument is that a constitution can play a
transformative role in furthering constitutionalism in four key ways: (1) by defining the
essence of the state, which includes a comprehensive equality clause; (2) by addressing social
and societal oppression and past injustices; (3) by establishing property and land rights; and (4)
by defining social and economic rights. This thesis discusses and contrasts how the framers in
India and South Africa used the rights framework to accomplish these goals.

1.5 Methodology

The research methodology is primarily based on secondary sources such as articles, journals,
and other online sources. Additionally, considering the current pandemic situation all the
information and sources collected are online based.

Chapter 2

2.1 What is constitutionalism?

Constitutionalism refers to a polity controlled by or under a constitution that provides for
essentially limited authority and the rule of law rather than arbitrary authoritarian or totalitarian
rule. As a result, constitutional government must necessarily be democratic. In other words,
constitutionalism is a political ideology in which a state's activities of government must be in
conformity with its constitution's requirements, implying that government acts must represent
constitutionality.

Because constitutionalism is a political philosophy or attitude, it is not required for states with
constitutions to embody the concept of constitutionalism. Constitutionalism, according to
 Douglas Greenberg, is a commitment to limits on ordinary political power; it revolves around a
political process that overlaps with democracy in seeking to balance state power and individual
and collective rights; it draws on specific cultural and historical contexts from which it
emerges; and it is ingrained in the public consciousness.

Now to identify that whether constitutionalism is present in India or not, it can be analyzed
with the help of various provisions of constitution that are:-

 Preamble
 Judicial Review
 Rule of law
 Separation of power
 Checks and balances and so on.

There is no exhaustive list of characteristics that can be used to determine the validity or
existence of constitutionalism; however, any feature that limits the government and aids in the
establishment of a position of sovereignty under fundamental principles of constitutional
jurisprudence can be a significant point in favor of constitutionalism.

2.2 What is constitutionalism in India?

In Rameshwar Prasad v. Union of India, the Supreme Court embraced the idea of
constitutionalism. "Constitutionalism, or the constitutional system of government, abhors
absolutism - it is founded on the Rule of Law, in which subjective satisfaction is replaced by
objectivity supplied by the Constitution's provisions," the Court said.3

Constitutionalism, the Court declared in IR Coehlo v. State of Tamil Nadu, is a legal premise
that demands control over the exercise of governmental power to ensure that the democratic
values on which the government is founded are not undermined. In the Minerva Mills case,
Chandrachud, CJ, stated, "The Constitution is a precious heritage, and you cannot obliterate its
identity." 4

3
Rameshwar Prasad v. Union of India.
4
IR Coehlo v. State of Tamil Nadu
2.3 Indian constitutionalism with other nation’s constitutionalism

2.3.1 Seeing how Indian constitutionalism is differ from rest of the world's democracy
with help of South Africa.
According to constitutional scholars, "the presence of a specific number of common
constitutional traits justifies a comparison of constitutions divided by historical period and
geographical region. The British dominion of India, which ended on August 15, 1947, did not
begin with the rapid surrender of her borders to invading foreign invaders. The English
originally came to India as traders in the early seventeenth century, drawn by the spices and
silks on offer. The colonial history of South Africa begins similarly. Following the entrance of
the Dutch East India Company in 1652, an inflow of French, Huguenot refugees, Dutch, and
Germans (all of whom today make up the Afrikaner community) flooded into South Africa.5

Following their victory in the Anglo-Boer wars, the British annexed the autonomous Boer
Republics of the Transvaal and Orange Free State into the British Empire. The lure of
diamonds and gold in the Witwatersrand region enticed the British to come to and invest in
South Africa." The Union of South Africa, or the racially split South Africa, was formed in
1910 when these two republics merged with the British territories of the Cape and Natal. South
Africa became a Republic in 1961 after gaining sovereign sovereignty (within the British
Empire) in 1934.6

Both India and South Africa were attempting to break free from a tumultuous past and usher in
a new era of constitutional freedom and social justice. As a result, constitution-making was
transformational in both cases. These two democratic countries have written constitutions with
a well-established bill of rights, as well as the notion of constitutional supremacy. They have
reposed faith in the idea of judicial review in their determination to not only impose
"limitations on ordinary political power," but also to translate their vision of social justice.

