CONSTITUTIONALISM

Constitutional Governance, Module I

Group 2, LLM. Constitutional Law (2023-2024)

 I. CONCEPT OF CONSTITUTIONALISM

Throughout history, the concept of Constitutionalism has helped accelerate and shaped the governance
of nations across the globe. Constitutionalism, as a concept, is stated to be a normative, politico-legal
theory that expounds that all exercise of governmental power, regardless of quantifiable representation,
is subject to substantive limitations. In simpler words, imbibing constitutionalism would mean that
there are some things that governments cannot do, no matter how well it mirrors the ever-changing
societal and communal conscience.

It has been contended by several legal theorists, including James T.Shotwell, that “every country has a
constitution, most countries have a constitutional text, but very few have constitutionalism”, and
through such implications, it is argued that in most countries that embrace democracy
(i.e.,Constitutional Democracies),Constitutionalism expresses the democracy’s distrust of democracy.

Thus, in modern democracies, Constitutional norms and the Constitution act as a limitation on the
powers exercised by the governmental organs in a State, and this systematic check is enabled by the
pervasiveness of Constitutionalism.

During its early phases, Constitutionalism was primarily influenced by political philosophers who
looked at the lens of limiting the powers of a monarch, or the agents of the monarch. Legal and
political scholars agree that Constitutionalism, as a philosophical category, encompassing a system of
knowledge and a framework for State power, originates from the early Greek civilizations. Scholars,
including Professor Charles McIlwain as well as Dr. Mahendra Pal Singh, note that the Greek’s
contribution was not semantic in nature. On the other hand, in the age of Principatus, the names of
Constitutions were imperial decrees, and acts of the Roman Senate. It is stated by legal historians that
the Romans played a foundational role in developing the seeds of Constitutionalism, starting with their
differentiation between Lex and Jus. Where Lex meant “State Made Rule within the concept of Law”,
Jus required the Law to be “inherently fair and just”.

Thus, this culmination of constitutional principles, from over centuries ago, can be traced back to the
Magna Carta of 1215, where the King was compelled to recognise and be bound by certain claims and
rights of the people. In the 17th century, Edward Coke pursued the process by Bracton, his
predecessor, to claim the primacy of common law, over state law, and through multiple revolutions at
the time, including the Bloodless Revolution, the King was not only answerable to god, but also to the
people, through representatives. Some examples of the percolation and crystallization of
constitutionalism from this era can be seen through the The Act of Settlement, 1701, Bill of Rights
(England, 1689), Instrument of Government (1653). Political philosophers like John Locke,
Montesquieu, and Rousseau argued for the separation of powers, the protection of individual liberties,
and the idea that governments derive their legitimacy from the consent of the governed. The French
Revolution (1789-1799) brought about a more radical form of constitutionalism. The French adopted
the Declaration of the Rights of Man and of the Citizen (1789), which proclaimed the equality and
rights of citizens. In the 18th and 19th centuries, Blackstone, Bagehot and Dicey purported the
traditions of common law with the ever growing responsibilities and functions of the state, to ensure
that the rights of the people were protected.
To trace the crystallization and development of constitutionalism, it is pertinent to understand that the ,
was introduced by Professor Charles McIlwain, through a series of lectures he delivered at Cornell
University in the year 1938-1939. He studied the evolution of the concept from the medieval ages, up
until the Second World War. Through his elaborate study, he laid down the essential quality of
Constitutionalism, which he stated to be the “legal limitation on a government”.

Thus, Constitutionalism has two correlative principles, one, which calls for the legal limits to arbitrary
powers, and two, complete political responsibility of the government to the governed, which are
essential to understanding the prevalence and working acceptance of Constitutionalism. In the status
quo, the principles of separation of powers, judicial review and the power to amend amongst many
others are stated to be the application of constitutionalism in most contemporary democracies.

