Overview: CONSTITUTIONALISM_THE SINE QUA NON OF A DEMOCRATIC SOCIETY

“In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”

― Thomas Jefferson

INTRODUCTION

Constitutionalism can be defined as the doctrine that governs the legitimacy of government action, and it implies something far more important than the idea of legality that requires official conduct to be by pre-fixed legal rules.[1]

The concept of constitutionalism often finds its place in the political theories of John Locke and the founders of the American republic and is all-pervasive in Indian democracy as well. This concept ordains within itself a government that is governed by or under a constitution and the rule of law as against an arbitrary or totalitarian rule. These ingredients of constitutionalism essentially point towards the fact that a constitutional government is necessarily equivalent to a democratic government. Therefore, in a democratic nation, the actions of the government must reflect constitutionality. Constitutionalism is often a tool that checks for the legitimacy of a government’s actions and ensures that the officials conduct their public duties according to the pre-determined/ pre-fixed laws. This, therefore, means that having a constitution alone does not secure or give birth to constitutionalism. Constitutionalism is, thus, much beyond and more important than having a constitution alone.

In the words of Douglas Greenberg, constitutionalism is a commitment to limitations on ordinary political power, it revolves around a political process, one that overlaps with democracy in seeking to balance state power and individual and collective rights, it draws on particular cultural and historical contexts from which it emanates and it resides in the public consciousness.

The idea of constitutionalism is widely known in two senses that are in the descriptive sense and the perspective sense. Used descriptively, it refers chiefly to the historical struggle for constitutional recognition of the people's right to 'consent' and certain other rights, freedoms, and privileges. Used prescriptively, its meaning incorporates those features of government seen as the essential elements of the constitution".[2]

Bernard Schwartz in his five-volume compilation of sources seeking to trace the origins of the U.S. The Bill of Rights precisely describes constitutionalism’s descriptive use.[3] Schwartz begins with the Magna Carta (1215) and gradually explores the development of ideas of individual freedoms and privileges through colonial charters and legal understandings. Moving further, he identifies several revolutionary declarations and constitutions, documents and judicial decisions of the Confederation period and the formation of the constitution of the United States. Finally, he analyses the debates over the ratification of the federal Constitution that ultimately provided pressure for a federal bill of rights. The prescriptive approach, however, describes what a constitution should be instead of describing what constitutions are.

CONSTITUTIONALISM AND DEMOCRACY

An authoritarian government can never be a constitutional government as such governments think of themselves as above the law and in such a system there is no separation of powers or representative governance. As opposed to this, constitutionalism is primarily based on the notion that sovereignty lies within the people and that this sovereignty is to be exercised in a limited manner by a representative government. Just as the mere presence of a constitution does not make countries constitutional, political parties and elections do not make governments democratic, and that the basis of genuine democracies is the sovereignty of the people and not that of the rulers. In a democracy, the representatives elected by the people exercise authority on behalf of the people, based on the will of the people. Without this genuine democracy, constitutionalism cannot exist.

RULE OF LAW AND CONSTITUTIONALISM

The doctrine of rule of law aims at removing this arbitrariness and establishing a government of law. Constitutionalism too embraces this supremacy of law and aims at preventing arbitrariness.

Constitutionalism is based on the supremacy of the constitution, predominance of legal spirit, democratic government, separation of powers, checks and balances, protection of individual rights, and the independence of the judiciary. All these elements also constitute the rule of law and just like the doctrine of rule of law, constitutionalism is also an antithesis of arbitrary rule. Rule of law safeguards this idea of constitutionalism as the supremacy of the constitution can be established only when the supremacy of law is established.

CONSTITUTIONALISM IN INDIA

India is a nation that stands on democratic principles. The doctrine of rule of law is rooted in the governance of the country and every structure and authority is expected to follow it in both letter and spirit. Constitutionalism reflects the governance in India. It was the case of I.R. Coelho v. the State of T.N.[4] that the Supreme Court took the view upon constitutionalism. The Supreme Court observed:

“The principle of constitutionalism 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. Under the controlled constitution, the principles of checks and balances have an important role to play. 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 protection of fundamental constitutional rights through common law is the main feature of common law constitutionalism.”