India is also a multi-ethnic and multi-religious country with a stunning range of castes,
religions, languages, and traditions. South Africa is no exception, with its constitution
recognizing eleven national languages and a large number of ethnic groupings. In other words,
5
Sripati, Vijayashri. "Constitutionalism in India and South Africa: A comparative study from a human rights
perspective." Tul. J. Int'l & Comp. L. 16 (2007): 49.(pg.no 5-9)
6
Sripati, Vijayashri. "Constitutionalism in India and South Africa: A comparative study from a human rights
perspective." Tul. J. Int'l & Comp. L. 16 (2007): 49.(pg.no 5-9)
apart from "the cold facts of geography and history that bind India and South Africa" and "the
shared passion in pursuit of justice and happiness that binds India and South Africa," both of
these countries share a common law tradition and are ethnically and culturally diverse nations,
as Nelson Mandela put it.7

Furthermore, in both countries, "foundational violence" serves as a backdrop for constitution-

making, which has influenced the development of their founding charters. In the case of India,
partition was harsh, and Mahatma Gandhi was assassinated by a Hindu fanatic. In the case of
South Africa, the constitutional negotiations were marred by bloodshed.

In general, India's constitution-making process was elitist in nature. The Constituent Assembly
was a British-created and -convened legislature that was dominated by INC members who
were indirectly elected using the invidious notion of communal representation rather than the
universal adult franchise. The South African Constitution, on the other hand, which appears to
be more revolutionary, was produced through a very democratic process.

The constitution-making processes in India and South Africa took place in drastically
different international political cultures and contexts. International law, rather than
denouncing colonialism, was instrumental in its development. As a result, India's
liberation was essentially the result of a successful long-term local anti-colonial struggle
tempered by the devastating impacts of World War II, rather than international pressure.
International pressure, on the other hand, played a role in the demise of apartheid in South
Africa. India's appeal to the UN General Assembly in 1946 over South Africa's
discriminatory treatment of Indians was the first to bring the problem to world attention. 8

"Growing international human rights standards classified apartheid as a crime and certain
aspects of it as genocide," the struggle of people opposed to it was validated, and those
who practiced it were denounced and ostracized until the invidious system finally
crumbled under its own weight.

7
Sripati, Vijayashri. "Constitutionalism in India and South Africa: A comparative study from a human rights
perspective." Tul. J. Int'l & Comp. L. 16 (2007): 49.(pg.no 5-9)
8
Sripati, Vijayashri. "Constitutionalism in India and South Africa: A comparative study from a human rights
perspective." Tul. J. Int'l & Comp. L. 16 (2007): 49.(pg.no 5-9)
There were no coercive - rather than inspirational - international effects on the text of
the Indian Constitution because it was drafted at a period when the contemporary
international human rights movement was still in its infancy. Rather than reflecting
any significant international impact, the Indian Constitution may have contributed to
the development of international human rights law in several ways.

The emergence of the right to democratic governance in international law, as well as the
globalization of constitutionalism, have had an impact on South Africa since the early
1940s, when India was asserting its right to self-determination. Assertions of the right to
self-determination and the right to free political expression led to the development of
international election monitoring practices, which in turn aided the development of a right
to democratic governance.9

Furthermore, with the widespread adoption of written constitutions featuring bills of rights
in European states and the rapid expansion of the regional human rights system in the
post-World War II period, constitutionalism gained traction. The 'Constitutional
Principles' were endorsed by the Western Contact Group (on Namibia) in 1982 to guide
both the process of establishing and the ultimate content of a new constitution for
Namibia. This aided the establishment of the concept of an internationally written
constitutional framework to guide local conflict resolution and constitution-making
authorities.

With the democratization processes that the dissolution of the Soviet Union ushered in,
constitutionalism received still another boost. Finally, the World Bank's 1989 conclusion
that unless the rule of law and good governance were introduced into African political
culture, there was little possibility of reversing Africa's economic catastrophe was directly
linked to the South African reconstruction effort. These events marked a turning point in
the globalization of constitutionalism and provided the backdrop against which South
Africa's constitutional drama developed.

Finally, as previously indicated South African authorities turned to and drew from Indian
expertise in developing solutions to common challenges. The preceding shows that
9
Sripati, Vijayashri. "Constitutionalism in India and South Africa: A comparative study from a human rights
perspective." Tul. J. Int'l & Comp. L. 16 (2007): 49.(pg.no 5-9)
constitution-building in India and South Africa differs in some ways while remaining
similar in others, allowing for a perfect environment for a comprehensive comparison.