II. PURPOSE OF CONSTITUTION AND CONSTITUTIONALISM

Purpose of Constitution
Constitutions attempt to secure important social benefits by establishing fundamental laws,
mandating the rule of law, entrenching political procedures, limiting government powers, and, in
liberal orders, guaranteeing basic human rights.
The Indian State is a result of the Constitution of India. Indian Constitution not just provides the
rights and immunities to the citizen, but it also delineates the character and structure of the
Indian State.
Purpose of constitutionalism
The requirement of Constitutionalism as a limitation on the power of the state has been explained
by Prof. B. O. Nwabueze in his book “Constitutionalism in the Emergent States, 1973.
According to him “the last 30 years (starting from 1973) has demonstrated that the greatest
danger to constitutional government in emergent states arises from the human factor in
politics”, specifically “from the capacity of politicians to distort and vitiate whatever
governmental forms may be devised”.

A country may have a Constitution, but not necessarily ‘constitutionalism.’ For example, a
country where dictator’s word is law can be said to have a constitution, but not constitutionalism.
A Constitution does not merely confer powers to various organs of the government, but also
seeks to restrain these powers. Therefore, to preserve basic freedom of individual and to maintain
the dignity and personality, a Constitution should be permeated with Constitutionalism; that is, it
should have in-built restrictions on powers.

In New India Assurance Company Ltd. v. Nusli Neville Wadia (2007), the Court said that “For
proper interpretation of Constitutional provisions not only the basic principles of natural justice
have to be borne in mind, but also principles of constitutionalism involved therein.”
 The design and character of the Indian Constitution ensure that the powers of the Executive and
the Legislature is limited so that the discretion given to these organs does not turn into
arbitrariness, an arbitrary exercise. The Fundamental Rights, the basic structure, federal setup of
the administration, the amendment procedure all limit the State in a particular way.

III. CONSTITUTIONALISM IN INDIA

In India, the need for a constitution was evident after its independence. Despite the ups and downs
faced by a new democracy in India, the belief in the constitution always stood firm. India was
introduced to constitutionalism in the wake of its engagement with Colonial powers. British’s attempts
to govern India as a colony started a series of legislations which laid the foundation for
constitutionalism in India and ultimately led to the emergence of India as a liberal constitutional
democratic republic. Influence of American principled Constitutionalism, tempered by the wish to
preserve India’s own characteristics, while interpreting chapter relating to fundamental rights as well as
power of judicial review is also discernible in the evolution of Indian democracy.
Even during the pre-independence era, the 1919 Act redefined local, national and imperial space. The
features of constitutionalism were visible but not vocal. Further, the Government of India Act, 1935
which later on became the foundational stone for our constitutional provisions, did highlight B.N. Rau's
endeavor to establish the Act’s constitutional supremacy in order to devolve full sovereignty to the
provincial government.

IV. FEATURES OF CONSTITUTIONALISM

Constitutionalism’s features refers to the principles embedded in a constitution , for example a

written Constitution, independent judiciary with powers of judicial review, the doctrine of rule of
law, separation of powers, free elections to legislature, accountable and transparent democratic
government, Fundamental Rights of the people, federalism, decentralisation of power are some
of the principles and norms which promote Constitutionalism in a country.

Written constitution: A written constitution is a formal document that outlines the fundamental
principles, laws, and organisation of a country or organisation. Unlike an unwritten constitution,
which relies on traditions and precedents, a written constitution is codified in a single document.
It serves as the supreme law of the land, defining the powers and limitations of government
institutions, protecting individual rights, and establishing the framework for governance and the
rule of law. Examples of countries with written constitutions include the United States, India,
and Germany.

Rule of Law: The doctrine of Rule of Law is ascribed to DICEY whose writing in 1885 on the
British Constitution included the following three distinct though kindred ideas in Rule of Law:

(i) Absence of Arbitrary Power (ii) Equality before Law (iii) Individual Liberties.

