CONSTITUTION V.

CONSTITUTIONALISM (5M)

INTRODUCTION
The concepts of constitution and constitutionalism refer to the legal framework of a
country. While constitution is often defined as the “supreme law of a country,”
constitutionalism is a system of governance under which the power of the
government is limited by the rule of law.
CONSTITUTION
The constitution is the basic law and backbone of a country. A state cannot govern
itself on ad hoc basis without their being some norms to regulate its basic
institutions. Constitution enshrines those norms and is defined as the document
which contains the basic and fundamental law of the nation, setting out the
organization of the government and the principles of the society.
CONSTUTUTIONALISM
According to K.C. Wheare, "Constitutionalism means government according to rule
as opposed to arbitrary government, it means government limited by the terms of a
Constitution, not government limited only by the desires and capabilities of those
who exercise power."
Thus, Constitutionalism is the legal limitation on the Government. It envisages
checks and balances of the power of the Legislature and the executive so that these
two organs do not become uncontrolled and arbitrary.
The doctrine of Constitutionalism suggest, at least the following:-
(a) that the exercise of power be within the legal limits conferred by Parliament on
those with power-the concept of intra vires-and that those who exercise power are
accountable to laws;
(b) that the exercise of power-irrespective of legal authority-must conform to the
notion of respect for the individual and the individual citizen's rights;

(c) that the powers conferred on institutions within a state-whether legislative,

executive or judicial-be sufficiently dispersed between the various institutions so as
to avoid the abuse of power; and
(d) that the government in formulating policy, and the legislature in legitimating
that policy, are accountable to the electorate, on whose trust, power is held.

In S.R. Chaudhuri v. State of Punjab (2001), constitutional restraints must not be

ignored or bypassed if found inconvenient or bent to suit “political expediency”. We
should not allow the erosion of principles of constitutionalism.

CONSTITUTIONALISM IN INDIA
 Article 21 and due process of law
Article 21 of the Indian Constitution provides that life and liberty cannot be
deprived except by a procedure established by law. This means that there has to
be a legal justification for the deprivation of life and liberty of a person.
 Fundamental rights
These are rights that all people have by birth. The government does not grant
these rights, and therefore no government can take them away.
 Written constitution
As the Indian Constitution is written and codified, the government is thus
regulated as it cannot go beyond the limits and mandate of the Indian
Constitution.
 Separation of power
Separation of powers means that the powers of the state are divided among the
three principal organs of the government, which are “the Executive”, “the
Legislature”, and “the Judiciary”. Each of the organs is restricted to transgress its
limits and this system ensures a check on the power of the other, thus restraining
them from acting arbitrarily and unreasonably, without due regard to due
process.

In the State (NCT of Delhi) v. Union of India (2018), Chief Justice Mishra observed
that “The essence of constitutionalism is the control of power by its distribution
among several state organs or offices in such a way that they are each subjected
to reciprocal controls and forced to cooperate in formulating the will of the state.

CONCLUSION
Dr. Rajendra Prasad in his concluding speech as President of the Constituent
assembly observed as follows:
Whatever the Constitution may or may not provide, the welfare of the country will
depend upon the way in which the country is administered. That will depend upon
the men who administer it.
On the same lines, the concept of constitutionalism becomes important so that the
country is administered according to the Constitution and not through the arbitrary
powers in some hands.

A constitution is no guarantee for constitutionalism

A written Constitution is no guarantee for Constitutionalism. Even Nazi Germany had
a constitution but that does not mean that it adhered to the philosophy of
Constitutionalism be it a negative or positive aspect of it.