Chapter 3

3.1 Separation of powers, rule of law related to constitutionalism

Among the government's organs. In India, there is a clear demarcation of legislative power
between the union and state governments under Article 245,246 and Schedule VII;
administrative relations are also clearly defined under Articles 256-263; and if there is any
inconsistency between center and state laws, central law prevails under Article 254; and fiscal
relations between the union and states are given under Articles 264-291, implying that there is
a rare chance of clash between the union and states.

There is no room for arbitrary powers over any subject because the powers of the center and
state are clearly divided. In general, subjects of national importance are placed on the Union
list, while those of regional importance are placed on the State list, and for the purpose of
establishing national unity and integrity, a concurrent list is created in which the central
government makes laws for universalization, but the state legislature may amend the provision
to meet the needs of a particular region.10

This feature also supports the spirit of constitutionalism in this way. Other provisions, such as
the Fundamental Rights defined in Articles 12-35, provide some rights to citizens and to every
person, whose infringement can be brought before the courts under Articles 32 and 226 of the
Indian Constitution, demonstrating that citizens have some rights to protect themselves from
government arbitrariness. And, under Articles 36-51, the Directive Principles of State Policy
imply that these principles should be taken into account by the government when formulating
policies, as this trend aids in the provision or flourishing of social and economic equality
among individuals.

As a result, the government's goal cannot be achieved without the participation of the general
people. As a result, Article 51A explains the fundamental duties of citizens, which should be
followed by every citizen of the country.
10
India, preeti goyal. (n.d.). osition of Constitutionalism in India. legal services india. Retrieved from
http://www.legalservicesindia.com/article/1479/Indian-Constitutionalism.html
These provisions demonstrate the checks and balances between the activities of government
organs and the actions of the general population in this way. Articles 352, 356 and 360, which
restrict the exclusive powers of state organs in the event of external aggression, armed
insurrection, collapse of constitutional machinery in a particular state, financial crisis, and so
on, demonstrate the spirit of constitutionalism. It denotes the limitation of state functionaries'
rights in the benefit of the public good, and it vests all powers in the union government to deal
with such situations.11

The notion of reservation is also contained in the Indian constitution under Articles 330-342 to
uplift the weaker elements of society. Doctrine of Appeasement is present in these provisions
by granting some reserved seats to lower society people in every functionary organ of
government. Articles 330 and 332, for example, provide for the reservation of seats for SC and
ST in the House of People and state legislative assemblies. With the use of this provision,
issues relating to SC and ST are brought to the attention of the legislature, and it proves useful
in protecting the interests of a certain group.

Rule of Law by the Judiciary for Upholding Constitutionalism

The object is to determine Rule of Law and it might not be wrong to mention that the Indian
Constitution during this respect goes much ahead than the other Constitutions of the planet the thing
isn't merely to supply security and equality of citizenship of the people living during this land and
thereby helping the method of nation building, but also and not smaller to supply certain standards of
conduct, citizenship, justice and fair play. They were intended to form all citizens and persons
appreciate that the paramount law of the land has caught in a frenzy privileges and has laid down the
paramount perfect equality between one section of the community and another within the matter of
all those rights which are essential for the fabric and more perfection of man.

The guarantee of equality before the law may be a aspect of what Dicey calls the rule of law in
England. It means no man is above the law which every one, whatever be his rank or conditions, is
subject to the jurisdiction of ordinary courts. "With us", Dicey wrote "every official from the Prime
Minister right down to constable or a Collector of taxes is under an equivalent responsibility for each
act avoided legal justification as the other citizen". Rule of law requires .that nobody shall be

11
India, preeti goyal. (n.d.). osition of Constitutionalism in India. legal services india. Retrieved from
http://www.legalservicesindia.com/article/1479/Indian-Constitutionalism.html
subjected to harsh, uncivilised or discriminatory treatment even when the thing is that the securing of
the paramount exigencies of law and order.