Separation of Powers: Separation of powers is a fundamental principle of governance that

divides the functions of a government into distinct branches: the legislative, executive, and
 judicial. Each branch is independent and exercises specific powers to prevent concentration of
authority and abuse of power. This system promotes checks and balances, ensuring a more stable
and democratic governance by limiting the influence of any single branch.

Independent judiciary: An independent judiciary refers to a system where judges are free from
external influence, political pressure, or bias. They have the authority to interpret and apply the
law objectively, ensuring fair and impartial decisions. This separation of powers protects the
judiciary from interference by the executive and legislative branches, upholding the rule of law
and safeguarding citizens' rights.

Judicial Review: Judicial review is the power of courts to review and potentially invalidate
laws, regulations, or government actions that are deemed unconstitutional or contrary to
established law. This process ensures that governmental actions comply with the principles and
rights enshrined in the constitution, acting as a check on the legislative and executive branches.

Federal form of government: In a federal form of government, power is divided between a

central government and regional governments. Each level of government has its own distinct
responsibilities and authority, enshrined in the constitution. This system allows for a balance of
power, promotes local autonomy, and accommodates diverse regional needs within a unified
nation.

Fundamental Rights: Fundamental rights are basic human rights and freedoms guaranteed to
individuals by law or constitution. These rights are inherent and cannot be easily taken away by
the government or any authority. They often include rights to life, liberty, equality, freedom of
speech, religion, and protection from discrimination. Fundamental rights are essential for
protecting the dignity, autonomy, and well-being of every citizen in a society.

Free elections to Legislature: Free elections to the legislature refer to a democratic process
where citizens have the right to vote freely and without coercion. These elections are conducted
with fairness, transparency, and equal opportunities for all candidates to compete.

V. JUDICIAL PRECEDENTS WITH RESPECT TO CONSTITUTIONALISM

While framing our constitution, the makers drew inspiration from European countries, where rule of
law was supreme. Indians already faced the wrath and consequences of British rule. The need for a
liberal, free, just and fair society was primary. Thus, they framed this constitution as a touchstone of
governance. Even though the term ‘Constitutionalism’ has not been employed in any of the provision(s)
of the Constitution of India, the Supreme Court of India in various judgments has explicated the ‘idea’
of constitutionalism and has employed the term ‘constitutionalism’.
The responsibility of upholding the concept of constitutionalism is provided to the judiciary by the
preamble of the constitution itself and unlike other acts the preamble of the constitution of India is a
part of the statute itself which can be invoked whenever necessary. Thus, any change to the preamble
can also be subjected to litigation as seen in the case of Keshavananda Bharati Vs. The state of Kerala.1
Where the court tried to implement the concept of constitutionalism. In order to achieve the goals set up
by the preamble the constitution also provides the judiciary with the power of judicial review to protect
the people of the arbitrariness of the decision given by its own organs at various levels. Judicial review
is also used for checking upon the powers of the legislature and executive as seen in the cases of
Shankari Prasad, Sajjan Singh and D. C. Wadhwa.
In Gobind vs State of Madhya Pradesh,2as well as in various other cases, the Supreme Court reiterated
and upheld the principle of limited governments and constitutionalism as a fundamental principle of our
constitutional scheme. However, in I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors 3 the
then CJI, Justice YK Sabharwal, while rendering his opinion on the matter of constitutional validity of
29th Amendment Act, elaborated the essence of constitutionalism in following words, “The principle of
constitutionalism is now a legal principle which requires control over the exercise of Governmental
power to ensure that it does not destroy the democratic principles upon which it is based. These
democratic principles include the protection of fundamental rights. The principle of constitutionalism
advocates a check and balance model of the separation of powers, it requires a diffusion of powers,
necessitating different independent centers of decision making. The protection of fundamental
constitutional rights through the common law is the main feature of common law constitutionalism. The
principle of constitutionalism advocates a check and balance model of the separation of powers, it
requires a diffusion of powers, necessitating different independent centers of decision making. The
principle of constitutionalism underpins the principle of legality which requires the Courts to interpret
legislation on the assumption that Parliament would not wish to legislate contrary to fundamental
rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting
fundamental rights to be impliedly repealed by future statutes.”