Thus, one can say that the concept of constitutionalism embraces within itself the element of the separation of powers, checks and balances, protection of the rights of the citizens, etc. thereby establishing a rule of law.

Even before the case of I.R Coelho, the Supreme Court has descriptively explained how constitutionalism and the rule of law are deeply rooted in the Indian system of governance.

In Rameshwar Prasad & Ors. v. Union of India & Anr.[5], the Supreme Court 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.

The idea of constitutionalism is embedded in the Indian Constitution throughout and has been, time and again, protected by the Supreme Court which is evident in several precedents. The elements of the Constitution such as the Preamble, the doctrine of separation of powers, judicial review, rule of law, checks and balances, etc. speak volumes about the presence of constitutionalism in the Indian system of Governance. For instance, the Indian Preamble may be a point to check the presence of constitutionalism. It aims to secure justice for all its citizens and also embodies the concepts of sovereignty, secularism, etc., and is very much a part of the Indian Constitution.[6]

There is no exhaustive list of features by which the validity or existence of constitutionalism can be tested and that every feature that limits the government and provides for the protection of the spirit of democracy and establishes a rule of law may be a considerable point for constitutionalism.

A judge-made constitution, one of the principles of the doctrine of rule of law is pervasive in the Indian system as the judiciary has always protected the rights and aspirations of citizens and limited arbitrariness. Until recently, in the landmark cases of K.S Puttaswamy v. Union of India[7], Joseph Shine v. Union of India[8] and Navtej Singh Johar v. Union of India[9], the Supreme Court has protected the fundamental rights of the citizens thereby upholding the sanctity of the constitution and constitutionalism.

The coronavirus pandemic may have brought the nation to a halt but it could not halt the rule of law and constitutionalism from being effective. The migrant labor crisis of which the Supreme Court took suo- moto cognizance to prevent the crisis and restoring the faith of the citizens in the ideas and philosophies, could not have been prevented had there been no rule of law and constitutionalism.

Criticism of the Concept

However sacred is the concept of constitutionalism, it cannot also be denied that it has met with several criticisms and has been a subject of criticism by several anarchist thinkers. Murray Rothbard contended that constitutions are incapable of restraining governments and do not protect the rights of the citizens. He, thus, coined the term “anarcho-capitalism”. Constitutionalism should not be just limited to retaining and limiting power but it is more about the empowerment of ordinary people in a democracy and allow them to control the sources of law and harness the apparatus of government to their aspirations. This effectively points towards having an alternative form of constitutionalism that is “democratic constitutionalism” or “popular constitutionalism”.

Conclusion

George Will rightly said that the essence of constitutionalism in a democracy is not merely to shape and condition the nature of majorities, but also to stipulate that certain things are impermissible, no matter how large and fervent a majority might want them.

Constitutionalism, therefore, forms the basis for the rule of law and effectively binds the democratic principles to keep them together from falling apart. This is apparent from the judgment of M. Nagraj v. Union of India[10], where the Hon’ble Supreme Court observed the following:

“Constitutionalism is about limits and aspirations. The Constitution embodies aspiration to social justice, brotherhood, and human dignity. It is a text which contains fundamental principles.”

Thus, it is the concept of constitutionalism that protects the rights of the citizens and protects from the whims and fancies of men thereby establishing a rule of law that upholds the legal spirit.

[Author Kairvi Shashi is a 3rd-year BBALLB Student of Vivekananda Institute of Professional Studies(GGSIPU), New Delhi.]

[1] Hilaire Barnett, Constitutional and Administrative Law 5 (London: Cavendish Publishing Limited, 3rd ed., 2000(1995)

[2] Leonard Levy, ed., Encyclopedia of the American Constitution, (Gerhard Casper, "Constitutionalism"), vol 2, p. 473 (1986) ISBN 978-0-02-864880-4.

[3] Bernard Schwartz, The Roots of the Bill of Rights (5 vols., Chelsea House Publisher, 1980) ISBN 978-0877542070.

[4] (2007) 2 SCC 1: AIR 2007 SC 861

[5] Writ Petition (civil) 257 of 2005

[6] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225

[7] (2017) 10 SCC 1

[8] 2018 SCC OnLine SC 1676

[9] (2018) 10 SCC 1: AIR 2018 SC 4321

[10] (2006) 8 SCC 212