3.2 Role of Judiciary for Upholding Constitutionalism

The Preamble declares that the Indian Constitution begins with the words "WE THE PEOPLE
OF INDIA," which the people of India adopted, enacted, and abided by on January 26, 1950.
"The people resolved to establish India as a 'SOVERIGN, SOCIALIST, SECULAR, and
DEMOCRATIC REPUBLIC.12 As a result, India is a sovereign nation with socialist, secular,
democratic, and republican policies. An Amendment in 1976 introduced the terms "socialist"
and "secular." India's sovereignty, secularism, democracy, and other fundamental principles are
recognized in the Indian Constitution.13

The judiciary is led by the Supreme Court of India. But first and foremost, we must
comprehend the role of the judiciary. But first and foremost, we must comprehend the role of
the judicial system. Courts in India are responsible for handling and making decisions on a
wide range of matters, such as how a school should treat its students or whether two states can
share resources. People can be punished by the courts for the crimes they commit. The
judiciary manages almost every social issue that requires a rule, such as

1. Dispute Resolution:
When there is a disagreement, the courts step in to provide a settlement. The court is
responsible for resolving disputes between citizens, citizens and government, two state
governments, or even the central and state governments.

2. Judicial Review:
The Indian Constitution is finalised by the judiciary. As a result, if the basics of the
constitution are violated, the court has the authority to overturn laws established by the Indian
Parliament. This is known as Judicial Review.14

12
Preamble of Indian constitution
13
Saket , Role of Judiciary for Upholding Constitutionalism, 4 (2) IJLMH Page 1096 - 1104 (2021), DOI:
http://doi.one/10.1732/IJLMH.26285

14
Saket , Role of Judiciary for Upholding Constitutionalism, 4 (2) IJLMH Page 1096 - 1104 (2021), DOI:
http://doi.one/10.1732/IJLMH.26285
3.3 ROLE OF DOCTRINE OF CHECK AND BALANCE IN CONSTITUTIONALISM
The Constitution established three branches of government: legislative, executive, and judicial.
That was a significant decision because it delegated specific powers to each branch and
established set up a system known as check and balance. The purpose of check and balance
was to ensure it ensured that no single branch could wield too much influence, resulting in a
separation of powers.

Chapter 4

Conclusion
The brief discussion of constitutional provisions provides us with a vision of the process taking
place in the country's political system, in which we find that there are very detailed
descriptions of powers of government organs so that they can exercise their powers within the
bounds of the constitution, i.e. Higher law in India, owing to which governmental organs are
unable to entertain arbitrary powers, and also these provisions provide a paramount place to
laws whose enactment is based on the constitution. In this way, constitutionalism is undeniably
present in India, with the caveat that the Rule of Law doctrine does not prevail in India as it
does in England (regarding parliamentary sovereignty).

Because the rule of law and judicial review in a single system are difficult to achieve, it exists
in India in the form of natural justice principles to control administrative duties. It would put
parliament and the constitution at odds (The Guardian of constitution i.e. judiciary). Judges are
to support the value of constitutionalism as expressed in a legal draught written by a
constituent assembly of representatives representing the public interest. Although secondary
public opinion cannot overrule primary public opinion, each provision has its own significance,
and if a provision is not explicitly contained in a constitution but is reflected in some clauses,
this will be enough to foster the spirit of constitutionalism.

Constitutionalism and the Rule of Law are two concepts that relate to how government and
state officials' powers should be limited. The two concepts are frequently confused. But, in
general, constitutionalism refers to various constitutional devices and procedures, such as the
separation of powers between the legislature, the executive, and the judiciary, the judiciary's
independence, due process or fair hearings for those charged with criminal offences, and
respect for individual rights, all of which are part of a liberal democratic system of
government. The Rule of Law, on the other hand, encapsulates a set of criteria that determine a
legal system's distinguishing characteristics.

Bibliography
 Bellamy, R... "Constitutionalism." Encyclopaedia Britannica, July 30, 2019.
https://www.britannica.com/topic/constitutionalism.
 Baxi, Postcolonial Legality, supra note 15 at 540
 “Vijayashri Sripati.”Constitutionalism in India and South Africa: A comparative study
from a human rights perspective." Tul. J. Int'l & Comp. L. 16 (2007): 49. (Pg.no 5-9)”
 Rameshwar Prasad v. Union of India.
 IR Coehlo v. State of Tamil Nadu
 India, preeti goyal. (n.d.). Position of Constitutionalism in India. Legal services India.
Retrieved from http://www.legalservicesindia.com/article/1479/Indian-
Constitutionalism.html
 Saket , Role of Judiciary for Upholding Constitutionalism, 4 (2) IJLMH Page 1096 -
1104 (2021), DOI: http://doi.one/10.1732/IJLMH.26285