Years later, in Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr, 4 Justice YK Sabharwal
again while pronouncing judgment again elaborated 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.”
Constitutionalism is about limits and aspirations. This was also in consonance to Upendra Baxi’s idea
of Constitutionalism being antithesis of absolutism and anarchy. In Maru Ram v. Union of India5, the
Court observed that “Article 14 is an expression of the egalitarian spirit of the Constitution and is a
clear pointer that arbitrariness is anathema under our system. It necessarily follows that the power to

1 AIR1973 SC 1461
2 (1975) 2 SCC 148
3 AIR 1999 SC 3197
4 AIR 2006 SC 980
5 1981 SCR (1)1196
pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen,
cannot be a law unto itself but must be informed by the finer canons of constitutionalism.”
Despite not being an explicit part of the Constitution, constitutionalism is its essence. Judicial courts
have at various occasions, not just recognized it but also explained it. Constitutionalism recognises the
need for government but insists upon limitations being placed upon governmental powers.
Constitutionalism envisages checks and balances and putting the powers of the legislature and the
executive under some restraints and not making them uncontrolled and arbitrary. As observed by
Chandrachud, CJ, in Minerva Mills Ltd.6 – “The Constitution is a precious heritage and, therefore, you
cannot destroy its identity'”.
VI. CONSTITUTIONALISM AND LIMITED GOVERNMENT
Limited government is a concept that is closely related to constitutionalism. Constitutionalism is the
idea that a country's constitution should contain provisions that limit the power of the government.
This is to prevent the government from overriding the constitution and acting in an arbitrary manner,
which could threaten the rights of individuals. This is a common problem in dictatorships and
military regimes.
Limited government can be seen as the practical application of constitutionalism. Countries with
limited governments, such as the United Kingdom, the United States, and India, have constitutions
that restrict the government's power. This is seen as one of the greatest achievements of mankind in
the democratic era.
Limited government does not mean that the government should have no power. Rather, it means that
the government should only have the power that is specifically granted to it by the constitution. This
ensures that the government cannot abuse its power and violate the rights of individuals.
In other words, limited government is not about robbing the government of its power. It is about
constitutionally delegating power to the government in a way that preserves the rights of individuals.
VII. FUNCTIONAL ASPECT OF CONSTITUTIONALISM IN THE CURRENT
POLITICAL REGIME
Political powers are derived from the statutes of the constitution itself, and being a written document,
the constitution provides for limited political powers to the govt. and thus forms the core of
constitutionalism. The fundamental rights being the most prominent example of such limitation or
negative covenant over the state (provided through Part-III of the constitution); another such limitation
is the concept of separation of powers (embedded in Article-50), which divides the absolute power of
the state amongst its three organs so none could possess ultimate powers.
However, there are also instances when the political powers at the head of governance could leave out
constitutionalism in some essence or extent. These factors or instances include the times of war or
external aggression, the times of national emergency or times of socio-economic distress.
In the judgment of the famous case of S.R. Chaudhary vs. Union of India (2001), it was highlighted
that the mere existence of a constitution doesn’t by itself mean the existence of constitutionalism; the

6 AIR 1980 SC 1789

political organization system chosen by the people to salvage their political traditions and its spirit and
determination to work out its constitutional salvation does.
The design and character of the Indian Constitution ensures that these goals are achieved and limit the
powers of the executive and legislature through expressed provisions, so the discretion given to them
doesn’t turn to arbitrariness. The federal setup of administration and amendment process with the
negative covenants of the state like fundamental rights and separation of powers all limit the state in a
particular way.