What is Constitutionalism?
Constitutionalism is a doctrine that states that the authority of the government will be determined through a body of laws or constitution. This is often associated with limited government. In a general sense, Constitutionalism is used to prevent Arbitrariness. Arbitrariness in this context means the ruling of the leaders at their own will and wish. Through Constitutionalism, this can be controlled by the state who can do what and how. Constitutional traditions differ. The classical republican tradition describes arbitrariness as the domination over the ruled by its rulers. To avoid the same, it had established political equality giving equal powers to all the groups to avoid the rulers from ruling without considering the interests of the ruled. The modern liberal tradition explains arbitrariness as the interference within one’s rights. To ensure safety, it believes in Judiciary protecting the constitution and Separation Of Powers. In most of the democracies worldwide, both these traditions are seen complementary to each other. The first tradition gives the country a choice in the design and functioning process which includes the Parliamentary form of Government or Presidential form of Government, Federal or Unitary governments etc. The relationship between the form of government selected through the first tradition is stated in the second tradition. The second system makes sure that every wrong activity of the government and people are governed by the Judiciary. There is criticism on the second tradition. A few question the righteousness of the decisions made by the judiciary. If the Judiciary is better than a democratically elected government.
Types of Constitutionalism?
- Political Constitutionalism:
According to this theory, the three types of polity: Monarchy, Democracy, Aristocracy would after a while lead to Tyranny, Anarchy and Oligarchy respective. The reasoning behind this theory is that if any group or a person is granted with ultimate powers, the power would be used for wrongful means and lead to arbitrariness. To ensure rule against arbitrariness, this tradition believed that there should be a proportion and moderation by combining all these forms. The first element is related to the classic theory of arbitrariness. Arbitrariness refers to a system where a person or a group has sole and ultimate power and they can rule without considering the will and wish of the general public. This tradition believed that this may continue to an extent where the general public would become the slaves of the rulers. A solution to this was equal political power among everyone. If everyone has equal power, a certain group cannot dominate the general public. Further, to reduce the arbitrariness this tradition believed in codependency. This was done to make sure that the other side is heard too. Groups were made interdependent. When groups watch each other, there is a tendency that all the groups would be more vigilant and work for the greater good. They will have the fear of accountability. The third element is to make sure that all the interests of the social groups are protected. These elements can be found in Aristotle’s Politics. He stated the purpose of this is to ensure that no group or individual is ruling with ultimate power. Polybius considered Rome as a great example of this theory. According to his explanation, Rome had these three groups though performed slightly different functions but had to inter-depend on each other for all the functions to be performed. During the 17th and 18th century, this theory witnessed three main changes. A clear cut distinction was brought between legislative, judiciary and executive. Earlier these tasks were performed by all social classes and were governed by all the government bodies. There was a change in the notion of balance. Inspired by the theories of Newton, people started believing in a competition which would indirectly increase their mutual productivity and accountability. The third theory development was the introduction of competition between the government and the opposition. The modern theory proved its Constitutionalism in every possible way. Voting systems, competition between parties gave the public to express their opinion unbiasedly. Further, holding the leaders accountable to the public made them more vigilant and responsible towards citizens. In spite of all the steps taken, democracies across the world are no way near perfect.
- Legal Constitutionalism:
Separation of powers concept was widely developed by the French, American and English Revolutions in the 17th century during the English Civil Wars. Charles, I invoked the mixed government theory in order to suppress the monarchs and lords. The question raised back then was how to control the government in a society which lacks the distinction of rank. The answer to this question was provided by distinguishing between the Legislative, Judiciary and the Executive. This doctrine emerged in its mature form only post drafting of the U.S.Constitution. The reason behind this separation was to make sure that individuals are not judges of their own actions. Further, to provide a clear distinction between the group which makes the laws, which enforces it and implements it. Division of power also reduces the burden on a single group thus leading to efficiency in work. People who were earlier just the commons were now the authors of the constitution. Power has gradually shifted towards people. Constitutions became written documents became the super law which could be amended either directly through people as whole or through their representatives. The goal of all constitutional arrangements has shifted to securing rights to its citizens. These major changes had a great impact on Constitutionalism and moved it towards the judiciary. In the concept of mixed government asking all the groups to work together, they tried to control the power given to those groups. U.S.Constitution made amendments to the mixed government by clearly differentiating between the various groups. IN mixed government theories, Judiciary involvement was very limited and slow in development. The power of Judiciary over the other governments and on its own acts along with mixed government and distribution or separation of power is followed by almost all the countries that adopted democracy post-war.1
What are the elements of Constitutionalism?
According to Louis Henkin, the following are the nine elements of Constitutionalism:
- The government should be formed and working in accordance with the constitution
- There should be a separation of powers
- Sovereignty of people
- Constitutional reviews
- Judiciary should be independent
- Limited government
- Police controlled by law and government
- Civilian control of the military
- No state power
Constitutionalism In India:
India has a written constitution and follows the Rule of Law. Constitutionalism is expected to be a corollary to Indian governance. However, looking at the past six decades functioning of India it cannot be said so. On one hand, administrative power is excellent that they can identify even the smallest mistake. On the other hand, it resulted in excessive bureaucratization and eventual alienation of the rulers from the ruled. THE regions which were backward since the beginning remained the same or worsened in the condition. The gap between the rich and the poor increased day after day2.
I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors.3: In this case, the Supreme Court held that Constitutionalism is now a legal principle in India and it has control over the government to make sure democratic principles are not being violated.
Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr4: In this case, it was stated that Constitutionalism is against absolutism.
Indra Sawhney and Ors. vs.Union of India (UOI) and Ors.5: In this case, the Supreme court held, “Faith in the Judiciary is of prime importance. Ours is a free nation. Among such people, respect for law and belief in its constitutional interpretation by courts require an extraordinary degree of tolerance and cooperation for the value of democracy and survival of Constitutionalism”.
Constitutionalism is a doctrine that states that the authority of the government will be determined through a body of laws or constitution. This is often associated with limited government. In a general sense, Constitutionalism is used to prevent arbitrariness of the government. Two different theories of Constitutionalism are Political Constitutionalism and Legal Constitutionalism. Elements of Constitutionalism are: Government should be formed and working in accordance to the constitution there should be a separation of powers, Sovereignty of people, Constitutional reviews, Judiciary should be independent, Limited government, Police controlled by law and government, Civilian control of the military, No state power. In order to achieve the sole motive of Constitutionalism, India should eradicate corruption.
1. RichardBellamy, Constitutionalism, BRITANNICA,(21 May, 2020), https://www.britannica.com/topic/Constitutionalism/Political-and-legal-Constitutionalism-compared
2. Kiruthika, Constitutionalism, LEGALSERVICESINDIA, ( 21 May, 2020), http://www.legalservicesindia.com/article/1699/Constitutionalism.html
3. I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors, ( AIR 2007 SC 861).
4. Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr ,(1994) 3 SCC 1).
5. Indra Sawhney and Ors. vs.Union of India (UOI) and Ors., ( AIR 1993 SC 477).
Student, Symbiosis Law School Hyderabad
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